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Criminal Appeal No. 2 of 1986, decided on 8th November, 1986.

‑‑S. 302/149‑‑Acquittal of co‑accused on basis of opinion of Investigating Officer‑‑Appreciation of evidence‑‑Opinion of Investigating Officer although not binding on Court yet if Court chose to accept same, such course of action, held, could hardly be assailed unless it was done perversely‑‑Finding of Trial Court about innocence of co accused, however, would not render entire prosecution evidence liable to rejection‑‑No hard and fast rule could be laid down because appraisal of evidence was most intricate subject in administration of justice‑‑Golden principle of giving due weight to findings of Trial Court who had opportunity to see, hear and notice demeanour of witnesses should be adhered to.

‑‑S. 302/149‑‑All accused named in First Information Report‑ Accumulative effect of entire ocular testimony showing that accused had in fact participated in occurrence‑‑Version of prosecution that incident occurred in two places not convincing‑‑Evidence on motive also feeble‑ What actually preceded occurrence not known‑‑All accused caused one injury each on vital part in furtherance of their common intention which was formed at spur of moment, resulting in death of deceased‑ Conviction of accused altered from one under S. 302/ 149, P.P.C. to one under S. 302/34, P.P.C. and sentence of life imprisonment awarded to them maintained in circumstances.

‑‑‑S. 302/148/149‑‑Case of co‑accused distinguishable from other accused who had given Sota blows on head of deceased‑‑Conviction of co‑accused under S. 302/148/149, P.P.C. altered to one under S. 307, P.P.C. and their sentence of imprisonment for life reduced to imprisonment already undergone by them.

Malik Muhammad Qasim for Appellants.

Ali Ahmad Awan for the State.

Muhammad Akram Sheikh for the Complainant.

Dates of hearing: 21st, 22nd April and 25th June, 1986.

Shah Muhammad son of Pehalwan, Manzoor son of Sultan Mahmood, Allah Yar son of Muhammad Hussain, Abdul Ghafoor Phiddi son of Sultan Mahmood, Arshad Mahmood alias Achhu son of Muhammad Younas, Atta Muhammad son of Pehalwan alongwith four others namely, Shaban, Afzal, Bashir and Yasin were tried by the learned Additional Sessions Judge, Sahiwal on charges under section 302/307/148/149, P.P.C. for causing murder of Khadim Hussain and for inflicting injuries to Bashir and Siraj.

Vide his judgment, dated 16‑11‑1982, learned trial Judge acquitted Shaban, Afzal, Bashir and Yasin of the aforesaid charges, while appellants were convicted under section 148, P.P.C. and were sentenced to undergo rigorous imprisonment for a term of one year. On the charge under section 302 read with section 149, P.P.C. for the murder of Khadim Hussain, each of the appellants was sentenced to undergo life imprisonment and to pay a fine of Rs. 2,000 or in default of the payment of fine to suffer further rigorous imprisonment for a period of one year. On the charge under section 307/149, P.P.C. each of the appellants was sentenced to suffer rigorous imprisonment for a period of three years. It was further ordered that the fine if recovered, half of it shall be paid as compensation to the heirs of the deceased.

It may be stated here that Shaban, Afzal, Bashir and Yasin were acquitted because during the investigation they were found innocent and the Court witness Shaukat Javaid, A.S.P., Pakpattan who had also investigated this case had affirmed their innocence in the witness‑box.

2. The occurrence resulting into the death of Khadim Hussain and injuries to the eye‑witnesses took place at 5 p.m. on 29‑8‑1978 in Mohallah Pir Karian of Darbar Miana and another part of occurrence took place near the Bungalow of Mufti Sahib in Pakpattan Sharif.

The injured were removed to the hospital, where the information was sent to the police about the occurrence. On the receipt of this information Muhammad Bakhsh A.S.I. reached the hospital where he recorded the statement of Bashir Ahmed at 8‑30 p.m. and sent the same to the police station situated at a distance of three furlongs from the place of occurrence and on the basis of this‑statement formal F.I.R. Exh. P.B./1 was recorded at the police station at 8‑45 p.m. and it was drawn by Muhammad Afzal, Moharrir Head Constable P.W. 10.

