FAROOQ AHMAD Versus State
MALIK SHAHZAD AHMAD KHAN, J.--- This judgment shall dispose of Criminal Appeal No. 1119 of 2008 titled as "Farooq Ahmad etc. v. The State" filed by Farooq Ahmad, Maqbool Ahmad, Maqsood Ahmad and Muhammad Saleem, appellants, Criminal Appeal No.419-J of 2012 titled as "Manzoor Ahmad v. The State" filed by Manzoor Ahmad, appellant and Murder Reference No.348 of 2009 titled as "The State v. Farooq Ahmad etc." submitted by the learned trial court for confirmation or otherwise of the sentence of death awarded to Farooq Ahmad, Maqbool Ahmad, Maqsood Ahmad, Manzoor Ahmad and Muhammad Saleem, appellants as all these matters have arisen out of the same judgment dated 30.09.2008 passed by the learned Additional Sessions Judge, Faisalabad in case FIR No.733 dated 07.12.2006, offences under sections 302, 148 and 149, P.P.C., registered at Police Station Dijkot District Faisalabad whereby, Farooq Ahmad, Maqbool Ahmad, Maqsood Ahmad, Manzoor Ahmad and Muhammad Saleem appellants were convicted under section 148, P.P.C. and all of them were sentenced to rigorous imprisonment for three years with a direction to pay Rs.10,000/- (rupees ten thousand) each as fine and in default thereof to further undergo simple imprisonment for one year. All the appellants were also convicted under section 302(b)/149, P.P.C. and sentenced to death with the direction to pay Rs.3,00,000/- (rupees three lac) each as compensation to the legal heirs of deceased Khalid Mahmood as envisaged under section 544-A of the Code of Criminal Procedure and in default thereof to further undergo simple imprisonment for six months each.
2. Brief facts of the case, as disclosed by Allah Rakha, complainant (PW-7) in his 'Fard Biyan' (Exh-PB), on the basis of which formal FIR (Exh-PB/1) was registered, are that he (complainant) was resident of Chak No.85/J.B. and cultivator by profession. On 07.12.2006 at about 03.30 p.m, his son Khalid Mahmood, Bashir Ahmad (PW-8) and Allah Rakha (given up. PW) were coming back from their fields to their home. When they reached in front of Haveli of Sardar Jatt, Maqbool Ahmad, Farooq Ahmad, Manzoor Ahmad, Maqsood Ahmad (appellants) armed with Sotas and Muhammad Saleem alias Bagga (appellant) armed with pistol came there while raising lalkaras that Khalid Mahmood (deceased) would be taught a lesson for capturing their pigeon. Meanwhile, Maqbool Ahmad, Farooq Ahmad, Maqsood Ahmad and Manzoor Ahmad (appellants) took Khalid Mahmood (deceased) in their Jhapha and dragged him inside their residential house whereas, Saleem alias Bagga (appellant), armed with pistol, kept on threatening that if any one would dare to come close, he will he done to death. The appellants, thereafter, took Khalid Mahmood, while giving him beating and dragging, to the house of their paternal grandfather Barkat Ali Jatt. Bashir Ahmad (PW-8) and Allah Rakha (given up PW) ran to the complainant in his fields and told the above incident to him. Upon which, he (complainant) along with Bashir Ahmad (PW-8) and Allah Rakha (given up PW) rushed towards the house of above said Barkat Ali where they saw that Maqbool Ahmad, Farooq Ahmad, Manzoor Ahmad, Maqsood Ahmad and Saleem alias Bagga gave Sota blows and butt blows of pistol to Khalid Mahmood (deceased), which landed on his forehead, right and left hands, both arms, both knees, left shin, back and different parts of body. Khalid Mahmood (deceased) became unconscious and fell down in the courtyard. The appellants kept on giving beatings to Khalid Mahmood with Sotas . They (complainant party) raised hue and cry, which attracted other inhabitants of Mohallah who entered the courtyard of the house, upon which, the appellants fled away from the spot. They took care of Khalid Mahmood (deceased) who succumbed to the injuries. The motive for the occurrence, as stated by the complainant in the FIR (Exh-PB/1), was that Khalid Mahmood (deceased) and Maqbool Ahmad etc. (appellants) had pigeons and few days prior to the occurrence, during a competition of pigeons, a quarrel took place between Khalid Mahmood (deceased) and the appellants and the matter was patched up by the intervention of the respectables of the locality but Maqbool Ahmad etc. took the incident as their insult and due to this grudge, the appellants have committed the murder of Khalid Mahmood (deceased).
