1989 P Cr (PLP)

(5) Multiple abrasions in an area of 9 c.m. x 5 c.m. on right lower leg. (6) Abrasion 7 c.m. x 3 c.m. on right side of forehead and temple region. According to his opinion the deceased had died as a result of shock and haemorrhage, resulting from injuries Nos. 1 and

2. These injuries were opined sufficient to cause death in the ordinary course of nature: Injuries 1 an d.2 were opined to have been caused by a sharp‑edged weapon, while the rest were opined to have been caused by a blunt weapon.

6. Muhammad Isa (P.W.7) who had lodged the F.I.R., Muhammad Shah (P.W.3) and Muhammad Din (P.W.10) deposed the ocular account. Muhammad Isa re‑narrated the facts given by him in the F.I.R. He also stated about having witnessed the taking into possession of blood‑stained earth and grass from the spot. He admitted during cross‑examination that Muhammad Din (P.W.10) was his brother and Muhammad Shari (P.W.3) was partner in business of Muhammad Din. He stated that he had two other sons, one of whom Khalil was a student of Matriculation and the other Rashid, who was eldest, was sleeping at the roof on the night of occurrence. According to him, Muhammad Din P.W. was already in his house as he used to visit his house daily. In answer to another question, he stated that when he and the P.Ws. had seen his son Shafiq, he was a few paces back from the house of Muhammad Hanif, and the distance between them and Tariq and Khaliq who were going with his son was 20/25 feet. He admitted that neither he nor the P.Ws. accompanying him had called out his son. The occurrence, according to him, took place at a distance of 400/450 feet from the place where they had first seen the deceased with the accused. He expressed inability to give the names of the Mohalladars who had patched up the matter over the dispute of loan of Rs.2,

500. He denied the suggestion that the appellant and the deceased used to manufacture the brief cases together and that his deceased son had sold some brief cases worth Rs.500/600 without the information of Tariq and had not paid him the amount or that Tariq had complained of this to him against the deceased. Muhammad Shafi (P.W.3) corroborated the statement made by the complainant. He stated that he had met Muhammad Isa and Muhammad Din P.Ws. at 9/9‑15 p.m. when he had gone to that area to inquire about his driver Muhammad Aslam. During cross‑examination he stated that his house was at a distance of one and half miles from the place of occurrence. He was not found to have stated in his statement before the police that he had gone to see his driver on the day of occurrence. He admitted that he had seen the appellant and the acquitted accused for the first time on that day. According to him, Muhammad Dm was present when the police had arrived at the spot and the police had recorded his statement as well as that of Muhammad Din there (at the spot). He denied the suggestion that the statement of Muhammad Din was not recorded on the night of occurrence. The blood‑stained earth and grass, according to him, were dug out by the police with a knife or Chhuri. Muhammad Din (P.W.10) also corroborated the statement made by the complainant (P.W.7). He, however, made an addition by stating that Abdul Khaliq had caught the deceased when appellant had given dagger blows. During cross‑examination, he stated that the police had not made any inquiries from him at the spot at the time of their arrival at the spot. According to him, there was electric pole near the place of occurrence but it was without a bulb. He stated that electric bulbs were on outside the houses at a distance of 150 feet from the place of occurrence. All the three witnesses claimed that when they had tried to intervene, the accused had threatened them. All these P.Ws. denied the suggestion that they had not witnessed the occurrence and had fabricated a false story. The evidence of recovery of Chhuri (P.l) at the instance of the appellant was deposed to by Ashfaq Ahmad (P.W.1) and Muhammad Nawaz Arif, S.H.O. (P.W.11). P.W.1 during cross‑examination admitted that deceased was his friend from childhood and that he had joined the police at the time of recovery of Chhuri as he had gone to the police station to inquire about the progress of the case, which he often had been doing prior to the recovery of Chhuri as well. It may be noted here that it is not mentioned in the recovery memo. that the Chhuri was blood‑stained. P.W.1 was also not found to have stated in his statement (Exh.D.A.) before the police that the recovered Chhuri was stained with blood. The statements of other P.Ws. more or less are of a formal nature.

7. The appellant during his statement under section 342, Cr.P.C. denied the prosecution case as a whole and pleaded innocence. In his written statement (Exh.D.E.), he took up the plea that he and deceased had common business and that the deceased had sold some joint material stealthily for which he had made a complaint to the father of the deceased, as a result of which a quarrel had taken place between him and the deceased and his father and that the deceased was done to death by somebody in darkness and he was involved falsely in the case. He also examined in defence Syed Inam Ali Shah, Draftsman as D.W.1, in order to prove that there was no source of light at the place of occurrence as the electric poles fixed at the place of occurrence were without bulbs.

8. Learned counsel for the appellant, after going through the evidence, criticised the impugned judgment and contended that the eye‑witnesses in this case do not appear to have witnessed the occurrence, that they are related and interested and that they had made contradictory statements, which are not worth reliance. He argued that nobody was produced at the trial to corroborate the statement of the complainant that any dispute had taken place between the deceased and the appellant and the matter was patched up by Mohalladars. He submitted that the evidence of recovery of Chhuri has been deposed to by interested witnesses and so not worth acting‑upon.

9. Learned counsel for the State/complainant defended the judgment of the trial Court. Learned counsel for the complainant prayed for enhancement of sentence of the appellant from life imprisonment to death.