3. The prosecution story as unfolded in the F.I.R. is that on the fateful day at 5 p.m. Bashir Ahmad complainant heard hue and cry raised at Darbar Baba Peer Miana, in Mohallah Peer Karian. The complainant left his house and rushed to the scene of occurrence. On reaching there, he noticed that appellants Manzoor, Arshad alias Achhu, Yasin son of Shafi (acquitted co‑accused) Allah Yar appellant, all armed with Sotas were inflicting Sota blows to deceased Khadim Hussain, the complainant's real brother. The complainant also raised flue and cry which attracted Siraj, Hiray Khan and Boota, the neighbourers of the complainant and they all attempted to rescue the deceased, when suddenly appellant Arshad alias Achhu, not only inflicted a Dang blow on the head of the complainant but also injured Siraj and Boota. According to the complainant many other persons were attracted and thus, the appellants named above took to their heels. Another brother of the complainant, namely, Sardar Muhammad, Muhammad Asghar and Muhammad Rafiq also reached the scene of occurrence and the complainant and other injured proceeded for medical aid. When the complainant party reached near the Bungalow of Mufti Sahib, they were again attacked by appellants Manzoor, Arshad alias Achhu, Allah Yar, Shah Muhammad, Abdul Ghafoor alias Phrddi, Atta Muhammad and the acquitted co‑accused. The deceased, Khadim Hussain in this second part of the occurrence was allegedly injured by Arshad alias Achhu, Allah Yar, Abdul Ghafoor alias Phiddi and Shah Muhammad appellants who inflicted Sota blows on the head and body of the deceased. The complainant was also given Sota blows by the appellant Manzoor and Yasin acquitted co‑accused. Siraj Din and Boota who were already injured alongwith Asghar, Rafiq and Sardar Muhammad the brother of the complainant tried to rescue the victims of the attack, but all in vain, and appellants thus, after carrying out the object escaped from the scene of occurrence.

The motive for the crime as narrated in the F.I.R. is that the appellants were womanizers and used to tease women in Mohallah. The complainant side used to object to such conduct of the appellants and, therefore, bearing this grudge it was alleged, that the appellants and the acquitted co‑accused had caused injuries to Khadim Hussain deceased and the other P.Ws.

Initially the case was registered under section 307 read with section 148/149, P.P.C. but on the death of Khadim Hussain deceased in the hospital on 30th August, 1978, the registration of the case was converted into one under section 302, P.P.C.

On 8‑9‑1978 the appellants and the acquitted co‑accused except Yasin were produced before the Investigating Officer by the landlord of the area whereupon they were arrested. On 9‑9‑1978 the appellants and all the acquitted co‑accused except Afzal and Bashir while in police custody led to the recoveries of Sotas, which were taken into possession, by the police vide various memos. None of these Sotas was blood‑stained.

4. ,At the trial the prosecution placed reliance upon the ocular testimony, the medical evidence, the evidence as to the recovery and motive. The ocular testimony was furnished by Bashir P.W.2, Siraj P.W.3 who are injured and Muhammad Asghar P.W.4. The other injured eye witnesses cited in the F.I.R. namely, Boota, Muhammad Ali and Muhammad Shaban were not produced. Similarly, Sardar Ali and Muhammad Rafiq who were also cited as eye‑witnesses were also given up by the prosecution.

5. Adverting to the medical evidence, the autopsy on the dead body of Khadim Hussain was conducted by Dr. Mushtaq Ahmad, Medical Officer, Okara P.W. 8 and the following injuries were noticed:‑‑

(1) A lacerated wound 1/2" x 1/4" x bone deep on the right side of head.

(2) A red contusion 2‑ 1/2" x 3/4" on the left side of head.

(3) A red contusion 2‑1/2" x 3/4" on the right side of head.

(4) A red contusion 2" x 1" on the right side of forehead.

(5) The upper and lower eyelids of right eye were swollen.

(6) A red contusion 3‑1/2" x 3/4" on the left thigh.

(7) An abrasion 2‑1/4" x 1/4" on the front of left leg.

(8) A red contusion 2‑1/2" x 3/4" with abrasion 3/4" x 1/8" on the left thigh outer side.

(9) An abrasion 1/2" x 1/4" on the left elbow.

In the opinion of the doctor the cause of death was shock and brain haemorrhage. Injuries Nos. 1, 2, 3 and 4 were fatal and were sufficient to cause death in the ordinary course of nature. Siraj Din was also examined by the said doctor and following 7 injuries were noticed:‑‑---

(1) An abrasion 1/4" x 1/4" on the bridge of nose.

