1986 P Cr (PLP)

9. Dr. Harbans Lal, P.W.1, who had performed autopsy on the dead body of Muhammad Amin (deceased) on 29‑4‑1981 at 1‑00 p.m., noted 11 incised injuries on the body. According to his opinion, the deceased died as a result of shock and bleeding out of injuries Nos.10 and 11, which have been described as under;‑‑ "10‑‑Incised wound 12 c.m. x 5 c.m. going deep on the back of left chest in lower part with stomach are spleen and protruding out of it. 11‑‑Incised wound 7 c.m. x 4 c.m. going deep or the front of abdomen left side 7 c.m. from umblicus; both large and small intestine protruding out of it."

10. While examining the abdomen, the doctor noted, that, the wall, diaghparm and paritonium were injured. Stomach was injured and empty. Both small and large intestines were injured. Liver and spleen were also injured.

11. In cross‑examination the doctor stated that the deceased might not have been in a position to speak after receipt of injuries Nos.10 and 11, and may have died within 5 minutes of the infliction of these injuries (in fact in the post‑mortem report the doctor had noted the duration between the injuries and death to be instantaneous).

12. Out of the remaining ten witnesses, Muhammad Nazir complainant (P.W.7) has deposed the eye‑witness account Ghulam Ali P.W.8 and Ilyas P.W.9 have deposed about the deceased having told them to have been injured by Muhammad Ramzan appellant, after walking upto them where they were working.

13. Nazir Ahmad Constable who had escorted the dead body, appeared as P.W.3. According to him, the dead body was escorted from the spot at 5.15 p.m. and they had reached the hospital between 6.04 to 6.15 p. m.

14. Nazir complainant also deposed to have witnessed the recovery of blood‑stained Chhuri P.7 on the pointing out of the appellant and of having attested the recovery memo. Exh. P.H. The other, witness who has deposed about this fact, is S.I. P.W. 11.

15. Out of the two witnesses, apart from the S.I. P.W. 11 who attested the memo. Exh.P.L. vide which blood‑stained Shalwar P. 8 and shirt P. 9 of the appellant was taken into possession at the time of his arrest, only Nazir Masih P.W.10 was produced but he did not support the prosecution case. In this connection the only evidence is the statement of Iqbal Akbar, S.I. P.W. 11.

16. Splinting to synopsis, the evidence against the appellant consists of (a) the eye‑witness account deposed by Muhammad Nazir complainant; (b) the deposition of dying declaration by Ghulam Ali P.W. 8 and Ilyas P. W. 9; (c) the taking into possession of blood‑stained Shalwar and shirt of the appellant; (d) the recovery of blood‑stained Chhuri P. 7; (e) the medical evidence; and (f) the motive.

17. I have considered the argument of learned counsel for the parties, after having gone through the record. The distance between the place where the deceased was alleged to have received injuries and the place, where he made statement before P.W. 8 and P.W. 9. has been stated to be 800 feet. Both the witnesses have candidly stated that the deceased had walked upto them and after seating himself, had informed that he was caused injuries by Muhammad Ramzan, appellant and that he had died after he had been administered water as well. The statements of these witnesses do not inspire confidence when examined in the light of the condition of the deceased, stated by the doctor (P.W.1).

18. As noted above, the doctor has categorically stated that the deceased would not have been in a position to walk to talk and would have died within 5 minutes of the infliction of injuries, while according to P.W. 8 and P.W. 9 the deceased had walked upto them, talked to them and had died in their presence. Even if the doctor had not expressly stated that the deceased would not have been in a condition to speak after having received, injuries, one could easily imagine, that the condition of the deceased mentioned by the doctor as a result of injuries, was such, that he would neither have been able to walk, nor A would have been able to talk. If the claim of these witnesses had been that they reached the spot immediately after the infliction of injuries, of course, there could be possibility of some truth in their statements, because during the few minutes that he might have lived, perhaps, he could have uttered some words, but the medical evidence in the circumstances noted above, is contradictory to the position taken up by these witnesses. As such, their deposition about the deceased having made the dying declaration to them, cannot be accepted‑

19. Muhammad Nazir complainant is related to the deceased. His sister's daughter, whom he had adopted, was married to the deceased. It was, he, who had paid the amount to the appellant for employment abroad, of the deceased. He is naturally an interested witness and his statement has to be judged as such.

