1993 P Cr (PLP)

(4) An incised wound 10.0 c.m. super lateral to the left side of umblicus. Size 6.0 c.m. x 4.0 c.m. Omentum was protruding cut of the wound.

6. He had further deposed that the said injuries caused by sharp-edged weapon and were fresh; and that Exh.P.J. was the correct carbon copy of his medico-legal report being in his handwriting and signed by him. 6-A. P.W.3, Dr. Ahmed Saeed had conducted the post-mortem examination on the dead body of Muhammad Sarwar, aged 35 years on 14-3-1988 at 4-15 p.m. had observed as follows:-- (1-A) A stitched wound with 6 black stitches measuring 24 x 1.5 c.m. vertically placed on the right side of abdomen 1.5 c.m. from mid line with upper and 18 c.m. below superasternal notch and lower end 3 c.m. below umblicus. (B) At the level of umblicus wound is gaping and 3 c.m. wide and corresponds with injury No.3 of the M.L.C. No.466/63/88. (2) Stitched wound with two black stitches placed obliquely measuring 4 x 0.1 c.m. on the right side of abdomen at the level of costal margin 11 c.m. from mid line and 15 c.m. below right nipple. (3) Stab wound measuring 5.5 x 3 c.m. cavity deep on left side of abdomen 4 c.m. from mid line and 18 c.m. below left nipple. Loop's of small intestines-was protruding out of the wound. On exploration of injuries Nos.l, 2 and 3 it was found that the abdominal wall closed with prolene suture. Abdominal cavity was containing about 11-00 ml of fluid and clotted blood. Transverse colon was stitched in an area of 7 c.m. Jojunum was also stitched in an area of 2 c.m. Messentry of small intestines was perforated through and through. Anterior inferior surface of liver was cut with tear extending to portahepatis, gall bladder was also injured. Portal vein was stitched. Right costal margin was cut through and through. Diaphragm was also cut through and through, and right chest cavity was containing 1200 ml of fluid blood. (4) Stitched wound with two black stitches measuring 2 x 0.1 c.m. on lateral aspect of left side of chest 17 c.m. from left nipple. On exploration it was 8 c.m. deep going to left scapular region. (5) Stitched wound horizontally placed with 4 black stitches measuring 4 x 0.1 c.m. on lateral aspect of right side of chest 4 c.m from nipple and 23 c.m. below the shoulder top. On exploration this was communicated with right chest cavity through sixth inter-costal space. Chranium and spinal cord were healthy. Stomach was healthy and contained 100 ml of semi-digested food material. Bladder was healthy and contained 60 ml of urine. He had further deposed that after the post-mortem examination the dead body alongwith post-mortem report, clothes and police papers, all signed, were handed over to the police, and that Exh.P.F. was the correct carbon copy of the post-mortem report, which was his handwriting and Exh.P.F./1 was the pictorial diagrams showing the location of injuries and that both were in his handwriting and bore his signatures. He had further deposed that on his re- examination the operation notes, Exh.P.F./2, and Exh.P.F./3 and death certificate, Exh.P.F./4 were supplied to him by the Registrar, West Surgical Ward, Mayo Hospital, Lahore, which were seen and signed by him.

