1969 PLP 38 (SCMR)

Dates of hearing : 21st and 22nd November 1968. SAJJAD AHMAD, J.‑The four respondents along with four others were tried on charges of rioting, murder and causing hurt as members of an unlawful assembly in an occurrence in which one Abuzar was killed by a gun‑shot injury and two others namely Ajaib P. W., a brother of Abuzar and Mansabdar P. W., his maternal‑uncle, sustained simple injuries caused by blunt weapons. The learned Additional Sessions Judge, Rawalpindi acquitted all the accused persons. The State declined to file an appeal and a revision petition moved in the High Court by the petitioner, who is father of the deceased was dismissed. An application for leave to appeal in this Court was granted, as it was felt that the evidence in the case required a re examination of the case of the four respondents, leave was refused as regard the others. The occurrence took place at evening time on the 26th of February 1963 when the deceased and his companions, namely, Fazal Dad, Mansabdar and Ajaib were returning home after participating in a "Karah" race held in the field of one Ali Akbar. It was alleged that the 8 accused persons who were lying in ambush suddenly appeared from behind a mound called Nika Dheri. Akbar respondent had a shot‑gun, Fazal Dad a hatchet and the rest had lathis. Akbar fired a shot with his gun hitting the deceased on the chest. Fazal Dad gave a kulhari blow on the head of Ajaib followed by Jahandad who gave him stick blows on various parts of his body. Thereafter Ali Asghar dealt three stick blows to Mansabdar. The occurrence was reported at Police Station Jatli, 7 miles away at 9‑30 p.m., the same night by Fazal Dad (P. W. 10), the father of deceased Abuzar. The post‑mortem of Abuzar which was conducted on the morning of the 28th of February 1963 showed that he bore a badly lacerated wound on the left side of front of the chest 2" in diameter through which fatty tissue was coming out. There were 40 to 50 pellet marks round this wound spread over an area of 5". The edges of the marks were blackened. A few pellets and a few cork pieces were removed from the wound. The heart was completely smashed. Mansabdar was examined at 8‑00 p.m. on the 27th of February 1963, and was found to have a contused wound on the head and a contusion on the left hand and also an echymosis on the left shoulder. Ajaib was also examined about the same time. He bore a lacerated wound on the right parietal region and an echymosis on the right shoulder, scapula and the left shoulder. It is common ground that the parties although interrelated had bitter relations since quite some time, P. W., Mansabdar had been assaulted by Ali Asghar and Razzaq accused a year prior to the occurrence. Fazal Dad accused had been married to Mst. Fazilat Jan, a daughter of Mansabdar P. W., but Mansabdar refused to send her to Fazal Dad who in consequence had contracted a second marriage. The direct testimony in the case consisted of the statements of Fazal Dad, Mansabaar and Ajaib who claimed to be eye witnesses. They are very closely connected with the deceased as also inter se. In view of their animosity with the accused party which was not denied, their statements required a careful scrutiny. The learned Trial Judge found that the statements suffered from grave discrepancies on account of the effort of the witnessed, to fit in their statements with the medical evidence about the injuries sustained by P. Ws. Mansabdar and Ajaib. It was also held that the total grief suffered by the complainant party was incommensurate with the number of the alleged assailants and that the possibility of false implication of innocent persons very much existed in the case. One other factor which has influenced the judgment of the learned Sessions Judge is that according to his reading of the medical evidence, the occurrence had taken place much earlier than the time as alleged by the prosecution This assumption on the part of die learned Sessions Judge has proceeded on the basis that the post‑mortem of the deceased was conducted on the 27th of February 1963, although in actual fact it was held on the 28th of February 1903. It seems that in his evidence the doctor, N. A. Naubahar (P. W. 14) mentioned the date of the post‑mortem examination a, the 26th of February 1963, repeating it from) the entry which had been mistakenly made in the post‑mortem report bearing the date 26‑2‑1963. We have, however, found that the injury statement was forwarded to the doctor by the police on the 28th of February 1953 and the compliance note by the doctor also bears the same date under his signatures. According to the evidence of P. W. Rashid Ahmad the dead body of Abuzar was escorted to the mortuary at Rawalpindi on the 27th of February 1963. There could have thus been no question of the post‑mortem examination taking place on 26‑2‑1963. The learned counsel for the appellant strongly contended before us that this misjudgment about the date of the post mortem examination has led the learned Sessions Judge to a wrong conclusion that, the murder had taken place a day earlier than the one alleged by the prosecution and this has caused a failure of justice. This is not, however the only factor on which the learned Trial Judge has recorded the acquittal of the respondents. The primary reason for acquittal is that the ocular evidence in the case which is interested and inimical with no independent corroboration did not induce confidence. It suffered from major discrepancies and was in conflict with medical opinion. The statements of the P. Ws. that the shot by Akbar Khan was fired from a distance of 3 yards is manifestly opposed to the result of that firing which had caused a wide aperture in the chest of the deceased with charring marks on the margins. The existence of pellets and pieces of cork in the wound clearly showed that the shot had been fired from a very close range, i.e. from a distance of net more than 3 to 4 feet. . The learned counsel for the appellant finally submitted that he did not press the case against the respondents other than Akbar, as the charge of unlawful assembly has failed and it was difficult to establish that they had acted in furtherance of common intention in killing Abuzar. At the worst they could be re tried for causing simple injuries to P. Ws. Mansabdar and Ajaib which was not worth pursuing after a lapse of four years. We do not think that the case of Akbar merits a different consideration. The prosecution evidence has been carefully scrutinized by the' Courts below and found to be unreliable. No satisfactory basis exists for directing the trial of Akbar, as in our view his acquittal is also based on reasons which cannot be said to be unfounded or irrelevant. The appeal is dismissed. Appeal dismissed.