20. Learned counsel for the appellant had vehemently argued that Nazir complainant had not witnessed the occurrence and that in fact he had come to the spot after having been, sent for. There seems to be substance in the argument of learned counsel for the appellant.

21. Ghulam Ali P.W.8 has clearly stated in examination‑in‑chief that Nazir Ahmad complainant had come to the thrashing floor at 12‑00 noon. In cross‑examination he has stated that a lady had disclosed about the relationship of the deceased with Muhammad Nazir P.W.7, after the arrival of the Police and it was thereafter, that Nazir complainant was summoned by them from Chak Diwana, through Ilam Din. Muhammad Ilyas P.W.9 has also stated that Muhammad Nazir P.W. 7 had come to their thrashing floor after the death of Muhammad Amin, and they had told him about Muhammad Ramzan appellant having killed Muhammad Amin, as told to them by the deceased.

22. The statements of these witnesses lend support to the contention of learned counsel for the appellant. Yet the other important thing which lends support to the contention of learned counsel for the appellant, is, that autopsy on the dead body was performed on the following day at 1.00 p.m. although Iqbal Akbar, S.I. P.W. 11 has stated specifically that the dead body was despatched for post‑mortem examination at 8‑09 a.m., but the statement of Nazir Ahmad F.C. P.W. 3 who had escorted the dead body, "that the dead body was escorted from the spot at 5.15 p.m. to the hospital", carries more weight, keeping in view the fact that the post‑mortem was conducted on the dead body on the following day. The statement of this witness, further finds support from Dr. Harbans Lal P.W.1. If there was any truth in the statement of Iqbal Akbar, S.I. P.W. 11 that the dead body was despatched at 8.09 a.m. for post‑mortem examination, the post‑mortem would have definitely been conducted on that very day, for, in that case the dead body would have reached the mortuary by 10.00 a.m. at the latest and there would have been no reason to delay the autopsy till the following day. These facts lead me to conclude that the complainant in fact was not available to the police till midday, and the registration of case as well as the completion of other papers took time after his arrival, and it was on that account that the dead body was sent late in the evening for post‑mortem examination. In the circumstances, the assertion of learned counsel for the state that the F.I.R. in this case was lodged promptly and Muhammad Nazir complainant had witnessed the occurrence seems to be without foundation.

23. Apart from the fact that nobody from the public has supported the fact of blood‑stained clothes of the appellant having been removed by the S.I. P.W. 11 the other important thing is that it does not appeal to reason that he would be wearing the blood‑stained clothes, all day after the occurrence as well, particularly when his village was nearby, where from he could procure the other ones, for changing.

24. The evidence of recovery of blood‑stained Chhuri‑ P.7 is also not deposed by any independent witness. The only witness in this connection is P.W.7 Muhammad Nazir complainant, whose statement about the eye‑witness account has been held to be doubtful. He cannot be credited with speaking truth about the recovery of blood‑stained Chhuri.

25. The evidence of motive in this case also does not advance the case of the prosecution The money was paid by Muhammad Nazir complainant. Even if the appellant had changed his mind and had decided not to provide employment abroad to the deceased, nor to return the money, the extinction of the deceased could not have saved him from the responsibility of, returning the money, as P.W.7 Muhammad Nazir complainant was still alive, and he could have pressed the claim for return of money.

26. For all the reasons enumerated above, doubts have arisen in my mind about the prosecution having proved the case: beyond reasonable Shadows, of doubt. The appellant is acquitted by giving the benefit of doubt. He shall be released forthwith if not required in any other case. S. A. Appeal accepted.