1994 PLP 2311 (SCMR)

Date of hearing: 30th October, 1991. MUHAMMAD RAFIQ TARAR, J.‑‑‑This appeal by Mukhtar Ahmed and Abdur Rehman is directed against the judgment of a learned Division Bench of the Lahore High Court dated 25‑6‑1989 whereby State Appeal No.12/1972 against their acquittal of the charge under section 302/34; P.P.C. was allowed, they were convicted on the said charge and sentenced to imprisonment for life and a fine of Rs.10,000 each and were further ordered to pay Rs.10,000 each as compensation to the heirs of the deceased.

2. The brief facts of the prosecution case are that on 21‑3‑1970 at about 9‑00 p.m. Muhammad Afzal deceased was reading a novel while sitting in a room of the tube-well of his father in the area of Chak No.261/E.B when all of a sudden acquitted accused Rashid Ahmed and Pir Muhammad armed with Takwas and Mukhtar Ahmed and Abdur Rehman appellants armed with Khanjars entered into the said room and raised Lalkara that he (Muhammad Afzal) would not be spared. On seeing them, Muhammad Afzal got up but Rashid Ahmed gave him a Takwa blow hitting right side of his head, then Abdur Rehman and Mukhtar Ahmed gave him one Khanjar blow each hitting his chest and left hand respectively. Thereafter 'Pir Muhammad gave him a Takwa blow on the right shoulder. Muhammad Afzal ran out of the room raising alarm attracting Yousaf, Ihsanul Haq (P.Ws.) Siddique and Boota not produced. Seeing them, the accused persons ran away from the spot. Muhammad Afzal fell down near the village Abadi. A water dispute with Abdur Rehman appellant and Rashid Ahmad acquitted accused was the motive for the occurrence. Muhammad Afzal injured was taken to Burewala Hospital where he narrated the occurrence to Ghazanfar Hussain, A.S.I. vide his statement Exh. PV incorporating the above facts on the basis of which formal FIR Exh. PV/1 was recorded at the police station at 11‑40 p.m.

3. After recording the statement of Muhammad Afzal deceased, Ghazanfar Hussain ASI sent for the Naib‑Tehsildar for recording his dying declaration. Mr. Habib Ullah. Naib‑Tehsildar recorded the dying declaration Exh. PD of Muhammad Afzal deceased on the same day. On receiving a telephonic message from the police station that Mukhtar Ahmad accused had come there, the ASI reached the police station where Mukhtar Ahmad appellant produced Chhurri P5 before him vide memo. Exh. PG. The ASI removed his blood‑stained shirt P6, vest P7 and a Chaddar P8 and made them into sealed parcel vide memo. Exh. PH. Mukhtar Ahmad appellant was having some injuries on his person. The ASI got him medically examined. Muhammad Abdullah, Silo took over the investigation of this case on 22‑3‑1970. On 26‑3‑1970 he arrested Pir Muhammad, Abdur Rehman and Rashid Ahmad accursed. After the investigation the accused were challaned.

4. On 21‑3‑1970 at 10‑45 p.m. Dr. MA. Saleemi, Medical Officer examined Muhammad Afzal deceased, when alive, and found an incised wound on the right side of the head, a punctured incised wound on the left side of the chest between the 7th and 8th ribs, an incised wound on front of left hand and an incised wound on the top of right shoulder. Injuries on the right side of head and right shoulder were simple. Injury on the front of left hand was grievous. The punctured incised injury on the left side of chest was kept under observation. All the injuries were fresh and caused by sharp-edged weapons. Mukhtar Ahmad appellant was also examined by the same doctor on the next day. He had an abrasion on the left forearm, another on the back of left elbow and a swelling on the back of left ankle joint, all simple in nature caused by blunt weapon.

4. Muhammad Afzal succumbed to his injuries on 7‑4‑1970. On the same day Dr. Abdul Waheed Khan conducted the autopsy on his dead body. In his opinion death was due to injury on the left side of front of the chest between 7th and 8th ribs. The wound was going backward and somewhat obliquely downwards and passed through the left diaphragm. There was a cut in the stomach which was stitched and this was a 3" long stitched wound. There was also a cut which was stitched 1" long in the left margin of the liver. Then it passed through the posterior part of the diaphragm and passed out of a partially stitched wound 1"x" (sic) on the left side of the back one inch from the vertebral line and 6" below the inferior angle of left scapula. Liquid blood was coming out of this wound. The left side of the pleura was very much adherent at places. Peritoneum was also adherent at places and was stitched at places. There was puss collected in the palvis and peritoneum was necrosed at places." This injury was sufficient to cause death in the ordinary course of nature.

