1998 PLP 559 (SCMR)

Date of hearing: 3rd April, 1996. MUHAMMAD BASHIR JEHANGIRI, J.‑‑‑This petition for leave to appeal seeks to challenge the judgment of a learned Single Judge of the Lahore High Court, Lahore, dated 4‑2‑1996 whereby the conviction of the petitioner under section 302, P.P.C. and sentence of imprisonment for life and a fine of Rs.15,000 or in default to undergo rigorous imprisonment for two years recorded by the learned trial Judge was upheld.

2. On 24‑9‑1989 at 7.00 p.m. statement Exh.PE of Jaffar Hussain father of lbrar Hussain deceased was recorded by Syed Bahadar Ali Shah, S.H.O. (P.W.10) at Canal Bridge Bungalow, Tandlianwala, on the basis of which a formal F.I.R. Exh.PE/1 was registered at 7.15 p.m. in Police Station, Tandlianwala, District Faisalabad. It was alleged in the report that at about 9.00 a.m. Anwar Iqbal co‑accused of the petitioner (since acquitted) called out Ibrar Hussain from his house and took him alongwith him in the presence of the complainant towards the metalled road. Suspecting some foul play, Jaffar Hussain also followed them. Anwar Iqbal acquitted accused and lbrar Hussain reached near a 'khokha' of Tea on Samundari Road where the petitioner was already present duly armed with a dagger. Anwar Iqbal held Ibrar Hussain deceased in the fold of his arms and declared that he had brought the latter. On this, the petitioner gave a dagger blow on the abdomen of Ibrar Hussain. The occurrence was witnessed, besides the complainant, by Muhammad Sharif (P.W.6) and Muhammad Tufail (not produced) who were already present at the Tea Stall and they tried to apprehend both the accused but they succeeded in making good their escape by brandishing the dagger. It is further alleged in the report that Ibrar Hussain was taken in injured condition to Civil Hospital, Tandlianwala by Jaffar Hussain and his companions where the doctor advised them to take him to Civil Hospital, Faisalabad. Accordingly they took him to Civil Hospital, Faisalabad where he succumbed to his injuries at 3.00 on the same day. Thereafter, his dead body was taken by Jaffar Hussain to his house The motive alleged in the F.I.R. was that Ms. Shaista sister of Rab Nawaz, petitioner, was engaged to Ibrar Hussain. A few days prior to the occurrence the engagement was broken and Ibrar Hussain was engaged to one Mst. Kahkashan daughter of one Mumtaz. Rab Nawaz, petitioner, felt aggrieved on this account. On 4‑10‑1989 Munir Ali Shah, Inspector (P.W.7) arrested Rab Nawaz, petitioner who, on the same day, led the said Inspector to the recovery of 'chhurri' like dagger P.3 which was blood‑stained, from the kotha of his 'Dhari' in the village. It was sealed into a parcel vide recovery memo. Exh.PD and was given to Muhammad Ashraf HC (P.W.8). This parcel and another one were given to Muhammad Ashraf aforesaid on 29‑9‑1989 and 15‑10‑1989 respectively for their handing over to the Chemical Examiner. The 'Khanjar P_3 was found stained with human blood.

3. At the trial, Jaffar Hussain (P.W.5) and Muhammad Sharif (P.W.6) supported the prosecution case. Similarly, Lai Khan (P.W.4) and Bahadar Ali Shah, Inspector (P.W.10) testified to the correctness of recovery of blood stained Khanjar recovered from the accused.

4. Dr. Abdul Khalid (P.W.9) conducted autopsy on the dead body of Ibrar Hussain on 25‑9‑1989 and found (i) an incised stitched wound 20 cm x 2 cm on front of left side of abdomen vertical in direction and (ii) a small surgical stabbed wound for drainage purpose of the size of 1 cm x 08 cm also on the left side of abdomen. Injury No.1 was described to be a big wound which was actually the enlargement of the stabbed wound for surgical purpose. On opening the abdomen, the stomach was found stitched at two places and mesentery was stitched at three places, each wound was 1 cm. x 2 cm. and 2 cm. to 2 cm. In his opinion, the death of the deceased had occurred due to shock and heamorrhage as a result of stabbed wound of abdomen. Time between injuries and death was six hours and that between death and post‑mortem examination was eighteen hours.

5. Rab Nawaz, petitioner, in his statement under section 342, Cr.P.C. denied the prosecution allegations and maintained that he had been involved in the case due to enmity.

6. The learned trial Judge believed the evidence of the two eye‑witnesses qua the ocular occurrence, motive and the recovery of blood‑stained dagger and convicted and sentenced the petitioner. The learned trial Judge, however, acquitted Anwar Iqbal co‑accused of the petitioner as he was found innocent during the investigation and his name had been placed in Column No.2 of the challan. Petitioner filed Criminal Appeal No.858 of 1991 against his conviction and sentence while State filed Criminal Appeal No. 1258 of 1991 against the acquittal of Anwar Iqbal. State appeal was, however, dismissed in limine by a Division Bench of the Lahore High Court, Lahore, after hearing the learned Assistant Advocate‑General.

7. The learned Judges in the High Court concurred with the learned trial Judge that "the two eye‑witnesses had trade a natural and believable version at the spot regarding the infliction of Khanjar blow by Rab Nawaz, petitioner, to Ibrar Hussain deceased"; that "their presence at the spot was natural"; that ocular version of the occurrence was in accord with the medical evidence and; finally that motive had been proved. In consequence, while dismissing the petitioner's appeal, the learned Judge maintained the conviction and sentence recorded against the petitioner.

8. Khawaja Sultan Ahmad, learned counsel for the petitioner, contended that the judgment of the High Court was vitiated, in that, it was announced after eight months of the hearing of arguments of the counsel for the parties. According to him, the impression was unavoidable that the learned Single Judge was doubtful qua the correctness of the judgment of the Trial Court and that, therefore, the benefit of such a doubt should have been extended to the petitioner. The learned counsel then contended that acquittal of Anwar Iqbal co- accused of the petitioner and dismissal of State appeal there against by the High A Court was enough to falsify the claim of the prosecution that Anwar Iqbal had taken the deceased to the spot followed by Jaffar Hussain whereafter he was done to death by the petitioner. It was next contended that assertion of the Doctor that there was an incised stitched wound of the size of 20 cm x 2 cm on the front of left side of abdomen, as a result of operation, was suppressed by the complainant in his evidence which casts serious doubt on the integrity of the prosecution case as a whole. It was lastly contended that ocular account of occurrence furnished by the two eye‑witnesses was highly interested and could not be believed without any strong corroboration which was not forthcoming in this case.

9. In the interest of safe administration of criminal justice, leave is granted to re‑appraise the evidence in the light of the above contentions. N.H.Q./R‑282/S Leave granted.