1984 P Cr (PLP)

Aftab Javed for the State. Date of hearing : 7th May, 1983. Akhtar Ali' appellant and his two co-accused Dilbar Huss in and Zulfiqar Ali were tried for an offence under section 302, P. P. C. for committing the murder of Faiz Muhammad, on 18th May, 1977 at 8-45 p. m. in the urban area of Karor on a roadside leading to a cinema. At the trial the co-accused of the appellant were acquitted as they were found to be empty handed but the appellant was convicted and sentenced to impri sonment for life and to a fine of Rs. 1,000 or in default of payment of fine to undergo further R.I. for six months. He was further directed to pay a compensation of Rs. 1,000 or to suffer further imprisonment of six months' R.I. This appeal is directed against the conviction and sentence ordered by Ahmad Nawaz Malik learned Additional Sessions Judge, Muzaffargarh, on 20th January, 1980.

2. The case of the appellant is that it was an unwitnessed occurrence and the three eye-witnesses produced are not only chance witnesses but are interested. It has also been urged on behalf of the appellant the case against the appellant is not free from doubt.

3. The motive for the occurrence is stated to be the misconduct of the deceased against Dilbar Hussain, a co-accused of the appellant, according to which the deceased had teased Dilbar Hussain about six months before the present occurrence. Akhtar Ali is stated to be a friend of Dilbar and had a grudge against the deceased on that account and is stated to have taken revenge of the insult by committing murder of Faiz Muhammad deceased. No details have been given of the joke or the insult given by the deceased to Dilbar Hussain but from all appearances, A this does not appear to be a serious affair particularly when a period of six months elapsed between that incident and the present occurrence. The motive becomes doubtful particularly in light of a comparatively more recent occurrence in which one Murid Abbas had been injured and a case was registered against the deceased and some others including Mukhtar Hussain P. W. 7.

4. The injuries on the person of the deceased also raise certain ques tions particularly injury No. 5 which is a punctured wound 1/3" x 1/5" x 2" in the anus. This particular injury is peculiar and tends to show that the assailants were not only angry but wanted to humiliate the deceased presumably on account of some misconduct on behalf of the deceased. The evidence led in the present case does not show any material which may explain this aspect of the case. The incident involving injury to Murid Abbas mentioned above also assumes importance because that incident took place only two weeks before the present occurrence but the police did not register the case until a direction was given by the High Court four months later on. The possibility that the present occurrence was the result of the frustration faced by the complainant in that case could not be excluded.

5. As regards the eye-witnesses, P. W. 10 Ghulam Qadir is brother of the deceased. He lodged the report regarding the occurrence with the police. The report itself appears to have been lodged promptly although the defence has been able to show that the police had the opportunity of updating the report as the diary dairy facilitated adequately. The important fact, however, remains that Ghulam Qadir P. W. saw the occurrence only by chance when he came looking for his brother, the deceased at about 7:00 p. m. the same evening. He was at some distance from the deceased, when he saw the assault being committed on him. This appears to be too' convenient to be true. The other two witnesses Shaukat P. W. 8 and Faqir Muhammad P. W. 9 are said to have been in the company of the deceased when the occurrence took place. These two are also chance witnesses. They have tried to show that they wanted to see the film as did the deceased but instead of seeing the film they decided to have a walk and were waylaid by the assailants at the place of occurrence. This story does not appear to be probable. Waylaying of a person is ordinarily a planned affair. If the deceased had come to see the film and instead decided to take a walk there could be no waylaying as the assailants would have no means of knowing beforehand that the victim will pass that way. Shaukat P. W. is also related to the deceased although he tried to conceal the relationship. Similarly, Faqir Muhammad P. W. is not only the neighbour of the deceased but the land underneath the house where he lives was given to his family by the forefathers of the deceased, some members of the family of which he still serves as a moeen. No reliance could, therefore be placed on the testimony of Shaukat or Faqir P. Ws.

6. The deceased appears to be a person who is in habit of getting involved in unsavoury incidents. The incident of teasing Dilbar has been advanced by the prosecution itself while the hurt case against the deceased had been proved by the defence and has been admitted by P. W.7 Mukhtar Hussain. The place of occurrence has bushes around it and some pits. It is a night time occurrence and appears to be unwitnessed and the assault on the deceased could have been made by one of the persons inimical towards him. The complainant, a brother of the deceased admits that the deceased and a number of enemies, so much so that has had forbidden him to go out.

7. In view of the above discussion, I am of the view that the evidence led by the prosecution does not inspire confidence and the case against the free from doubt. This appeal is, therefore, allowed and appellant is not the appellant is acquitted of the charges against him. He is on bail. Her is discharged of the bail bonds. M.Y.H. Appeal allowed.