5. In support of its case the prosecution examined two eye‑witnesses namely Yousaf P.W. 16 and Ihsanul Haq P.W. 17 and it also relied on the dying declarations made by the deceased before the doctor, the Naib‑Tehsildar and the ASI Exh. PD, PD/1 and PV respectively.

6. The appellants pleaded not gulity to the charge and denied the prosecution allegations against them.

7. After examining the evidence on the record, the learned trial Judge came to the conclusion that the alleged eye‑witnesses were not present at the spot, ocular evidence was false and the dying declarations allegedly made by the deceased before the doctor, the ASI and the Naib‑Tehsildar carried no sanctity as the deceased had fallen in the hands of the police and had made the said statement according to the directions of the police. Regarding motive, it was observed that "real motive was such that the deceased did not want to disclose, therefore, in his statement recorded by the doctor he did not mention." The learned Judges of the High Court accepted the evidence relating to the motive and after casually dealing with the contention that Yousaf P.W.16 was an interested witness proceeded to observe as under:‑‑ "In any case, no fault can be found with the testimony of Ihsanul Haq ,(P.W. 17) who was an independent and truthful witness in every respect because he had no relationship or other connection with the complainant party nor any rancour or spite against the respondents. He gave cogent reasons for his being present near the place of occurrence at the time of incident and having seen a part of it when attracted by the alarm he went to the tubewell of the deceased and saw all the four respondents inside the tubewell room armed with deadly weapons and particularly Mukhtar Ahmad and Abdul Rehman respondent, who were armed with "Chhurries blocking the door of the room and Muhammad Afzal (deceased) pushing them out by raising his hands in order to make his way to run out. No doubt he did not see the assailants actually inflicting blows with their respective weapons on Muhammad Afzal (deceased) but whatever he saw and heard, he related it in a forthright manner. Therefore his testimony goes a long way in proving the participation of the respondents, particularly of Mukhtar Ahmad and Abdul Rehman in the occurrence as assailants of Muhammad Afzal (deceased). The learned Judges also accepted the dying declarations Exh. PA/1 recorded by the doctor on the medico‑legal report and Exh. PD recorded by Naib‑Tehsildar. However, they expressed doubts about the correctness of the dying declaration Ex. PV recorded by the police.

8. We have heard the learned counsel for the parties at length. An order of acquittal strengthens the initial presumption of innocence of the accused person and it can be interfered by the Court of appeal only if it is perverse to evidence or is based on unreasonable grounds. The mere fact that a different view of evidence is also possible will not constitute any valid ground for interference with an order of acquittal. In the impugned judgment it has no where been stated that the view taken by the learned trial Court was not possible or that the reasons given by it in support of the finding of acquittal were artificial. The learned Judges mainly relied on the ocular evidence furnished by Ihsanul Haq P.W.

17. It was observed that he was an independent and truthful witness in every respect and for holding so the reason given was "because he had no relationship or other connection with the complainant party nor any rancour or spite against the respondent." The observation that he had no relationship with the complainant party is based on misreading of evidence. In cross‑examination he admitted that his paternal‑aunt was the wife of Ali Muhammad uncle of the deceased (as per Urdu record). In the English record Ali Muhammad is mentioned as uncle of the accused but this does not appear to be correct account of what he had stated. There was no " reason/occasion for the defence to put him the suggestion that his aunt was married to the uncle of the accused. It is not understandable how the learned Judges distinguished the case of the appellant from that of co‑accused Rashid Ahmad and Pir Muhammad after holding that Ihsanul Haq P.W. 17 "did not see the assailants actually inflicting blows with their respective weapons on Muhammad Afzal (deceased)". The observation that role of Rashid Ahmad and Pir Muhammad "in causing certain injuries to Muhammad Afzal (deceased) was somewhat doubtful, but there can be no doubt whatsoever about the participation of Mukhtar Ahmad and Abdur Rehman" is just conjectural. As regards the dying declarations, no fault can be found with the observation of the learned trial Judge that "when the deceased came prepared to give a false statement on the asking of the police, this is not improbable that at the time he made statement before the doctor he falsely implicated certain innocent persons also in order to take revenge".

9. After considering the submissions made at the bar and having gone through the entire evidence we feel that the view taken by the learned trial Judge has the support of evidence and is reasonably possible. We, therefore, allow this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge. They shall be set at liberty forthwith if not required to be detained in any other case. N.H.O./M‑2027/5 Appeal allowed.