3. Farooq, Maqbool and Muhammad Saleem (appellants) were arrested in this case on 18.12.2006 whereas, Maqsood and Manzoor (appellants) were arrested on 05.01.2007 by Muhammad Ashraf S.I. (CW-1). On 29.12.2006, Muhammad Saleem (appellant), while in police custody, after making disclosure, got recovered .30 bore pistol (P-4) which was taken into possession vide recovery memo Exh-PG. On the same day, Farooq Ahmad (appellant), while in police custody, after making disclosure, got recovered Sota (P-5), which was taken into possession vide recovery memo Exh-PH. On the same day i.e. 29.12.2006, Maqbool Ahmad (appellant), while in police custody, after making disclosure, got recovered Sota (P-6) which was taken into possession vide recovery memo (Exh-PJ). After completion of investigation, the challan was prepared and submitted before the learned trial court. The learned trial court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge against the appellants on 12.04.2007, to which they pleaded not guilty and claimed trial.
4. In order to prove its case, the prosecution produced nine witnesses, during the trial. Allah Rakha, complainant (PW-7) any Bashir Ahmad (PW-8) furnished the ocular account of the case Bashir Ahmad (PW-8) is also the witness of recovery of .30 bore pistol (P-4), Sota (P-5) and Sota (P-6) recovered on the pointations of Muhammad Saleem, Farooq Ahmad and Maqbool Ahmad (appellants), respectively.
The medical evidence was furnished by Dr. Pervaiz Akhtar (PW-5), who conducted the postmortem examination on the dead body of Khalid Mahmood (deceased). Dr Mehmooda Khurshid, who medically examined Mst. Yasmeen Akhtar (DW-1), was also examined as CW-2.
Muhammad Aslam, S.I. (PW-9) and Muhammad Ashraf, S.I (CW-1) are the Investigating Officers of the case. Akbar Ali Nizami, Draftsman (PW-1), Khadim Hussain (PW-2), Nazakat Ali, S.I. (PW-3), Ali Asghar 977/C (PW-4), Muhammad Afzal, ASI (PW-6) are the formal witnesses. The prosecution produced documentary evidence in the shape of scaled site plan, in duplicate, of the place of occurrence (Exh-PA and Exh-PA/1), statement (Fard Biyan) of the complainant (Exh-PB), FIR (Exh-PB/1), recovery memo of last worn clothes of the deceased (Exh-PC), postmortem report along with pictorial diagrams of the deceased (Exh-PD, Exh-PD/1 and Exh-PD/2), injury statement (Exh-PE), inquest report (Exh-PF), recovery memo of .30 bore pistol P-4 (Exh-PG), recovery memo of Sota P-5 (Exh-PH), recovery memo of Sota P-6 (Exh-PJ), rough site plan of the place of occurrence (Exh-PK) and closed its evidence.
The statements of the appellants except Muhammad Saleem alias Bagga (appellant), under Section 342 of the Code of Criminal Procedure, were recorded on 15.09.2008 whereas, statement of Muhammad Saleem alias Bagga (appellant) was recorded on 20.09.2008. All the appellants refuted the allegations levelled against them and professed their innocence. In his statement recorded under section 342 of the Code of Criminal Procedure, Farooq Ahmad (appellant) took a specific plea of right of self defence whereas, Maqbool Ahmad, Maqsood Ahmad and Manzoor Ahmad (appellants) relied on the plea taken by Farooq Ahmad (appellant) in his statement recorded under section 342 of the Code of Criminal Procedure whereas, Muhammad Saleem (appellant) while answering to a question that "Why this case against you and why the PWs have deposed against you?" , replied as under:-
"The case is absolutely false against me. The PWs are related inter se and deposed against me falsely at the behest of the complainant to support the prosecution version. I am running a Shop in the village and the complainant used to get commodities from my shop on credit and Rs.3,000/- were due against the complainant. When I demanded the said amount, the complainant became furiated and a quarrel took place between the complainant and me a few days prior to the occurrence. The complainant extended threats to me of dire consequences and in the meantime Khalid Mehmood was murdered and the complainant involved me in this case falsely due to the above said grudge and due to the relationship with Farooq my co-accused."
The appellants did not opt to make statements on oath as provided under section 340(2) of the Code of Criminal Procedure, in disproof of the allegations levelled against them, however, they produced Mst. Yasmeen Akhtar (DW-1) and Mst. Arifa Parveen (DW-2) in their defence. They also got examined Dr Mehmooda Khurshid as CW-2. They produced copies of statements of Bashir Ahmad PW-8 (Exh-DA and Exh-DB), copy of school leaving certificate of Yasmeen Akhtar DW-1 (Exh-DC), medico legal report of Mst. Yasmeen Akhtar (Exh .CW-2/A) and report of Chemical Examiner (Exh-CW-2/B) in their defence.
5. The learned trial court vide its judgment dated 30.09.2008, found the appellants guilty, convicted and sentenced them as mentioned and detailed above.
