1985 P Cr (PLP)

(5) One abrasion " x " on tip of nose. (6) Multiple abrasions in an area of 2" x " on front and right side of forehead, " above right eye‑brow. He opined that all the aforementioned injuries were ante‑mortem and that the death had occurred due to shock and asphyxia caused by constriction of neck (strangulation) under ligature mark Nos. 1 and 2, which were sufficient to cause death in the ordinary course of nature. ‑In his cross‑examination, the doctor disclosed that injuries 3 to 8 were on the front of the dead body. He further clarified that injuries 1 and 2 on the neck were two distinct injuries by two ligature marks and both these injuries were round about the neck.

9. The appellants did not plead guilty. In reply to question No.7, mohda appellant replied:‑ "The deceased died at the hands of the police staff and the witnesses are the police officials so they have falsely deposed against me to save their own skin." In reply to question No. 8, he stated:‑ I was absconding in the false case under section 364, P.P.C. against me and the police arrested me from my house and involved me in this case." The other appellant, namely, Sarfraz alias Fazu in reply to question No. 4 stated:‑ "I was suspected in a case under section 457, P.P.C. relating to P.S. Kot Moman. My co‑accused in the said case was joined by the police in the investigation of this case, but as no evidence was available against him he was not being arrested and was merely detained by the police illegally. On this I arranged an application for habeas corpus in the honourable High Court from where a bailiff was deputed to recover my co‑accused aforesaid. On learning about the raid the police registered a case against myself and my co‑accused in that case. I, however, did not appear before the police and was absconding in that case. This is why the police has falsely involved me in this case, I have no connection with my co‑accused and the village Kalaika is at a distance of about 3 Kose from my house. I do not even know my co‑accused." No defence evidence, however, has been produced by the appellants.

10. It has been urged on behalf of the appellants that the occurrence allegedly took place at 9‑00 a.m. right in the police station, but the F.I.R. was recorded as late as 1‑05 p.m., although Manzoor Ahmad M.H.C. (P.W.6) was duty‑bound to record the F.I.R. immediately after the occurrence. It has further been argued that the only two public eye‑witnesses quoted in the F.I.R., namely, Ghaus Muhammad and Muhammad Inayat, have not been produced. This fact raises an adverse presumption against the prosecution. The M.H.C. and three constables, i.e. four subordinate police officials have been produced as eye‑witnesses. It has also been contended that Masood Aziz S.H.O. (P.W.7) and Zafar Iqbal P.I. (P.W.9) who conducted the investigation into this case, learnt about the occurrence from Manzoor Ahmad at Sargodha at about 10‑00 a.m. They consulted a doctor, namely, Doctor Paracha, whom they brought from Sargodha to the police station. They also made enquiries from constables who were present at the police station .as has been deposed by Abdul Ghafoor P.W.4. Thus, the case was registered after deliberations and preliminary enquiry and, therefore, no evidentiary value could be attached to the so‑called F.I.R. viz. Exh.P.D.

11. The learned A.A.‑G. maintained that the police has placed the cards before the Court in a forthright manner, nothing has been suppressed and the police officials who have testified at the trial as eye‑witnesses had no motive or malice against the appellants to falsely involve them in a murder case.

12. After a careful consideration and analysis of the prosecution evidence, I have assessed the arguments advanced from either side and I find that the prosecution case suffers from as many as seven infirmities or the shortcomings as indicated below:‑ (1) The delay of more than four hours in respect of the occurrence of murder which had taken place right in the police station itself has not been explained. Manzoor Ahmad M.H.C., whose primary duty is to register cases at the police station and has appeared at the trial as a star eye‑witness, failed to register this case. He allegedly went to Sargodha after the occurrence to inform the S. H .O. that murder had taken place at the police station. (2) F.I.R. Exh.P.D. in this case has been recorded by Zafar lqbal P.I. (P.W.9), instead of Masood Aziz S.I. (P.W.7), who admittedly accompanied Zafar Iqbal from Sargodha to the police station. A law officer i.e. P.I. is not expected to record F.I.R. when the M.H.C., the S.H.O. and other I.Os. are available at the police station. (3) Investigation in this case. has also been conducted by the aforementioned P.I. instead of Masood Aziz S.H.O. himself. This unusual practice is also not understandable. I am at a loss to understand as to why Masood Aziz S.I. failed to record the F.I.R. and to conduct the investigation. It is on the record that besides Masood Aziz, there were two A.S.Is. and one investigating H.C. attached to Police Station Kot Moman at the relevant time. In the presence of four I. Os. there was no occasion for the P.I., a law‑officer to conduct investigation in a murder case. (4) It also stands unexplained as to why Dr. Paracha accompanied the S.H.O. and the P.I. from Sargodha to the police station. This lends support to the defence version that in fact the police staff of Kot Moman Police Station was itself responsible for the death of the deceased and in order to get an expert advice, the S.H.O. managed to bring a doctor from Sargodha to the police station, although a doctor was available at Kot Moman Rural Health Centre and in fact, the said other doctor subsequently performed the autopsy on the dead body of the deceased. (5) The case regarding the abduction of Mst. Naziran deceased under section 364, P.P.C. pertained to the jurisdiction of Bhera Police Station. The said case was registered at Bhera. Legally, without any order by the S.P. or other superior officers, Masood Aziz S.H.O. Kot Moman had no jurisdiction to conduct investigation into that case. It is, therefore, not understandable as to why he had allegedly directed Mst. Naziran deceased to come to Police Station Kot Moman so that her statement under section 164, Cr.P.C. was got recorded. Similarly Masood Aziz had no occasion to send for Mohda appellant for interrogation in that case. (6) There is nothing on the record to show in any manner that Sarfraz alias Fazu appellant had any connections whatsoever with Mohda appellant. He is admittedly not related to Mohda. Both are residents of different places. It is not understandable as to why he allegedly joined hands with Mohda to do away with the latter's sister. It has been admitted by Masood Aziz while appearing as P.W.7 that a bailiff deputed by the High Court had raided police Station Kot Moman on the allegation that the S,H.O. had kept Ashraf, a co‑accused of Sarfraz alias Fazu appellant, in a theft case, in which Sarfraz appellant was an absconder. (7) The medical evidence does not furnish support /corroboration to the prosecution version. According to prosecution's case, both the appellants wrapped Dopatta of the deceased around her neck and caused her death by strangulation. In such an eventuality there should have been only one ligature mark around the neck of the deceased. The doctor at the time of autopsy had noticed two distinct ligature marks and both these injuries were round about the neck. He has clarified that these two injuries on the neck of the deceased were two distinct injuries caused by two different ligature marks. This shows that there has been constriction of the neck of the deceased twice and not once. As regards injuries 3 to 6, it has been explained by Dr. Mumtaz Ahmad Malik that they were on the front of the dead body. Had these injuries been caused as a result of struggle they should have been on the back. Injury No.6 comprises of multiple abrasions on front of the forehead. This injury cannot be caused by struggle if the deceased was made to he facing upwards while causing strangulation.

13. In the light of the glaring infirmities detailed above, the prosecution version is rendered doubtful and it does not appear to fall within the ambit of safe dispensation of justice to record conviction of the appellants on the capital charge. In this view of the matter, the appeal is allowed. The conviction and sentence of the appellants are set aside and they are acquitted. They are already on bail and shall) stand discharged from their bail bonds. S.A. Appeal accepted.