Lawyers Directory Listing
Unlock direct contact details for up to 10 lawyers so you can call or WhatsApp the right legal professional and move your matter forward with confidence.
Criminal Appeal No.23 of 1985, heard on 17th December, 1986.
---S.302--Evidence, appreciation of--Benefit of doubt--F.I. R. lodged after deliberations and in dubious circumstances--Prosecution witnesses interested, related to deceased and accused in counter-case relating to same occurrence--Statement of such witnesses also suffering from material contradictions and major discrepancies and in conflict with medical evidence-,-Eye-witnesses also suppressing injuries found on the person of accused coupled with the fact that their statement recorded 3 days after occurrence and no independent corroboration of their evidence qua accused forthcoming--Accused given benefit of doubt and acquitted, in circumstances.
Sahibzada Farooq Ali Khan and Altaf Ibrahim Qureshi for Appellants.
Akhtar Masood assisted by Syed Zawar Hussain Shah for the Complainant.
Date of hearing: 17th December,1986.
This Criminal Appeal arises from the judgment of learned Additional Sessions Judge, Vehari, whereby he on 2-2-1985 while acquitting Muhammad Nawaz and Sultan co-accused, convicted Muhammad Nazir (40), Khan Muhammad (45), Muhammad Bashir (30), Fazal Elahi (27) -and Ahmad Khan (44) under section 302/149, P.P.C. for causing the death of Muhammad Ajayab aged 35 years and sentenced them to imprisonment for life and a fine of Rs.10,000/- each, in default thereof 2 years' R.I. each. The appellants namely Muhammad Aslam and Muhammad Yousaf were convicted under section 307/34, P.P.C. for murderous assault on Muhammad Anar, Muhammad Hayat and Muhammad Khan P.Ws. and sentenced to 10 years' R.I. and a fine of Rs.5,000/- each, in default thereof 2 years' R.I. each. It was directed that the fine if recovered be paid to the legal heirs of the deceased and injured P.Ws.
2. The occurrence took place on 25-7-1982 at 9-00 A.M. in the area of Chak No.144/W. B., Police Station Mitru. The FIR Ex.PF was lodged by Ghulam Hussain P. W.9, the cousin of the deceased at Police Post Tibba Sultanpur and was recorded by Agha Zulfiqar Ahmad P.W.10. The distance between the police post and the place of occurrence is one mile.
3. The motive as alleged by the prosecution was that 4 days before the occurrence, Muhammad Ajayab and Muhammad Khan, injured P.Ws. had insulted Muhammad Nazir appellant and gave him beating because of old enmity.
4. As far the main occurrence, it has been stated that at the fateful time Ghulam Hussain P.W.9 alongwith Ghulam Abbas (given up P. W.) were going to Tibba Sultanpur. At that time Muhammad Ajayab deceased, Muhammad Hayat, Muhammad Anar and Muhammad Khan P.Ws. were going ahead of them. When they covered a distance of two squares from the Chak, a wagon No.DG-5702 driven by Muhammad Yousaf crossed them and stopped near the deceased and the P.Ws. The seven appellants alongwith 2 acquitted accused alighted from the wagon. They all were armed with sotas. Bashir appellant opened attack by causing dang blow on the head of the deceased. Khan Muhammad appellant gave sota blow to Ajayab deceased on his head. Muhammad Yousaf appellant gave a dang blow on the head of Muhammad' Anwar P.W. Sultan, acquitted accused, gave dang blow on the left arm of Muhammad Hayat P.W. Muhammad Nawaz, acquitted accused, gave sota blow on the back of Muhammad Khan P.W. Muhammad Aslam appellant gave sota blow on the head of Muhammad Anwar. Ahmad Khan and Fazal Elahi appellant gave sota blows on the back and on the buttocks of the deceased. Muhammad Nazir appellant gave a dang blow on the right leg of the deceased. Muhammad Ajayab deceased and Muhammad Anar P. W. fell down. All the accused gave them dang blows. Thereafter; at the intervention of the complainant, the appellants and the acquitted accused ran away alongwith their respective weapons in the wagon. The injured were taken to the hospital where Ajayab succumbed to the injuries.
5. P.W.6 Lady Doctor Mrs. Nasreen Attiq Bajwa, medically examined Muhammad Anar P.W. on 23-7-1982 and found 11 injuries on his person. All the injuries except injury No.8 were simple, caused by blunt weapon. On the same day, she examined Muhammad Hayat P. W. and found 5 injuries on his person. Injury No.l was declared as grievous. The injuries were caused by blunt weapon. She also examined Muhammad Khan P.W. and found 5 simple injuries on his person. All the injuries were caused by blunt weapon.
6. On 24-8-1982, Dr. Abdul Ghaffar P.W.11 conducted post-mortem examination on the dead body of Muhammad Ajayab deceased. He found following injuries on his person.