6. Learned counsel for the appellants, in support of these appeals, contends that the prosecution story as stated in the FIR (Exh -PB/1) and brought before the learned trial court through the statements of Allah Rakha, complainant (PW-7) and Bashir Ahmad (PW-8) is highly doubtful and improbable and does not appeal to common sense; that it is the case of the complainant that he was in the fields when he was informed by Bashir Ahmad (PW-8) and Allah Rakha (given up PW) that his son Khalid Mahmood (deceased) was assaulted upon by the appellants, they dragged and took him to their house and thereafter, the appellants took Khalid Mahmood (deceased) to the house of their grandfather, upon which, they (complainant party) came there and witnessed the occurrence which is highly improbable because the PWs did not try to rescue the deceased; that the dead body of the deceased, even as per scaled site plan, was lying on a cot in the Veranda of the house, whereas, according to the prosecution story, the injuries to the deceased were caused in the courtyard of the house; that the recovery of Sotas (P-5 and P-6), allegedly recovered at the instance of Farooq Ahmad and Maqbool Ahmad (appellants), respectively, is inconsequential as none of the said Sotas was blood stained; that even the recovery of .30 bore pistol (P-4), allegedly recovered at the instance of Muhammad Saleem (appellant) is inconsequential as no fire shot was made during the occurrence; that motive for the occurrence, as alleged in the FIR (Exh-PB/1) has not been proved as no witness qua the motive was produced by the prosecution before the learned trial court who has stated that in his presence incident of motive took place over pigeons; that even it was concluded by Muhammad Ashraf, S.I. (C.W-1), the Investigating Officer of this case that the motive as alleged by the prosecution was found incorrect during investigation; that the version of Farooq Ahmad (appellant) is more probable than the prosecution story; that as per prosecution's own case, the dead body of the deceased was found lying in the house of paternal grandfather of Farooq Ahmad (appellant) and it was his (Farooq Ahmad appellant's) first version before the police after his arrest that the deceased was committing rape with his cousin Mst. Yasmeen Akhtar, thus, he (Farooq Ahmad appellant) gave beatings to him, which has been admitted by Muhammad Ashraf, S.I. (CW-1) and this version is also supported by the statement of Mst. Yasmeen Akhtar (DW-1) who has stated that Khalid Mahmood (deceased) was committing rape with her and on seeing this, Farooq Ahmad (appellant) killed him; that this version of Farooq Ahmad (appellant) is further corroborated by the statement of Dr Mehmooda Khurshid (CW-2); that the prosecution has miserably failed to prove its case against the appellants beyond the shadow of doubt; thus, both these appeals be accepted and the appellants may be acquitted from the charges.
7. On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant vehemently opposes both these appeals on the grounds that there was no reason for the complainant and other witness to falsely depose against the appellants especially when real son of the complainant was murdered in this case; that the complainant and Bashir Ahmad (PW-8) are the residents of the same village where this incident took place and the matter was reported to the police within two hours of its happening despite the fact that distance between the police station and the place of occurrence is thirteen kilometers; that the complainant has given natural narration of events by stating that he was informed by Bashir Ahmad (PW-8) and Allah Rakha (given up PW) that his son was captured, dragged and taken to their house by the appellants, upon which, they (complainant party) came at the spot and witnessed the occurrence; that the ocular account furnished by Allah Rakha, complainant (PW-7) and Bashir Ahmad (PW-8) is fully supported by the medical evidence that the deceased received thirteen injuries on his person which is supported by the postmortem report along with pictorial diagrams of the deceased, which are available on the record as Exh-PD, Exh-PD/1 and Exh-PD/2; that prosecution case is further corroborated by the recovery of .30 bore pistol (P-4) at the instance of Muhammad Saleem (appellant), recovery of Sota (P-5) at the instance of Farooq Ahmad (appellant) and recovery of Sota (P-6) at the instance of Maqbool Ahmad (appellant); that the motive for the occurrence has fully been proved by the prosecution; that the sentence of death was rightly awarded to the appellants by the learned trial court and the same may be maintained, appeals may be dismissed and Murder Reference be answered in the affirmative.
8. We have heard the arguments of learned counsel for the appellants, learned Deputy Prosecutor General and have also gone through the record with their able assistance.
