MUHAMMAD ISMAIL Versus THE STATE

ALI NAWAZ CHOWHAN, J .---This judgment shall dispose of Criminal Appeal No. 171 of 1999 (BWP), Criminal Appeal No. 179 of 1999 (BWP) as well as Murder Reference No.4 of 2000.

2. The matter pertains to case F.I.R. No.166, dated 9-7-1996 registered under sections 302, 452, 499/34, P.P.C. at Police Station, Naushehra Jadid, District Bahawalpur.

3. Vide his judgment, Rana Muhammad Yousaf, learned Sessions Judge, Bahawalpur, convicted the appellants Muhammad Ismail and Muhammad Ali under section 302/34, P.P.C. on two counts and sentenced them to death and also directed them to pay a compensation of Rs.1,00,000 to the legal heirs of Arshad Abbas and Naheed Akhtar deceased. While acquitting four of their co-accused namely Mazhar Hussain, Ghulam Haider alias Kala, Wajid Hussain and Zahid Hussain of the charges. Against whom we have appeal against acquittal.

4. There are two deceased in this case, Arshad Abbas and his wife Mst. Naheed Akhtar, who suffered death on account of acid burns leading to septicemia. Both of them were asleep in their home along with other inmates when acid was thrown on their faces and bodies.

5. Exh.P.J. is an F.I.R. whose author is shown as the deceased Arshad Abbas himself and was recorded by Basharat Ali, A.S.-I., in whom the complainant side did not repose confidence as the investigation proceeded.

6. In the said F.I.R. the following statement is said to have been made by Arshad Abbas:---

7. The second story about the occurrence has come from the mouth of Amjad Abbas (P.W.1) and Ghulam Sarwar (P.W.2).

8. In his testimony, Amjad Abbas narrated the occurrence of the night of 9-7-1996 in the following words:---

"On 9-7-1996 I was sleeping in the courtyard of my house along with my father Ghulam Sarwar, mother Allah Wasai, brother Arshad Abbas, wife of my brother Mst. Naheed Akhtar, Shah Zeb son of Arshad Abbas, Mst. Shamaila daughter of deceased Arshad Abbas The tube-light of veranda was on at that time. At about 12.00/1.00 a.m. I heard hue and cry raised by my brother Arshad Abbas and his wife Naheed Akhtar. We rushed towards the cot of Arshad Abbas deceased. We saw that Azhar Hussain, Zahid Hussain and Ismail accused were standing by the side of cot of my brother Arshad Abbas. While.on the other side of the cot, the accused Mazhar, Wajid and Ghulam Haider were standing. Ismail accused had one bucket in his hand while Mazhar Hussain accused had a bucket in his hand. Both the accused Ismail and Mazhar Hussain had thrown acid on Arshad Abbas deceased. Naheed Akhtar deceased and their children Shamaila and Shah Zeb."

"We ran after the accused but they also threw acid on me, my mother Allah Wasai and my father Ghulam Sarwar and we were also injured."

While according to him, the motive part of the story was as follows:---

"The motive for the occurrence is that the accused suspected that Mst. Sajida who is the wife of Azhar accused has developed illicit relations with Arshad Abbas deceased and due to this grudge they committed the occurrence. All the accused are related inter se with each other. Accused Haider is nephew of my father. The father of accused Zahid and Wajid namely Mulazim Hussain is the nephew of my father."

This statement was recorded on 22-7-1996 i.e. after about 13 days of the occurrence. The following excerpts from his statement are being re produced below:---

"My statement was firstly recorded on 22-7-1996 and prior to that I did not record my statement before the police as I had gone to Lahore along with Arshad Abbas and Naheed Akhtar deceased. I even did not mention about the occurrence to anybody else from the public in due course from 9-7-1996 to 22-7-1999."

