1997 PLP 1868 (MLD)

I have heard Mr. Jawaid Haider Kazmi, learned counsel for the appellant that the learned trial Judge has erred in convicting the appellant on interested contradictory and in-corroborated ocular testimony. That complainant Mir Afzal and all P.Ws. are related inter se, P.W. Banaras Khan is tenant of Younus Khan father of the deceased. It was further contended that number of independent persons were available at the place of Wardat but the prosecution has failed to examine any one of them, and therefore, prosecution case is doubtful. Learned counsel submitted that last worn clothes' of deceased and weapon of offence were not produced by prosecution during the course of trial. No Chemical Examiner's report has been produced. Mashir of recovery have not been examined and photostat copies of Mashirnama has been brought on record through 1.0. of the case, reliance cannot be based on his evidence in absence of Mashirs. Mr. Habib Ahmed learned counsel for the State supporting the judgment of trial Court contended that, Court has already taken in lenient view in awarding sentence. Further contended that the motive is missing in the case. Mr. Mehmood A. Qureshi, learned counsel for the complainant contended that by lodging of counter F.I.R. presence of accused is admitted, incident is admitted. Further contended that P.Ws. examined are independent and not blood related and are natural witnesses. Ocular evidence is supported by medical and circumstances of evidence. Nothing has been brought in cross-examination through P.Ws. their evidence is shattered. I have considered the contentions and have gone through the record and proceedings of the case. The evidence of Dr. Zubair Ahmed Hashmi, P.W.8, shows that he had conducted post-mortem on the dead body of deceased Liaquat Khan and had found following extract injuries: (1) Stab wound about 1" x 1.5" x cavity deep on the left side of chest at fifth inter-coastal step left nipple at the mid axillary line with fracture of rib directing obliquely inward. (2) Stab wound about 1/2" x 1/4" x muscle deep on the back of abdomen left side directing obliquely inward. Internal examination of dead body he found the following damage:

Head:?? "No external injury seen on the vault of skull hence further skull was not opened. Thorax: Thoraxic cavity normal in shape and six an opening the thorxic cavity the wound seen at the left chamber of the heart through and through and then penetrated the lower lob of the left lung. Both the lungs are pale in colour, 4th and 5th rib of the left side of the chest fractured. Abdomen: All the abdomenial vicras found healthy and normal and no pathology seen. Stomach containing semi-digested food material mucosa pale small intestine also contained semi? digested food material. Liver, spleen and kidneys normal. Cause of death: The cause of death of Liaquat is due to cardiorespiratory failure as a result of acute chest injury sustained on his person due to impact of some sharp cutting edged weapon. The duration of injuries and death is 2 to 3 hours. He has produced my M.L. certificate as Exh.23 which is in my handwriting and bears my signature (Photo copy) He was not cross-examined. As far as ocular evidence is concerned it consists of complainant Mir Afzal, Muneer Ahmed P.W.2, Khan Afsar P.W.3, Muzafar Iqbal P.W.4, Azim Khan P,W,5 Bana.as Khan P.W.6, complainant Mir Afzal is cousin of deceased (son of maternal uncle) Muneer Ahmed (Mashir) next day of the incident at the place of Wardat where police came. An employee of Mir Afzal (denied suggestion) in cross-examination. Khan Afsar brother of deceased. Muzafar Iqbal friend of Razzak and facing trial in a case under section 307, P.P.C. Azim Khan father of complainant, Banaras Khan (tenant of deceased father). In evident is said to have taken place in Chowk where there are hotels and shops which were opened at the time of incident and number of persons were sitting in Hotel, but the prosecution had failed to produce a single disinterested witness. Although relationship with the deceased is not a sufficient ground to discredit a witness, the prosecution should make effort to see that independent people/available residing around the place of occurrence are examined. In the present case no independent witness has been examined. There are material contradictious in evidence of witnesses. Complainant and P. Ws. have given/deposed a quite different version given by them in F.I.R. and 161, Cr.P.C. statements and have made exaggerations while assigning part of causing injuries to deceased. They have tried to implicate both the accused distributing one injury to each accused. Admittedly counter-case against complainant has been decided a year before this case which ought to have been decided alongwith this case and point of aggression involved in the cases has not been considered. Learned counsel for the appellant pointed out that there is no certificate/memorandum at the bottom of statement under section 342, Cr.P.C. as required under section 364, Cr.P.C. and no reason is mentioned for non?-compliance. In view of the above factual as well as legal position I am of the considered view that the ocular evidence produced by the prosecution is interested/inimical, contradictory, it is not corroborated from any other source, therefore, the appeal is allowed, conviction and sentence of appellant is set aside and he is acquitted of the charge. He shall be released forthwith if not required in any other case. Appeal accepted. N.H.Q./M-62/K ???????????????????????????????????????????????????????????????????????????????? Appeal accepted.