1986 PLP 1864 (MLD)

At the trial the prosecution examined Mushtaq Hussain, Ghulam Rasool, Ghulam Abbas, Dr. Asadullah, Dr. Anwar All, Matiullah, Muhammad Siddiq, Muhammad Saeed, Ghulam Murtaza, Ashfaq Hussain and the defence examined Khurshid Ahmed, Amir Abdullah, Delar Khan and Muhammad Jaffar. The case thus rests against the appellant on ocular testimony of P.Ws. Mushtaq Hussain and Ghulam Rasool; the motive as alleged by Mushtaq; medical evidence and the abscondence of the accused. The learned trial Judge accepted the ocular testimony of these witnesses. He also came to the conclusion that the medical evidence has fully established the death of the deceased. He accepted the motive, discarded the defence version and convicted the appellant. The learned counsel for the appellant has challenged the conviction and submitted that the co‑accused has been acquitted by the learned Sessions Judge on the same evidence but convicted the appellant. Mr. Imam Bux Shaikh appearing on behalf of the State has also not supported the conviction and submitted‑ that the prosecution case suffers from various defects. I have gone through the record of the trial Court with the assistance of the learned counsel for the appellant and find that the conviction is not sustainable. In order to bring home the charge, the prosecution relied upon the ocular testimony of Mushtaq Hussain Shah, Ghulam Rasool Matiullah and Sanaullah. Matiullah has not supported the prosecution and Sanaullah was given up by the prosecution as he was not traceable. Thus there is evidence of two prosecution witnesses. In the first information report, it is stated by the complainant that both the accused had given knife blows to the deceased but at the trial they made improvements and did not ascribe any part to co‑accused Amir Abdullah and stated that only appellant had given knife blow to the deceased. In fact the witnesses have tried to save one accused and implicate the other. The statements of such witnesses must be read with caution. These P.Ws. have implicated both the accused initially but then made improvement and turned somersault at the trial and implicated the appellant. Therefore, in order to rely upon the statements of such type of witnesses, it is necessary that some corroboration through some other pieces of evidence must be established. The next piece of evidence taken against the appellant is that he had absconded after the incident. There is nothing to show that proceedings under sections 87 and 88, Cr.P.C. were taken against the appellant. No question was put to the appellant under section 342 about abscondence. The medical evidence not only contradicts the ocular evidence but it also does not establish conclusively that the death was caused due to the injuries inflicted on the person of the deceased. P.W. Dr. Anwar Ali has found the injuries on the person of the injured were ante‑mortem and in his opinion injury No.1 was brain deep which caused the death of the deceased as a result of stabbing on head with knife. P.W. Dr. Asadullah has stated that injured was brought on the night intervening between 27th and 28th December, 1978 and this very patient was previously brought on 19‑12‑1978 in the casualty department of J . C . Hospital with a history of assault. At that time, this patient was examined by Dr. Moosa Brohi. According to this witness the investigation showed blood sugar level at 580 mg. per cent, blood urea at 20 mg. per cent. In spite of intensive treatment the patient expired at 00‑30 hours. He could not say that whether the deceased was admitted or not in the hospital but he was brought from his home to the hospital Dr. Anwar Ali cannot give the time of the death. Ghulam Murtaza produced the medical certificate which was in handwriting of Dr. Moosa Brohi who had gone abroad. According to this certificate deceased received 4 injuries. They are:‑ "(1) Incised wound 1 " x 1" (L) upper side clash. (2) Incised wound 1" x " M/D (R) shoulder back. (3) Incised wound 1" x " M/D back of neck. (4) Incised wound 1 " x " M/D left side geralpral region." According to this certificate patient had arrived on 19‑12‑1978 but the duration of injuries was of 24 hours. It means the injuries were caused on 18‑12‑1978. This fact also casts shadow of doubt. The ocular testimony does not show that any injury was caused on the head. Even certificate Exh.23 stated to be issued by Dr Moosa does not show that there was any injury on the head of deceased. The statement of Dr. Anwar Ali also showed that injuries were stitched. According to this doctor injury No.1 was sufficient to cause death but the report shows that it was a healed wound. It may be possible that the injured was taken to his house from where he was brought again to the hospital. The learned trial Judge has also taken into consideration this fact in judgment. On page 91 of the paper book, he has stated that from 19th December 1978 the patient was not under treatment of any doctor. Had he been remained under treatment, he would have been survived but at the same time he observed that the deceased Majeedullah died on account of the injuries which he sustained on 19‑12‑1978. Such observation is erroneous. At page 101 it has been observed that the patient was produced on the night intervening 27/28‑12‑1978 but the record is silent as to whether deceased has remained for 8/9 days. Had the deceased remained under the care and treatment of Medical Officer, perhaps he would have been survived. In spite of such observation the finding of the learned trial Judge that accused had committed the murder is open to serious challenge. There should have been positive finding that the deceased had died on account of the injuries caused to him if there was any negligence on the part of the doctor or the deceased himself the appellant could not be saddled with‑the charge under section

