1987 P Cr (PLP)

3. Muhammad Amin, appellant occupied one Kotha close to the residential Kotha of Sarbuland deceased on a monthly rent of Rs.10 from the deceased for running a shop of medicines. He developed illicit relations with Mst. Zahoori P.W.12. A month prior to the occurrence the deceased came to know of this mischief. He, therefore, pressed the appellant to vacate the shop. The appellant after vacating the shop started living in the house of one Abdur Rehman which was situated just in front of the house of the deceased. On 24-8-1975, a Panchayat was convened, wherein Ata Muhammad P.W.7 also participated. The appellant was asked to leave the Chak, thereupon the appellant left the Chak on the same day. He however, was annoyed.

4. At the eventful time, the deceased, his mother Mst. Fajran P.W.11, his wife Mst. Zahoori P.W.12 were sleeping in the courtyard when Mst. Fajran P.W.11 and Mst. Zahoori P.W.12 woke up by the shrieks of the deceased. They saw the appellant giving injuries on the person of the deceased with a knife. Mst. Zahoori P.W.13 intervened and was also injured by the appellant. The alarm raised by the witnesses attracted Abdul Khaliq P.W.13, Bashir and Habib (both not produced) to the place of occurrence who saw the appellant causing injuries to the deceased and Mst. Zahoori P . W . 12 and tried to apprehend the appellant. The appellant, however, made good his escape taking away. the knife with him. Mst. Zahoori P. W.12 and Sarbuland who was alive at that time were removed in injured condition to the Civil Hospital. Sahiwal. On reaching the road they could not get any transport and the deceased succumbed to the injuries there at 5 a.m. on Multan-Sahiwal Road. The dead body and Mst. Zahoori P.W.12 were brought to their house in the chak from where Mst. Fajran P.W.11 alongwith her husband Naseer-ud-Din left for the police station and lodged the F.I.R. at 10 a.m. on 25-8-1975.

5. Sardar Ali Ahmad S.I. P.W.14 investigated the case. On reaching the spot he prepared the injury statement and inquest report of Mst. Zahoori P.W.12 and the deceased and sent them to the hospital under the escort of Anwar Masih, Constable P.W.1. He arrested the appellant on the same day, i.e. 25-8-1975. On the search of the person of the appellant he recovered blood-stained knife P.7 which was taken into possession vide memo Exh.P.F. Since the bushirt P.9 As blood-stained the same was got removed vide memo Exh. P.H. He also recovered from the possession of the appellant a joint photograph Exh.P.8 of the appellant and Mst. Zahoori P.W.12 and took the same into possession vide memo Exh.P.G. Muhammad Amin appellant received injuries at the time of arrest as he allegedly in an attempt to commit suicide threw himself before a truck on the metalled road. He was got medically examined. After investigation the appellant was challaned. MEDICAL

6. Dr. Muhammad Rauf Bhatti P.W.8 conducted the post-mortem examination on the dead body of Sarbuland on 25-8-1975 at 5-30 p.m. and found the Following injuries on his person: (1) A stab wound 1" x " x deep going on front and midline of abdomen 2" below the epigastrium. (2) A stab wound 1" x " x deep going on the front and midline of abdomen 1-3/4" below injury No.1. (3) A stab wound 2" x " x deep going on the back and upper part of right chest close to midline. (4) An abrasion 2" x " on the front and middle of left chest. On internal examination he found that right lung was perforated 3/4" x 4" x " on the back of middle lobe. Abdominal walls were found injured under injuries Nos.1 and

2. The stomach was perforated " x " deep going and was empty. The liver was perforated " x " x through and through on the left lobe. In his opinion the death was due to excessive haemorrhage and shock as a result of injuries Nos. 1, 2 and 3 resulting in injury to stomach, liver and a lung. The injuries were found individually and collectively sufficient to cause death in the ordinary course of nature. All the injuries were caused with sharp-edged weapon and were ante-mortem. The time lag between injuries and the death was 4/5 hours. The same doctor examined Muhammad Amin appellant on 26-8-1975 and found as many as 12 abrasions on different parts of the body of the appellant. The injuries were simple in nature and caused with blunt weapon within 24 hours. In cross-examination he stated that the injuries Nos. 4, 5, 6, 10 and 11 of the appellant could not be caused if he had fallen on the ground with his face downward. On re-examination by the prosecutor the witness stated that the appellant could have received injuries on the back if he had rolled on the pacca road with his face upward. On further cross-examination by the defence he stated that these injuries could not be caused by mere rolling unless pressed by a third person. On 25-8-1975 at 2-45 p.m. Mst. Zahoori P.W.12 was examined by Lady Doctor Mrs. Qammar Saleem (not produced). Since the said Lady Doctor was not available, Ghulam Mustafa P.W.10 was produced to prove the medico-legal report prepared by the Lady Doctor Mrs. Qamar Saleem relating to the injuries to Mst. Zahoori P.W.12. He proved the medico-legal report Exh.P.W.10/A and on reply to the query i.e. Exh.P.W.10/B stated that he identified the handwriting and signatures of the said Lady Doctor whose signatures and writing he had been seeing during the course of his official duties when working in the D. H. Q. Hospital, Sahiwal. The certificate shows that Mst. Zahoori P.W.12 had received as many as six incised wounds of different dimensions caused with sharp-edged weapon within the duration of 24 hours.

