2025 PLP 1244 (YLR)

Ali Baqar Najafi, J.

This judgment shall dispose of the instant Criminal Appeal No. 18434-J of 2020 titled "Sajjad alias Mani v. The State and others", as well as Criminal Appeal No. 8865-J of 2020 titled "Abdul Sattar alias Bagga v. The State and others" and Criminal Revision No. 5874 of 2020 titled "Shahabal Khan v. Abdul Sattar alias Bagga and others" as all have arisen out of one judgment. As per report dated 02.11.2024 the appellant/Sajjad alias Mani has been released from jail on 24.08.2022 after completion of his sentence, yet his appeal is being decided on merits.

2. Through these criminal appeals under Section 410, Cr.P.C. the appellants have challenged their conviction and sentence awarded by the learned Addl. Sessions Judge, Tandlianwala District Faisalabad vide judgment dated 16.01.2020 passed in a private complaint registered under Sections 302, 324, 337-F(i), 337-F(ii), 148, 149 P.P.C at Police Saddar, District Faisalabad whereby the appellants were convicted and sentenced as under:- Appellant/Abdul Sattar alias Bagga Convicted under Section 302(b) P.P.C as Ta'zir and sentenced to undergo imprisonment for life with compensation of Rs. 3,00,000/- as compensation to the legal heirs of the deceased under Section 544-A Cr.P.C. and in case of default to further undergo S.I. for six months. He was also convicted under Section 337-F(i) P.P.C and sentenced to Rs. 20000/- with simple imprisonment for one year as Ta'zir for injuring Alllah Yar, and till the payment of Daman he shall be dealt with as per Section 337-Y(2) P.P.C. Both the sentences were ordered to run concurrently. Appellant/Sajjad alias Mani. Convicted under Section 337-F(i) P.P.C and sentenced to Daman of Rs. 20000/- on two counts (total Rs. 40,000/-) with simple imprisonment for one year for injuring Shahabal. He was also convicted under Section 337-F(ii) P.P.C and sentenced with Daman Rs. 30.000/- with simple imprisonment for three years and till the payment of Daman he shall remain behind the bars. Both the sentences were ordered to run concurrently. Benefits, of Section 382-B P.P.C was also extended to them.

3. Briefly, the prosecution case as per the private complaint (Exh.PB) filed by Shahabal Khan/complainant (PW-1) was that he is resident of Chak No. 399/GB and is cultivator by profession. On 01.07.2016 at 12:15 a.m. (night) he was coming back from the house of his brother namely, Noor Muhammad, and when he reached at the door of his house, the accused person suddenly appeared who was identified in the light of electric bulb lit in the Filter Plant in front of the house. However, the assailants were three in number with muffled faces. Abdul Sattar alias Bagga/appellant raised lalkara that complainant (PW-1) be taught a lesson for misbehaving on the previous day. The complainant (PW-1) raised hue and cry upon which his son Pervez (deceased) brother/Allah Yar (PW-2) and nephew/Shahbaz (not produced), came out from his house. Appellant/Sajjad alias Mani, made dagger blow which hit complainant (PW-1) on his clavical region and the second blow landed on his left arm. When Pervez (deceased) came forward to rescue his father, appellant made a dagger blow which hit on upper side of his left elbow and right bicep, who fell down. The appellant made repeated blows which hit on the back side of his right thigh, left side of left thigh and left knee. The complainant (PW-1) along with his brother Allah Yar (PW-2) came forward to rescue Pervez (deceased) but the appellants made dagger blows. The blow of the appellant landed on the left shin of Allah Yar (PW-2). The blow of Sajjad alias Mani/appellant hit the complainant (PW-1) on his left arm making all seriously injured. The accused persons threatened the complainant party while waiving the ammunition that if anybody had come close he would be killed. Hue and cry of the injured attracted many people of the area and upon seeing them accused persons succeeded to flee away while threatening not to spare the complainant (PW-1). Hence the FIR (Exh.PF) and the Private Complaint (Exh.PB).

4. After conclusion of the investigation, the report under Section 173 Cr.P.C. was submitted before the trial court and the charge was framed against the appellants on 24.09.2017 to which they pleaded not guilty and claimed trial. The prosecution produced Shahabal Khan/complainant (PW-1), Allah Yar/injured eye-witness (PW-2), Umar Daraz/identifier of the dead body (PW-3), Zahid Iqbal, 2753/HC, Muharrir (CW-1), Muhammad Nawaz/Draftsman (CW-2), Aftab Ahmed, SI (CW-3), Dr. Sibtain Mazhar (CW-4) and Dr. Azmat Abbas Khichi (CW-5) The appellants neither opted to depose under Section 340(2) Cr.P.C. nor produce any defence evidence. In reply to questions as to why this case was registered against them and why the PWs have deposed against you, the appellants replied as under:- Abdul Sattar alias Bagga/appellant. "It is a false case. PWs are inter se related. No source of light was taken into possession. It is an unseen occurrence." Sajjad alias Mani/appellant. "Due to enmity FIR was got registered against three unknown persons as well as against me and my co-accused. All the PWs are inter se related. They deposed against me after consultation and deliberation and involved me in false case. My version was proved correct during investigation. neither I inflicted any injury nor I was present at the place of occurrence at time of occurrence."