9. It is a case of two versions, one mentioned in the FIR (Exh-PB/1) and brought on the record through the statements of Allah Rakha, complainant (PW-7) and Bashir Ahmad (PW-8) and second version is the plea taken by Farooq Ahmad, appellant in his statement recorded under section 342 of the Code of Criminal Procedure which was relied upon by Maqbool Ahmad, Maqsood Ahmad and Manzoor Ahmad (appellants), evidence produced and suggestions put to the prosecution witnesses on behalf of the defence. In such like situation, firstly, the Court is required to analyze the prosecution version in order to ascertain its truthfulness or otherwise, whereas, the defence version is to be taken thereafter. In this respect, we are guided by the judgment of the Hon ble Supreme Court of Pakistan passed in the case reported as Ashiq Hussain alias Muhammad Ashraf v. State" (PLD 1994 SC 879) wherein, at page 883, the Hon'ble Supreme Court has been pleased to observe as under:-
"9. ...The proper and the legal way of dealing with a criminal case is that the Court should first discuss the prosecution case/evidence in order to come to an independent finding with regard to the reliability of the prosecution witnesses, particularly the eye-witnesses and the probability of the story told by them, and then examine the statement of the accused under section 342, Cr.P.C., statement under section 340(2), Cr.P.C. and the defence evidence. If the Court disbelieves/rejects/excludes from consideration the prosecution evidence, then the Court must accept the statement of the accused as a whole without scrutiny. If the statement under section 342, Cr.P.C. is exculpatory, then he must be acquitted. If the statement under section 342, Cr.P.C. believed as a whole, constitutes some offence punishable under the Code/law, then the accused should be convicted for that offence only. In case of counterversions, if the Court believes prosecution evidence and is not prepared to exclude the same from consideration, it will not straightaway convict the accused but will review the entire evidence including the circumstances appearing the case at close before reaching at a conclusion regarding the truth or falsity of the defence plea/version. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors. the favouring plea in defence and the total effect should be estimated in relation to the questions, viz., is the plea/version raised by the accused satisfactorily established by the evidence and circumstances appearing in the case? If the answer be in the affirmative, then the Court must accept the plea of the accused and act accordingly. If the answer to the question be in the negative, then the Court will not reject the defence plea as being false but will go a step further to find out whether or not there is yet a reasonable possibility of defence plea/version being true. If the Court finds that although the accused has failed to establish his plea/version to the satisfaction of the Court but his plea might reasonably be true, even then the Court must accept his plea and acquit or convict him accordingly."
Reference in this respect may also be made to the case of "Amin Ali and another v. The State" (2011 SCMR 323).
10. The detail of the prosecution story has already been mentioned in paragraph No.2 of this judgment, therefore, there is no need to repeat the same, however, the gist of the prosecution case is that Khalid Mahmood (deceased) was captured by the appellants when he was going to his house along with Bashir Ahmad (PW-8) and Allah Rakha (given up PW) and taken to the house of appellants where from, he was taken to the house of grandfather of Farooq Ahmad (appellant) namely, Barkat Ali. Bashir Ahmad (PW-8) and Allah Rakha (given up PW) informed the complainant about the incident who was working in his fields. Upon which, the complainant along with the above said PWs rushed towards the place of occurrence where they saw that the appellants were giving beatings to Khalid Mahmood (deceased) with Sotas and butt blows of pistol, as a result whereof, Khalid Mahmood (deceased) succumbed to the injuries at the spot.
11. The appellants, five in numbers, have been awarded death penalty for the murder of Khalid Mahmood (deceased). The prosecution has given the motive behind the occurrence that the appellants were keeping pigeons whereas, Khalid Mahmood (deceased) was also a "Kabotarbaz" and a few days prior to the occurrence, the appellants quarrelled with Khalid Mahmood (deceased) over pigeons, therefore, the appellants due to abovementioned grudge committed the murder of Khalid Mahmood (deceased) whereas, the case of defence is that in fact Khalid Mahmood deceased was committing rape with a minor girl namely, Yasmeen Akhtar (DW-1), who was Phophizad' (paternal cousin) of Farooq Ahmad (appellant), therefore, the said appellant (Farooq Ahmad), while using his right of private defence, committed the murder of Khalid Mahmood (deceased) with `Thapi (a stick used for washing clothes). We, therefore, following the principles settled by the Hon'ble Supreme Court of Pakistan, in the cases of Ashiq Hussain alias Muhammad Ashraf v. State and Amin Ali and another v. The State supra , will first examine the case of the prosecution to see as to whether the prosecution has been able to prove its case or not because it is the duty of the prosecution to prove the guilt of the accused.
12. The prosecution evidence qua motive was furnished by Allah Rakha, complainant (PW-7). He has not given any specific time, date or place of the quarrel over pigeons, which allegedly took place between the appellants and Khalid Mahmood (deceased). Although he stated that the people of the locality intervened and effected a compromise between Khalid Mahmood (deceased) and the accused party but none from the persons who intervened and effected the compromise between the parties was produced by the prosecution in the witness box. The complainant has also admitted during his cross-examination that he did not produce any pigeon Khudda' to the Investigating Officer and made an excuse that the Investigating Officer did not come to him for the said purpose. The Investigating Officer Muhammad Ashraf S.I. (CW-1) has also conceded during his cross-examination that motive part of the prosecution was without any evidence and during investigation of the case, the same was found to be incorrect. Even otherwise, it does not appeal to common sense that for the abovementioned petty reason i.e. quarrel over pigeons, the appellants would first drag Khalid Mahmood (deceased) inside their residential house and from there, they will drag him to the residential house of their grandfather namely, Barkat Ali. We are, therefore, of the view that the motive as alleged by the prosecution is not convincing, therefore, the same is hereby discarded and repelled.