7. The appellant when examined under section 342, Cr.P.C. denied the incriminating circumstances. He, however, admitted that he was in occupation of a shop situated in the house of the deceased and that he shifted hisf shop from the house of the deceased to the house of Abdur Rehman, because the deceased had asked him to vacate the same for personal use. While explaining injuries found on his person he stated that he was arrested from his house on 25-8-1975 by the police. He was tortured for the recovery of the knife and as such received the injures. He further stated that he was involved falsely. He remained associated with the family of the deceased for one year when he was running a shop of doctor in his house. The deceased was a pick-pocket who used to bring his criminal associates in the house and there used to be disputes amongst them over the stolen property. There was a quarrel between the deceased and the other pick-pockets. In that quarrel the deceased might have been done to death by them. He got the deceased released on bail only 15 days before the occurrence and stood surety for him and as such the question of his illicit relations with Mst. Zahoori P.W.12 did not arise. In defence he produced Muhammad Shujat Ali Khan D.W.1, Record Keeper S.P. Office Sahiwal who stated that police post was established in Chak No. 53/5-L on 1-7-1974 which was never shifted and was still in operation and that one A. S.I. and four Constables were posted there.

8. Learned counsel for the appellant contends that there is inordinate delay in lodging the F.I.R. the eye-witnesses are related to deceased there are material discrepancies in their statements and as such the prosecution has failed to prove its case beyond reasonable doubt. He further contended that the evidence of the alleged recovery from the appellant is highly doubtful. On the other side, the learned counsel for the State has vehemently defended the judgment of the trial Court and has argued that the eye-witnesses are the natural witnesses of the occurrence. Mst. Zahoori P.W.12 being an injured witness her presence cannot be denied and that the alleged recoveries have been supported by Nazir Ahmad an independent witness.

9. In order to prove its case the prosecution has relied upon the following categories of evidence:- (i) Ocular Evidence.-- supported by Mst. Fajran P.W.11 mother of the deceased, Mst. Zahoori P.W.12, wife of the deceased and Abdul Khaliq P.W.13. (ii) Recovery.-- The recovery of the blood-stained knife P.7 and Bushirt P.9 supported by Nazir Ahmad P.W.6 and Sardar Ali Ahmad S.I. P.W.14. After hearing the learned counsel for the parties and keeping in mind the rules of appreciation laid down by the superior Courts for the appreciation of the case of a night occurrence, I am inclined to hold that it would not be in accordance with the safe administration of justice in the criminal cases to sustain the conviction of the appellant in this case for the following reasons:

(i) F.I. R. The occurrence took place at mid-night between 24/25-8-1975, although the police post is at a distance of about 100 feet from the place of occurrence yet no report was made at the police post after the occurrence. The deceased after his death was brought back to his house but no report was lodged even at the police post after the death of deceased. Had the appellant been identified at the spot he would have been charged much earlier. After having identified the culprit, there was no earthly reason not to lodge a report at the police post which was so close to the place of occurrence. It is most significant that after the death of the deceased the dead body and the injured Mst. Zghoori P.W.12 were brought back close to the police post but the complainant party did not bother to go to the police post. In this view of the matter, the evidence of the prosecution which hinges upon the question of the identity of the appellant has to be appreciated very carefully. (ii) Investigation: It has been admitted by Mirza Ashfaq Baig P.W.4 that there is a police post in Chak No. 53/5-L at a distance of one hundred feet from the spot. D.W.1, Muhammad Shujat Ali Khan, Record Keeper of the S.P. Office, Sahiwal has clearly stated that police post was established in the Chak No. 53/5-L on 1-7-1974 and the same was never closed and that one A.S.I. and four Constables stood posted there. Sardar Ali Ahmad S.H.O. P.W.14, in cross-examination, has stated. "I do not remember if the police post was working in Chak No. 53/5-L on the day of occurrence. I do not know if there is a post in that Chak even today", this would show that Sardar Ali Ahmad P.W.14, has made false statement before the Court and as such no implicit reliance can be placed on the investigation done by him. (iii) Motive. The motive as alleged by the prosecution that the appellant had illicit relations with Mst. Zahoori P.W.12, wife of the deceased, does not fit in with the circumstances of the case for the reason that 15 days before this occurrence the appellant stood surety for the deceased who was detained in a criminal case and as such got him released. The prosecution case that one month before the occurrence the deceased had come to know of the illicit relations of his wife with the appellant, does not fit in with the circumstances of the case. Had it been so, the deceased would not have allowed the appellant to stand surety for him? (iv) Ocular evidence The prosecution has produced three witnesses. As for Mst. Fajran, P.W.11, she is the mother of the deceased. She stated that she had reached the place of occurrence and the injuries were inflicted in her view. Had she been there, she being mother of the deceased would have intervened like Mst. Zahoori P. W.12 and would have received injuries. She was not residing in the house of the deceased permanently and was residing during the days of occurrence with her husband Naseer-ud-Din at a distance of 2 squares from the place of occurrence, as such her presence at the time of occurrence in the house of the deceased was not natural one. Mst. Zahoori P.W.12.-- She is the wife of the deceased. The fact that she was found injured proves her presence at the time of the occurrence. She has admitted that she had developed illicit relations with the appellant and as such she does not appear to be a lady of good moral character. The real question which has arisen in this case is whether 'Tier statement that she had identified the appellant can be believed or not. I will discuss this aspect of the case at proper stage of the judgment. Abdul Khaliq P.W.13.-- He has stated that Mst. Fajran, mother of the deceased, had once married his father Nathu but was subsequently divorced. The learned State counsel has urged that he is an independent witness and as such worthy of reliance. The well-established rule for the appreciation of the evidence is that the absence of enmity with the accused or relationship with the complainant party cannot stamp the statement of a witness with truth. What is to be seen by the Courts is whether the statement of a particular witness is in consonance with the probabilities, materially fits in with the other evidence and inspires confidence in a reasonable and prudent mind. If these elements are present the evidence of a worst enemy may be acted upon even without corroboration and if these elements are missing the evidence of an independent witness may be rejected even without second thought.