7. P.W.8, Tahir Ali was the complainant of the case and in his testimony he had supported the version stated by him in the F.I.R., Exh.P.H. but made an improvement to the effect that he had mentioned his mother as one of the persons who had come out in the street on hearing the noise alongwith Manzoor and Nawab Din, whereas his mother, Mst. Nazeeran Bibi (P.W.9) had not been named as a person who had come out in the street and had witnessed them in the alleged occurrence. He had acknowledged that the F.I.R. Exh.P.H. was recorded on his statement which was read over to him and he had signed it in token of its correctness. During his cross-examination, he had stated that for the entire period of occurrence he alongwith the rest of P.Ws. kept standing in front of the door of his house, and did not come near the accused nor tried to apprehend any one of them; and had further stated that the place where his deceased father was injured was in front of the outer door of the house of Nazar accused and that all the three accused lived in one Ihata and in one house. He had further conceded that no witness had been produced before the police during the investigation about the earlier incident alleged i.e. of children's quarrel that had taken place whereby the accused had hurled abuses to his mother and his brother was slapped. P.W.9, Mst. Naziran, widow of the deceased and mother of the complainant, Tahir Ali (P.W.8) had claimed to be a witness of the alleged occurrence and had supported the version of her son, the complainant (P.W.8). During her cross-examination, she claimed that all of them had proceeded towards the house of the accused alongwith the deceased, contrary to what had been stated by the complainant (P.W.8) Tahir Ali. She had further conceded during her cross-examination that nobody from the Mohallah was present during the earlier incident between the children etc., and that no one had attracted to the scene during the main occurrence despite their cries, and that she did not try to help the deceased because of fear, and that all the P.Ws. had been standing in front of their house. P.W.12, Sardar Ali, Inspector Police had deposed that on 13-3-1988 he was posted at Police Station Sharqpur and that on the statement of Tahir Ali (P.W.8) he had recorded the F.I.R., Exh.P.H. and that it was read over to him and that he had signed it in token of its correctness. 'Further deposed that thereafter he had proceeded to the place of occurrence, from. where he collected the blood-stained earth vide memo. Exh.PA. and prepared the site plan, Exh.P.K. without scale and recorded the statement of one witness and proceeded to Mayo Hospital and obtained the medico-legal report. Further deposed that shirt P.1 and Salooka P.2 had been produced before him by Muhammad Anwar (P.W.2) which were taken into, possession vide memo. Exh.P.B. and had recorded the statement of Manzoor P.W. (not produced). He had further deposed that on 14-3-1988 he had proceeded to Mayo Hospital on receiving information that Muhammad Sarwar had died, where he had prepared the injury statement, vide memo. Exh.P.L. and the inquest report vide memo. Exh.P.M., and had handed over the dead body of the deceased to Nazir Hussain, F.C. (P.W.11) and Muhammad Amin F.C. (P.W.1') for its post-mortem examination, and that after the post-mortem examination, Shalwar P.3 was taken into possession vide memo. Exh.P.C. Further conceded that on 15-3-1988 he recorded the statement of Nawaz P.W. and got prepared the site plan, Exh.P.G. and its copy Exh.P.G./1 through the Draftsman and that red notes thereon were in his handwriting and bore his signatures. Further deposed that on 1-4-1988 he had arrested the accused and that on 10-4-1988 while in police custody the accused Nazar Hussain had got recovered dagger P.4 which had been taken into possession vide memo. Exh.P.D. and that it was sealed into a parcel and that on the same day Zulfiqar accused had led to the recovery of Khanjar P.5 while in police custody which was taken into possession vide memo. Exh.P.E. and made into a sealed parcel and had further prepared the site plans of the places of recoveries, Le, Exh.P.D./1 and Exh.P.E./1, and that the parcels were handed over to Moharrir Head Constable for their safe custody. During his cross-examination, he had conceded that the recoveries in question had been made from him from his house where all the brothers were residing together and that neither the member nor the Lambardar had been associated with the said recoveries as they resided away from the house of the accused and that no one from the locality had come there. The case of the prosecution was closed after tendering in evidence the reports of Chemical Examiner, Exh.P.N. and Exh.P.Q. and the reports of the Serologist, Exh.P.R. and Exh.P.S.

8. The accused had denied the recoveries in their statements under section 342, Cr.P.C. The acquitted accused Muhammad Hussain and appellant Zulfiqar had also denied being present at the spot, whereas accused-appellant Nazar Hussain had stated as follows in response to question No.7:-- "This is a false case. In fact Muhammad Sarwar deceased entered our house at about 9 p.m. He abused my mother and then manhandled her, whereupon I was outraged and I picked up a Chhuri from nearby and inflicted the blows on the person of Muhammad Sarwar. My other brothers were not present and they have been falsely implicated. When I appeared before police, I had made this statement that the occurrence had taken place not in the manner as alleged by the prosecution but in the manner in which I have deposed. The P.Ws. were not present at the time of occurrence:"

9. No defence was led by anyone of the accused.

10. We have heard the learned counsel for the appellants and the State and the learned counsel for the petitioner in the Criminal Revision petition ordered to be heard alongwith the present criminal appeal, and perused the record of the case with their assistance.

