1984 P Cr (PLP)

(1) Stab wound in the abdomen in the midline 1" above the umbilicus 13/4" long. Omentum protruding out. (2) Incised below the left costal margin 2" long. (3) Four marks of blunt injuries pertaining to skin only on left back and right shoulder. (4) Bleeding gap injury on scalp.

11. In the opinion of the Lady Doctor, the stab wounds had been caused by sharp-edged weapon and injuries on back of scalp with blunt weapon. The injuries were dangerous. Exh. P.L. is the medico-legal report which was proved by Javid Iqbal P.W.9, a record clerk of the hospital, as the Lady Doctor had meanwhile left for abroad.

12. On the same date at 11-00 p. m., Dr. Aftab Ahmad P. W. 1, a surgeon of Ganga Ram Hospital, Lahore, operated upon the deceased and found the following injuries on his person at the time of operation: - (1) One stab wound about 1" above the umbilicus 3" x 4" long and the omentum was coming out. It had also lacerated the transverse colon. (2) One stab wound in the mid axillary line just below the costal margin about 2" long going through the flank and descending colon. Exh. P. A. is the operation notes recorded by the above surgeon.

13. After the expiry of the deceased in the hospital, post-mortem examination on his dead body was conducted by Dr. Farid Bakhsh Hashmi, Medical Officer/Police Surgeon, who found the following injuries: - (1) Incised wound 7 x 2 c.m. right side of abdomen above the umbilicus and at 11 o'clock position in which tube is passed. Colostomy operation wound. (2) Incised stitched wound 16 c.m. in length parallel to the median line-left paramedian incision for laparotomy operation. (3) Stitched incised wound 7 c.m. in length situated above the umbilicus and left of mid line. (4) Stitched incised wound 5 c.m. in length in the mid axillary line just below the costal margins. (5) Lacerated wound top of head almost headed 2 c.m. in length. (6) Venesection wound inner left leg. (7) Abrasion 2 x 1 c.m. dorsum of right foot. (8) Abrasion 2 x 2/3 c.m. below left scapula. (9) Multiple abrasion mid sacral region 10 x 6 c.m.

14. In the opinion of the Medical Officer, all the injuries were ante mortem. Injuries Nos.1 and 2 were operation wounds and injury No.6 was wound of venesection for intravenous therapy. Injuries Nos. 3 to 5 and 7 and 8 were homicidal injuries. Injuries Nos. 3 and 4 were caused by a sharp weapon and injuries Nos. 5 and 7 to 9 by blunt weapon. Injuries Nos. 3 and 4 were sufficient to cause death in the ordinary course of nature through perforation of intestines and peritoneum which resulted in peritonitis and intestinal obstruction of the gut. The probable interval that elapsed between the injuries and the death was about 102 hours and between the death and the post-mortem examination about 6 hours. Exh. P. H. Is the post-mortem examination report which was proved by the same Abdus Sattar dispenser P.W.7.

15. The appellant and his co-accused pleaded not guilty to the charge framed against them under sections 148 302/149 and 307/149, P.P.C. In their statements recorded under section 342, Cr.P.C., after the conclusion of the prosecution evidence they denied the prosecution case in toto. According to them, they had been falsely implicated in the case as they were office-bearers or members of Islami Jamiat Tulba of various educational institutions. They pleaded innocence. The appellant set up the plea of alibi as under: - " I was the Secretary Islami Jamiat Tulba of the Punjab University Lahore during the days of occurrence. I was also Nazim of Mathe matics Department of the said University. I was at Faisalabad at the time of the occurrence and had no knowledge of the occurrence. I was at Faisalabad on that day' in connection with wrestling bouts. Those bouts were held from 7-30 p.m. to mid-night 12 o'clock on 17th March, 1978. Mr. Mubarik was the Manager of our team. I and my younger brother were the members of the wrestling team. Ch. Arif, Assistant Director Sports was also with us. He was also Secretary of the Punjab Wrestling Association. I had left Lahore on 17th March, 1978 at 8 a.m., with Malik Mubarik Ali and had reached Faisalabad by 12 noon."