10. We have examined the record in the light of the contentions raised by the learned counsel for the parties.

11. It is the prosecution case that the deceased had left for the house of Muhammad Hanif Butt at 9 p.m. to witness V.C.R. and the complainant accompanied by other P.Ws. had gone out to inquire about him at about 9‑15 p.m. on the same night. It is strange that the complainant decided to go out in search of his son only a few minutes after he had left the house with his permission to see the V.C.R. in the house of Muhammad Hanif Butt. He had not only left the house with the permission of his father but had given the destination also. There was no reason for the complainant to have gone out in search of his son taking his brother with him. There is some confusion about the timings as well. According to the F.I.R. the deceased had left the house at 9 a.m. The occurrence, according to the F.I.R. had taken place at 9 p.m. It was at the trial that it was stated that the complainant and other P.Ws. had gone after the deceased at 9 or 9‑15 p .m. Even forgetting the fact as to why the complainant should have gone after the deceased no sooner he had left the house, the other important aspect of the case is that instead of himself going after his son and taking his brother Muhammad Din with him, who had come to visit him, why did he not send either this two sons, who were present in the house? One of whom according to him, was elder to the deceased while the 'other was a student of Matric. Yet the other queer and striking aspect is that if the complainant as well as the other two P.Ws. had joined together in search of the deceased, why should they not have called out the deceased when they had seen him going in the company of the appellant and the acquitted accused towards the vacant plots. The complainant and Muhammad Dm P.W. should have particularly got apprehensive on seeing the deceased going in the company of the appellant and the acquitted accused, with whom they knew that the deceased had earlier quarrelled, still they did not call him out although the distance was only 20/25 feet. Their conduct in not calling the deceased back and instead continue walking behind them 400/450 feet makes their testimonies not only improbable but highly unbelievable too. The presence of Muhammad Shari and Muhammad Din P.Ws. at the spot even otherwise appears to be highly improbable. Muhammad Din, according to Isa (P.W.7) had come to his house before the occurrence, as usual, without an specific purpose, while according to Muhammad Din P.W., he had gone specifically to see his ailing mother. Muhammad Shari admittedly was residing at a distance of one and half miles from the place of occurrence. The only explanation he has given of being near the place of occurrence, at the trial was that he had come to that area to inquire about his driver. This fact, he was not found to have mentioned in his statement before the police on confrontation. If he had really come to see his driver, he had no reason to join the complainant and Muhammad Din. He was neither asked particularly by them, nor was there any exigency because the deceased had left the' house only a few minutes ago after getting permission from his father. Muhammad Din and Muhammad Shafi contradicted each other about their presence at the spot at the time of arrival of police and about recording of their statements by the police. In that Muhammad Din stated that he was not present at the spot when the police had come to the spot after the occurrence. According to him, he had left for the mortuary before the arrival of the police. His statement that he had gone to the mortuary before the arrival of the police for the first time at the spot lends only support to the defence version that he had neither witnessed the occurrence nor was present at the spot at the time of arrival of polite to make statement and his presence was procured on the following day to make the statement because if he had been at the spot, he could not have gone to the mortuary before the arrival of the police, as the dead body was still lying at the spot. As such, he could have nothing to do at the mortuary. In fact, he might not have even known as to whether he would be required at the mortuary or not! He' might not have even known as to which mortuary the dead body of the deceased would be sent. He admitted that he had made statement before the police on the following day. His statement had been recorded on the next day, i.e. 6‑5‑1.984 even according to record. Muhammad Shari P.W., on the other hand, clearly stated that he and Muhammad Din both had met the police at the spot when the police had come there for the first time and the police had recorded their statements at the spot. He categorically denied the suggestion that statement of Muhammad Din P.W. was not recorded at the spot at that time. The statements made by these two witnesses thus arc contradictory to each other and so do not inspire confidence. Yet the other fact worth noticing in this case is that none of the witnesses stated as to whether Abdul Khaliq was armed with anything or not. Neither anyone stated as to in what manner the appellant had given injuries to the deceased. They did not state anything about the scats of injuries. The deceased, apart from the two stab wounds; i.e. injuries 1 and 2, was also found to have suffered abrasions, which have been enumerated as injuries Nos. 3 to

6. The abrasions mentioned at serial Nos. 3 and 5, have been described to be multiple. No explanation has been given as to who had caused those injuries and in what, manner. All those injuries could not have been the result of fall One of the injuries was on right forehead and temple region and so it should have been noticed being on vital part. The deceased might well have suffered the injuries as a result of dragging. But for that he must have been dragged for a long distance and that is not what the eye‑witnesses had seen. It is not the case of the eye‑witnesses that they had seen infliction of injuries by blunt weapons also .... It is a case of contradiction of the ocular account by the medical evidence also. In the circumstances, we are of the view that the ocular account in this case cannot form the basis of conviction of the appellant.

12. The statement made by the complainant about the dispute said to have taken place between the deceased and the appellant does not find corroboration from any other evidence on record, It could not have been difficult for the complainant to have produced anyone of those persons of the Mohalla who had intervened and patched up the matter. The complainant rather expressed inability to name anyone of them even at the trial.

13. The only witness from public who appeared to have witnessed the recovery of Chhuri was a friend of the deceased from childhood: He had been visiting the police station to know the progress of the case. He was not found to have stated in his statement before the police (duly confronted) that the Chhuri was stained with blood. This fact was not mentioned even to the memo. of recovery. Still the prosecution case is that the Chhuri was found to be stained with human blood. The recovery of Chhuri, therefore, is also questionable.

14. For all the reasons mentioned above, doubts have arisen in our mind about appellant having committed the murder of the deceased. This appeal is, therefore, allowed and the appellant is acquitted by way of grant of benefit of doubt.

15. Since the appellant has been acquitted, the revision petition filed by the complainant for enhancement of sentence of the appellant from life imprisonment to death does not fructify and so is dismissed. M.Y.H./M/1141/L Appeal allowed.