13. The prosecution case, as set forth in the FIR (Exh-PB/1) was that on 07.12.2006 at 03.30 p.m, Khalid Mahmood (deceased) was captured by the appellants and was firstly taken to the residential house of the appellants, then he was dragged to the residential house of grandfather of the appellants namely, Barkat Ali where he was given beatings in the courtyard of said house. The story narrated by the eye-witnesses namely, Allah Rakha, complainant (PW-7) and Bashir Ahmad (PW-8) is highly improbable. It is not understandable as to why the appellants first dragged Khalid Mahmood (deceased) inside their own residential house and thereafter, they dragged him towards the residential house of their paternal grandfather, where he was done to death. We have also noted that according to scaled site plan (Exh-PA), the dead body of Khalid Mahmood (deceased) was found on a cot lying in the Veranda of the house of abovementioned Barkat Ali. As the story set forth in the FIR (Exh-PB/1) regarding inflicting of injuries by the appellants on the person of Khalid Mahmood (deceased) in the courtyard of their grandfather was not in line with the scaled site plan (Exh-PA), therefore, the eye-witnesses of the prosecution namely, Allah Rakha, complainant (PW-7) and Bashir Ahmad (PW-8) while appearing before the learned trial court deliberately did not mention that Khalid Mahmood (deceased) was inflicted injuries in the courtyard of Barkat Ali and they made dishonest omissions/improvements in their statements. Allah Rakha, complainant (PW-7) stated that after the occurrence, they (PWs) placed the dead body of Khalid Mahmood (deceased) on a cot. The complainant was confronted with his previous statement and the omissions in his statement and the improvements made by him were duly brought on the record. The relevant part of the statement of complainant Allah Rakha (PW-7) at pages 36 and 38 of the paper book is reproduced hereunder for ready reference:-
At page 36:
"...I recorded in my statement under section 154, Cr.P.C. Ex.P.B that the accused Maqbool etc. in courtyard of the house of Barkat Ali were giving beating to Khalid Mehmood with sotas and with butt of pistol. (Confronted with Ex.P.B where it is so recorded). Today in the court in my examination-in-chief the injuries to the deceased by the accused persons in the courtyard I deliberately omitted. The word "Courtyard" was omitted in my statement because it creates contradictions recorded during investigation. I do not know if I got recorded in Ex.P.B that the deceased Khalid Mehmood my son after receiving injuries fell in the courtyard of the house of Barkat Ali. (Confronted with Ex.P.B where it is so recorded). The word "courtyard is specifically mentioned..."
At page 38:
"I recorded in my statement Ex.P.B that my son when died his dead body was placed on a cot which was lying there (Confronted with Ex.P.B where it is not recorded)..."
Similarly the relevant part of the statement of Bashir Ahmad (PW-8), at page 44 of the paper book, reeds as under:-
"...I recorded that the victim Khalid Mehmood deceased after receiving injuries with sotas fell down unconsciously. (Confronted with Ex.D.A where the PW omitted the word "Courtyard"). Again confronted with PW he stated that deceased Khalid fell down in the courtyard..."
It is clear from the above mentioned portions of the statements of cross-examination of Allah Rakha, complainant (PW-7) and Bashir Ahmad (PW-8) that they made dishonest omissions/improvements in their statements before the learned trial court on material aspects of the case. It is by now well settled law that if a witness makes dishonest improvements in his statement then he cannot be relied upon to maintain the conviction of an accused on a capital charge. Reference in this context may be made to the case of "Muhammad Rafique and others v. The State and others" (2010 SCMR 385) wherein, at page 396, the Hon'ble Supreme Court of Pakistan was pleased to observe as under:-
"24. ...This Court in the case of Saeed Muhammad Shah v. State 1993 SCMR 550 observed that if a witness improves his statement on material aspects of the case then such improvement is not worthy of reliance and the evidence of such witness requires corroboration. In the case of Khalid Javed v. State 2003 SCMR 1419 while reiterating the above rule, it was further observed that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence."
