1991 P Cr (PLP)

6. Dr. Saeed Ahmad (P.W.3) performed the post-mortem examination on the dead body of the deceased on 8-2-1985 at 12-45 p.m. He observed the following injuries on his person:-- (1) Two stitched (white thread) wounds 7 c.m. long vertically placed on left border of sternum, 7.5 c.m. from left nipple and in line to it (2) 9 (black silk) stitched wounds obliquely placed left chest front 3 c.m. below left nipple and was 22 c.m. in length. (3) 10 (black silk) stitched wounds vertically placed front of abdomen, 24 c.m. long in the middle started from epigastrion upto 8 c.m. above the pubic joint. (4) Two stitched (black silk) wounds 3 c.m. long right side of abdomen vertically placed 10 c.m. from right anterior superior iliac spine and 9 c.m. from umblicus. (5) One stitched (black silk) wound 2.5 c.m. long, left side abdomen obliquely placed 12 c.m. from umblicus and 11 c.m. from anterior superior iliac spine. (6) Two stitched wounds 4 c.m. long posterior fold right axilla obliquely placed. (7) Stab wound 5 c.m. x 1.5 c.m. x muscle deep communicating to injury No.6, 17 c.m. below right shoulder top and, 3.5 c.m. posterior to injury No.6 on right posterior axillary fold obliquely placed. Injuries Nos.1 6 and 7 were opined to be homicidal with sharp-edged weapon and the rest surgical wounds as per the operation notes received from the Registrar of the Ward. The death was due to injury to the heart and lung as a result of injury No.l mentioned in the medico-legal report, dated 7-2-1985 which was sufficient to cause death in the ordinary course of nature According to the doctor injury 11o.7 was wound of entry and 6 of exit. Injuries Nos. 6 and 7 were simple in nature. He ruled out the suggestion that injuries Nos.6 and 7 could be the result of surgical incision.

7. Fazeel Ahmad (P.W.12) was A.S.I. at Police Station Manawan. On receipt of information from Mayo Hospital about the hospitalisation of the deceased, he reached there and in the operation theatre wrote application (Exh. P.J.). The doctor informed that the injured was not fit to make statement. Thereupon he recorded the statement (Exh. P.F.) of the complainant.

8. Noor Muhammad S.I. (P.W.14) investigated the case. On reaching the spot, he collected blood-stained earth vide memo. (Exh. P.H.) and received information that the injured had expired. He reached the hospital and prepared inquest, report (Exh. P.L.). He arrested Sarfraz accused on 18-2-1985 who got recovered Chhuri, (P.5) and was secured vide memo. (Exh. P.T.). He also arrested the other two accused later on. In cross-examination he told that Yasin appellant and Mazhar co-accused at the very first instance pleaded that they were innocent and had not participated in the occurrence. They had also produced witnesses in support of their plea. Haji Muhammad Yousaf Chairman, Union Council Manawan (D.W.6) was also among them. He also admitted that the two accused had offered their innocence on oath of Holy Quran or the complainant party may take oath to affirm their participation. The offer of the accused was not accepted by the complainant party. He concluded both the accused not present at the spot and challaned them only under section 302/109, P.P.C. 9.At the close of the trial Sarfraz Ahmad appellant pleaded that he had been falsely implicated on account of suspicion. The deceased, according to him, was a vagabond, used to tease and chase school going girls, for this purpose used to go to Adda Chhawail m the morning, had many enemies, somebody injured him in the morning, and the occurrence was an unwitnessed one. Yasin appellant pleaded that Muzaffar Ahmad, father of Imtiaz P.W., suspected him and Mazhar accused having snatched the ornaments and outraged the modesty of his wife Mst. Zohra while coming to the village from the city a few days before the occurrence. They had tried to satisfy him and the family members but they remained adamant and threatened dire consequences. The paternal-uncle of the deceased and Muhammad Sharif (P.W.10) was murdered by Inayat and due to enmity and suspicion they had been involved. His plea was adopted by Mazhar co-accused and both of them asserted that they had pleaded their innocence before the police, which was accepted. Nazir Ahmad (D.W.2) of the village of the parties was produced to support the plea as to the incident of Mst. Zuhra. Respectables of the village had collected near the mosque to vouchsafe the innocence of the two accused but the relatives of Mst. Zohra did not feel satisfied. Rana Muhammad Bashir (D.W.3), Oath Commissioner, Lahore High Court was produced to prove affidavit (Exh. D.G.) of Mushtaq (P.W.8). Exhibit D.G. is dated 5-10-1985. Asghar Ali Head Constable (D.W.4) was put in the witness-box to prove that Muhammad Sharif (P.W.10) was a police bird inasmuch as he had appeared in innumerable cases as a prosecution witness which fact he denied in his statement at the trial. Abdul Aziz and Haji Muhammad Yousaf, Chairmen (D.Ws.5 and 6) were produced to say that, during investigation they had vouchsafed the innocence of the two accused."

10. The prosecution case rests upon the eye-witness account furnished by Nazir Ahmad complainant, Mushtaq and Muhammad Sharif (P.Ws. 7, 8 and 10), the medical evidence provided by Drs. Abid Karim and Saeed Ahmad (P.Ws. 2 and 3) and Fazeel Ahmad A.S.I. and Noor Ahmad S.I. (P.Ws. 12 and 14), the investigators.

