1990 PLP 1079 (SCMR)

Date of hearing: 27th January, 19W. ABDUL SHAKURUL SALAM, J.‑‑‑Deceased's daughter seeks leave to appeal against the judgment of the Lahore High Court, Lahore dated 8‑3‑1988 acquitting the respondents for the murder of her father Khuda Bakhsh who were found guilty by the learned Additional Sessions Judge III Rahimyar Khan and the first respondent No. 1 sentenced to death and second and third to imprisonment for life alongwith a fine of Rs.5,000 each, in default, to undergo further rigorous imprisonment for one year each vide order dated 11‑8‑1986. The matter was before the High Court on Reference as well as on convicts' appeal.

2. Relevant facts for the disposal of this petition are that Khuda Bakhsh was inflicted a stab wound on the right front of abdomen. He was admitted in hospital at 5‑00 p.m. on 13‑11‑1983. He was brought to the hospital by Police. It was informed immediately. These facts appear in the medico‑legal report Ex. PA. AST Muhammad Younas (PW 8) recorded the statement of the injured wherein the latter stated that one Inamullah Syed was his neighbour. Dispute regarding common wall was going on. Cases against each other were pending in Courts. A suit for damages filed by Inamullah against him was pending in the Court of Civil Judge, Rahimyar Khan. 1t was fixed for hearing today. After attending the hearing of the case at 4‑30 p.m. he was going towards his home. His son Ghulam Hussain and Messrs Faiz Muhammad, Rana Muhammad Iqbal and Bashir Ahmad resident of Rahimyar Khan were following him at some distance from the Court. When he reached by the house of Retired Assistant Commissioner in the Esaianwali Gali, Anis Ahmad, Nafees Ahmad and Raees Ahmad, sons of Inamullah, suddenly emerged in front of the Gali. Anis Ahmad and Races Ahmed caught hold of his arms and Nafees Ahmad, who had a knife in his hand, thrust the same in his abdomen. His intestines came out. He fell on the ground. The assailants seeing him fall ran away. His companions Ghulam Hussain, Faiz Muhammad and Rana Muhammad Iqbal pursued the assailants but the latter succeeded in running away. In his injured condition, the aforesaid companions brought him to the hospital. The statement purports to be signed by the injured. It is Ex. PE. It forms the basis of the formal F.I.R. Ex. PE‑

1. It was initially recorded under section 307/34, P.P.C. but on the demise of the injured on 23‑11‑1983 at 4‑50 a.m. in the hospital, it was converted under section 302, P.P.C. Investigating Officer, AST Muhammad Younas PW 8 arrested Nafees Ahmad respondent on 13‑11‑1983 and recovered knife P 3 Vide memo Ex. PG on 27‑11‑1983 which was later on found to be stained with human‑blood by Serologist vide memo Ex. PM.

3. At the trial, from amongst the four persons mentioned in Ex. PE as the eye‑witnesses, Ghulam Hussain, Bashir Ahmad and Faiz Muhammad were given up as having been won over. Ocular testimony was furnished by Rana Muhammad Iqbal (PW 7). AST Muhammad Younas (PW 8) deposed about recording them, statement of the deceased Ex. PE and about the recovery of knife P.3 vide memo Ex. PG on the pointing of accused Nafees Ahmad. Niaz Ahmad (PW 5) and Rana Mohammad Iqbal (PW 7) deposed having attested the. Recovery memo. Accused denied the allegation and produced evidence of alibi. Ghulam Hussain son of the deceased was produced as DW.

1. He. denied, having seen the signatures of his father on the statement Ex. DE, that those were of his father. He was cross‑examined by the prosecution as being a son of the previous husband of the deceased's wife, having been disinherited and won over.

4. As stated above, the respondents were found guilty by the trial Court, but on Reference and their appeal they were acquitted.