"I did not state in Exh.D.D. that Abid Khan visited Mayo Hospital Lahore while Arshad Abbas and Naheed Akhtar were committed in the Hospital. (Confronted with Exh.D.D. where it is so recorded from portion B to B).I did not get record in Exh.D.D. that on the query of ASP Imran Yaqoob, as to why Abid Hussain was not arrested on his visit to the patients whereupon I replied that I, did not take notice of coming of Abid Hussain to the hospital. (Confronted with Exh.D.D. wherein it is so recorded from portion C to C)."

"It is correct to suggest that litigation criminal and civil and elections and land disputes are existing between Ibrahim, Ghulam Sarwar son of Bakhat Ali and Ahmad Khan P.W. on one side and Mazhar Hussain etc. accused on the other side, 'since long."

9. Ghulam Sarwar supported the story narrated by Amjad Abbas. The following excerpts from his statement are also being re-produced below:--

"I stated in Exhs.D.B., D.H. and D.I. that the accused suspected that Arshad Abbas deceased had developed illicit relations with Mst. Sajida the wife of Azhar accused."

"It is correct to suggest that till 22-7-1996 I did not record my statement before the police nor I told the occurrence to anybody else."

"It is correct to suggest that police declared Mazhar Khan, Zahid, Wajid and Ghulam Haider accused as innocent."

10. Initially the deceased received medical aid at Bahawalpur and then at Lahore and later upon death they were subjected to autopsy. Dr. Muhammad Zahid, Medical Officer, R.H.C. Mubarikpur, conducted the post-mortem examination on the dead body of Arshad Abbas and found the following injuries:---

(1) There was black escharring of both face, neck, anterior and posterior of chest, whole abdomen and whole trunk. Both arms, both thighs with both buttocks, whole genital area, penis and scrotum were escharred. Both upper limbs were escharred. Escharring was soft and moist and was uniform and easily sloughing, on dissection.

(2) Both eyes were damaged due to wet chemical burn and were shrunken Whole scalp was escharred.

(3) Total area involved was 80% escharring was in healing phase.

(4) Escharring was 30% superficial and 50% was deep.

(5) Septic wounds were present on both thighs, both buttocks and pussy, foul smelling discharge was coming out of those wounds.

The following was his opinion:---

After going through complete internal and external post mortem examination I was of the opinion that 80% burn .leading to septicemia, leading to hypovolemic and septic shock were sufficient to cause death in ordinary course of life. All injuries were ante-mortem in nature and were homicidal and were due to wet chemical burn. Probable time that elapsed between injuries and death: between 7 to 14 days. Probable time that elapsed between death and post-mortem: between 24 to 26 hours."

Exh.P.B. is the post-mortem report.

11. Lady Dr. Shagufta Mahmood on 31-7-1996 had conducted the post-mortem examination on the dead body of Mst. Naheed Akhtar who died subsequently and found the following injuries on her person:---

(1) There was back escharring of the left half of the face starting from the top of skull, whole neck and whole anterior chest, both upper arms, all the wounds were in delayed wound healing phase.

(2) There were multiple burn marks superficial and in healing process on the right fore-arm, left hand and left fore-arm. Total burn area was 45% 30% area was deep and 50% area was superficial Scalp was escharred."

The following was her opinion:---

"After thorough internal and external post-mortem examination, I was of the opinion that injuries Nos. 1 and 2 causing 45% burns, leading to septicemia and shock causing death were sufficient to cause death in ordinary course of life. All injuries were ante-mortem in nature and were caused by wet burn. "

12. Dr. Muhammad Zahid had also medically examined Ghulam Sarwar (P.W.) and Mst. Allah Wasai, wife of Ghulam Sarwar, on 22-7-1996. He found, escharring injuries on the person of Ghulam Sarwar and came to the conclusion that the injuries had damaged the function of his left arm and the injuries were declared as Jarrah Ghair Jaifa Damiah. The full details are provided in the testimony of the doctor, whose Medico-legal Report in this connection is Exh.P.E.

