1983 P Cr (PLP)

Dr. M. A. Saleemi (P. W. 8) who was posted as Medical Officer, Civil Hospital, Burewala, had medically examined Siftullah on 14th Febuary, 1976 at 10-40 a. m. and had found the following injury on his person-- (1)??????? An incised wound 4" x 12" bone cut on the left side of head at mid area 3" above the left ear. According to the Medical Officer, the aforementioned injury had been caused with sharp edged weapon within the duration of 8 to 24 hours and was dangerous to life. Siftullah was not in a fit condition to make statement as he had informed the Investigating Officer vide his note Ex. P. G. /1 on 24th February, 1976 at 9 a. m. Postmortem on the dead body was performed by Dr. Mushtaq Ahmad, Medical Officer, Civil Hospital, Arifwala (P. W. 1) on 14th August, 1976. He bad noticed the following injury on the dead body:- (1) ?????? A depressed healed scar 4 ?" x 1 ?" x ?" on the left side of head 3" above the left ear. On the internal examination the doctor found that the left parietal bone was cut through and through. There was a gap of one c. m. in between the edges of the pariecal bone. There was cerebrominen gial adhesion present under injury No. 1 and there were adhesions present on the left parietal lobe, pus was found in an area 1" x 1" on the upper surface of left side of bran under injury No.

1. The stomach contained water. All the other organs were healthy. The cause of death, according to the doctor, was brain abscess and injury to the brain due to injury No. 1 which was fatal and was sufficient to cause death in the ordinary course of nature. The said injury had been caused by sharp-edged weapon and was ante-mortem. Probable duration between injury and death was five months and 20 days, which was assessed by the doctor on the basis of medicolegal certificate No. 37/76 issued by the Medical Officer, Burewala. Muhammad Arsha d lqbal SA. who bad conducted the investigation of the case was examined as P. W. 7.

5. After the close of the prosecution case, the statement of the appellant was recorded under section 342, Cr. P. C. He controverted the allegations made against him by the prosecution and pleaded that he had been falsely implicated in the case on account of suspicion and enmity with the prosecution witnesses. He also examined Sher Muhammad in his defence as D. W. 1 who stated that on the day of occurrence he was called by the younger brother of the Lambardar of the village to lead the track as according to Mst. Ghulam Fatima widow of Siftullah, deceased, some unidentified person had assaulted her husband. He reached the place of occurrence but was unable to lead the track to any place.

6. Learned trial Judge relied on the ocular testimony of the two eyewitnesses. He also believed the evidence of motive. He found that none of the prosecution witnesses had any enmity with the appellant. The testimony of Sher Muhammad D. W., who was initially cited as a prosecu?tion witness but was produced by the appellant as a defence witness was rejected and it was concluded that the prosecution had proved the charge against the appellant beyond reasonable doubt.

7. We have beard the learned counsel for the parties and have also carefully gone through the record of the case. We have noticed that the police had received information about the occurrence prior to the registra?tion of the case. The first information report in this case was recorded at 11.45 a.m. on 24th February, 1976. Siftullah, deceased, was medically examined before the registration of the case and medicolegal certificate (Exh. P. H.) had been issued by Dr. M. A. Saleemi (P. W. 8) which was produced before the police at the time of recording of the F. I. R. Application Ex. P. G. addressed by the Investigating Officer Muhammad Arshad Iqbal to Dr. M. A. Saleemi enquiring about the condition of the injured as to whether he was fit to make statement was sent by the Investigating officer before the registration of the case as is evident from the note Exh. P. G./1 which was recorded on the said application at 9 a.m. Dr. M. A. Saleemi, while appearing as P. W. 8, has also made a categorical statement that the aforementioned note was recorded by him at 9 a.m. Why the Investigating Officer did not register the case before 9 a.m,, stands explained by the fact that it was known to him or even to the complainant as to who had made the murderous assault on Siftullah. In fact, the police had already made some preliminary investigation and it was thereafter that the name of the appellant was introduced as the assailant of Siftullah. The above conclusion is supported by the fact that in the recovery memos. Exhs. P. D., and P. E. and the rough sketch plan Exh. P. F., the name of the accused has not been mentioned though the F. I. R. number and date of registration of the case and the name of the complainant have been shown. There was no difficulty for the Investigating officer to give the F. I. R. number and the date of registration of the case as the number of the F. I. R. to be given for the registration of the instant case could be well ascertained from the register of F. I. Rs. The absence of the name of the accused in the aforementioned documents clearly indicates that the police did not know anything about the accused when these documents were prepared. Application Exh. P. G. which was addressed to the Medical Officer, Civil Hospital, Burewala, on 24th February, 1976 also did not show the name of the accused. Had the comp?lainant known the name of the assailant when he contacted the police for the first time for registration of the case. Muhammad Arshad S. H. O. would have immediately recorded the F. I. R. and would not have addressed application Exh. P. G. to the Medical Officer, Burewala, enquiring as to whether Siftullah was in a fit state to make a statement or not. Muhammad Arshad Iqbal S. 1. was anxious to know the particulars of the assailant from the injured himself as the occurrence had taken place at night and there was only a remote possibility of the identification of the assailant. He genuinely thought Siftullah would be the best person to tell him about the person who had any cause of grievance against him and who would have assaulted him. Unfortunately, he could not get any such information from Siftullah as Dr. M. A. Saleemi intimated him that the injured was not in a fit condition to make statement. After receiving the above intima?tion, the Investigating Officer was left with no choice but to register the case against the appellant, whose relations were admittedly strained with the complainant party.

