2005 P Cr (PLP)

(4) An ileostomy wound was present in right iliac fosa. (5) Two holes of surgical drain were present in both flanks of abdomen."

26. He gave the following opinions about these injuries while recording his post‑mortem report Exh.P.A. "In our opinion all the injuries were Ante‑mortem. Injuries described under injury No.1 were caused by fire‑arm weapon. Injury No.2 was by blunt weapon. Injuries Nos.3 and 4 by surgical wounds. Injury No.1 was fatal enough to cause haemorrhage, sepises and shock which lead to death in ordinary course of nature."

27. He had medically examined Shafqat Ali on 18‑3‑2002, who later expired. His autopsy was conducted by Dr. Ajmal Nadeem Niazi on 18-3‑2002 (P. W.8). The following injuries were found on his person:‑‑ "(1) An oval shape entrance wound of fire‑arm projectile 1 x 3/4 c.m. on front of left loin in anterior axillary line 2 c.m. below right costal margin. (2) An exit wound 1‑1/2 x 1 c. m. on back of right chest in 9th inter costal space, 13 c.m. right to midline. (3) A lacerated grooved wound 5 x 1 c.m. on top of vertex of skull underline bone was exposed in central part of goof."

28. The following was the opinion of doctor with respect to these injuries:‑‑ "In our opinion all the injuries were ante‑mortem and by fire‑arm projectile. Injury No.1 was entrance and injury No.2 was the exit of injury No.

1. Injury No. 1 was sufficient enough to cause the death by bleeding, shock and death in ordinary course of life. The probable time between injuries and death was about 1‑1/2 hour and between death and post‑mortem examination was about six hours." Exh..P.H. is post‑mortem report in relation to the deceased.

29. Dr. Mazhar‑ul‑Islam on 18‑3‑2002 had examined injured P.W. Ramzan, P.W. who had suffered the following injury:‑‑ "Multiple entry wound 1/2 x 1/2 c.m. associated with blackening on the back of right chest. The injuries were six in number. Two injuries were lying just lateral to midline and four on the back of shoulder blade." Exh. P. M. is M. L. R. recorded by him. He also examined Alam Sher on the same day who was suffering from the following injury:‑‑ (1) A wound of entry 2 x 2 c.m. on the back of left chest, omentum was protruded out." Exh.P.M. is M. L. R. recorded by him. Abdul Rehman, P. W. in this case too was medically examined He was having the following injuries on is person:‑‑ "(1) A fire-arm wound entry, 1/2 x 1/2 c.m. on the back and upper side of head. (2) As wound of entry 1/2 x 1/2 c.m. on the back of right ear. (3) An incised wound which was muscle deep was present above the injury No.2 and size was 4 x 1/2 c.m." Exh.P.M. is the M.L.R. recorded by him in connection with the examination of Abdul Rehman P. W.

30. The full details about the post‑mortem examination and the Medico‑legal report is given in the testimony of the doctor.

31. Amongst the formal witnesses, we have Naseer Hussain Moharrar, who had kept the parcels of the case property in the Malkhana in safe custody on 18‑3‑2002 and later delivered these for onward transmission to the office of Chemical Examiner and Forensic Science Laboratory on 20‑3‑2002 to Aftab Bashir. He had also received on 25‑3‑2002 a parcel containing a carbine and another containing G‑III rifle, which he kept in the Malkhana and later handed over the same to Shah Nawaz constable for onward transmission to the office of Forensic Science Laboratory. P.W.4 affirmed this fact. The same was the case of Aftab Bashir (P.W.5). Shaukat Ali had identified the dead body of Ashiq, whereas, Muhammad Iqbal identified the dead body of Shafqat. Mirza Muhammad Saeed was the draftsman, who prepared the site plan Exh.P.K. with relation to the main occurrence.

32. On 24‑3‑2002 Muhammad Mukhtar, A.S.‑I. had effected recovery of hand‑cuff from Maqbool, which Maqbool had hidden in the fields of Sher Khan. The police party was headed by Malik Jehan Khan, inspector. The recovery of hand‑cuffs P.1, P.2 and was effected that day from Abdul Rehman and Iqbal Shah, Noor Muhammad, A.S.‑I. was the recipient of the last‑worn clothes of Shafqat and Ashiq which he took into possession vide memos. P.CC./P.DD. Zameer‑ul‑Hassan had taken the injured to the hospital. He also received the last‑worn clothes of the two deceased. He had written the inquest report with respect of Shafqat Ali and got his autopsy conducted. Ghulam Abbas, Head Constable witnessed the recovery of securing blood‑stained earth from six places and attested the six memos. Saif Ullah, constable is the recovery witness of a carbine and G‑III rifle from Abdul Rehman .12 bore carbine was got recovered by Iqbal Shah. He went with the police party from the arrest of Karam Shah, who was arrested that day, Muhammad Islam, S.‑I. recorded the statement under section 161, Cr.P.C. of Muhammad Ramzan P.W. while he was in an injured condition.