13. While examining Mst. Allah Wasai, he found three blackish escharring injuries on her person, which were homicidal burns. The following was his opinion about the injuries:---

"Injury No.1 in my opinion was enough to cause functional and structural damage of left fore-arm and elbow. Hence was declared as Itlaf-i-Salahiat-i-Udw. Injury No.2 was Jura Ghair Jaifa Damiah. Injury No.3 was Jurrah Ghair Jaifa Mutlahima. Probable duration of injuries between 8 to 15 days. All injuries were caused by wet chemical burns. Exh.P.F. is the correct carbon copy of original M. L. C. which is in my handwriting and bears my signatures. Injury statement Exh.P.F./1 also bears my signatures. "

14. Amjad Abbas (injured P.W.) was also examined by the said doctor on the same day and three injuries were found on his person which were declared as Jarrah Ghair Jaifah Damiah caused by wet chemical. Exh.P.F. is the Medico-legal Report with respect to Mst. Allah Wasai and Exh.P.G. with respect to Amjad Abbas.

15. During his cross-examination, Dr. Muhammad Zahid made the following statement which being relevant is reproduced below:---

"Allah Wasai, Ghulam Sarwar and Amjad Abbas injured were brought to me on 22-7-1996 at midnight. It was midnight of 22/23-7-1996. I have written identification marks of the injured persons on their respective M.L.Rs. in the relevant columns. The injuries on the person of Ghulam Sarwar, Allah Wasai and Amjad Abbas may be the result of lifting or embracing the injured persons who were injured with acid."

"At the time of medical examination I asked Arshad Abbas as to what happened whereby he replied that we were sleeping in our house and somebody has thrown acid on them. Similar statement was made by Naheed Akhtar on my query. It is correct to suggest that septicemia can be controlled by proper medication. "

16. Dr. Javed Akhtar had medically examined Mst. Shumaila daughter of Arshad Abbas having two burn marks which injuries were declared as Ghair Jaifah Damiah. Whereas he had also medically examined the deceased persons who were brought in an injured state before him at the B.V.H., Bahawalpur. The following statement in cross- examination is relevant and is re-produced below:---

"Well-oriented in time and space means the patient is fully conscious both Arshad Abbas and Naheed Akhtar were fully conscious at the time of the examination."

17. Dr. Muhammad Asim Rafi of the Surgical Ward of the B.V. Hospital, Bahawalpur, stated that on 26-7-1996 he was approached by Sardar Muhammad, A.S.I. for permission to allow the recoding of the statement of Mst. Naheed Akhtar. He allowed the same as she was in a fit state of mind. Shafaqat Ali (P.W.7) received the information about the admission of the deceased in an injured state in the hospital as well as Mst. Shumaila on 9-7-1996. He then made the following statement in his testimony:

"I drafted application Exh.P.I. and handed over the same to the Medical Officer for having his opinion whether the injured were fit to make statement. The medical officer gave his opinion on the said application that the patient is fit to make his statement. I recorded the statement of Arshad Abbas injured Exh.P.J. Arshad Abbas injured affixed his thumb-impression on Exh.P.J. and said to me that he is not in a position to see with his eyes as his eyes were injured with acid and he was not in a position to sign Exh.P.J. I drafted the complaint Exh.P.J. and sent the same to the police station for registration of formal F.I.R."

He prepared the injury statement of Mst. Shumaila. He then sent these three for their medical examination. He inspected the spot, drafted the rough site-plan, collected the acid stained earth from the place of occurrence, effected the recovery of burnt Charpal and clothes of the deceased vide memo. Exh.P.L. This witness was declared hostile by the trial Court at the behest of the complainant side although the A.D.A. was opposed to this idea. He was, therefore, subjected to cross -examination.

18. Sardar Muhammad, A.S.-I. took up the investigation from 13-7-1996 on learning about the death of Arshad Abbas at Lahore. He got his post-mortem examination conduced at Mubarikpur on 21-7-1996 and made alterations with respect to the offence in the F.I.R. He recorded the statements of the P.Ws. He also recorded the injury statement of the other injured P.Ws. i.e. Ghulam Sarwar, Allah Wasai and Amjad Abbas and got them medically examined.