(2) A lacerated wound 1/4" x 1/8" x skin deep on the left elbow.

(3) An abrasion l/3" x 1/4" on the right forearm.

(4) A red contusion 1‑1/2" x 1" on the back of left chest.

(5) A red contusion 3‑1/2" x 1/2" on the left side of back of chest lower part.

(6) A red contusion 4" x 1/2" below injury No. 5.

(7) A red contusion 2‑1/2" x 1/4" on the left knee.

6. Similarly, Bashir Ahmad was also examined and following 6 injuries were noticed:‑‑

(1) A lacerated wound 2‑1/4" x 1/2" x bone deep on the right side of head.

(2) A red contusion 6" x 1/4" on the back of right side of chest.

(3) A red contusion 2 x 1/2 on the back of left shoulder.

(4) A red contusion 2‑1/2" x 1/2" on the back of right shoulder.

(5) A red contusion 1‑3/4" x 1/4" with swelling 4‑1/2" x 4‑1/2" on the back of left hand.

(6) A red contusion 5" x 3/4"with abrasion 1/4" x 1/8" on the right arm.

Injury No. 5 on the person of Bashir Ahmad was declared grievous. The other injured eye‑witnesses namely, Boota, Muhammad Ali, Shaban were also examined by the said doctor. On the person of Muhammad Ali two simple injuries caused with a blunt weapon were noticed. On the person of Shaban also two simple injuries caused with blunt weapon were noticed.

With the help of the learned counsel for the appellants Malik Muhammad Qasim, Advocate and learned counsel for the complainant namely, Mr. Muhammad Akram Sheikh, Advocate, and counsel for the State, I have carefully perused the entire evidence on the record. Learned counsel have also been heard at length. It was submitted by the learned counsel for the appellants that if the occurrence has taken place at 5 p.m. as alleged by the prosecution, then the F.I.R. was lodged with considerable delay, because the police station was situated at a distance of three furlongs from place of occurrence. It was also contended by the learned counsel for the appellants that the F.I.R. was not a genuine document, because it is mentioned therein, that some of the accused during this scuffle had also received injuries, whereas in fact none of the accused received any injury. It Was thus, contended that the F.I.R. was conjectural in nature and was based on speculations and furthermore, no sanctity can be attached to it because as many as four innocent persons were named in it by the complainant. Learned counsel for the appellants also urged that the evidence of the eye‑witnesses has been disbelieved qua the acquitted accused, therefore, no reliance can be placed upon such testimony for convicting the appellants without strong corroboration. It was also argued that the corroborative evidence in this case does not help the prosecution, inasmuch as, such Sotas are usually found in every house and since none of the Sotas was blood‑stained, therefore, such recovery cannot be used to corroborate the ocular testimony. Learned counsel for the appellants also assailed the evidence as to motive.

7. On the other hand, Mr. Muhammad Akram Sheikh, Advocate, contended that the testimony of the injured eye‑witnesses cannot be thrown aside because of the injuries borne by them. Their presence and the attack on them cannot be disbelieved. Siraj P.W. 3 had received 7 injuries out of which one was grievous, while Bashir P.W. 2 had received 6 injuries, out of which one was grievous. Mr. Muhammad Akram Sheikh, further argued that the principle of falsus in uno falsus in omnibus is not known to our jurisprudence and, therefore, the grain has to be sifted from chaff. According to the learned counsel for the complainant the evidence has been sifted and the appellants were rightly convicted.

8. I have carefully examined the contentions raised by both the sides. The acquittal of the co‑accused is mainly based upon the opinion of the Investigating Officer. No doubt, the same is not binding on Courts but nevertheless Court if chooses to accept it, then such course of action can hardly be assailed unless it is done previously. I have gone through the impugned judgment and also the statement of Shaukat Javaid, A.S.P., Pakpattan and considered the case from all angles. In my view the learned trial Judge rightly found the acquitted co‑accused as innocent but nevertheless this would not mean that the entire prosecution evidence should be rejected in toto. No hard and fast rule can be laid down because the appraisal of evidence is the most intricate subject in the administration of justice. Much has been said about it, I need not repeat it, but suffice it would be to mention, that golden principle of giving due weight to the findings of the learned trial Judge, who had the opportunity to see, hear and notice the demeanour of witnesses should be adhered to.