16. In support of the above plea, the appellant examined Mubarik Ali D.W. 1, Secretary of the Lahore Amateur Wrestling Association and Ch. Muhammad Arif D.W.3, Assistant Director Sports, Engineering University, Lahore and Secretary of the Punjab and Pakistan Wrestling Federation. They supported the plea of alibi set up by the appellant.

17. At the trial, the prosecution examined 15 witnesses including three eye-witnesses namely Muhammad lqbal Khichi P.W.10, Abdul Qadoos P.W.12 and Khan Muhammad Jamali P.W.13, who also deposed to the motive. Since no recovery was effected from any of the accused, the prosecution case rested mainly on the testimony of the three eye-witnesses.

18. As mentioned above, the F.I.R., in this case was lodged by Mir Muhammad Yaqoob, who at the time of the occurrence was Vice-Principal of the F.C. College, Lahore and Warden of the Newton Hall which was the venue of the violence. Although he was cited as a prosecution witness yet he was not examined as such and was given up as having been won over. The circumstances which had betrayed the alignment of Mir Muhammad Yaqoob with the accused was that on 3rd February, 1979 i.e about a year after the occurrence he voluntarily appeared before the Duty Magistrate, Lahore and submitted an application Exh.C. C. praying that his statement under section 164, Cr.P.C. be recorded in respect of the occurrence. Accordingly, the Magistrate recorded his statement wherein he negated the version of the occurrence as given by the eye-witnesses in their statements before the police under section 161, Cr.P.C. After the conclusion of the prosecution evidence at the trial and recording of the statements of the accused under section 342, Cr.P.C. Mir Muhamma6 Yaqoob was summoned as a Court witness and examined as C.W.1 at the insistence of the learned defence counsel. His statement read in juxta-- position with the F.I.R. Exh. P.E. lodged by him and the other ambient circumstances does not ring true. We are constrained to observe that the behaviour of Mir Muhammad Yaqoob after the occurrence was not only' grotesque but also intriguing. He acted in an irresponsible and repre hensible manner. He was only Vice-Principal of the College but also Warden of the hostel. His residence was adjacent to the Newton Hall. He was present at his residence when the crime was perpetrated. He came to know of the occurrence at once and went immediately to the spot. It was his duty as the warden and obligation as the teacher to inquire about the assailants and report the matter to the Principal and the police without loss of time. He did not do so. Rather, he remained agonizingly obsessed with his desire to keep himself out of the students politics. He of course, went to the hospital to inquire about the state of health or the injured but it was just an eye wash. In view of such attitude the teachers in our educational institutions fail to stimulate discipline and inspire dedication amongst the students who instead of attaining intellect are turning derelicts. This rot has got to be stemmed if these institutions are to prepare the young generation to shoulder the responsibilities of the future.