19. On learning about the arrival of Mst. Naheed Akhtar in an injured state at the B.V. Hospital, Bahawalpur, he presented an application to the doctor for recording of her statement which was allowed and he recorded her statement (Exh.P.B.). Later on 31-7-1996 she expired. He prepared her injury statement and sent her dead body for autopsy. The following excerpt from his statement being is relevant:---

"I did not take steps for recording the statement of Naheed Akhtar from 13-7-1996 to 25-7-1996 as nobody on her behalf contacted me for recording the statement. I received information that from 20-7-1996 to 25-7-1996 Naheed Akhtar was in Mayo Hospital, Lahore. Prior to the recording of statements of Ghulam Sarwar, Allah Wasai and Amjad Abbas P.W. on 22-7-1996 there was no evidence against accused Azhar Khan, Ismail, Mazhar, Ghulam Haider and Wajid Hussain except Zahid Hussain accused against whom only suspicion was made by Arshad Abbas deceased in the F.I.R."

20. Malik Naseer Ahmad Awan, D.S.P. (P.W.8) was then posted as S.D.P.O. Ahmadpur East. He went to the spot for purposes of verification of the investigation. He- stated:---

"On 27-7-1996 the investigation of the case was entrusted to me by S.S.P., Bahawalpur. On 21-8-1996 I heard both the parties and arrested the accused present in the Court. Thereafter I arranged Punchayats for two times in which 200/300 persons participated on behalf of the accused persons but the complainant party did not attend the said Punchayats."

During cross-examination he stated:---

"I verified the investigation of Shafaqat Ali, A.S.-I. and Ali Gohai Inspector. Till 29-8-1996 Ghulam Sarwar P.W. or anybody on his behalf did not appear before me to complain the conduct of Shafaqat Ali, A.S.-I. with respect to registration of F.I.R. or other investigation."

"On 21-8-1996 when I arrested Mazhar Hussain accused he stated before me that at the time of occurrence he was present at Bahawalpur. Allah Ditta and Haroon-ur-Rasheed appeared before me on behalf of Mazhar Hussain accused and supported the plea of alibi taken by Mazhar Hussain accused."

21. Imran Yaqoob Minhas, S.P. (P.W.13) partly investigated the case and he found Azhar Hussain and Muhammad Ismail guilty, while he declared rest of the accused as innocent.

22. Amongst the formal witnesses we have Abdul Sattar, Constable (P.W.3) who took the sealed parcels to the office of the Chemical Examiner at Lahore. Altaf Hussain, Sub-Engineer, Rural Development Centre Ahmadpur East (P.W.4) prepared the site plan in triplicate (Exhs.P.A./1 to P.A./3) of the place of occurrence. Hashim Raza (P.W.12) is a witness in whose presence, Rana Ali Gohar, Inspector took into possession the case property vide memo. Exh.P.L. which was signed by him as well as Haji Ahmad P.W. He also identified the dead bodies of Arshad Abbas as well as Naheed Akhtar deceased at the time of the post-mortem examination Safdar Iqbal, Head Constable (P.W.6) drafted the F.I.R. on the basis of the complainant (Exh.P.A.). Jafar Ali, Record Keeper, B. V. H., Bahawalpur (C.W.1) was summoned as a Court witness, who produced before the trial Court the Death Register and Admission Chart of Mst. Naheed Akhtar, dated 9-7-1996 as well as the register of Registration Office showing the entries of the dates w.e.f. 1-7-1996 to 31-7-1996.

23. In their statements under section 342, Cr.P.C. the case of the appellants and their co-accused was one of denial. Mazhar Hussain advanced the plea of alibi but did not substantiate it through any evidence. He stated that the P.Ws. had deposed against him falsely. The appellant also objected to the recording of the statement of Mst. Naheed Akhtar belatedly and stated that it had no truth. The accused did not appear as their own witnesses nor did they produce evidence in their defence.