9. In the instant case, careful examination of the evidence would reveal that the learned trial Judge had sifted the grain from the chaff very carefully and I see no reason to reverse the findings arrived at by the learned Additional Sessions Judge. My attention was drawn to certain discrepancies such as P.W. 4 Asghar eye‑witness, his statement under section 161, Cr.P.C., had named the appellants Shah Muhammad, Abdul Ghafoor alias Phiddi, Arshad alias Achhu as culprits but did not name Allah Yar appellant as one of the assailants. Another discrepancy was also pointed out, being the variance in the F.I.R. and the statement of the complainant recorded under section 161, Cr.P.C. I have considered these discrepancies and in my view these are not material. All the appellants were named in the F.I.R. and the accumulative effect of the entire ocular testimony is, that all the appellants had in fact participated in the occurrence.

10. However, I am not convinced about the version of the prosecution, that the incident occurred on two places. Such split is not comprehensive. If the story of the split is believed, then in my view, the occurrence near the Bungalow of Mufti Sahib could not have taken place insmuchas. allegedly the appellants had escaped away from the first place of occurrence and the complainant side was proceeding for taking medical aid and admittedly they were accompanied by many other persons. In such situation, it is against the course of human conduct, that the assailants in presence of a large number of people would again dare to attack. The blood‑stained earth was collected from near the Bungalow of Mufti Sahib. In this view of the matter, I reject the prosecution story to the extent of the occurrence having taken place at two different scenes. As far as motive is concerned the evidence on this score is too feeble. In my view, both sides confronted with each other and the attack commenced. That is why, the complainant has also mentioned in the F.I.R. that some accused had also received injuries. In my view, it was not a manipulation, so as to avoid the future blame of suppressing the injuries received by the accused side during the trial. Thus, it is not known that, what actually preceded the occurrence. The carrying of Sota is not an unusual circumstance because in our society in the rural areas, Sota is usually carried by every individual. That being so, Manzoor and Atta appellants cannot be held constructively liable for the murder of Khadim Hussain deceased, because their case is distinguishable from the other four appellants who S had given blows on the head of the deceased with their Sotas. Accordingly, I set aside the conviction and sentence of Manzoor and Atta Muhammad appellants under section 302 read with section 149, P.P.CJ Their sentence under section 148, P.P.C. is also set aside. The appellant Atta Muhammad was taken into custody on 16‑11‑1982, his sentence was' suspended by this Court on 31‑7‑1985. He has undergone the sentence of' about two years and eight months. In my view the sentence already undergone would be sufficient to meet the ends of justice for his conviction on the charge under section 307, P.P.C.

11. Similarly the conviction of Manzoor, appellant under section 307, P.P.C. is not open to exception. He has suffered sentence for about 4 years. In this case also the sentence already undergone would be sufficient to meet the ends of justice. He will be released forthwith if not required in any other case. The sentence of fine in the case of Manzoor and Atta Muhammad appellants would be treated as one under section 307, P.P.C. and the same is hereby maintained. Atta Muhammad appellant shall pay the fine and in the event of default in payment of fine he would be taken into custody to undergo the imprisonment in default of payment of fine. However, I allow him a period of one month to deposit the fine.

12. Coming now to the case of Shah Muhammad, Allah Yar, Abdul Ghafoor alias Phiddi ad Arshad Mahmood alias Achhu, all these appellants had caused one injury each on the vital part i.e. head of the deceased Khadim Hussain causing brain haemorrhage. They had acted in furtherance of their common intention which was formed at the spur of moment, to cause death of Khadim Hussain deceased, therefore, their conviction is altered to one under section 302 read with section 34, P.P.C.1 and the sentence awarded to them on the said charge is hereby maintained.

13. The upshot of the above discussion, is, that the appeal of Manzoor and Atta appellants is allowed to the extent, that their conviction under section 302/148/149, P.P.C. is set aside and their conviction is altered to one under section 307, P.P.C. The appeal of other co‑appellants namely, Shah Muhammad, Allah Yar, Abdul Ghafoor alias Phiddi and Arshad Mahmood alias Achhu is allowed to the extent that their conviction and sentence on the charge under section 307, P.P.C. is set aside. As far as their conviction and sentence in the charge under section 302, P.P.C. is concerned, the same is maintained, however, their conviction and sentence under section 148, P.P.C. is hereby set aside.

M.Y.H./S‑24/L Order accordingly.

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