1989 P Cr (PLP)

It was stated by Khurshid Ahmad complainant that about 5 days earlier Tufail Ahmad accused was watering his lands. There was cut in the watercourse on account of which water entered and damaged his cotton crop. Tufail Ahmad suspected that this cut was made by Haji Muhammad Iqbal deceased. He protested with him which resulted in exchange of hot words between them. Haji Muhammad Iqbal gave slaps to Tufail Ahmad accused who threatened to take revenge. Haji Muhammad Iqbal while on way to hospital died near Sadiqabad Mills as a result of the injures, whereafter Khurshid Ahmad reported the matter to police.

3. The dead body of Haji Muhammad Iqbal aged about 40 years, after necessary formalities was sent for post‑mortem examination which was conducted by Dr. Riaz‑ud‑Din P.W.7 at 8‑30 a.m. on 20‑6‑1981. The Medical Officer on external examination found 18 blunt weapon injuries of various dimensions on different parts of the body. Injury No.1 was `a contused wound on right side of head 4 c.m. x 1‑1/2 c.m. x muscle deep about 12 c.m. from eye and about 12 c.m. from ear'. On dissection of head the Medical Officer found considerable amount of blood under the scalp muscle with the opening of fronto parietal suture under injury No.1. On removal of the skull cap there was clotted blood under the memberane on the whole surface of brain and between the hemispheres. Death occurred due to intracranial haemorrhage with compression of brain as a result of injury No.1 and also due to shock as a collective result of all the injuries. Injury No.1 alone was sufficient to cause death in ordinary course of nature while the remaining injuries were collectively sufficient to cause death in ordinary course of nature. All injuries were ante‑mortem and caused by a blunt weapon. The time between injures and death was 1 to 2 hours and post‑mortem was conducted in about 19 to 20 hours of death. The same Medical Officer on 22‑6‑1981 medically examined Tufail accused and found `an abrasion 3/4 c.m. x 1/4 c.m. on the palmer side of left middle finger about 3 c.m. below the tip of finger'. The injury was simple, caused by blunt weapon and of more than 3 days duration.

4. S.I. Habib Ahmad P.W.10 during inspection of the place of occurrence on 19‑6‑1981 collected blood‑stained earth vide memo. Exh.P.K. He also took into possession motorcycle of Muhammad Iqbal deceased from the spot vide memo. Exh.P.L. and the tractor of the accused vide memo. Exh.P.M. The accused were arrested on 21‑6‑1981. On that very day Tufail Ahmad accused led to the recovery of Sota P.3 vide memo. Exh.P.E. Muhammad Khan accused led to the recovery of Sota P.4 vide memo. Exh.P.F. and Sahib Yar accused led to the recovery of Sota P.5 vide memo. Exh.P.G. in presence of S.I. Habib Ahmed P.W.10, Muhammad Aslam P.W.6 and Ghulam Furqani P.W., not examined. The accused were challaned after completion of investigation.

5. In support of its case prosecution examined 10 witnesses in all. P.W.8 Khurshid Ahmad and P.W.9 Ghulam Farid are eye‑witnesses of the occurrence. Allah Yar Khan and Bashir Ahmad, two eye‑witnesses named in F.I.R. were not examined during trial. The recoveries of crime weapons from the accused were witnessed by P.W.6 Muhammad Aslam. Ghulam Farid P.W.9 also witnessed recoveries from the spot during inspection of the place of occurrence. The medical evidence was furnished by P.W.7 Dr. Riaz‑ud‑Din. The case was investigated by S.I. Habib Ahmad P.W.10. The evidence of rest of the witnesses was of formal nature.

6. The accused when examined after close of prosecution evidence denied the charge and pleaded innocence. They produced D.W.1 Muhammad Ashraf Malik Examiner of Questioned Documents who proved his report Exh.D.N. stating therein that the recovery memos. prepared during investigation of this case were not in the handwriting of S.I. Habib Ahmad P.W.10. The learned Additional Sessions Judge, in the impugned judgment came to the conclusion that the presence of Khurshid Ahmad P.W. at the spot at the time of occurrence was doubtful; that the occurrence did not take place at 9‑30 a.m.; that the evidence of incriminating recoveries was not reliable; that Muhammad Khan and Sahib Yar accused had no motive; that the prosecution has proved motive against Tufail Ahmad accused and that Ghulam Faird P.W. had witnessed the occurrence. He, therefore, convicted Tufail Ahmad appellant as stated above.

