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Criminal Appeal No. 81 of 1983/BWP, decided on 28th February, 1987.

---S.302/325/323/34--Statement of prosecution witnesses belied on number of injures given by accused to deceased--No evidence existing on file to pinpoint as to who had caused specific injury--Trial Court ignoring principle of consistency by convicting accused who could not be singled out by appraisal of evidence on file--Occurrence adjudicated to be a sudden flare up but accused were convicted under S.302/34, Penal Code on the guess and surmise and not or basis of cogent evidence although accused could not be differentiated from acquitted co-accused--Benefit given to latter could be given to accused--Accused thus given benefit of doubt and acquitted in circumstances.

Malik Muhammad Qasim and A. R.

Tayyab for Appellants.

Nazir Ahmad Bhatti for the State.

Date of hearing: 28th February, 1987.

The illegality of the judgment dated 30-8-1983, pronounced by the learned Additional.Ses ions Judge-I, Bahawalnagar, has been questioned in this appeal, who had convicted Zahoor alias Zahoori and Bashir Ahmad, appellants, under section 302/34, P.P.C. and had awarded them life imprisonment and a fine of Rs. 7,OOO.each. In default of the payment of fine, they were directed to suffer one year's rigorous imprisonment each. The fine, if recovered, was directed to be paid to the heirs of Nias Ahmed deceased. They have also been convicted under sections 325/323, P.P. C. Under section 325 P. P. C., they have been awarded one year's R.I. and a fine of Rs. 500 each, or in default thereof to undergo further rigorous imprisonment for three months each. Under section 323 P. P. C., they have been ordered to undergo three months R.I., and a fine of Rs. 200 each. In default of the payment of this fine, each of them has been directed to suffer fifteen days' R.I. All the sentences were ordered to run concurrently.

2. The facts of this case, in brief, are that on 31-8-1981, in the afternoon, in the area of Chah Samandey Wala, village Sanatteka, Police Station Takht Mahal, the appellants alongwith Ghulam Farid, Muhammad Yar, Ahmad Yar, Atta Muhammad and Sajwara, formed an unlawful assembly and in prosecution of their common object of the said unlawful assembly, they trespassed into the Haveli of Niaz Ahmad and intentionally caused his death and grievously injured Mumtaz, Mst. Pans, Mst. Baigan and Mst. Sama. The complainant party was constructing the roof of one of the rooms at Chah Samandey Wala and Bashir, Zahoor and Farid sons of Chakar, were grazing their cattle in the vacant land near the cotton crop of Niaz Ahmad deceased. One of their oxen strayed and damaged the cotton crop of Niaz Ahmad. Mst. Zaiban wife of Niaz Ahmad remonstrated and exhorted them to drive away their oxen from their cotton crop. Mst. Zaiban wife of Farid, who was present nearby, hurled invectives on Mst. Zaiban wife of Niaz Ahmad and both the parties exchanged abuses. Mat. Zaiban wife of Farid hurled lalkara to her brothers that Mst. Zaiban wife of Niaz and Niaz were beating her and all the accused and one Farid, who died during the trial of this case, went armed with Sotas and gave blows to Niaz, Mumtaz, Mgt;. Pans and Mst. Baigan. Niaz Ahmad succumbed to the injuries.

3. Ghulam P.W.7 went to lodge a report and "he met the police officer on his way. He lodged the F.I. R. Exh. P. D. on the same day at 6-30 p.m., which was recorded by Nazir Ahmad. The police went to the spot and prepared the injury statement and the inquest report in respect of Niaz Ahmad deceased. The injured were got examined by the Medical Officer. Sotas were recovered From the appellants and others, which were not found blood-stained and their recoveries have been disbelieved. After the completion of the investigation, the challan of the appellants and their accomplices was submitted. As stated earlier, one Farid, the accomplice of the appellants, d-fed during the trial of this case, whereas Muhammad Yar, Ahmad Yar, Atta Muhammad and Sajwara were acquitted of the charges framed against them and the appellants were convicted and sentenced as stated supra..

4.Dr. Muhammad Ramzan Shamsi P.W.2 had performed the autopsy on the dead body of Niaz Ahmad and had found the following injuries:-

(1) A swelling over the right temporal fossa 3" x 2" direction oblique.

(2) Swelling on left temporal fossa 311 x 211 direction oblique.

(3) A swelling over the vertex of the head anterio posterior 4" x 311 .

5. In the opinion of the Medical Expert, the death of Niaz Ahmad occurred on account of haemorrhage and extensive fractures of skull and all the injuries caused by a blunt weapon were sufficient to cause death in the ordinary course of nature.

6. The said doctor also medically examined Mst. Pans; Mat. Sama, Mat. Baigan and Mumtaz and listed the following injuries on each of them:-

MST. PANA:

(1) A contusion alongwith swelling on the back of the route of neck measuring 4" x 1"- and was horizontal in direction.