11. Learned counsel for the appellants contended that the occurrence had taken place in the early morning, was not witnessed, the appellants had been involved due to suspicion and the eye-witnesses had no occasion to be present near the spot. They, according to him, had been cooked up. Learned counsel for the complainant and the State defended the judgment delivered by the learned trial Judge.

12. The motive part of the story was not believed by the learned trial Judge and for correct reasons. Hameed, the material-uncle of the deceased, according to the prosecution evidence, had been away to London since about 2 years and so the version that Sarfraz had gone to demand the money on account of bricks from him and was turned out of the Haveli by the deceased is, therefore, not believable. However, from the statements of Imtiaz Ahmad (P.W.6), the complainant and Mushtaq Ahmad (P.Ws.7 and 8) it is clear that Sarfraz appellant is a very near relative of the deceased and the complainant. Imtiaz (P.W.6) is son of Muzaffar Ahmad. Akhtar, Safdar and Asmat Ali Naseem are brothers of Muzaffar. Sarfraz appellant is the son of Safdar. Mst. Hafizan daughter of Asmat Ali Naseem, is the wife of Nazir Ahmad complainant. The deceased was the son of the complainant. Mushtaq (P.W.8) is also their close relative. From the cross -examination to the eye-witnesses or Imtiaz, there does not seem to be any sort of bickering, ill-will or dispute between Sarfraz appellant or his parents on the one hand, or the deceased and his other relatives on the other. The three eye witnesses as against him are, therefore, entirely independent and disinterested.

13. The occurrence, according to the F.I.R. and the eye-witness account, took place at about 9-00 a.m. The injured was soon brought to Mayo Hospital in Emergency Ward where he was attended by Dr. Abid Karim (P.W.2) at 10-05 a.m. and there the A.S.I. (P.W.12) also reached and recorded the statement of the complainant. The F.I.R. is, therefore, also prompt. From the statement of Dr. Abid Karim (P.W.2) and the medico-legal report (Exh. P.B.) it appears that he was brought to the Emergency Ward by Mushtaq (P.W.8). Even according to the cross-examination to the eye-witnesses, it was Mushtaq who passed from near the spot when the deceased was lying injured. Nazir Ahmad is the father of the deceased and he claims that he was accompanying the deceased while going to the doctor at Baghbanpura. Mushtaq and Sharif (P.Ws. 8 and 10) also claimed to have reached at the spot. Mushtaq is alleged to have given affidavit (Exh. P.G.) according to which he had passed on the way when the deceased was lying injured whereafter he had informed at the house and conveyed him to the hospital. He denied his signatures on the affidavit and admitted his signatures on the copy of the I.D. Card (Exh. P.C.) The contents of Exh. D.G. were not put to him in cross-examination nor he was confronted therewith and contradicted. In what circumstances, if at all, this affidavit was obtained have not been brought on the record. The witness has not been contradicted with this statement as well. The presence of Mushtaq and Sharif P.Ws. at the spot though after the occurrence when the deceased was lying injured seems to have been suggested to the witnesses in cross-examination. The 3 eyewitnesses being independent and disinterested and their presence also not being doubtful were correctly relied upon by the learned trial Judge, against Sarfraz appellant.

14. So far as Yasin appellant is concerned, his case stands on a different footing. According to the F.I.R. he had given a blow in the back. On the back we have injuries Nos. 6 and

7. According to Dr. Saeed Ahmad (P.W.3) these were C homicidal but in the Emergency Dr. Abid Karim (P.W.2) had attended the deceased and he had observed only one injury in the chest, which later on proved fatal.

15. He (Dr. Abid) was emphatic to say that on the sweater, shirt and vest only one corresponding cut was observed. The deceased, as per the statement of Dr. Saeed Ahmad was operated upon and in a big way, possibility that some instrument negligently placed resulted in injuries Nos.6 and 7, cannot be entirely ruled out. Anyhow one is to be on guard in this respect. According to the version in the F.I.R. Mazhar co-accused caught the deceased in clasp whereafter Yasin gave the blow in the back. Such a situation is difficult to visualise. There is also a consistent plea on behalf of Yasin appellant and Mazhar co-accused that the mother of the deceased was deprived of the ornaments etc. while on the way to the village a few days before the occurrence, they were suspected, their innocence in this respect was tried to be established through the respectables of the village but the suspicion of the complainant family still persisted. He alongwith Mazhar co-accused were found innocent by the police, so far as their actual participation in the occurrence was concerned. Abdul Aziz and Haji Muhammad Yousaf (D.Ws. 5 and 6) are independent and disinterested witnesses and during investigation had supported the plea. In view of these circumstances, the case against Yasin appellant is not free from every doubt.

16. The upshot is that the appeal filed by Sarfraz appellant is dismissed but that of Yasin is accepted. He is granted the benefit of doubt and stands acquitted. He is on bail and stands discharged of the bail bonds. Sarfraz appellant is also on bail. He be taken into custody and sent to jail to serve out the sentence. The revision petition also fails and stands dismissed in limine. . N.H.Q./S-913/L Order accordingly.