7. We have carefully gone through the evidence on record and have heard the learned counsel appearing for the parties. We need not examine the merits of the case in detail because after hearing learned counsel for the parties we are inclined to accept the connected criminal revision and remand the case for fresh trial and decision according to law. The prosecution had cited Haji Allah Yar and Bashir Ahmad as eye witnesses of the occurrence. These two witnesses were named in the F.I.R. but were given up by the prosecution during trial as unnecessary witnesses. In our view the learned trial Judge, keeping in view the facts and circumstances of this case should have examined them as Court‑witnesses. Secondly, while recording statements of accused under section 342, Cr.P.C. after close of prosecution evidence no question was put to Tufail Ahmad accused to explain injury on' his person. Thirdly, it is in evidence that a tractor belonging to accused was taken in possession by Investigating Officer on 19‑6‑1981. The accused were not asked any question in their statements after close of prosecution evidence regarding ownership of this tractor. Fourthly, we have noticed that in para.14 of the impugned judgment the learned Additional Sessions Judge held that `the contention of the said learned counsel carries no weight because Khurshid P.W. has given the explanation about his presence that he went alongwith his deceased brother to have a round of their fields as their servants were spreading fertilizer in the fields. The land owners always try to have a round of the crops and also to check the proper use of the fertilizer, hence the explanation given by the said P.W. seems to be plausible. However, in the concluding part of the same paragraph he held that `the presence of Khurshid Ahmad complainant also seems to be highly doubtful because a real brother cannot become a silent spectator when his brother was being belaboured by the assailants'. Fifthly, it was held by the learned trial Judge that prosecution has proved motive against Tufail Ahmad accused but ignoring the relationship of Muhammad Khan and Sahib Yar accused with Tufail Ahmad accused came to the conclusion that the motive against them was not proved. And sixthly, we find some force in the contention of learned counsel for complainant that the evidence of eye‑witnesses was not divisible. It was contended that specific injuries were attributed to all the three accused on the person of Iqbal Khan deceased. The Medical Officer found, injury No.1 individually fatal whereas the remaining injuries were collectively sufficient to cause death in ordinary course of nature. On an over all assessment of the evidence on record and facts and circumstances of the case we are of the view that the learned Additional Sessions Judge not only omitted to record evidence of material witnesses during trial but also failed to appreciate evidence in accord with principles laid down in Safdar Ali v. Crown P L D 1953 FC 93 and Mst. Mairaj Begum v. Ejaz Anwar and others P L D 1982 SC

294. The lower Court made illegal approach to the question of guilt or innocence of Tufail Ahmad, Muhammad Khan and Sahib Yar accused, which has resulted in grave miscarriage of justice justifying remand of case for fresh trial according to law.

8. In view of the above discussion Criminal Appeal No.57 of 1984 is accepted. The conviction and sentence of Tufail Ahmad appellant is set aside and his case is remanded to Sessions Judge, Multan who will himself hold fresh trial according to law alongwith Muhammad Khan and Sahib Yar, acquitted accused. We accept Criminal Revision No. 220 of 1984. The impugned judgment acquitting Muhammad Khan and Sahib Yar accused is set aside. The case against them is remanded for fresh trial and decision according to law. The evidence already recorded will remain intact and those witnesses will not be recalled for examination. The learned trial Judge will record the statements of Haji Allah Yar and Bashir Ahmad eye‑witnesses as Court witnesses. The statements of accused under section 342 and 340(2), Cr.P.C. will be recorded afresh. The accused will be given an opportunity to produce defence evidence, whereafter the case will be decided after hearing arguments of the parties by learned Sessions Judge uninfluenced by any observation an this judgment.

9. The three accused are directed to appear before learned Sessions Judge, Multan on 4‑12‑1988 who will complete trial of this case before 23‑12‑1988. Tufail Ahmad, Muhammad Khan and Sahib Yar accused shall remain on bail on their furnishing of fresh bail bonds in the sum of Rs.50,000 each with two sureties each in the like amount to the satisfaction of learned trial Judge. H.B.T./T‑56/L Order accordingly.