14. We have also noted that the occurrence in this case took place on 07.12.2006 at 03.30 p.m., whereas, the postmortem examination on the dead body of Khalid Mahmood (deceased) was conducted on 08.12.2006 at 10.00 a.m. There is delay of more than eighteen hours in the postmortem examination of Khalid Mahmood (deceased). There is no plausible explanation for the abovementioned delay in the postmortem examination of the deceased. The said delay in the postmortem examination is suggestive of the fact that the complainant and other eye-witness were not present at the time of occurrence and delay in postmortem examination of the deceased was used by the prosecution in concocting a false story and procuring fake eye-witnesses of the occurrence. We may refer here the case of "Irshad Ahmed v. The State" (2011 SCMR 1190) wherein, it has been held that the post-mortem examination of the dead body had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting the postmortem examination of the dead body conducted.
15. The prosecution has also produced the evidence qua recovery of .30 bore pistol (P-4) at the instance. of Muhammad Saleem (appellant) and recovery of Sotas (P-5 and P-6) at the instance of Farooq Ahmad and Maqbool Ahmad (appellants), respectively. There was no allegation that any fire shot was made during the occurrence rather it was alleged that Muhammad Saleem (appellant) inflicted butt blows of pistol on the person of the deceased. None of the Sotas (clubs) allegedly recovered from Farooq Ahmad and Maqbool Ahmad (appellants) was alleged to have been stained with human blood. There is no report of the Chemical Examiner or Serologist to establish that the abovementioned Sotas were stained with human blood. Even it was not mentioned in the recovery memos of Sotas (Exh-PH and Exh-PJ) that the same were stained with blood. Similarly, it was not mentioned in the recovery memo of .30 bore pistol (P-4) that there was any blood on the butt of the said pistol. We are, therefore, of the view that the alleged recoveries of Sotas (P-5 and P-6) and pistol (P-4) are inconsequential and of no avail to the prosecution.
16. Insofar as medical evidence is concerned, it is by now well settled law that medical evidence may confirm the ocular evidence with regard to the seat of injury, of the injury, kind of weapon used in the occurrence but it would not connect the accused with the commission of the offence. Reference in this respect may be made to the case of "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53) . Similar view was taken by the Hon'ble Supreme Court of Pakistan in the cases of "Mursal Kazmi alias Qamar Shah and another v. The State" (2009 SCMR 1410) and 'Altaf Hussain v. Fakhar Hussain and another (2008 SCMR 1103).
17. After considering all the aspects of the case, we have come to the conclusion that there are number of circumstances which have created serious doubt about the truthfulness of the prosecution story. The evidence of eyewitnesses is not worthy of reliance and they have also made dishonest omissions/improvements in their statements. We have already disbelieved the motive as alleged by the prosecution and the alleged recoveries of weapons of offence are also inconsequential due to the reason mentioned hereinabove. We are, therefore, of the view that the prosecution has miserably failed to prove its case against the appellants beyond shadow of doubt.
18. Now coming to the defence version of the appellants. We have noted that Farooq Ahmad (appellant) took the plea of private defence in his statement recorded under section 342 of the Code of Criminal Procedure. His defence plea was also relied upon Maqbool Ahmad, Maqsood Ahmad and Manzoor Ahmad (appellants) whereas, Muhammad Saleem (appellant) has simply denied his participation in the occurrence, in his statement recorded under the abovementioned provision of law. Farooq Ahmad (appellant) took the following plea in his statement recorded under section 342 of the Code of Criminal Procedure:-
"The case against me has been brought for the reason that I assaulted the deceased Khalid Mehmood when he was assaulting with rape Mst. Yasmeen my (Phuphi zad) a minor girl and acted in defence. The PWs who are closely related has not seen the occurrence and brought this false story with false motive. Involving the whole family. Mst. Yasmeen daughter of Muhammad Yaqoob grand daughter of Rehmat Ali was born on 06.06.1993. She is daughter of Hakim Bibi daughter of Barkat Ali. She was found alone in the house of Barkat Ali my grand father and her grand maternal father by Khalid Mehmood deceased. My house and my grand father's house are adjacent, having contiguous wall. Khalid Mehmood assaulted Yasmeen for rape in the veranda over the cot. I came to know of it there was lying a Thapi (a stick for washing clothes). I gave him injuries as along as he remained committing Zina-bil-Jabar with her. I stopped when he stopped. The eye-witnesses were not been there. There are 13 injuries on the person of the deceased which were given in 13 seconds. The statement of complainant PW7 at page 2 starting from last 3rd line of cross examination dated 01.11.2007 falsifies itself the occurrence having seen by PWs which goes as follows. "It is my case that my son Khalid Mehmood deceased was abducted from the Haveli of Sardar and was taken covering distance of 350 feet and took to the Barkat's house then PW went to the Haveli of Sardar, covering distance of 350 feet and from there went to Killa No.5 and 6 of Square No.46 and then came back to Haveli of Sardar and they again covered a distance of 350 feet and then the PWs saw the occurrence in, the house of Barkat grand father of accused. It is in evidence that Killa Nos.5 and 6 are a distance of 400 feet from the Haveli of Sardar which is at a distance of 350 feet from the house of Barkat Ali. It does not appeal to reasons that the two PWs after entrance of the deceased in the house of Barkat Ali through accused went to Haveli of Sardar, there from, went to Killa No.6 Square No.46, where the complainant was, thereafter