5. The learned Division Bench of the Lahore High Court observed "that the only question for determination is whether the prosecution has proved beyond reasonable doubt that the appellants had murdered the deceased? The prosecution mainly relied on the ocular evidence furnished by Rana Muhammad Iqbal (PW 7) and the dying declaration Ex. PE (FI.R.) recorded by AST Muhammad Younas (PW 8) besides the recovery of blood‑stained knife (P 3) made from Nafees Ahmad, appellant". While analysing the recovery testimony, the learned Judges observed that Niaz Ahmad (PW 5) was a permanent resident of Bahawalnagar, who, according to him, had come on a short visit to Rahimyar Khan, the place of occurrence, for seeing his relatives. He admitted his relationship with one Bashir Ahmad, AST, who was posted at the Police Station Rahimyar Khan during the days of occurrence. The other witness of the recovery was Rana Muhammad lqbal (PW 7) who was also the eye‑witness as well son of the nephew of the deceased. AST Muhammad Younas (PW 8), who had made the recovery, admitted that in the 'recovery memo Ex. PG, it was not mentioned that knife P 3 when recovered was stained with blood. The learned Judges concluded that "it, therefore, appears to us that on the last day of remand, the police had, hurriedly planted this recovery to strengthen the prosecution case and made Rana Muhammad Iqbal PW, a close relative of the deceased and Niaz Ahmad PW a relation of Police Officer as witnesses of the same. We have grave doubts about genuineness of this recovery, and, therefore, it is ruled out of consideration." Nothing has been urged to show that the inference drawn from the evidence regarding the recovery does not follow from the evidence or is otherwise perverse. About the ocular evidence, the learned Judges observed that the sole eye‑witness (Rana Muhammad Iqbal) was closely related to the deceased. He was a permanent resident of Vehari. His statement that he was returning from the Courts where he had gone for consulting Muhammad Ali, Deed‑writer, regarding execution of a power of attorney, and on the way met the injured and the witnesses mentioned in his statement, was not believable firstly because of his being a chance witness, secondly his story that he was coming back from the Courts regarding execution of power of attorney was not plausible as the power of attorney was executed at Vehari. It was also observed that if he was present at the place. of occurrence where the injured fell down and was taken to hospital, it would have been mentioned in the medico‑legal report that the injured was brought by him or any other companions of the injured mentioned in Ex. PE, but the contemporaneously prepared documentary. evidence in the form of medico‑legal report Ex. PA shows that the injured was brought to the hospital by police which apparently meant that nobody was accompanying the injured. The assessment of the evidence of this witness made by the High Court cannot again be said to be unreasonable or perverse. As regards the statement of the deceased Ex. PE recorded by ASI Muhammad Younas (PW 8), the learned Judges observed that "needless to say that its evidentiary value is considerably diminished because we have disbelieved the presence of the witnesses who have been mentioned in Ex. PE as eye‑witnesses of the occurrence. Medico‑legal certificate Ex. PA of the deceased shows that police had taken the deceased in injured condition to the hospital, but Muhammad Younis ASI (scribe of statement Ex. PE) says that he went to the hospital on telephonic message from the hospital, where deceased was lying already admitted. If the statement of the deceased was recorded in the hospital ward then why certificate about his fitness to make statement was not obtained from the doctor." It was also noticed that the deceased's son 6hulam Hussain had deposed that the signatures on Ex. PE were not of his father.

6. There is no doubt that the deceased was stabbed and taken to the hospital. He may have named his assailants but the statement Ex. PE as recorded by ASI Muhammad Younas (PW 8), without certificate of the doctor shows that fit was recorded in the manner that four witnesses of the occurrence were said to be following the injured and the three respondents who happened to be sons of Inamullah Syed with whom the injured had litigation were mentioned as the accused persons. May be one or the other was the assailant. But in the absence of reliable evidence, it is not possible to hold any one guilty of a capital charge. The entire evidence has been re‑examined by the learned Division Bench of the High Court. The learned Judges came to the conclusion that "the conviction of the appellants (the present respondents) on the basis of evidence brought on the record cannot be sustained. There is no doubt that an innocent man had been stabbed and done to death. The tailored dying declaration, without reliable evidence against specific person/persons, has led to the unfortunate situation that a murder of an innocent citizen is going unpunished. Inefficient handling of the investigation and lack of reliable truthful witnesses coming forward has brought about this result. But in view of the state of the evidence brought on the record, which has been serutinised in detail by the learned Division Bench of the High court resulting in the acquittal of the respondents, no justification is made out for this Court to interfere. Hence, this petition is dismissed N.H.Q./Z‑96/S Petition dismissed.