1968 P Cr (PLP)

On dissection, it was found that- (i) the thorax was ruptured in the left 6th inter costal space; (ii) Left pleura was ruptured; (iii) the wall of the abdomen was ruptured and also peritoneum; (iv) the diaphragm was cut on the left side; (v) the spleen was ruptured. Death in the opinion of the doctor was caused by shock and haemorrhage due to multiple incised wounds by sharp-edged weapon. Injury No. 3 was sufficient to cause death in the ordinary course of nature. Exh. P. H. is a carbon copy of the post-murtem report.

8. Dr. Abdul Wahid (p. W. 2) medically examined Mushtaq Ahmad P. W. on the 5th of April 1966, at 11-20 p. m. and found on his person a spindle-shaped vertical incised wound, 1/2" x 1/10' X skin deep, 7" below tibial tuberosity in front of left leg. There was a corresponding cut on the payjama. The injury was simple and caused by a sharp-edged weapon.

9. On the 6th of April 1966, at 7 a. m,, the same doctor medically examined Muhammad Yasin appellant under police custody and found on his person:- (1) A contusion, 2" x 1 " x ", above the right eyebrow. (2) A contusion, 3/4'x ', 1 ' above the medial part of left eye-brow. Both the injuries were simple and caused by a blunt weapon.

10. On the 7th of April 1966, at 6-30 p. m., the same doctor medically examined Naeem Hussain appellant under police custody and found on his person the following injuries- (1) A contusion, 2" x 1 , on the left eye including both eye lids (reddish in colour). (2) A contusion, 1" x 3/4', on and above lateral end of left eye-brow. (3) A bruise, 1' x 1/2', in front and on the right side of nose in its upper third. (4) An oblique bruise, 2 ` x 1 , on back of chest, just to right of mid-line at the level of middle of scapula. (5) An oblique bruise, 3" x 1/2", on the upper surface of left shoulder. The injuries were caused by a blunt weapon. Injury No. 3 was kept under observation and found on X-ray to be grievous. The remaining injuries were simple.

11. According to the report of the Chemical Examiner the blood-stained earth taken from the place of occurrence, the dhoti and shirt of Muhammad Yasin appellant and the chhuri Exh. P. 2, recovered at his instance the pant and bush-shirt of Naeem Hussain appellant and the chhuri Exh. P. 1 recovered at his instance were found stained with blood. According to the report of Government Serologist the bloodstains on the chhuri recovered from Naeem Hussain appellant were found disintegrated and their origin could not be determined. The remaining four items were found stained with human blood.

12. The two appellants generally denied the prosecution allegations in their statements in the Court of the committing Magistrate and at the trial. With regard to the injuries on their persons Naeem Hussain stated in the Court of the committing Magistrate that "the police had eaten me on account of which I sustained the injuries". At the trial, he stated that "i was tortured by the police and got injuries on my person due to that torture." Muhammad Yasin appellant stated in the Court of the committing Magistrate, "I had no injury on my person". At the trial, however, be explained his injuries as follows :- "Inayat Ullah A. S. I. bad falsely challaned me in a gambling case in which I was acquitted. lnayat Ullah A. S. I. subsequently gave me always one or two danda blows whenever he met me before the occurrence. On the day of occurrence Inayat Ullah A. S. 1: caught hold of me about ten, fifteen paces from the place of occurrence and squeezed me with his knees and gave me fist blows on my eye-brows and hurt me on my back with his knees. The injuries on my person were caused by Inayat Ullah by his fist and kicks etc. I do not know who caused the injuries to Imtiaz Ahmad Khan and. Inayat Ullah."

13. It may be mentioned here that Naeem Hussain had claimed at the trial to be 19 years old but the learned trial Court mentioned that he appeared to be 22 years old. Muhammad Yasin appellant did not produce any defence while Naeem Hussain produced Shabir Ahmad (D. W. 1) and Muhammad Yaqub (D. W. 3). Learned counsel for Naeem Hussain appellant did not, during his arguments, refer to the defence evidence, which, accord ing to him, was of no assistance to his client,

