1986 P Cr (PLP)

3. The Police, after registration of the case undertook investigation. The dead body of Dilawar was sent for post‑mortem examination after necessary formalities which was conducted by P.W. 8 Dr. Imtiaz Ali Cheema on 24‑2‑1982 at 4.00 p.m. It was stated by the Medical Officer that Dilawar deceased aged 15 years had been brought to the hospital in a very precarious condition. He was in the state of gasping. His pulse was .not palpable. The blood pressure was not record able. Dilawar had been brought to the hospital at 11.30 a.m. but he expired. According to the post‑mortem report Dilawar died at 11.45 a.m. On external examination the Medical Officer found 4 incised wounds of various dimensions on the front of right chest upper part just right to the sternum, an incised wound on the back of left lumber region, an incised wound on the right illiac region and an incised wound or the right buttock. He also found a laceration 4 x 2 cm. on the outer side of left chest. On opening the thorax the third right rib was found out under injury No.

1. The middle lobe of right lung had also been cut under this injury. The right and left chest cavities contained about four pounds of dark coloured blood. Paricardium had been cut under injury No. 1 and heart was full of blood. Injuries 1 and 2 were of grievous nature. Injuries 3‑5 were simple in nature. Injuries 1‑4 had been caused by a sharp‑edged weapon while injury No. 5 was by blunt weapon. In the opinion of Medical Officer the death was due to injury No. 1 which caused shock and haemorrhage. The injuries were sufficient to cause death in the ordinary course of nature. The time between injuries and death was about half an hour and between death and post‑mortem about four hours. The accused was arrested on 27‑2‑1982. On that very day while in custody he led the Police to bushes in graveyard and got recovered blood‑stained Khanjar P. 3 which was taken in possession vide memo. P.D. by S.I. Tanvir Ahmad (P.W. 9) in presence of Muhammad Hanif (P.W. 4) and Muhammad Amir (given up P.W.). This Khanjar was found stained with human blood, vide report of Chemical Examiner Exh. PA. and that of Serologist Exh. P.M. The accused was challaned after completion of the investigation.

4. The prosecution, during the trial, examined nine witnesses in all P.W. 6 Muhammad Boots and P.W. 7 Muhammad Siddique were examined as eye‑witnesses. Muhammad Ismail P.W. who was named as an eye‑witness in the F.I.R. was given up as unnecessary. Muhammad Hanif (P.W. 4) was examined to support the recovery of Khanjar P.

3. He did not support the prosecution and was declared hostile. P.W. 9 Witnesses Ahmad investigated the case. The evidence of rest of the ewes was of formal nature. The accused, when examined under section, 342, Cr.P.C. denied the charge. He pleaded innocence. He denied the recovery of dagger P.3 at his instance. He attributed this case against him due to suspicion. He did not produce any evidence in defence. The learned trial Judge held that the prosecution has failed to prove the recovery of crime weapon in this case. He placed reliance on the evidence' of motive and the eye‑witnesses and convicted the accused as stated above.

5. I have gone through the record of this case with the assistance of learned counsel appearing on behalf of the appellant as well as the learned counsel for the State.

6. It is contended by the learned counsel for the appellant that the accused had no motive to murder Dilawar deceased; that the eye witnesses were interested and not reliable and that the medical evidence did not support the ocular account in this case. It was, therefore, argued that the appellant be acquitted. The learned counsel for the State controverted the contentions on behalf of the appellant.

7. There was no grievous enmity between the parties. It appears from the statement of the eye‑witnesses that the occurrence took place all of a sudden when Nasir accused allegedly came out of the Cinema Gate on a cycle in great speed and collided with Dilawar deceased. It cannot, therefore, be said that the occurrence took place as a result of some previous enmity. The prosecution case Is supported by Muhammad Boota and Muhammad Siddique P.Ws. Both these witnesses are closely related to the deceased. Muhammad Ismail Butt P.W. who was an independent person was given up as unnecessary during the trial. In my view, he was not an unnecessary witness in this case and as such should have been examined by the District Attorney. The accused was not previously known to the eye‑witnesses. It was stated by Muhammad Boota P.W. in the F.I.R. that he came to know the name and description of the accused latter. During the trial Muhammad Boota P.W. as well as Muhammad Siddique P.W. stated that they were informed about the name and description of the accused by tine persons who had collected there. They further stated that the persons who had disclosed the name of Nasir accused did not tell their own names to them. Muhammad Boota P.W. admitted that he cannot say as to whether those persons who had informed him the description of the accused were friendly or inimical towards the accused. Similarly, Muhammad Siddique (P.W. 7) stated that he did not know the name of the accused at the time of occurrence. He further stated that the persons who had collected there had said that Nasir had injured the deceased. It was stated by him that he did not remember who had told him about the name of the father of the accused or his caste and residence. It is thus clear from the evidence of these two witnesses that the accused was not known to them before or at the time of occurrence and that some unknown persons disclosed the name of the accused to these witnesses. In view of this I am of the view that the Investigating Officer should have arranged a test identification parade to verify as to whether Nasir appellant was the accused who committed murder of Dilawar deceased. The absence of a test identification parade makes the prosecution case doubtful. The two eye‑witnesses during the trial stated that the deceased had told them about some earlier dispute with Nasir accused. This fact was not mentioned in the F.I.R. and is as such a material improvement in the instant case. Muhammad Boota P.W: in the F.I.R. did not give any detail of the injuries caused by Nasir accused to Dilawar deceased. However, during the trial both the eye‑witnesses stated the location of various injuries caused by the accused. One of the injuries state by the two eye‑witnesses was on the shoulder of Dilawar deceased. However, Dr. Imtiaz Ali Cheema (P.W. R) did not record any injury on the shouldar of Dilawar deceased at the time of post‑mortem examination. Injury No. 5 was by blunt weapon. This injury has also, not been explained by the eye‑witnesses. As such the medical evidence also indicate that the two eye‑witnesses were not present at the spot at the time of occurrence and that they have come forward to depose against the accused on account of their relationship. it was contended by the learned counsel for the appellant that Dilawar deceased remained alive in hospital for about half an hour but there is no medico‑legal report regarding his injuries by the Medicial Officer nor is there any evidence to show that he was rendered any medical aid before death. This argument is without any basis. The Medical Officer clearly stated that the deceased Dilawar was brought to hospital at 11.30 a.m. He gave full description of the condition of Dilawar at that time. He died at 11.45 a.m. This means that Dilawar died before rendering of medical aid to him and before he could be medically examined. It must naturally have taken 10/15 minutes to understand the nature of the injuries and for that reason there was hardly any time for the Medical Officer to render any aid. Muhammad Boota P.W. during the trial stated that his clothes got stained with blood when he went to see his son who was lying injured on the ground. The Investigating Officer did not take these clothes in possession and as such there is no evidence to corroborate the prosecution version of the case. The recovery of dagger P. 3 was disbelieved by the learned trial Judge, I have considered the reasons to disbelieve the said recovery and agree with the findings recorded in the judgment on this point.

8. In view of the fact that the accused was not known to the two eye‑witnesses before the occurrence; that his name was disclosed to them by unknown persons; that those persons were not examined as witnesses during the trial; that the eye‑witnesses were not made to join any test identification parade qua the accused in this case and that the recovery of dagger P. 3 was also doubtful, I am of the view A that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. As such this appeal is accepted. The conviction and sentence of Nasir appellant is set aside and he is acquitted. He shall be released from prison forthwith if not required in any other case. S.G.D. Acquittal ordered