"(1) Lacerated wound 5 c. m. x 1 c. m. x bone deep on back of head 8 c. m. back to left ear.
(2) Lacerated wound 3 cm x 1 cm x bone deep on right side of head 7 cm above right ear.
(3) Lacerated wound 2 cm x 1 cm x bone deep on back of left upper arm 9 cm above left elbow.
(4) Lacerated wound 2 cm x 1 cm x muscle deep on back 'of left upper arm 1 cm below injury No. 3.
(5) An abrasion with contusion mark 14 cm x 3 cm on back of left forearm in mid area.
(6) Contusion mark 6 cm x 1 cm on front of left leg in mid area.
(7) Lacerated wound 3 cm x 2 cm x bone deep on front of left leg 5 cm below injury No.6.
(8) Lacerated wound 2 cm x 1 cm x bone deep on antero medial aspect of right leg 8 cm below right knee joint.
(9) Lacerated wound 2 cm x 1 cm on front of right leg 10 cm above right ankle joint, underneath both bones were fractured, there was profused bleeding from his wound.
(10) Contusion mark 11 cm x 2 cm on back of right thigh in mid area.
(11) Contusion mark 14 cm x 2 cm crossing injury No.10 at its middle on back of right thigh.
(12) Bruised area 46 cm x 26 cm on back of chest and abdomen. From left scapular region to right lumber region (back), due to multiple blunt blows.
(13) Contusion mark 11 .cm x 3 cm on left buttock in horizontal line in upper half.
(14) Contusion mark 13 cm x 3 cm on left buttock crossing injury No.13.
The cause of death was shock due to cumulative effect of all the injuries found on the dead body. Injuries Nos.9 and 12 were grievous. The injuries were caused by blunt weapon. The duration between injuries and death was 1 to 6 hours and between death and post-mortem about 24 to 36 hours.
7.The appellants were arrested on 1-8-1982 by Zulfiqar SHO, P.W.10. On 8-8-1982, Muhammad Aslam, Fazal Elahi, 1 Yousaf and Ahmad Khan appellants led to the recovery of dangs Exs.P.3, P.7, P.8 and P.9, respectively, which were taken into possession vide memoranda. Exs.PL, PQ, PR and PS. These dang were not stained with blood. On the same day Nazir, Khan Muhammad and Muhammad Bashir led to the recovery of blood-stained dangs Exs.P.4, P.5 and P.6 respectively, which were taken into possession vide memoranda Exs.PM, PN and P0. All the memoranda were attested by Muhammad Feroz and Ghaus Muhammad (both not produced). If may be noted that these recoveries have been disbelieved by the trial Court in para. 22 of the judgment.
8. To prove its case prosecution examined 11 witnesses in all. Muhammad Anar P.Ws.7, Muhammad Hayat P.W.8 and Ghulam Hussain P.W.9 have given the ocular account of the occurrence. They claim to have seen the appellants and the co-accused alighting from the wagon and thereafter causing death of Muhammad Ajayab and injuries to the P.Ws. Lady Doctor Mrs. Nasreen Attique Bajwa, P.W.6 had medically examined Muhammad Anar, Muhammad Hayat and Muhammad Khan P.Ws. She has proved the medico-legal reports. Dr. Abdul Ghaffar P.W.11 had conducted post-mortem examination on the dead body of Muhammad Ajayab deceased. He proved the post-mortem report.; The aforesaid eye-witnesses had also deposed about the motive. Agha Zulfiqar Ahmad S.I., P.W.10 had conducted the investigation. The rest of the evidence is more or less of formal nature.
9. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances. Except Bashir and Khan Muhammad, the other appellants denied their presence and participation in the occurrence. Muhammad Bashir and Khan Muhammad had raised the plea of self-defence. In reply to the question, "Why this case against you ", Muhammad Bashir stated:-
"The factual position is that I and Khan Muhammad accused own land jointly Anar and Ajayab deceased also had their land adjacent to our land. On the fateful day at about 4/5 A.M., I alongwith Khan Muhammad accused had gone to feed our cattle, Anar and Ajayab deceased initiated attack upon us. They had been pressing us to depose in favour of Aziz. I and Khan Muhammad accused had received injuries at the hands of Ajayab, Anar and in self-defence we had caused injuries to them. The police did not get us medically examined and suppressed Court injuries in order to suppress the aggressive role of Anar P.W. and Ajayab deceased. Muhammad Hayat and Muhammad Khan P.Ws. were not present at the time of occurrence."
Khan Muhammad appellant made almost similar statement. In defence Dr. M.A. Rauf was produced to prove injuries found on the person of Bashir and Khan Muhammad appellants. He found following injuries on their person: -
(1) A healed scar 21 c. m. in length on the right side of head 6 c. m. above the ear.
(2) A healed scar 1 c.m. in length on the front of left side of Index head.
INJURIES OF KHAN MUHAMMAD
(1) A healed scar 2 c. m. in length on the back and top of head.
