2023 PLP 59 (YLRN)

SOHAIL NASIR, J.

Muhammad Adeel (appellant) along with Mudassar Ijaz had faced trial in a Private Complaint filed by Allah Yar (PW-1) on the allegations of commission of Qatl-i-Amd of Muhammad Iqbal on 14.07.2016 within the area of Chak No. 56/15.L Tehsil Mianchannu District Khanewal.

2. On conclusion of trial vide judgment dated 16.05.2018 passed by the learned Additional Sessions Judge, Mianchannu District Khanewal appellant was convicted under Section 302(b), P.P.C. and sentenced to Imprisonment for Life. He was ordered to pay Rs.4,00,000/- (four lacs) in terms of Section 544-A, C.P.C. as compensation to legal heirs of deceased and in default thereof to further undergo 06-moths S.I. Benefit of Section 382(B), Cr.P.C. was extended to appellant. On the basis of same judgment Mudassar Ijaz was acquitted from the case.

3. By way of instant Criminal Appeal appellant has called in question the legality of judgment passed by the learned trial court.

4. It is important to mention here that about the same occurrence FIR No.350 (PB) was recorded on 14.07.2016 at Police Station Sadar Mianchannu on the complaint of Allah Yar (PW-1).

5. In Complaint Allah Yar maintained that on 14.07.2016 at about 10:30 am his son Muhammad Iqbal was returning to his house and when reached near primary school, there emerged Muhammad Adeel armed with dagger and Mudassar Ijaz on a motorbike; Muhammad Adeel gave a dagger blow that hit on left side of back of Muhammad Iqbal who fell down on the ground; Ibrar Hussain and Allah Ditta (PW-2) who were present nearby had witnessed this occurrence; assailants were succeeded to escape on motorbike; Muhammad Iqbal had died because of sole injury; the motive was that a short while ago there was a fight between children and appellant and his co-accused had extended threats to Muhammad Iqbal. Complainant finally asserted that as police had joined hands with accused and declared Mudassar Ijaz as innocent therefore he was compelled to file the Private Complaint.

6. Investigation of the case was conducted by Zahid Mehmood S.I (CW-6) who arrested appellant on 09.08.2016 and on conclusion thereof he submitted the report under Section 173, Cr.P.C. (Challan) in court.

7. As the Private Complaint was filed so proceedings were conducted in the said Complaint.

8. On 17.05.2017 a charge under Section 302/34, P.P.C. was framed against appellant and his co-accused which they pleaded not guilty and demanded their trial.

9. In order to prove his case, Allah Yar got his statement recorded as PW-1 and he also produced Allah Ditta (PW-2) and Muhammad Shaban (PW-3).

10. The learned trial court also examined Dr. Muhammad Khalid (CW-1), Raja Usman/draftsman (CW-2), Ihsan Head Constable (CW-3), Muhammad Siddique Constable (CW-4), Abdul Jabbar S.1 (CW-5) and Zahid Mehmood S.I (CW-6).

11. In his examination made under Section 342, Cr.P.C. version of appellant was as under:- "I am innocent. No such occurrence had taken place. I did not cause any injury to the deceased on the day of occurrence. Actually, the boys were playing cricket in the boys primary school of chak. The brother of co-accused Mudasar, Iqrar brother of deceased, Munir and Mubashar were quarreling with each other. Iqrar Hussain brother of deceased told about the said quarrel to deceased Iqbal. Muhamad Iqbal deceased came there and started quarreling with Munir Ahmed, Mubashar and abused them. On hue and cry, I reached there and tried to settle the matter between them. Muhammad Iqbal deceased started to abuse me. Many boys who were playing cricket there tried to rescue us and during this process someone pushed the deceased and deceased fell on some pointing object and sustained injury on his back side. Iqrar Hussain brother of the deceased also joined the investigation and supported my version. No person from nearby place of occurrence supported the version of complainant regarding the manner and place of occurrence. The PWs of this case are inter-se related, so, they deposed falsely against me. No threat was given to deceased by me in any manner. Complainant has involved me in this case falsely with suspicion that I pushed the deceased who fell down and received injury on his back."

12. Appellant opted not to produce defence evidence or to appear in terms of Section 340(2), Cr.P.C.

13. HEARD.

14. Admittedly, Allah Yar (PW-1)/ complainant is not an eye-witness of the occurrence who was present in court premises when he received the information and arrived at crime scene. He admitted this fact in cross-examination as under:- "I am not the eye-witness of the alleged occurrence. My son Iqbal informed me about the occurrence along with other persons of the locality."

15. The prosecution is therefore left with the sole testimony of Allah Ditta (PW-2). No doubt that the testimony of sole witness can be relied upon but the scrutiny has to be made with great care and caution.

16. According to complaint and even on perusal of contents of FIR it was the case of Allah Yar that Muhammad Iqbal had died at the spot. During trial the position remained under mystery that whether he died at the spot or some-where else. Allah Ditta in his examination-in-Chief maintained that he along with others lifted Muhammad Iqbal and took him to THQ Hospital Mianchannu in a critical position in a private car and that after some treatment by Doctor, Muhammad Iqbal succumbed to the injury.

17. Statement of Dr. Muhammad Khalid (CW-1) indicates that there was one injury on the left chest cavity present on posterolateral aspect of lower part of deceased. The said Doctor also observed a surgical wound available for intubation (stitched) measuring about 2 c.m x 1 c.m X going deep present on the left chest, about 8 c.m left to the left nipple. As evident it was a surgical wound and the Doctor in cross-examination responded as under:- "Injury No.2 is surgical wound which was done to save the patient from developing emphysema or to prevent the collapse of lung. I don't know about the conducting of MLC of the deceased, however, surgical stitched wound was present for intubation. It is correct that MLC of the deceased should be conducted prior to postmortem because surgical wound was present on the body of deceased. It is correct that no concerned person of the hospital told me about the first aid/operation, prior to postmortem. No person from the complainant side told this fact to me."

18. The above position has made the picture clear that Muhammad Iqbal had not died at crime scene but at the same time it is unveiled story where he had taken his last breath? This fact is also confirmed that before the post mortem of Muhammad Iqbal was conducted he was given treatment by some Doctor. Who was that Doctor? Where he provided medical treatment? What the manners were adopted for that treatment? And finally if it was so why no report is there in this context? Even the Investigating Officer Zahid Mehmood (CW-6) in cross-examination admitted that he did not collect any information from hospital that as to whether any medical examination of deceased was conducted prior to his post mortem examination.

19. In view of above the credibility of sole witness Allah Ditta has also come under heavy clouds of doubts therefore his presence has not been established in this case.

20. When the sole witness of the case has been disbelieved then it will be futile exercise to discuss the recovery of dagger, which at the most is corroborative piece of evidence and also to examine the version of appellant that he made in his statement under Section 342, Cr.P.C. because it is settled principle of law that if prosecution fails to prove its case beyond reasonable doubt, the court is not supposed to revert and discuss the defence evidence.

21. Resultantly it is concluded that prosecution has failed to prove its case beyond reasonable doubt against appellant hence this Criminal Appeal is allowed. Impugned judgment is set aside. Appellant is acquitted from the case. He is in custody and he shall be released forthwith if not required in any other case. The case property shall be dealt with in the same manners as directed by the learned trial court. JK/M-247/L Appeal allowed.