(2) A contusion on the back of lower part of right chest measuring 3" x 1" horizontal in direction.

MST. SAMA:

A contusion on the outer aspect of right thigh at about its middle. The injury was 3" x 1" in size and was transverse in direction.

MST. BAIGAN:

A contusion on the front of the left shoulder 2" x 1" in size and oblique in direction.

MUMTAZ:

(1)A lacerated wound at the lateral end of right eye-bravo which was horizontal in direction and was 11" x 1/8" x 1/8" in size.

(2) A lacerated wound about 1i" x I" x I" at the middle of the back of the head direction oblique.

(3) A contusion on the back of upper part of left forearm transverse in direction and was of the size of 2" x 2". The forearm was swollen at this level.

(4) A contusion on the back of left shoulder 3" x 1" horizontal direction..

(5) An abrasion on the back of terminal phalynx of right thumb " x " in size and oblique in direction.

7. The injuries on the person of Mst. Pans, Mst. Soma and Mst. Baigan were found simple in nature, whereas injuries sustained by Mumtaz, except injury No.3, were found simple in nature arid after the X-ray report, injury No.3 was declared to be grievous.

8. Ghulam P.W.7 who is the complainant and the father-in-law Niaz Ahmad deceased, has narrated the incident as stated above and has convincingly deposed that all the eight accused had caused injuries, to Niaz Ahmad and Mumtaz. Mumtaz P.W.8 has also narrated the incident as stated above and has reiterated that all the accused has given beating to Niaz Ahmad deceased. Similarly,' Mst. Baigan P.W.9 and Mst. Soma P.W.10 have unanimously stated that all the accused gave Sota blows to Niaz Ahmad and others.

9. Nazir Ahmad A.S.I. P.W.11 has conceded that the statement of Mst. Zaiban wife of Niaz Ahmad deceased was not recorded under section 161, Cr.P.C. nor did she appear before him throughout the period of investigation.

10. The appellants when examined under section 342, Cr.P. C. have explained as under: -

"Mst. Zaiban, her husband Farid son of Samanda decease: and Akbar son of Sattar were grazing cattle. One of the cattle went into the fields of Niaz deceased upon which Mst, Zaiban wife of Niaz deceased complained and abused the other Mst. Zaiban and also shouted for inmates. Mst. Baigan, Mst. Saman, and Mst. Pana came there. Mst. Zaiban wife accused Farid gave them stick blows. On account of the above, the womanfolk shouted to their men for help. Deceased Niaz and Mumtaz came running and gave dirty abuses to Mst. Zaiban wife of Farid upon which Farid and Akbar gave Dang blows to deceased Niaz and Mumtaz P.Ws. as a result of which Niaz died at the spot. All this occurrence took place in the fields. The witnesses are related to each other and because of the death of Niaz and injuries to Mumtaz, they have implicated whole of the family."

In defence, Mst. Zaiban widow of Farid D.W.1 and Akbar D.W.2 have been examined, who have put the blame of injuries of Niaz Ahmad deceased and the other P.Ws. on Farid deceased and Akbar. Both of them have been disbelieved by the learned trial Court.

11. The learned trial Court was influenced by the fact that Mumtaz P.W.8 had deposed that Mst. Zaiban had called her brothers as to what they were looking for and, therefore, the appellant had beaten Niaz Ahmad and others. The record does not show this, because Bashir appellant is not her brother, whereas Zahoor, Ahmad Yar, Muhammad Yar and Ghulam Farid are stated to be the brothers of Mst. Zaiban and in the circumstances the responsibility of injuring Niaz Ahmad and others could not be placed on Zahoor and Bashir alone.

12. The complainant as well as the injured P.Ws. have unanimously stated that all the eight accused had given Dang blows to Niaz Ahmad and to them. Niaz Ahmad sustained only three injuries and the statement of the P.Ws. is belied by this fact that only three persons had caused injuries to Niaz Ahmad. The evidence on the file does not pinpoint the accused who have caused a specific injury. Farid, one of the accused, had died and the others-have been acquitted. The learned trial Court has ignored the principle of consistency by convicting the appellants, who could not be singled out by the appraisal of evidence on the file. Strangely enough, it was adjudicated to be a sudden flare up, but the appellants have been convicted under section 302/34, P.P.C. Mr. Nazir Ahmad Bhatti, Advocate, the learned State counsel, could not point out any evidence on the file to show how the learned trial Court could convict Zahoor and Bashir appellants. They have beer. convicted on the guess and surmise and not on the basis of cogent evidence. The appellants could not be differentiated and the same benefit should have been extended to the appellants, as was given in case of the acquitted accused. I, therefore, accept this appeal, extend benefit of doubt to both the appellants and acquit them of all the charges framed against them. They may be set at liberty forthwith, if not required to be detained in any other case.

M. Y. H./Z-15/L Appeal accepted.

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