8. Being a night occurrence, it was incumbent upon the prosecution to prove beyond reasonable doubt that it was the appellant who had made the murderous assault, and that there could be no dispute about the identity of the assailant. The prosecution has relied on the ocular testimony of Ghulam Muhammad (P. W. 5) and Mst. Ghulam Fatima (P. W. 6) who both are closely related to Siftulla deceased. In the F. I. R. (Exh. P. C.) Ghulam Muhammad P. W. had not said anything as to how the appellant was identified when he attacked his brother Siftullah in the courtyard, but while appearing as P. W. 5 he trod to meet this lacuna by stating that there was sufficient light of the fire which was burning in the hearth. Mst. Ghulam Fatima (P. W. 6) also explained in her cross-examination that although there was no lantern lit at the place of occurrence, the flames of the fire burning in the hearth were high. According to the prosecution story, Noor Ahmad appellant had suddenly emerged out from behind a wall and after giving a hatchet blow on the head of Siftullah had run away leaving his hatchet at the place of occurrence. Obviously, the occurrence must have taken place in a couple of minutes, particularly, when the deceased and the eye-witnesses were taken by surprise. It is difficult to believe that the eye-witnesses would have identified the assailant in such a short time and that too in the light of the flames of the fire. Blood-stained hatchet P. 1 which was produced before the police by Ghulam Muhammad P. W. has no specific mark of identification so as to connect it with the appellant.

9. Another important circumstance, which we have noticed in this case, is that the prosecution has made no attempt to show that Siftullah was unable to make statement after the occurrence till his death. There is no doubt that he had received a head injury for which he was admitted in the hospital at Burewala, and it was reported by the doctor that he was unfit to make a statement, but thereafter, he was removed to Nishtar Hospital where he remained as an indoor patient for two and a half months and there is nothing on record to show that even during that period he was unable to make statement. Ghulam Muhammad (P. W. 5) has stated that from Nishtar Hospital, Siftullah was taken to Civil Hospital, Chicha?watni, and from there he was shifted to General Hospital, Lahore, where he remained under treatment for about a month and half and ultimately was brought from there as the doctor had advised that there was no chance of his being cured. He died in his Chak twenty days after he was brought from the hospital. The prosecution has produced no evidence to show that Siftullah deceased could not make statement during the course of his medical treatment at the aforementioned hospitals. Merely, on account of head injury to Siftullah, it is not possible to draw inference in favour of the prosecution that he could not make statement during the period of five months and twenty days which elapsed between the injury sustained by him and his death. We have noticed from the record that in the calendar of witnesses submitted on 19th April, 1976 alongwith the challan under section 307/326/452, P. P. C. against the appellant, the name of Siftullah was mentioned as prosecution witnesses and in the report under section 173, Cr. P. C. it was stated that his statement under section 161, Cr. P. C. had been recorded on the basis of gestures made by him. The prosecution, however, has not brought that statement on record which could be used as an important piece of evidence after the death of Siftullah against the appellant.

10. After having considered the above aspects of the case, we have come to the conclusion that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt. The order of conviction and sentence passed against him is not legally sustainable which is, hereby, A set aside. The appellant shall be released forthwith if he is not required fin any other case. Sentence-of death awarded to the appellant is not confirmed. Appeal allowed