10. I have appreciated the evidence of Abdul Khaliq P.W.13 in the light of these principles. I find that his statement that he was sleeping in the lane in front of his house, he woke up on the alarm coming from the house of Sarbuland deceased, he went inside by scaling over the wall and opened the door of the courtyard of the house from inside and the appellant inflicted a blow in his view to the deceased, cannot be believed because three stab wounds found on the person of the deceased might have been inflicted much before the arrival of this witness on the spot and as such there was no occasion for him to see the actual infliction of the injuries on the person of the deceased. I find that he is a basically dishonest witness. It is an admitted and proved fact that during the days of occurrence there was a police post in Chak No. 53/5-L but this witness has stated that there was no police post on the day of occurrence and his evidence can be rejected on this short ground that he is not prepared to tell the truth before the Court. The above analysis of the evidence makes it very much clear that I am not prepared to believe the presence of Mst. Fajran' P.W.11 and Abdul Khaliq P.W.13. To me, they are also not reliable witnesses. In this view of the matter there remains the solitary statement of Mst. Zahoori P.W.12. There is no denying that a conviction can be passed on the solitary statement but for the safe administration of justice, it is very much necessary that the witness should be absolutely dependable. In the instant case I find that Mst. Zahoori P.W.12 whose presence cannot be denied at the time of occurrence, is not a woman of good moral character. Her claim that she had identified the appellant, cannot be safely accepted. She stated that she had identified the appellant in the light of the lantern burning in the courtyard. The', lantern has not been taken into possession. The same has not been mentioned in the F.I. R. or in the inquest report. The presence of the lamp is also not shown in the site plan. Mst. Fajran has stated that it was a moonlit night. If so, there was no occasion and necessity to keep a lit lantern in the courtyard. If once the keeping of the lantern i.e. the means of the identification is disbelieved, the claim of the identity of the appellant by Mst. Zahoori P.W.12 becomes highly doubtful. The evidence of identification is a weak type of evidence and the chances of an honest error cannot be excluded even from an independent witness. Since it is a case of delayed F. I. R., Investigating Officer has been unfair in his statement and the evidence is to be appreciated very carefully. I am of the opinion that it would be highly unsafe to sustain conviction on the identification of Mst. Zahoori P.W.12 particularly when the alleged recovery fails to inspire confidence. It is not believable that the appellant would be wearing blood-stained bushirt when found', on Multan-Sahiwal Road and as such no importance can be attached to the recovery of the knife from his person. If the police has planted blood-stained bushirt on the appellant there is no guarantee that the knife was not planted on him. Nazir Ahmad P.W.6, has made divergent' statements and he has been confronted with his earlier statement. He stated that at the time of the arrest the appellant had fallen himself in front of a truck and thus, received the injuries. As against this the Investigating Officer Sardar Ali Ahmad P.W.14 has stated that on seeing the police the appellant tried to run away. He wanted to board a bus but he failed to do so as the bus did not stop the appellant fell there while making the efforts to board the bus.

11. For what has been stated above, the ocular evidence cannot be safely relied upon. The twelve injuries found on the person of the appellant clearly show that he was in fact, tortured by the police. These injuries cannot be received by a fall on a metalled road as', explained by the prosecution. The natural flaw of the circumstances is that the culprit could not be identified at the time of the occurrence.

12. The upshot of the above discussion is that the prosecution has failed to prove its case beyond reasonable doubt. The appeal is accepted, the conviction and sentence of the appellant is set aside. He shall be released forthwith if not required in any other case. H. A. K./4559/L Appeal accepted.