19. The star witness in this case is Khan Muhammad Jamali P.W.13 who too was the target of the attack. He deposed that on 17th March, 1978 at 9-30 p.m. he and Amin Ullah Khan deceased, Muhammad Khan Khichi, Muhammad lqbal Khichi, Abdul Qadoos Bhatti, Nasir Mahmood Oureshi, Tariq lqbal and Naeem Akhtar were present in the lawn of the Newton Hall. A white Toyota wagon driven by Hafiz Suleman accused came and stopped in front of the gate of the hostel. All the accused including the appellant got down from the wagon.' Hafiz Suleman accused fired a shot while entering the gate. Besides, Hafiz Suleman accused, Qaiser Saleem and Tanveer-ul-Hassan accused also had revolvers. Maqsood Javaid who is the appellant and Naseem Ahmad the absconding co-accused, were armed with daggers. Maqsood Ahmad, Nazim Ichhra, another accused, had a hockey. Tariq-ur-Rehman Shelley and Malik Noor Ahmad accused were having iron rods. Abdullah Haris and the remaining accused except Waqar Ahmad and Ibrar Hussain, who were empty-handed, were armed with Dandas. Hafiz Suleman accused while firing made a challenge that Amin Ullah Khan deceased and Khan Muhammad Jamali P.W. would not be spared alive. Waqar Ahmad and lbrar Hussain accused pointed out Amin Utlah Khan and Khan Muhammad Jamali to their co-accused. Amin Ullah Khan and Khan Muhammad Jamali both ran towards their rooms to save themselves but they were overtaken in the Verandah of the hostel. Naseem Ahmad, absconding accused, whipped his dagger in the abdomen of Amin Ullah Khan deceased. Maqsood Javaid appellant also gave a dagger blow in his abdomen. Maqsood Ahmad, Nazim lchhra, another accused, gave a blow with his hockey on the head of Khan Muhammad Jamali P.W. The other accused also caused injuries to Khan Muhammad Jamali on his head, shoulders, back and hands with their respective weapons. The accused who were armed with revolvers had been firing in order to scare away the people. After the occurrence, the accused went back in their 'wagon. Amin Ullah Khan deceased and Khan Muhammad Jamali P.W. were taken in injured condition first to the United Christian Hospital and then to Ganga Ram Hospital. He was co-rroborted by other two eye-witnesses, namely, Muhammad Iqbal P.W.10 and Abdul Qadoos P.W.12 who made identical statements.

20. Naseem Ahmad accused absconded before the commencement of the trial while Hafiz Suleman accused absconded during the trial. After the trial, the learned trial Court found the prosecution case against 13 out of the remaining 14 accused as doubtful and consequently acquitted them. One of the reasons which prevailed with the learned trial Judge in arriving at this conclusion was that at least 12 out of them did not belong to the F.C. College, and they could not be easily identified. He observed that the wagon by which the accused came to the spot for the attack was not recovered nor its number was noted by the prosecution witnesses although they named each one of the acused as having recognized them at the time of occurrence which in the scheme of things was not free from doubt. The P.Ws. had admitted that they did not know the where abouts of the accused earlier and in the circumstances they barring the appellant had comparatively a better claim on the point of identity. It was also observed that although Hafiz Suleman, Qaiser Saleem and Tanveer-ul-Hassan accused who were allegedly armed with revolvers had fired not less than 10 or 12 fire shots, yet no crime empty was recovered from the spot nor marks of firing were available anywhere on the walls, floor, ceiling and window panes. Waqar Ahmad and Ibrar Hussain accused, according to the eye-witnesses, had come empty-handed. It was observed that obviously it was a big indicator to assume that probably they were not sharing the intention to kill anyone. Waqar Ahmad was one of the two who had a day earlier quarrelled with the deceased and Khan Muhammad Jamali P.W. on the holding of a meeting in the college premises and had allegedly held out a threat to avenge his insult. If he really was feeling incensed and planned the attack, he would not have come to the spot empty-handed. Khan Muhammad Jamali P.W. stated that Maqsood Ahmad Nazim Ichhra accused had given him a hockey blow on his head. However, he admitted that he did not specify this injury in his statement before the police under section 161, Cr.P.C. Tariq-ur-Rehman Shelley and Malik Noor Ahmad accused were armed with iron bars and six others with Dandas. It was observed that if all these accused had intended to cause harm to Khan Muhammad Jamali P.W. with their respective weapons they would not have spared him with mere superficial simple scratches or contusions. These were the circumstances which weighed with the learned trial Court in acquitting the 13 co-accused of the appellant by giving them the benefit of doubt. After carefully perusing the record and hearing the arguments addressed at the Bar, we feel inclined to agree with the learned trial Judge that the case against 13 co-accused of the appellant bristles witty doubt.

