1987 P Cr (PLP)

3. P.W. 5 Dr. Mubarak Ali Shahid, Medical Officer Incharge Primary Rural Health Centre, Shahkot on 20-7-1983 at 7 p.m. examined Muhammad Ashraf (injured) and found "a penetrating wound 3 c.m. x 1 c.m. with cut margins on left fronto-lateral part of chest. The wound was at the apical area of heart from the left nipple. There was another incised wound 1 c.m. x 0.5 c.m. x skin deep in between the chin and left side of lower lip. The same day doctor examined Saghir (informant) and found a contusion 10 c.m. x 2 c.m. on the right back of the chest and another 5 c.m. x 2 c.m. on the left back of thigh. The injuries were simple.

4. After the case was registered, Saghir Ahmad made a Supplementary statement before the police. On the following day, the A . S . I . went to D . H . Q. Hospital Faisalabad and enquired from the doctor whether Ashraf was fit to make a statement. The doctor replied in the negative. The A.S.I. then went to Shahkot Hospital, took the blood-stained vest of Ashraf from there and took it into possession through memo. Exh. P.B. It was there that he learnt that Ashraf had expired and he went back to D.H.Q. Hospital, Faisalabad. He prepared the necessary documents and sent the dead body for its post-mortem examination.

5. On 22-7-1983 at 8 a.m. P.W. 1 Dr. Iftikhar Ahmad Piracha Medical Officer, D. H . Q. Hospital, Faisalabad, held the autopsy on the dead-body of Ashraf. Besides the surgical wounds, he found the same two injuries which were noted by P.W. 5 Dr. Mubarak Ali Shahid. In his opinion death was due to shock and haemorrhage caused by injury No. 1 which pierced the left lung between the 9th and 10th ribs. The injury was sufficient to cause death in the ordinary course of nature.

6. After the post-mortem examination, P.W. 12 Muhammad Anwar, A.S.I., for the first time went to the place of occurrence, took into possession blood-stained earth through memo. Exh. P.J. P.W. Saghir Ahmad, produced blood-stained knife P. 4 before the A.S.I. which was made into a sealed parcel and taken into possession through memo. Exh. P.1 attested by P.W. 9 Abdul Sattar and P.W. 10 Abdul Wahid besides the Investigating Officer. He then recorded the statement of the witnesses and prepared the necessary documents.

7. On 26-7-1983 P.W. 12 Muhammad Anwar A.S.I. arrested Riaz (accused) and took into possession of his cycle P. 3 through memo. Exh. P. B . Ashraf (accused) had been allowed bail, the A . S . I . completed the investigation and the accused were tried in due course.

8. Riaz accused explaining the earlier case said that he had been acquitted as it was a false case against him. He added that he had filed a counter complaint against Ashraf (deceased) and his brother Anwar in which they were convicted. Explaining the case against him, he made the following statement:-- "On the day of occurrence, I was returning from Chak No. 18, Anwar, Ashraf deceased and others waylaid me in the village bazar sooner they saw me, they challenged me. I entered into my house and bolted the door. They broke opened my door and entered into it. Ashraf deceased inflicted injury on the person of my sister Sharifan Bibi and afterwards he also tried to attack me. I in exercising my right of private defence, to save myself and to save my sister Mst. Sharifan Bibi and to prevent the trespass into house, I gave a solitary Chhuri blow on the person of Ashraf deceased. During the investigation, the police visited my house and saw the broken door. I also produced evidence in support of my plea but the Investigating Officer did not intentionally place on record my assertion and subsequently I sent through registered post applications to the Investigating officer explaining my plea of self-defence alongwith the medical certificate of my sister". He also produced Exh. D.B. certified copy of the charge report of F.I.R. No. 108, dated 4-6-1982 and the statement Exh. D.C. of P.W. Abdul Wahid recorded in a case of F.I.R. No. 108 mentioned above. Muhammad Ashraf accused denied his presence at the spot but admitted the earlier incident of beating. He produced certificate Exh. D.D. about his attendance at his job. He led no evidence in defence.

9. Relying on the evidence of three eye-witnesses, Court came to the conclusion that the prosecution case was satisfactorily proved against the appellant. It, however, gave the benefit of doubt to Ashraf because his presence at the spot and the Lalkara raised by him was added later in the supplementary statement of the complainant. Trial Court concluded with the observation that the informant tried to falsely rope in Muhammad Ashraf in the main occurrence.

10. Criticizing the finding, learned counsel for the appellant contended that the F.I.R. in this case was made after due deliberation at Chak No. 5, which was 10 miles away from the place of occurrence. Admittedly the informant was in Shah Kot which was five miles away from the; place of occurrence. He made no report there on the ground that his village was not within the jurisdiction of the Police Post Shah Kot. This is not supported by any evidence. The explanation, however, was not satisfactory even otherwise. It was next contended that the earlier incident which took place at the bus-stop in which Saghir was beaten by Ashraf is admitted by Ashraf accused. As such the grudge would be to 'the complainant party to avenge this beating and it is also the prosecution case itself that the informant alongwith the eye-witnesses proceeded towards the house of the accused to reprimand them. It was further argued that the ocular testimony was interested, inasmuch as, that the eye-witnesses who were examined in this case were the prosecution witnesses in the earlier criminal litigation between the parties. The solitary disinterested witness namely Bashir was given up on the ground that he was won over. True, the witnesses are not related to the deceased, nevertheless, in the earlier criminal litigation they were witnesses against the appellant, therefore, it cannot be argued that they had nothing against the accused. Analysis of previous litigation would show that Muhammad Anwar brother of Saghir was sentenced in the complaint lodged by Jan Muhammad uncle of Riaz whereas in the cross case Riaz and his brother Ashraf were acquitted. Interest of Saghir is obvious because he was also one of the witnesses in the earlier case against the accused. Undoubtedly there is no corroboration of the testimony of the particular prosecution witnesses of this case. On the other hand, I find the appellant took up the plea of right of self-defence of his sister who was alleged to have been beaten in her house by the complainant party. The same evening she was medically examined by the doctor at Shah Kot, her medical certificate is Exh.D.A. True, no blood-stained earth was taken from the house of the complainant instead, the occurrence was alleged to have taken place opposite the house of one Ismail situate at a distance of 96 feet away from the house of the accused on the basis of which prosecution would like it to be believed that the attack on Ashraf was made there. In this regard it is noteworthy that the blood-stained earth was taken into possession on 22nd July, 1983 i.e. two days after the occurrence. Although, prosecution tried to show that Anwar a brother of Saghir had covered it but Anwar has not appeared to support this story. It is a thoroughfare and for the blood to have remained intact for two days is a matter which is open to criticism. It may also be added here that the recovery memo. Exh. P.J. of the blood-stained earth was attested by the two eye-witnesses namely Abdul Sattar and Abdul Wahid whom I have found partisan witnesses. Anwar who was said to have come to the place of occurrence has not attested the memo. Keeping in view the circumstances, I am not inclined to accept the evidence of the recovery of the blood-stained earth. There is yet another material omission in the prosecution case i.e. appellant's cycle which he allegedly left behind, was not taken into possession either by the witnesses or the A . S . I . on his arrival at the spot, instead, it was said to have been taken into possession at the time of appellant's arrest on 26th July, 1983. There are circumstances which also make the prosecution story doubtful. I, therefore, give the benefit of doubt to the appellant and acquit him. He shall be released forthwith if not required in any other case. S. G. D./725/L???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.