14. The prosecution case rests on the eye-witness testimony of Mushtaq Ahmad (P. W. 1.3) and A. S. I Inayat Ullah (P. W. 17), bout of whom had received injuries. We have no reason to reject the testimony of these witnesses who had no motive to implicate the appellants falsely. The attack was made on three persons, namely, Mushtaq Ahmad P. W., A. S. I. Imtiaz Ahmad deceased and A. S. I. Inayat Ullah P. W. and there is nothing to suggest that this assault was the effort of a single assailant. The number of assailants seems to be the minimum possible. In the circumstances, we have not the slightest doubt that this is not a case of substitution of assailants. 15. "the prosecution also relies on the testimony of Muhammad Ayub (P. W. 14) and F. C. Abdul Majid (P. W. 15). Muhammad Ayub P. W. has tried to contradict the statement made by him in the Court ;of the committing Magistrate and the statement made by him at the trial in the examination-in-chief by his statement under cross-examination that he had not seen the accused actually inflicting injuries on the two A. S. I s. He stated under cross-examination as follows :- I had only seen Imtiaz Ahmad injured. I had not seer: anybody giving injuries to Imtiaz Ahmad whom i had seen only inured and fallen. I had seen Yasin accused catching hold of Inayat Ullah A. S. I. with a chhuri in his hand. I had not seen him (Yasin) giving injuries to Inayat Ullah." Taking the statement of this witness at its best for the defence, it means that he had reached the spot soon after the occurrence on hearing the hue and cry and had seen Yasin appellant with a chhuri in his hand and catching hold of Inayat Ullah A. S. I. and had seen Imtiaz Ahmad A. S. I. injured and fallen. Under examination-in-chief, the witness had stated that be had seen the two accused present at the spot with the two A. Is. and that the two accused had made good their escape and taken away the chhuris with them. F. C: Abdul Majid P. W. had also reached the spot along with Muhammad Ayub P. W. Mushtaq Ahmad P. W. has also stated under cross-examination as fellows:-- "It took Naeem and Yasin about five seven minutes to snake the assault on Imtiaz Ahmad and Inayat Ullah. Abdul laid Head Constable and Ayub f'. Ws. had arrived two tie minutes after the assault- was concluded." We have examined the Urdu record, which does give such clear indication that Muhammad Ayub and F. C. Abdul Ayub bad reached the spot after the occurrence bad concluded. Accord ing to the Urdu record Abdul Majid and Muhammad Ayub P. We. had arrived 2 or 3 minutes after the attack. The words are "Do tin minute ke baad Jab hamla ho chuka the". According to the Urdu record the witnesses bad come to the scene of occurrence two or three minutes after the attack had started or after the occurrence was over. In view of the ambiguity to the Urdu record and the clear language in the English record we have decided to give the benefit to the defence and we accept the position that F. C. Abdul Majid and Muhammad Ayub P. Ws, had not actually seen the occurrence although in our opinion they had been attracted to the spat by the hue and cry and had reached the place immediately after the occurrence to see at the pot the assailants with their weapons as well as the injured persons. According to section 114 of the Evidence Act "the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural event:, human conduct and public and private business, in their relation to the facts of the particular case." .Illustration (a) under this section empowers the Court to presume "that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". Foot Constable Abdul Majid bad taken. immediately after the occurrence, the two A. S. Is. to the Mayo Hospital and Muhammad Ayub P. W. had been left to keep guard at the spat while Mushtaq Ahmad P. W. had gone to the police station to lodge the first information report. According to Sub-Inspector Muhammad Aslam (P. W. 20) he had found Muhammad Ayub P. W. at the spot on reaching there immediately after recording the first information report. We can, therefore, accept the prosecution claim that F. C. Abdul Majid and Muhammad Ayub P. Ws. - had been attracted to the spot by the outcries and had reached the spot immediately after the occurrence to see the three injured persons as well as the two assailants with their weapons which must have been blood-stained at that time. Since the assailants have not tried to explain the situation in which they were found, we are able to rely upon the testimony of F. C. Abdul Majid and Muhammad Ayub P. Ws. in corroboration of the eye-witness testimony of Mushtaq Ahmed and Inayat Ullah P. Ws.

15. Further corroborative evidence is furnished by the motive evidence, which is proved by Mushtaq Ahmad (P. W. 13) and Nawab Khan (P. W. 16). Still further corroborative evidence is available from the recovery of the blood-stained garments of the two appellants and the weapons of offence. The bush-shirt Exh. P. 3 and the pant Exh. P. 4 were recovered from the person of Naeem Hussain appel lant (Memo. Exh. P. G.) and the blood-stained chhuri Exh. P. I at his instance. The Police similarly recovered the blood-stained chhuri Exh. P. 2 at the instance of Muhammad Yasin appellant and the blood-stained dhoti Exh. P. 5 and the shirt Exh. P. 6 from his person. According to the report of the Government Serologist the blood-stains on the chhuri Exh. P. I recovered at the instance of Naeem Hussain had disintegrated. and their origin could be not determined. The rest of the five recoveries were, however, found to be stained with human blood. These re coveries are proved by independent witnesses, who had no motive