24. The appellants and their co-accused are related inter se. While they are also related to the complainant side. The eye-witnesses have received injuries because of burns, and according to the doctor, these were possible because they may have caused injuries to themselves while lifting the deceased soaked in acid.

25. The motive part of the story, which is stated by the deceased in the F.I.R. alleged to have been made by him and through the statements of the eye-witnesses, shows that the deceased was not a man of good character and, therefore, was not "Masoom-ud-Dam", as he involved himself amorously with married woman. No enmity is suggested against the eye-witnesses and, therefore, there is no reason as to why they would falsely implicate the appellant and their co-accused. While on the other side, we find that the deceased for 13 days remained in the hospital before recording the story which is now the prosecution story on 22-7-1996. The witnesses and the deceased who were in senses then and Mst. Naheed Akhtar until her death on 30-7-1996 kept the story regarding the involvement of the appellants and their co-accused as a guarded secret and we find no reasons for this. We also find that the injured P.Ws. who were inmates of the house came forward for getting

26. The statement of Mst. Naheed Akhtar was recorded on 22-7-1996. She supported the prosecution version as it now is. But this statement has to be carefully seen in view of her silence to the past to several days while she was hospitalized whether at Lahore or Bahawalpur. There are allegations that the A.S.-I. who recorded the F.I.R. had fabricated a story against a third person named in the F.I.R But there appears to be no complaint made against him nor was a private complaint filed during the interregnum between the recording of the F.I.R. version and the later version emerging on 22-7-1996.

27. The inmates of the house who had also been injured, appear o be present there when all this happened. But were they confused or baffled or were supportive of the theory put across through Exh.P.J. (F.I.R.) initially but had altered their stance on revelation of more facts and upon questions which do arise another question which arises is as to why would they falsely implicate the appellants. There being no such background for making them do so. The belated statement came when they were no more occupied with the medical care of the injured P Ws. and the deceased.

28. According to the prosecution, the case had gone astray at the hands of the A.S.-I.

29. Since these were acid burns and the occurrence admittedly had taken place in the house of the deceased, this cannot be the doing of a single person, at least two persons appear to be involved. The learned trial Court held the present appellants guilty while acquitting the rest because there were doubts in their case.

30. Keeping in view the story and the various apprehensions that arise while also keeping in view the horrendous occurrence and the relationship of the P.Ws. with the accused plus the motive story, vie are of the view that the present appellants were not falsely implicated. We are also of the view that the acquittal of the other four accused was based on sound reasons and this opinion we have arrived at after hearing all sides and after examining the record thoroughly. But we are anyhow of the view that under the peculiar circumstances of this case, we have to tread on the well-known path of safe administration of justice.

31. While, these questions arise in our mind, these cannot be called as serious doubts or just doubts in the parlance of criminal jurisprudence. When a judgment is written, we have to ponder over all possible situations and probabilities for drawing just conclusions and in doing so we cannot act as if we were resolving a mathematical proposition. Human affairs are complex whether in the shape of good or evil. Daily we are confronting new patterns of human behaviour and new situations emerge. We thus weigh the facts in a balance which has to be kept even.

While we also persevere in building coherent stories based on human conduct and our social circumstances. This work of ours is becoming more and more arduous because of the recessions in our investigational system. The investigational system is still anachronistic, archaic and destitute of integrity.

32. The upshot of the above discussion is that whereas, we uphold the order of conviction of the appellants, we alter their sentence from death to life imprisonment on both the counts and they are also directed to pay compensation amounting to Rs.1,00,000 each on both counts to the legal heirs of the deceased, or in default of which, to further undergo simple imprisonment of 6 months against each of the counts. They shall have the benefit of section 382-B of the Cr.P.C. However, we acquit the appellants of the other charges because of a serious doubt having arisen as to how these injuries may have been sustained by the P.Ws.

33. Consequently, the Appeal bearing No. 171 of 1999 is disposed of accordingly and the Murder Reference is thus answered in the negative. The other Appeal bearing No. 179 of 1999 against acquittal is dismissed.

N.H.Q./M-439/L Sentence reduced.