(2) A healed scar 1 c.m. in length on the discerption of index finger.
10. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond was reasonable doubt in that the eye-witnesses are not reliable as they are interested witnesses and there is no independent corroboration of their statement; that the FIR was recorded after deliberation and that the statements of the eye-witnesses suffer from infirmities such as material contradictions with the statements recorded under section 161, Cr.P.C. and the medical evidence. On the other hand, the learned counsel for the State assisted by the learned counsel for the complainant has supported the judgment of the trial Court. They maintained that the eye-witnesses namely Muhammad Anar P.W.7 and Muhammad Hayat P.W.8 are injured witnesses whose presence at the time of occurrence cannot be disputed and that the learned trial Court has given sound reasons in support of its judgment.
11. I have considered the submissions made by the learned counsel for the parties with care and have appreciated the evidence in accordance with the guiding principles laid down by- the superior Courts for the appreciation of evidence in such like cases. I proceed to discuss the prosecution case first in order to arrive at the conclusion with regard to the truth or falsity of the prosecution case and its evidence, more particularly, the eye-witnesses. The FIR in this case does not seem to be a genuine document. It appears that the same was not only deliberated one but was lodged under dubious circumstances, inasmuch as Hayat P.W.8 stated that the concerned Police Post was on the way to the hospital and that Ghulam Hussain P.W.9 had visited the police post immediately after the occurrence but the Sub-Inspector had refused to register the case and had rather directed him to get the witnesses medically examined and only then the case will be registered. Ghulam Hussain complainant has categorically stated that:
"I suggested to the injured P.Ws. that I should lodge the report at the Police Post but they told me that first they should be taken to Vehari and then case should be registered. In spite of that I went to the Police Post. I was told by the ASI that first I should get the injured examined and then case should be registered. I told the A.S.-I. that Ajayab had died. Then I took the injured to Vehari. I got them medically examined and obtained their certificates. It is correct that I got the case registered under the instructions of the injured P.Ws. We did consult each other but I had made my statement what I was told by them. They told me that they were two acres behind the place of occurrence and were conversent with the assailant."
In the last line of his cross-examination, he categorically stated that the FIR was lodged at the instance of Hayat and others. He also stated that some more persons from the adjacent vicinity had also seen the occurrence but since they were not prepared to give evidence,
therefore, he did not give their names in the FIR. In the circumstances narrated above, I am of the view that the foundation of the prosecution case is highly shaky and it would be most dangerous to rely on this document. (sic) find that they are related and interested witnesses. They were accused in the counter-case under section 325/34, P.P.C. relating to the same occurrence. Some of the accused were prosecution witnesses against them in the counter-case. Their statement suffer from infirmities such as material contradictions and major discrepancies with their statements under section 161, Cr.P.C. and the medical evidence. They have been duly confronted as required by law. Muhammad Anar P.W.7 had stated that except the eve-witnesses named by him, no one else from the surrounding villages had reached the spot and that no alram was raised by them at that time whereas it transpires from the statement of Hayat- P.W.8 and Ghulam Hussain P.W.9 that many persons from the surrounding villages were not only attracted on the alarm raised by the prosecution witnesses but had actually seen the occurrence. Strangely enough, they have neither been named in the FIR nor have been examined as prosecution witnesses. Muhammad Anar and Muhammad Hayat P.Ws. had got themselves medically examined privately. The three eye-witnesses have suppressed the injuries found on the person of Bashir and Khan Muhammad appellants. This shows that they have given evidence with a motive other than that of telling the truth. Furthermore, the statements of Hayat P.W. and Muhammad Anar P.Ws. were recorded by the police 3 days after the occurrence although they were not unconscious in the hospital, as stated by Hayat P.W.8. My independent assessment of the ocular evidence is that the same is not consonance with probabilities, does not fit in with the other evidence and there is darkness and confusion all around. In any case, the rule of prudence requires independent corroboration of their statement. More particularly when the two co-accused namely Sultan and Muhammad Nawaz to whom the eye-witnesses had attributed active participation in the occurrence have been acquitted by the trial Court and neither any :peal nor any revision has been filed against their acquittal.' For all these reasons I declare the 3 eye-witnesses as wholly undependable. There is no independent corroboration of the statements of the eve-witnesses qua the appellants.
13. So far as the plea of self-defence of person raised by Muhammad Bashir and Khan Muhammad appellants is concerned, I am of the view that since the prosecution evidence has been disbelieved by me, therefore, there is no option but to accept their statements as a whole. It would be too much to condemn them out of their own mouth after having rejected the prosecution case and its evidence.
The upshot of the above discussion is that there being no satisfactory basis to uphold the conviction of the appellants, while giving them benefit of doubt they are acquitted or the charges. They shall be released forthwith if not required to be detained in any other case. Resultantly the appeal is accepted.
S. G. D./M-218/L Appeal allowed.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer