P L D 1987 Lahore 162 (PLP)

Mst. Noor Bhari P. W. 5, her husband Hayat Muhammad and her son Amir Khan, lived in village Losar Sharfoo in rented room belonging to Haji Muhammad Ashraf. On 14‑5‑1983 at about Degar Wela, Amir Khan deceased went to the mosque near graveyard to have bath. Mst. Noor Bhari also went in the nearby fields to ease herself. When she reache d near the corner of school, she noticed Shakeel Ahmad accused launching an attack on her son Amir Khan who by that time had reached the outer bathroom of the mosque. Shakeel Ahmad gave Chhuri blow near the right arm‑pit of Amir Khan who started bleeding. Amir Khan gave kick blow to Shakeel Ahmad who fell down. Shakeel Ahmed then grappled with Amir Khan deceased. In the meantime Muhammad Rahim and Haider Khan P. Ws. came out of the mosque. They saw the occurrence and tried to apprehend the accused. Haider Khan was able to snatch Chhuri alongwith Danda from Shakeel Ahmad. Many residents of the village also came there. They separated Shakeel Ahmad from Amir Khan deceased. One person from the village brought a Suzuki van and took Amir Khan to Civil Hospital Rawalpindi but he died in the way on account of the injury. The motive was stated to be that about a week earlier Shakeel Ahmad and Amir Khan had quarrelled in which Amir Khan had given fist blows to Shakeel Ahmad. S. I. Muhammad Nawaz P. W. 7 was on patrol duty. He learnt about this occurrence and went to Dirtrict Headquarter's Hospital and recorded the statement Exh. P. A. at the instance of Noor Bhari P. W. 5 on 14‑5‑1983 at 9 p.m. This was sent to police station Wah Cantt. District Rawalpindi, about one mile from the place of occurrence in village Losar Sharfoo, where formal F. I. R. Exh. P. A./1 was recorded by M. H. C. Muhammad Jamil P. W. I on the same day at 10 p.m.

2. The dead body of Amir Khan aged about 20 years, after necessary formalities was sent for post‑mortem examination which was conducted by P. W. 8 Dr. Syed Ishtiaq Ali Shah at 10‑30 a.m. on 15‑5‑1983. On external examination the medical officer found "an incised wound 2 c.m. x 1.5 c.m. in right anterior axillary line, 4 c.m. below right axilla." There was no other injury on the dead body. On dissection the injury was found‑ having oblique course. It had pietced the muscle and fascier. It then entered 3rd inter costal space on right side. It perforated the heart at its right upper border after passing through the upper border of right lung. The pleura of right lung was also ruptured. Chest cavity was full of blood. Stomach contained semi digested food. The death occurred due to shock and haemorrhage on a result of the above‑mentioned injury, which was sufficient to cause death in the ordinary course of nature. The injury has been caused by sharp edged weapon. The time between injury and death was 10/15 minutes and post‑mortem was conducted after about 12/14 hours.

3. The accused was arrested on 15‑5‑1983. He led to the recovery of Chhuri on that date which was taken in possession by P. W. 7 Inspector Muhammad Nawaz. (The recovery memo. of this Chhuri was not proved on record of this case. The Chhuri was also not produced in Court during trial. As such the report of Chemical Examiner Exh. P. G. and that of) Serologist Exh. P. H. are of no avail to the prosecution). The Investigating Officer during inspection of spot on 14‑5‑1983 collected blood‑stained earth vide memo. Exh. P. D. The accused was challaned after completion of investigation.

4. The prosecution in support of its case examined 8 witnesses in all. P. W. 1 Muhammad Jamil H. C. drew up formal F.

1. R. Exh. P.A./1 and kept sealed parcels in Mall Khana. P. W. 2 F. C. Muhammad Rafique took the sealed parcels to Chemical Examiner, Lahore. P. W. 3 Muhammad Akram prepared site plan Exh. P. B. P. W. 4 Fida Hussain Shah escorted the dead body of Amir Khan deceased for post‑mortem examination, P.W. 5 Mst. Noor Bhari is complainant and eye‑witness of this occurrence. On 7‑11‑1984 the Deputy District Attorney gave up Hayat Muhammad P. W. as unnecessary. P. W. 6 Atta Muhammad also had escorted the dead body for post‑mortem examination. P. W. 7 Muhammad Nawaz Inspector investigated this case. P. W. 8 Dr. Ishtiaq Ali Shah furnished medical evidence as given in detail above.

5. The accused in his statement after close of prosecution evidence denied the charge and pleaded innocence. He did not lead any evidence in defence. The learned Additional Sessions Judge, Rawalpindi placed reliance on the evidence of Mst. Noor Bhari and convicted Shakeel Ahmad accused aged 35 years to imprisonment for life plus fine of Rs. 5,000 under section 302, P. P. C. vide impugned judgment dated 21‑5‑1985. It was ordered that the fine, if recovered, will be paid as compensation to heirs of the deceased. Shakeel Ahmad has challenged his 'conviction and sentence through this appeal.

6. I have gone through the record of this case with the assistance of learned State counsel. The prosecution case rests on the solitary statement of Mst. Noor Bhari P. W. 5 mother of Amir Khan deceased. There is no other evidence to corroborate her. The two eye‑witnesses named in F. I. R. were not examined during the trial because their whereabouts were not known and they could not be served for appearance in Court. The Chhuri alleged to have been recovered at the instance of accused was not produced in Court during trial. Even the recovery memo. was not proved in evidence. The two alleged recovery witnesses Mushtaq and Ghulam Haider were given up by the Public Prosecutor as unnecessary. Mst. Noor Bhari in her F. I. R. stated that after receiving Chhuri blow Amir Khan had given kick blow to Shakeel Ahmad accused who fell down whereafter Shakeel Ahmad grappled with Amir Khan deceased ; that the Chhuri and the Danda were snatched by Haider P. W. ; that Amir Khan was put in a Suzuki van and taken to Civil Hospital, Rawalpindi but he died in the way and that her statement was recorded at Civil Hospital. However, during the trial she stated that Rahim Khan and Haider P. Ws. apprehended the accused at the spot ; that she accompanied both these persons and Shakeel to the police station ; that her husband was also with her; that Muhammad Amir was taken in a taxi to Civil Hospital and that she lodged the report at the police station. In her cross‑examination she stated that the accused was taken to the police station a few minutes after the occurrence ; that Sub‑Inspector had come to the spot where her son was murdered ; that the Sub‑Inspector had himself taken away accused and that the Sub‑Inspector had despatched her son to hospital in company of some persons. A comparison between her two statements, one in F. I. R. and the other during trial, brings out two divergent versions not only of the occurrence but also regarding the arrest of accused and recording of the first information report. The conflict in these two statements makes the prosecution case doubtful. Her husband Hayat Muhammad, who also lived in the nearby house, was not examined as witness in this case. The residents of the village who also had reached the spot were not cited as witnesses by the prosecution. The other residents of the locality were also not examined as witnesses. I am, therefore, not inclined to place reliance on the solitary statement of Mst. Noor Bhari to record conviction of Shakeel Ahmad accused.

7. In view of the above discussion this appeal is accepted. The con viction and sentence of Shakeel Ahmad accused is set aside. He is acquit ted and shall be released from prison forthwith, if not required in any other case. The appellant be informed of the result of this appeal.

8. During hearing of appeal and on perusal of record I have noticed that the officer‑in‑charge of the Police Station Wah Cantt., District Rawalpindi failed to take appropriate and effective steps to procur presence of prosecution witnesses in Court during trial in spite of more than 8 opportunities allowed for the purpose. Haider Khan (wrongly written as Saeed Khan) and Rahim were two eye‑witnesses of the occurrence. It was reported that they had shifted their residence to some unknown place after the present occurrence. It seems that genuine efforts were not made by the police concerned to trace them out. They, therefore, could not be examined as witnesses during the trial. Of late it has been noticed that officers‑incharge of police stations do not take any interest in prosecut ing criminal cases of their respective police stations in Courts. They are duty bound to pursue cases in Courts and to arrange presence of witnesses for evidence but in spite of that they seldom follow rules and mandatory provisions of section 170, Cr. P. C. The failure in performance of duty and strict compliance of law by Station House Officers, invariably results in delay in completion of trial. In fact lack of interest and carelessness on the part of concerned officers‑incharge is one of the basic causes of delay in completion of trial and piling up of cases in criminal Courts. It is high time that the authorities concerned took note of the present grave situation. The conduct of trial by the Deputy District Attorney as well as the Special Public Prosecutor in the instant case left much to be desired. The Deputy District Attorney did not care to produce or arrange to be produced the crime weapon in Court. The memo. of recovery of Chhuri a the instance of accused was also not brought on record and proved in evidence during the trial. He did not make any request to Court during trial to procure presence of necessary witnesses by coercive method accord ing to law. The Special Public Prosecutor went a step forward and on E 13‑4‑1985 gave up Haider and Mushtaq, who had witnessed the recovery of Chhuri from the accused, declaring them unnecessary. One fails to understand how they were unnecessary witnesses. I do not propose any action against them but it will be appreciated if the Law Department issues necessary instructions to the District Attorney etc., to follow the Law Department Manual, Code of Criminal Procedure and High Court Rules and Orders while prosecuting the cases on behalf of the State. M, B. A./S‑9/L Appeal accepted,