33. Yar Muhammad (P.W.17) had sent the activities of Karam Shah, who had supplied the fire‑arms and chillies to the under -trial prisoners. The relevant excerpts from his statement are as under:‑‑ "On 18‑3‑2002 I and P. W. Muhammad Ramzan son of Rab Nawaz were in Court premises as I had gone to consult my counsel and at about 2‑30 p.m., we were taking tea at a tea‑stall near Bakhshi‑Khana. Meanwhile accused Karam Shah now present in the Court arrived and sat near us. We knew him previously as he and we used to visit the Courts. He placed the bag on a chair and himself turned towards north. He took out the clothes from that bag and placed two carbines. One .30 bore pistol and 7 rounds in the clothes. He put those clothes and a Chaddar of Naswari colour in shopper along with a packet of grinded chillies. Meanwhile the under‑trial prisoners came out from Bakhshi‑Khana and when they started boarding the bus of police, accused Karam Shah delivered that bag to accused Mukhtar Shah (since dead). We thought to disclose this fact to police but in the meantime that police bus started and moved away. On that evening we came to know about this occurrence."

34. In their statements under section 342, Cr.P.C. the case of the accused was one of denial but they gave no alternate story and merely explained that the occurrence had taken place due to police it negligence.

35. There were seven persons involved in the occurrence, out of which five persons were charged. Nasrullah remained a proclaimed render while Mukhtar Shah met his death during investigation as explained above.

36. Learned counsel appearing on behalf of the appellants had made following submissions:‑‑ (a) That there is nothing stated in the medical examination with respect to injured constable having suffered any injury due to the throwing of chillies by Iqbal Shah accused and that this, contradicts the story of prosecution with respect to the occurrence. (b) Learned counsel for Abdul Rehman appellant stated that the hand‑cuffs and fire‑arm were recovered from him or different occasions from they same place which gives rise to inference of padding by the police with respect to the recoveries. (c) The next argument was that the bus was admittedly over‑crowded and the standing passengers blocked the view making it difficult for eye‑witnesses to observe the episode as was stated by them.

37. On the basis of these arguments, learned counsel for Abdul Rehman pleaded that as there was a melee and confusion in the over crowded van the role attributed to Abdul Rehman was ridden with some doubts, therefore, he deserved concession of mitigation in the sentence in view of safe administration of justice.

38. Except for accused Karam Shah who is said to have passed on chillies and the weapons to the accused, the rest were within the van at the time of occurrence as they were under‑trial prisoners. There is no denial about the occurrence. We also find that there is no enmity between the injured P.Ws., who were police officials and the accused, under‑trial prisoners. The possibility of substitution, therefore, which is even, otherwise a rare phenomenon is excluded.

39. It is possible that throwing of chillies had its overall effect of eating a panic without injuring the eyes of the passengers and therefore, the doctor did not notice any such injuries.

40. Many episodes do speak for themselves and give rise to presumption until these are effectively rebutted. The Supreme Court of India in the case reported as Gobald Motor Service Ltd. and another v. R.M.K. Veluswami and others AIR 1962 SC 1 while following the principle of res ipsa loquitur referred to in the case 2 All ER 460 observed as follows:‑‑ "Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off‑side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its back was peeled off and the bus could stop only after travelling some more distance from the said tree. The said facts give rise to presumption that the accident was caused by the negligence of the driver."

41. Some doubts are inherent in a case. Some arise because of presumption and the third category of doubt is one which is created. But doubts are not created merely through a callous and bald denial as has happened in the present case.

42. The principle that benefits of doubts must be given to the accuse not applicable to the case where after considering the entire evidence the Court is convinced beyond all reasonable doubt that the prosecution case is acceptable. Reference in this connection be made to the case of Prabhoo AIR 1965 All. 417 and Bharosa and others v. The State AIR 1941 All. 402 (FB).

43. It is the, business of the prosecution to establish guilt of the accused; but the doubt the benefit of which an accused is entitled to must be, such as rational thinking, sensible men may fairly and reasonably entertain. It does not bring within its ambit doubts of a vacillating mind and bases on ideal skepticism. Therefore, a doubt should be a doubt which may be honestly and conscientiously entertainable.

44. The accused in the bus were also witnesses of the occurrence and were in a position to place on record facts advancing their case of different probabilities. When a person is in possession of stolen goods, he has the knowledge of its background and has to explain how it came to his possession. Wali Muhammad v. The State PLD 1957 Lah.

261. Likewise, people having a special knowledge of any event do owe a burden of offering an explanation and, when we speak of, explanation, it means a plausible explanation not a mere denial simpliciter. Of course, such explanation is not meant to shift the burden of proof which always rests with the prosecution. It is only meant to create an impact for giving rise to an inference suggestive of other probabilities and doubts regarding the prosecution story.

45. This burden of explanation is discharged through the process of cross‑examination and statements to be made under section 342 or 340(2), Cr.P.C.

46. The manner in which recoveries were effected from the accused, should not be a matter of surprise in view of the peculiar circumstances of this case involving desperate criminals. Whereby, the police was but to difficulty in effecting the recoveries at one go from the same sugarcane field. The prosecution story, therefore, appears natural, truthful and plausible.

47. The ocular account makes it a plausible story and we believe it while we are sorry to observe that there was a scant check at the time when the under‑trial prisoners were boarding the van. It is stated that this was not through inadvertence but due to a deliberate act and design and he person responsible for facilitating the delivery of weapons and chillies to the accused was one A.S.‑I. Raza Khan. What has happened to him is not known.

48. After hearing both the sides and giving our anxious considerations to the erudite arguments of Mr. Muhammad Asghar Khan Rokhari, learned counsel for the appellant and after going through the record, we are of the view that the prosecution has established its case fully. We, therefore, dismiss the appeal, uphold the judgment of the learned trial Court and return the reference in the positive. H..B.T./A‑429/L Appeal dismissed.