covering again a distance of 400 feet and then 350 feet to reach the house of Barkat Ali and there saw the occurrence", which the doctor PW5 at page 4 last 5/6 lines has stated in the circumstances of the case that 13 injuries can be caused by a person in 13 seconds on a person who was committing rape. I have taken this version before the police at the time of my arrest and this fact was put to the complainant PW7 who admitted at page 3 upper half of cross examination dated 01.11.2007. "Accused Farooq was arrested by police and he recorded his version before the police and he was examined by the police, that Khalid Mehmood deceased was committing rape with daughter of my phuphi named Yasmeen and Farooq inflicted injuries to deceased against assault for rape upon Yasmeen". The CW1 Muhammad Ashraf has admitted the whole version of accused Farooq at page 4 of his evidence upper half and page 5, 2nd and third line from upper. My first cousin Yasmeen was examined by the Medical Women as ordered by the court and DIG Police and her Medical Examination is Ex.CW2/A. I again repeat that the case against me is false due to above said reasons. My other relatives i.e. my three brothers namely Maqsood, Manzoor, Maqbool have been falsely involved due to my relationship with them.
No one from the PWs came at the place of occurrence as it is in evidence of PW9 Muhammad Aslam Awan SI at page 2 in the middle "the eyes of deceased were semi open as mentioned in para No.8 of inquest report when the dead body was dispatched to the hospital" and it is in evidence of PW5 Doctor Pervaiz Akhtar page 3 in cross-examination "when I examined the deceased mouth and eyes were closed. I endorsed the inquest report Ex.P.F in which eyes semi open and mouth closed. I do not know if some relative of the deceased closed the eyes of the deceased after inquest report prior to postmortem examination. In normal course the relative of the deceased usually closed the eyes of the deceased". I will examine Mst. Yasmeen in defence and her birth certificate evidence in defence."
Mst. Yasmeen Akhtar (DW-1) and Mst. Arifa Parveen (DW-2) also appeared in defence of Farooq Ahmad, Maqbool Ahmad, Maqsood Ahmad and Manzoor Ahmad (appellants). Similarly, Muhammad Ashraf, S.I. (CW-1) and lady Dr Mehmooda Khurshid (CW-2) also appeared as Court Witness and the defence plea also gets support from their evidence. Mst. Yasmeen Akhtar (DW-1) aged about 15/16 years stated before the learned trial court that on 07.12.2006 at 2/3 p.m, Khalid Mahmood (deceased) started committing rape with her whereupon, she started crying. On her hue and cry, Farooq Ahmad (appellant) attracted to the spot and he inflicted injuries on the person of Khalid Mahmood (deceased) with the help of Thapi (a stick, used for washing clothes). She further stated that her statement was recorded by the police and the police took her to the Magistrate where her statement (Exh-DD) with regard to medical examination was recorded and 'thereafter, she was medically examined. Lady Dr Mahmooda Khurshid (CW-2) stated that on 29.12.2006 she medically examined Yasmeen Akhtar (DW-1) and found that her hymen was torn and old healed tear was present. She sent four swabs for semens detection and grouping. On receipt of the report of the Chemical Examiner, according to which the abovementioned swabs were stained with semens, she opined that recent intercourse was committed with the victim. She further stated during her cross-examination that dead sperms can remain in orifice from seventeen to twenty-one days even after menstruation period. Muhammad Ashraf, S.I. (CW-1) has also stated that on 18.12.2006, he recorded the first version of Farooq Ahmad (appellant), according to which, at the time of occurrence, Khalid Mahmood (deceased) was committing zina bil jabr with his cousin namely, Yasmeen Akhtar, therefore, he along with Maqbool Ahmad (appellant) gave beatings to him. Although the abovementioned evidence was produced in the defence of Farooq Ahmad, Maqbool Ahmad, Maqsood Ahmad and Manzoor Ahmad (appellants) but we are of the view that there is no need to discuss the said evidence because we have already disbelieved the prosecution evidence. Thus, we are left with the statement of Farooq Ahmad (appellant) which was recorded under section 342 of the Code of Criminal Procedure and the same was relied upon by Maqbool Ahmad, Maqsood Ahmad and Manzoor Ahmad (appellants), therefore, while scrutinizing the statement of Farooq Ahmad (appellant), this Court has to accept or reject the said statement in toto. According to Farooq Ahmad (appellant), at the time of occurrence Khalid Mahmood (deceased) was committing rape with his Phophizad' (paternal cousin) Mst. Yasmeen Akhtar (DW-1) and he took `Thapi' (stick used for washing clothes) and gave beatings to him. We are of the view that, in such situation, the said appellant had the right of private defence which also extends to cause death of the assailant as provided under Section 100 of the Pakistan Penal Code, which is reproduced hereunder:-
"
100. When the right of private defence of the body extends to causing death. ---The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-
Firstly : ....................................................;
Secondly : .................................................;
Thirdly : An assault with the intention of committing rape;
Fourthly : ..................................................;
Fifthly : ....................................................;
Sixthly : ....................................................;
It is evident from the perusal of section 100 (thirdly) P.P.C. that the right of private defence of the body will extend to the voluntary causing the death of the assailant, if the assailant launches an assault with the intention of committing rape, whereas, in the instant case Khalid Mahmood (deceased) was virtually committing rape with Mst. Yasmeen Akhtar (DW-1). The case of the appellants, therefore, squarely falls within the four corners of general exception as provided under section 100 (thirdly) P.P.C.