21. As regards the appellant, it was stated by the eye-witnesses that he and Naseem Ahmad absconding accused inflicted one blow each in the abdomen of the deceased with their respective daggers. We have given anxious consideration to this part of the prosecution story and felt that it too does not inspire confidence. The appellant also was an outsider and his identity too like his acquitted co-accused was not irrefutable. Moreover, it was admitted by Inspector Hamid Hassan Butt P.W. 15 in his cross-examination that Maqsood Javaid appellant at the time of his arrest stated before him that on the day of occurrence he was at Faisalabad in connection with wrestling bolts and that he had recorded the statements of the defence witnesses. At the trial also the appellant reiterated the plea of alibi. In support of this plea, he examined two witnesses, namely, Malik Mubarik Ali as D.W.1 and Ch. Muhammad Arif as D.W.3. Malik Mubarik Ali as D.W.1 was an honorary Secretary of the Lahore Amateur Wrestling Association and a national coach of wrestling. He deposed that on 17th March, 1978 he took a team of Lahore District Wrestlers comprising five wrestlers including the appellant to Faisalabad, leaving Lahore at 8-30 a.m. and reaching Faisalabad at 12-30 afternoon, to participate in the Punjab Wrestling Championship. The bouts started at 7-00 p.m. in the floodlight and ended at 11-00/11-30 p.m. The five wrestlers whom he had led to Faisalabad remained present in the arena form 7-00 p.m. on the said date. The appellant had taken part in weighing but he could not take part in the bouts. The learned trial Judge observed that since this witness was a petty official of the Railway Department his statement was of no consequence. This reason alone was not sufficient to discard his testimony. The other witness examined by the appellant, namely, Ch. Muhammad Arif D.W. 3 was Assistant Director Sports, Engineering University, Lahore and an honorary Secretary of the Punjab and Pakistan Wrestling Federation. He was the only qualified referee judge in wrestling. He was appointed as Chairman of the Weighing Committee, Member of the Jury and also the Match Chairman of the Punjab Wrestling Championship held at Faisalabad on the night between 17th and 18th of March, 1978. He corroborated the testimony of Malik Mubarik Ali D.W.1. He stated that the wrestlers who had come from Lahore to participate in the championship included the appellant. He explained that the appellant was disqualified from entering into the wrestling bouts because he did not have the requisite weight of 100 K. Gs. It is true that the record of the championship was not summoned and produced' in evidence in support of the testimony of the above two witnesses but this omission does not justifiably entail an inference that what was deposed by them was merely a fallacy. In view of the fact that the appellant had raised a definite plea of alibi at the time of his arrest, a duty was cast on the Investigating Officer to probe into it by examining the record of the championship. Under the law, it is incumbent on the prosecution to prove its case beyond doubt but not such duty devolves on an accused. In the case of an accused, what is required to be seen is as to whether the plea raised by him in view of the evidence on record and other surrounding circum stances appears to be probable. We find that the plea set up by the appellant in this case is quite plausible. Besides, it was difficult for the two eye-witnesses, namely, Muhammad Iqbal P.W.10 and Abdul Qadoos P.W.12, who seeing the occurrence from some distance, to observe with certitude as to whether both the appellant and Naseem Ahmad, absconding accused, had given one dagger blow each to the deceased or it was either of them who inflicted both blows. It is possible that both the injuries might have been inflicted by Naseem Ahmad, absconding accused and this possibility is accentuated by his abscondence which apparently smacks of guilt. Of course, Khan Muhammad Jamali P.W. who being quite close to the deceased could observe as to who had caused injuries to the deceased and he stated that the appellant and Naseem Ahmad, absconding accused, had given one dagger blow each to the deceased but his statement is not susceptible of acceptance because in respect of his own injuries he could not in his statement before the police specify as to which of the injuries was caused by whom. In these circumstances, we are of the view that the prosecution case against the appellant also is not free from doubt.

22. In the result, we accept this appeal, set aside the conviction and sentence of the appellant and giving him the benefit of doubt acquit him. He shall be released forthwith, if not required in any other case. The sentence of death awarded to him is not confirmed.

23. The revision petition filed by Haji Aman Ullah, father of the deceased, against the acquittal of the 13 co-accused of the appellant, being without substance in view of the above discussion is dismissed in limine. M.Y.H. Appeal accepted. Revision dismissed.