FAQIR MUHAMMAD and another vs THE STATE

' ASIF SAEED KHAN KHOSA, J.-Faqir Muhammad and Muhammad Ramzan appellants were tried in case F.I.R. :No.115 registered at Police Station Drahma, District Dera Ghazi Khan on 6-5-2000 in respect of offences under sections 324/334/337-L(1)/ 337-L(2/148/149, P.P.C. And after a full- dressed trial the learned Additional Sessions Judge, Dera Ghazi Khan convicted them for an offence under section 334, P.P.C. Read with section 149, P.P.C. And sentenced them to rigorous imprisonment for five years each vide judgment rendered on 27-9-2004. The appellants were also convicted by the learned trial Court for an offence under section 324, P.P.C. Read with section 149, P.P.C. And were sentenced to rigorous imprisonment for five years each. They were further convicted for an offence under section 148, P.P.C. Read with section 149, P.P.C. And were sentenced to rigorous imprisonment for one year each. The learned trial Court had also convicted the appellants for an offence under section 337-L(2), P.P.C. Read with section 149, P.P.C. And had sentenced them to rigorous imprisonment for one year each. All the sentences of imprisonment passed against the appellants were ordered to run concurrently and they were extended the benefit under section 382-B, Cr.P.C. The appellants challenged their convictions and sentences before the Lahore High Court, Multan Bench, Multan through Criminal Appeal No.613 of 2004 whereas Criminal Revision No.364 of 2004 was filed by the complainant seeking enhancement of the appellants' sentences. The said appeal and the revision petition were heard by a learned Judge-in-Chamber of the Lahore High Court, Multan Bench, Multan together and through a consolidated judgment dated 23-6-2010 both the appeal and the revision petition were dismissed.

Hence the present appeal by leave of this Court.

2. We have heard the learned counsel for the parties and have gone through the record of this case with their assistance.

3. According to the prosecution itself the injured witness namely.

' Muhammad Hanif had gone to the appellants' house on his own at about 2-30 a.m. During the fateful night and the F.I.R. Itself had referred to illicit relations between the said Muhammad Hanif and the wife of Muhammad Ramzan appellant. It is again the prosecution's own case that all the injuries caused to the said Muhammad Hanif had been caused in the compound of the appellants' house at small hours of the night. A perusal of the F.I.R. Shows that although Faqir Muhammad appellant was statedly armed with a Sota at the time of the alleged occurrence yet admittedly he had not caused any injury to the injured victim namely Muhammad Hanif. Likewise, Muhammad Ramzan appellant was admittedly empty-handed during the incident in issue and he too had not caused any injury to the victim. The allegation levelled against him was that he had held the victim and had, thus, facilitated his co-accused in causing injuries to the victim. It has been found by us to be quite intriguing that the learned Judge-in-Chamber of the Lahore High Court, Multan Bench, MuIan deciding the appellants' appeal and the complainant's revision petition had completely discarded the version of the incident advanced by the prosecution and had upheld and maintained the appellants' convictions and sentences only on the basis of the statement of Faqir Muhammad appellant recorded under section 342, Cr.P.C. Wherein he had advanced a plea of grave and sudden provocation. The learned Judge-in-Chamber had, after disbelieving the version of the incident advanced by the prosecution, upheld the convictions and sentences of the appellants merely because the defence had failed to prove the above mentioned plea advanced by Faqir Muhammad appellant through any independent evidence. This approach adopted by the learned Judge-in-Chamber of the. Lahore High Court, Multan Bench,. Multan had been found by us to be completely offensive to the settled principle of criminal jurisprudence that if the version of the prosecution is disbelieved then the version of the incident advanced by the accused party is ordinarily not even to be looked at or considered and if it is to be considered then the same has to be accepted or rejected as a whole. In the case of Waqar Ahmad v. Shaukat. Ali and others (2006 SCM R 1139) it had been held by this Court that if the prosecution fails to establish its case against an accused person then the accused person is entitled to be acquitted even if he had admitted killing the deceased and had advanced a specific plea in that regard which he had failed to prove.

It had also been held this Court in the case of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) that the statement of an accused person recorded under section 342, Cr.P.C. Is to be accepted or rejected in its entirety in case the prosecution's case fails entirely. It was further held in that case that the inculpatory part of an accused person's statement can be utilized by the court only where the prosecution succeeds in establishing its case and the defence fails to establish the specific plea taken by it. In the case in hand the entire case of the prosecution had been disbelieved by the learned Judge-in-chamber of the Lahore High Court, Multan Bench, Multan and even the statement of Faqir Muhammad appellant recorded under section 342, Cr.P.C. Wherein he had advanced a plea of grave and sudden provocation had been discarded by the learned Judge-in-Chamber for want of any supportive evidence and thus, the inculpatory part of Faqir Muhammad appellant's statement recorded under section 342, Cr.P.C. Could not be utilized for recording or upholding the appellants' convictions and sentences.

4. For what has been discussed above this appeal is allowed, the convictions and sentences of the appellants recorded and upheld by the learned courts below are set aside and the appellants are acquitted of the charge. They shall be released from the jail forthwith if not required to be detained in connection with any other case.