19. It is by now well settled law that if the prosecution evidence is disbelieved by the court, then the statement of an accused is to be accepted or rejected as a whole. It is legally not possible to accept the inculpatory part of the statement of the appellant and to reject the exculpatory part of the same statement. Reference in this context may be made to the case of "Muhammad Asghar v. The State" (PLD 2008 SC 513) . The relevant paragraph of the said, judgment at page 520 is reproduced hereunder for ready reference:-
"8. ...It is settled law by now that a statement of an accused recorded under section 342, Cr.P.C. is to be read in its entirety, is to be accepted or rejected as a whole and reliance should not be placed on that portion of the statement which goes against the accused person. Reference can be made to the case of Shabbir Ahmad v. The State PLD 1995 SC 343 and The State v. Muhammad Hanif and 5 others 1992 SCMR 2047. It has been held by this Court in the judgment reported as Waqar Ahmad v. Shaukat Ali and others 2006 SCMR 1139, that prosecution is bound to establish its own case independently instead of depending upon the weaknesses of the defence, and the assertion of the accused in his statement under section 342, Cr.P.C. was not sufficient to establish the prosecution case regarding guilt of the accused and such statement of the accused could be accepted in toto in the absence of any other prosecution evidence. In the case in hand, the High Court should have either accepted appellant's statement in its entirety or rejected it altogether, but it had misdirected itself while choosing a portion of the statement, which went against the appellant, and convicting him."
20. It is true that Farooq Ahmad (appellant) has admitted in his statement recorded under section 342 of the Code of Criminal Procedure that he inflicted blows on the person of Khalid Mahmood (deceased) with Thapi (stick used for washing clothes) but at the same time, he has also stated that Khalid Mahmood (deceased) was committing rape with his cousin ( Phophizad ) namely, Mst. Yasmeen Akhtar (DW-1) and he exercised his right of private defence. In view of the above, as we have already discarded the prosecution evidence, the appellants cannot be awarded punishment on the basis of statement of Farooq Ahmad (appellant) recorded under section 342 of the Code of Criminal Procedure, by accepting the inculpatory part of said statement wherein, he has stated that he (Farooq Ahmad appellant) inflicted injuries on the person of Khalid Mahmood (deceased) with Thapi and by rejecting exculpatory part of the same statement wherein, he has stated that he (appellant) inflicted injuries on the person of Khalid Mahmood (deceased) in the right of private defence of the body of his cousin. We are fortified in our above mentioned views by the judgments passed by the Hon'ble Supreme Court of Pakistan in the cases of "Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) and "Ghulam Qadir v. Esab Khan and others" (1991 SCMR 61) .
21. In the light of above discussion, we accept the Criminal Appeal No.1119 of 2008 filed by Farooq Ahmad, Maqbool Ahmad, Maqsood Ahmad and Muhammad Saleem (appellants) and Criminal Appeal No.419-J of 2012 filed by Manzoor Ahmad (appellant), set aside the impugned judgment dated 30.09.2008 passed by learned Additional Sessions Judge, Faisalabad. Resultantly the convictions and sentences of the appellants awarded by the learned Additional Sessions Judge, Faisalabad, are set aside and they are acquitted from the charges. All the appellants are in custody, they be released forthwith if not required to be detained in any other case.
22. Murder Reference No.348 of 2009 is answered in the NEGATIVE and the sentence of death of Farooq Ahmad, Maqbool Ahmad, Maqsood Ahmad, Manzoor Ahmad and Muhammad Saleem convicts is NOT CONFIRMED .
HBT/F-16/L Appeal accepted.