1987 PLP 1726 (SCMR)

JAVID IQBAL, J.‑‑This petition has been filed by Abdul Qadir Awan Petitioner father of Mst. Farzana Malik deceased against Shaukat Ali respondent who had been acquitted of an offence under section 302 PPC for the murder of Farzana Malik, a nurse, by the Lahore High Court Lahore vide judgment dated 29th March, 1980. The petition for leave to appeal is directed against the acquittal of the respondent by the Lahore High Court. Briefly the facts are that Shaukat Ali respondent was tried under section 302 PPC for the murder of Mst. Farzana Malik, a nurse, by the learned Additional Sessions Judge Lahore who vide his judgment dated 11th February, 1978 convicted him under section 302 PPC and sentenced him to death. In appeal the Lahore High Court, Lahore vide its judgment dated 29th March, 1980 accepted his appeal and giving him the benefit of doubt acquitted him. The deceased in this case was a nurse in Lady Willingdon Hospital Lahore. The occurrence took place at 7‑30 p. m. on 24th May, 1977 at Lady Willingdon Hospital Lahore. The FIR was lodged by Saeed Hassan PW Chaukidar in the said hospital on the same day at 8‑30 p. m. at Police Station Tibbi City Lahore. The respondent Shaukat Ali was arrested on 25th May, 1977. Human blood‑stained Chhuri is stated to have been recovered at the instance of Shaukat Ali respondent on 27th May, 1977 but this recovery had not been relied upon. No motive is given in the FIR except that there was some kind of relationship between the deceased and the respondent. The eye‑witnesses produced by the prosecution were Saeed Hassan, Mohammad Aqil Khan, Mohammad Siddiq and Abdul Wajid PWs. These eye‑witnesses appear to have resiled from their statements under section 161 Cr. P.C. Saeed Hassan PW who was the first informant also did not support the FIR. The occurrence as mentioned in the FIR is that the deceased who was under‑training nurse was on her way to the ward situated on the second floor of the hospital where she was to report for duty. The respondent who often used to visit her followed her going upstairs. When they were half way in the stairs the respondent pulled out a knife from his handkerchief and attacked the deceased giving blows on different parts of her body. She fell down screaming. The occurrence was witnessed by Saeed Hassan, Mohammad Siddique and Mohammad Aqil Khan PWs who were on duty there. PW Mohammad Aqil Khan tried to apprehend the respondent. Thereafter Abdul Wajid PW also joined him in apprehending the respondent who managed to escape through the hospital gate situate towards the Dental College. The deceased was carried to the Operation Theatre but died as a result of the injuries. According to the medical evidence she had five incised and stab wounds on the chest, arms and legs. The death had resulted due to stab injuries on the chest caused by sharp‑edged weapon. The respondent in his statement before the trial Court stated that he had been implicated in this case due to suspicion. The Lahore High Court acquitted the respondent mainly for the reason that the eye‑witnesses did not support the prosecution story and the recovery evidence had been disbelieved. It was argued by, the learned counsel for petitioner Abdul Qadir Awan father of the deceased that the trial Court had based the conviction as well as sentence of the respondent on certain pieces of circumstantial evidence examined in the light of the statement of Abdul Wajid PW. It was submitted that from the box of the deceased lying in her room in the hospital were recovered Muafi Nam& Ex.P4, Iqrar Nama. Ex.P5 and affidavit Ex.P6 written in the hand of the respondent which were taken into possession by the police vide memo Ex.PG. These recoveries had been attested by Dr Asadur Rahman PW. Similarly passport of the respondent Ex. P8 was taken into possession by the investigating officer vide memo Ex.PF. The name of the respondent as well as his photo was affixed on it. A question respecting the same was put to the respondent at the trial stage but his plea was that it had been lost and he had made a report about it at Police Station Yakki Gate, Lahore. But this explanation was not considered as convincing by the trial Court which was of the view that he might have given it to the deceased. Furthermore Dr Asadur Rahman PW had stated that in his presence the police officials searched the iron box lying in the room of the deceased. One passport along with certain other papers was recovered from the said box. The learned counsel submitted that this obviously established a link between the respondent and the deceased. It was next submitted that the statement of Abdul Wajid PW who was a medical student then was to the effect that he saw the respondent and stopped him as he was coming from the passage which was not meant for the public and at that time he had a piece of white Dopatta in` his hand. He therefore suspected that he was responsible for the murder of the deceased and went to his room to get help in order to secure him. He had hardly walked a few steps when he noticed that the respondent had grappled with the Chaukidar whom he had left with him and then relieving himself from the Chaukidar the respondent ran away. In the light of this evidence on record it was argued by the learned counsel that even if the evidence pertaining to the recovery of weapon was not considered as reliable or the eye‑witnesses had resiled from their statements, there was sufficient circumstantial evidence on the record which could bring home the guilt of the respondent. We have carefully considered the argument of the learned counsel and examined the record. Leave is granted to consider as to' whether there was sufficient circumstantial evidence on the basis of which the respondent could be convicted and sentenced for the murder of the deceased. Warrants of arrest to be issued against Shaukat Alit respondent. In view of the fact that the respondent, who was acquitted and released several years ago, shall be taken into custody again, it would be proper if the appeal is fixed and disposed of as soon as possible. K.B.A./A‑92/S Leave granted.