11. The learned counsel for the appellants argued that admittedly the instant occurrence was result of children's quarrel between the neighbours who had no previous enmity with each other and that the whole incident was over in half an hour. Further submitted that as it is the case of the prosecution itself that Mst. Naziran (P.W.9), the mother of the deceased and wife of the complainant had been abused and belaboured alongwith her minor son by the accused, therefore, argued that the, complainant was the aggrieved party having thus been provoked, and that as they had come to the house of the accused in a rage and as the occurrence had taken place outside the house of the accused, therefore, further argued that the version of the incident as stated by the appellant Nazar in his statement under the provision of section 342, Cr.P.C. rings of authenticity and that as such it has to be accepted in toto in accordance with the accepted principle of administration of criminal justice under such facts and circumstances. Further submitted that the presence of the eye witnesses at the time of occurrence is highly improbable as they. would have intervened if they were present at the spot and in this respect pointed out that, according to the prosecution version itself, neither any of the P.Ws. had suffered injuries nor any one from the populated Mohallah had been produced to provide independent corroboration of the testimony of related and interested P.Ws. Further submitted that there was no tangible evidence against the involvement of Zulfiqar appellant in the incident alleged and that as there was only the statement of the appellant Nazar, admitting the occurrence in his version thereof, therefore, no case was made out against the appellant, Zulfiqar as charged. Further submitted that, under the facts and circumstances, detailed above, even in the case of appellant Nazar, a lesser penalty is called for if his conviction is maintained. Further argued that even the conviction under such circumstances has to be under the lesser charge of section 304, P.P.C.

12. On the other hand, the learned counsel for the State and Kh. Muhammad Afzal, Advocate appearing to support the Criminal Revision Petition stated above, submitted that the F.I.R. had been lodged promptly wherein the accused had been specifically Named, their weapons described and their roles highlighted in the occurrence, in which the deceased had suffered four injuries by the knife, and that as admittedly there was no previous enmity, therefore, there was no question of false involvement of the accused. However, Kh. Muhammad Afzal, Advocate did not press the criminal revision petition filed against the acquittal of the co-accused, Muhammad Hussain.

13. We have given our anxious considerations to the submissions made by the learned counsel to support their respective contentions.

14. In view of the statement of Nazar appellant, under the provisions of section 342, Cr.P.C. it stands established that Sarwar deceased had lost his life due to the injuries suffered by him at the hands of the said appellant. But the said appellant's claim that he had caused injuries to the deceased Sarwar after the deceased had entered his house and caused provocation to him is contrary to the evidence on the record as the blood-stained earth was admittedly recovered from just outside the wall of his house and not from inside his house. Therefore, we have no hesitation in maintaining the conviction of Nazar appellant under the provisions of section 302, P.P.C. However, as it is the case of the prosecution itself that the complainant party had taken the initiative in going to the house of the accused after having come to know of the earlier incident through P.W.9, Mst. Nazeeran, therefore, it cannot be ruled out that the conduct of the complainant party may have been the immediate cause of the main occurrence in which the deceased had lost his life, and that such a possibility is sufficient mitigating circumstances for not maintaining the sentence of death awarded to the said appellant Nazar. Consequently, we hereby reduce the sentence of death imposed on him to imprisonment for life by maintaining the fine of Rs.10,000 imposed on him or in default thereof to suffer further R.I. for one year with the further direction that half of the fine, if realized, shall be paid to the legal heirs of the deceased.

15. However, as the knife P.5, recovered from Zulfiqar Ali was not blood-stained and the report in respect thereof by the Chemical Examiner being in the negative, the participation of the said appellant Zulfiqar Ali in the occurrence in question becomes doubtful and we hold that the prosecution had failed to establish its case against the said appellant beyond reasonable doubt. Therefore, while extending the benefit of doubt thus arising to the said Zulfiqar Ali appellant, we hereby acquit him of all the offences charged and he shall be released forthwith, if not required to be detained in any other case.

16. In view of what has been stated above, the Criminal Appeal is partly allowed and the Murder Reference No.24 of 1990 is answered in the negative accordingly, and the Criminal Revision No.317 of 1990 is hereby dismissed. N.H.Q./Z-79/L Order accordingly.