1986 P Cr (PLP)

(2) An incised wound " x " x 2 " on right side of neck 3/ 4" from injury No.

1. On disection the organs underneath the wound including caroties vessels and jugular veins were found cut. (3) An incised wound semi‑circular in shape on right mendible. It was 1" x " x skin deep. (4) An incised wound " x " x " deep on the left ,and lower side of umblicus at a distance of 1 ". The organs under the wound and paritonium were found cut.

5. A wound 3/4" x " x 3/4" deep 2" below and on right side of umblicus. The organs under the wound and paritonium were found cut. (6). An incised wound 3/4" x '' x " deep on right side of abdomen 4 " from umblicus. (7) Many wounds skin deep around the umblicus.

3. In the opinion of the doctor the death occurred due to shock and haemorrhage caused by injuries Nos. 1 to

7. Injuries Nos.1, 2, 4 and 5 were opined to be sufficient to cause death in the ordinary course of nature. In cross‑examination doctor admitted, that he did not notice any cut mark on the shirt of the deceased corresponding to the injuries. The doctor further admitted, that he had omitted to mention in his report that injury No. 1 was on the front of the neck. The doctor further opined, that possibility of injury No. 3 having been caused by some animal could not be ruled out. The doctor further admitted that injury No. 7 on the body of the deceased consists of innumerable cuts which could not be counted.

4. On the application of the police on 22nd April, 1979 at 5 p.m. the same doctor examined appellant Iftikhar Ahmad and three abrasions mixing with each other were noticed on the neck of the appellant Iftikhar Ahmad. The doctor stated, that the said abrasions were caused by a blunt weapon and might have also been caused by a finger nail.

5. At the trial the prosecution relied upon the ocular testimony furnished by Muhammad Rafique complainant P.W.7 and Mukhtar Ahmad P.W.

8. The evidence as to the recovery of the blood‑stained clothes worn by the appellants at the time of their arrest was also relied upon as corroborative evidence. In their statements recorded under section 342, Cr.P.C. the appellants denied the charge. Iftikhar Ahmad appellant made the following statement:‑- "On the day following the night of occurrence in early morning I and Sarfraz accused were called to Police Post, Nawan Lahore where I was manhandled by the police. I was interrogated about the whereabouts of the deceased. Later on I and Sarfraz accused were taken to Police Station Gojra alongwith the P.Ws. where late in the evening a case was registered against us by fabricating evidence against us. I have been involved in this case because of enmity with Rafique complainant and political rivalry with Sarwar brother of Khalid P.W. The deceased died in mysterious circumstances and the occurrence was not witnessed by anyone. Sarfraz appellant made the following statement:‑ "On the morning of 22‑4‑1979, I and Iftikhar were called by the Police Nawan Lahore. We were Manhandled and the police wanted us to confess before them that we had committed the murder of Ghulam Dastgir. We had no reason at all to commit the murder of a fellow citizen. We were threatened and then taken to Gojra. where this false story was cocked and false circumstances evidence was concocted. About a year before the occurrence I had left school where I was studying in 8th Class and I opened a shop at Adda Nawan Lahore. Ghulam Dastgir Was known to me and he had appeared in the Matriculation Examination. I have been implicated due to suspicion."

5. I have heard the learned counsel for the appellants and the State at length. I have also carefully scrutinized the ocular account of the prosecution version. After anxious consideration, I have come to the conclusion, that the prosecution version is unreliable and the eye-witnesses in no circumstance could have seen the occurrence, nor in my view they, were capable to overpower the appellants who were young boys, aged about 16/17 years and were armed with knives. Similarly, the assertion by the eye‑witnesses, that they had caught hold of the appellants and had tied them with their Safas for taking them to the police station is against the course of human conduct and behaviour. It was a dark night and the witnesses claimed to have reached the place of occurrence after hearing the cries of the deceased to the effect. It is highly improbable that in view of the injuries on the neck, the deceased would 'have been able to raise hue and cry and that too, at a time when allegedly the eye‑witnesses had to pass at a distance of 2/3 Acres from .the place of occurrence. It is improbable, that the appellants would not have noticed approaching the eye‑witnesses to the place of occurrence, that being so, I cannot believe, that the appellants would have so readily and voluntarily surrendered themselves before the eve‑witnesses anti to have offered themselves to be tied with a Safa particularly when they were armed with knives.

6. As far as Mukhtar Ahmad P. W. 8 is concerned, he is a chance witness and his presence and having accompanied Muhammad Rafique P.W. 7 and Muhammad Shafi his brother (not produced) is unbelievable. The said witness gave an explanation that he had gone to village Badroo for settling the bargain for the purchase of a bullock and on his return from the said village he came across Muhammad Rafique P.W. 7 and his brother Muhammad Shafi. The occurrence admittedly took place between 11 and 12 p.m. I am not prepared to believe, that at such late hours Mukhtar Ahmad would be returning from a village where he had gone to strike the bargain for the purchase of a bullock. It was month of April which being harvest season the absence of cultivator from his field is unnatural. Mukhtar Ahmad is Arain by caste and so is the complainant and I am of the view, that on account of the Bradary affinity, he has entered into witness‑box to oblige the complainant. The prosecution story if believed give rise to the inference, that the appellants would be waiting for the witnesses to pass from near the place of occurrence to kill the victim of attack. A word about the motive would also be necessary because the prosecution has set it up. The motive is too feeble to be believed. Assuming it to be true, how it is possible, that the deceased would have told the alleged illicit liaison between his two male friends to his own father. Furthermore even if it is believed that the complainant knew about such liaison, why would he permit his son to accompany them at sun‑set time. The findings arrived at by the learned trial Judge on the motive and to believe its truth, is not sustainable. If at all the appellants had any grouse, the deceased would have known it and, therefore, would not have accompanied them as alleged by the prosecution.

7. As far as the recovery evidence is concerned it is of no avail to the prosecution, inasmuch as, the ocular testimony in this case is unworthy of the credit and, therefore, the recovery loses its corroborative significance.

8. In this view of the matter, this appeal must succeed and is, therefore, allowed. The appellants would be set at liberty forthwith if not required in any other case. S.G.D. Appeal allowed.