1986 PLP 2639 (MLD)

In support of the case the prosecution examined four doctors who were members of Medical Board. They are P.W. 1 Dr. Syed Dilshad Ali Shah Exh.2, P.W.2 Dr. Zaffarul‑Haque Exh.11, P.W.10 Dr. Sajjan Memon Exh.12 and P.W.3 Dr. Nasrullah Qureshi Exh.4. They examined one Ali Sher son of Taj Ahmad Bhatti, and found his age between 28 and 30 years. The report of Medical Board Exh.3‑A has been produced by Ch. Anwar D.S.P., A.C.E. Sukkur. P.W.4 Allah Bux Exh.5 was Reader in the Court of IInd Additional Sessions Judge, Nawabshah. He has seen the correspondence Exh.3‑F. between Sessions Judge and Medical Superintendent and also a certified copy of bail order of Ali Sher. P.W.5, Mukaram Ali is Headmaster Primary School Fazal Muhammad. He issued school leaving certificate of Sher Muhammad son of Taj Muhammad Bhatti, Exh.3‑

9. P.W.6 Humayun Exh.8 is brother of deceased Falak Sher. He stated that Ali Sher was challaned in the murder case of his brother and was released on bail on the ground of age. He applied for cancellation of his bail but his application was dismissed by High Court. He has stated that he had not made any application to Martial Law Authorities against Dr. Muhammad Sharif. P.W.7 Ali Sher Exh.9, has stated that he was accused in the murder case and was granted bail by Sessions Judge on ground of age. He stated that he was produced by Jail Authorities before Doctors where his X‑ray was taken. He has denied to have been examined twice. He has stated that he had not student in Choudary Fazal School and his name is not Sher Muhammad. P.W.8 Manzoor Hussain Exh.10 has stated that in the year 1976, he was posted as Police Constable at Central Jail, Nawabshah. He was put in the witness box but subsequently was given up by the prosecution. P. W. Subhan Exh.13 has stated that he had not made any application Exh.3‑A against appellant. Muhammad Sardar Exh.16 was Circle Officer A.C.R. Nawabshah in April, 1978. He received application of Humayun from Director Anti -Corruption. He conducted enquiry about age of Sher and submitted his report Exli.l6‑A. He has stated that Ali Sher was brought before him by Head Constable. Ghulam Akbar Exh.18 was Head Constable Anti‑Corruption in the year 1978. He produced sanction as Exh.3‑I and sent up the case. Appellant in his statement under section 342, Cr.P.C. Exh.10 has admitted to have issued age certificate of Ali Sher but alleged enmity with Dr. Nasrullah, Dr. Jaffri, and Mr. Anwar D.S.P. He examined Haji Muhammad Idris Exh.20 in his defence. I have heard Mr. Muhammad Ali Shaikh for the appellant. He argued that prosecution has not proved the case against the appellant. He has referred to the case reported in 1983 P Cr.L J 172; 1983 SCMR

428. He has also relied on the case reported in 1984 P Cr. L J 2922 and 2119. Mr. Makhdoom A. Wali, appearing for the State submitted that appellant Dr. Muhammad Sharif has issued false certificate about age of Ali Sher and case has been proved. The age of Ali Sher son of Taj Muhammad Bhatti, has been shown by Medical Board, between 28 and 30 years. Specialists based their opinion on various tests such as physical examination, dental examination, radiological examination. There is no reason to disbelieve this report. This report was issued on 16‑8‑1978. The appellant in his letter, dated 21‑12‑1976 addressed to Sessions Judge, Nawabshah stated that he examined Ali Sher son of Taj Muhammad Khokhar and from physical examination and radiological evidence his age appears to be 16‑17 years. In School Leaving Certificate Exh.3‑G, the name is shown as Sher Muhammad son of Taj Muhammad Bhatti, whereas under‑trial prisoner's name is Ali Sher. Sher Muhammad was not produced by Jail Authorities before appellant. The identity of Ali Sher has been challenged and contention of defence is that Ali Sher who was accused of murder case did not appear before the Board but some other person was produced and was examined by the Board. From evidence of Ali Sher it is clear that he did not appear before the Board. Even otherwise Ali Sher was not shown to P.W. Humayun a brother of deceased Flak Sher. There is no evidence to show that same All Sher who was accused in murder case was produced before the Medical Board. The reliance has been placed on the identification marks given in both the certificates. Appellant was summoned by the Medical Board. He did not appear but his such act is not sufficient is hold him guilty. The statement of P.W. Ali Sher was recorded by the learned Special Judge on 25‑5‑1980. After recording the evidence he made following observations:‑ "The witness has the appearance of young boy. He has fresh moustaches and recently growth of beard. This will be this question whether he is between 20 or above age at this day. This observation is made at the time of recording his evidence." These observations were made in the year 1980 when board examined Ali Sher in 1978. The upshot of the above discussions is that some doubt has been created to the extent whether Ali Sher who was examined by appellant was produced before the Medical Board or some wrong person was produced by jail authorities. However, the prosecution has not been able to bring positive proof about the identity of Ali Sher, therefore, I extend benefit of doubt to appellant and allow the appeal. Appellant is on bail. His bail bonds are cancelled. S. G. D. Appeal allowed.