302. There was no allegation that any injury was caused by the appellant on the head of the deceased but there is finding that his death was due to head injury. The first certificate issued by Dr. Moosa also does not show that there was any head injury. P.W. Mushtaq Hussain has admitted that deceased was discharged from hospital and he has come to his house and again he was brought to hospital as a dead person. He also admitted that there were pipes and iron plates lying at Wardat and head injuries on the deceased can be caused due to his fall on the pipes and iron plate. P.W. Ghulam Rasool has also admitted that when he visited Steel Mill little piece of iron bar, rods and other iron thing lying scattered. He ‑ has also admitted that Majeedullah was discharged from the hospital after giving usual medical aid and he had come to his house. It means that the nature of the injuries on the person of the deceased were not serious as he was allowed to go to his home after giving him necessary medical aid. The father of the deceased was also examined as a defence witness and he has stated that the appellant has not caused any injury to him but the deceased was a diabetic patient. This fact was also supported by the medical evidence. The judgment of the learned trial Judge is based on presumptions. The motive was considered as a corroborative piece of evidence. The motive alleged by the first informant in his report is that the accused had lodged a report under section 324, P.P.C. against the deceased. The complainant and the other P.Ws. have not said a word about the lodging of the report by the accused against the deceased. Another witness P.W. Muhammad Siddiq has produced a copy of the report stated to be lodged by the appellant against the deceased. The accused has admitted the lodging of the report but this fact can be seen from another angle. The deceased might have been annoyed with the accused over the lodging of the report. The observation of the learned trial Judge is based on conjectures that the accused due to anger caused injury to Majeedullah but this observation is' not supported by the record. The Court itself observed that none of the P.Ws. have admitted 'in cross‑examination that the accused have enmity of motive. It further observed that accused have not led any evidence that he has been involved falsely in the case. It was not for the accused to show that he has been falsely implicated but it is for the prosecution to prove the case beyond all reasonable doubt against an accused person. The motive would be considered as corroborative piece of evidence if the ocular testimony is reliable. Ocular testimony has already been discarded and, therefore, the motive even if established does not advance the case of the prosecution. The trial Court also observed that only thing in this case is that whether there are mitigating circumstances or not and then goes on to record that there is admission of the certain witnesses on a point which goes to show that there are mitigating circumstances for which lenient view has to be taken and these circumstances according to the trial Court is that no circumstantial evidence was collected against .the accused. There was no chemical report against the accused but at the same time it was observed that the death of the deceased was not denied by the defence. The point for consideration before the Court was whether the present appellant has caused the death of the deceased The learned counsel has referred the cases Ahmad etc. v. The State reported in 1982 S C M R 1049, Ghulam Sikandar and another v . Memaraz Khan reported in P L D 1985 S C 11 and an unreported case Charge v. The State (Cr. Appeal No.K 2 of 1982) in support of his submission. The overall conclusion from the above narration of the facts is that out of four eye‑witnesses only two witnesses have supported the case. They have contradicted themselves by implicating both the accused during the investigation but exonerated one of them at the trial. The medical evidence does not support the occular testimony and it is also contradictory in nature. The abscondence of the accused has not been established. The motive even if accepted cannot form basis of conviction. The appeal is allowed and the sentence and conviction recorded against the appellant is set aside and he shall be set at liberty forthwith if not required in any other case. S. A. Appeal accepted.