5. Mr. Mehram Ali Bali, Advocate learned counsel for the appellants contends that late receiving of the dead body in the hospital was not adequately explained which raises suspicion on the presence of eye-witnesses at the spot. Adds that if the witnesses were present at the spot, why the dead body was not brought by themselves to the hospital, when they were also injured and needed a medical treatment. Also submits that the injuries sustained by the eye-witnesses are of minor nature and the doctor while giving testimony had admitted that the medical officer who had conducted the autopsy admitted that injuries sustained by the deceased were not dangerous and he could be saved had a timely medical help been provided to him. Places reliance upon Amin Ali and another v. The State (2011 SCMR 323), Muhammad Asif v. The State (2017 SCMR 486) and (PLD 2015 SC 249) and prayed for the acquittal of the appellant.

6. Conversely, Mr. Abdul Samad learned APG assisted by Malik Muhammad Siddique Awan, Advocate learned counsel for the complainant state that blood stained clothes of the eye-witnesses (Exh.CW-3/F) and (Exh.CW-3/G), respectively were handed over to the I.O which prove the presence at the spot. The statement of the doctor was recorded as secondary evidence with the permission of the court and at the time of recording of his evidence no objection was raised by the appellants, hence prays for dismissal of the appeal.

7. Arguments heard. Record perused.

8. The prosecution evidence is comprised of (i) ocular account, (ii) medical evidence, (iii) investigation and the (iv) motive which are discussed as under: (i) OCULAR EVIDENCE.

9. Shahabal Khan, complainant/ injured (PW-1) reiterated the story of the private complaint (Ex. PB) while stating that on 01.07.2016 at 12:15 a.m. he was coming back from the house of his brother namely, Noor Muhammad, and when he reached at the door of his house, electric blub was lit on the filtration plant. Meanwhile, three unknown persons with muffled faces and the appellants/Abdul Sattar alias Bagga and Sajjad alias Mani, suddenly appeared who raised lalkara to teach lesson to the complainant party for previous exchange of hot words. The complainant (PW-1) made hue and cry which attracted Pervez (deceased) and nephew/Shahbaz (not produced) who witnessed the whole occurrence. Sajjad alias Mani/appellant made a dagger blow on the right shoulder (scapula) and not clavical region of the complainant (PW-1) and he therefore repeated the blow on the left arm of the complainant (PW-1). When Pervez (deceased) came forward to rescue the complainant (PW-1), Sajjad alias Mani/appellant made second dagger blow which hit on his left elbow and on right arm which made him fall down. Meanwhile, Abdul Sattar alias Bagga/appellant also hit him with the dagger blow which hit on the back of right thigh and on left side of back of left thigh and on left knee. The complainant (PW-1) and Allah Yar (PW-2) tried to rescue Pervez (deceased) but Abdul Sattar alias Bagga/appellant made a dagger blow which hit Allah Yar (PW-2) on left shin and then Sajjad alias Mani/appellant made a dagger blow which hit him on his left arm. Pervez (deceased) succumbed to the injuries at the spot. Many people were attracted but the assailants managed to escape while extending threats. The motive behind the occurrence was a brawling incident made by the drunken appellants two days ago. On the application of the complainant (Exh.PA) the FIR (Exh.PF) was registered. The complainant (PW-1) and Allah Yar (PW-2) got themselves medically examined through the police. Sajjad alias Mani/appellant become proclaimed offender (P.O) whereas appellant/Abdul Sattar alias Bagga was arrested on 15.07.2016 and later Sajjad alias Mani/appellant was also arrested on 03.12.2016. On account of partial investigation by the Investigating Officer (CW-3), the complainant filed private complaint (Exh.PB) in which the appellants were tried. In cross-examination, he admitted that he nominated 5 accused persons whereas in fact 2 were nominated. The private complaint was filed after the FIR as he was dissatisfied with the investigation. He admitted that he did not remember the contents of the application for registration of FIR. He could not tell whether the police took into possession any source of light at the place of occurrence. The deceased received 5 stab wounds but he denied the suggestion that he received 3 injuries raising the suspicion on his narration of true facts. He also admitted that prior to occurrence, the FIR No. 331/94 was registered against Ashfaq and others in which said Ashfaq was not acquitted from the learned trial court. He volunteered that two accused persons were sentenced to life imprisonment but subsequently a compromise was affected between the parties. He volunteered that Sajjad alias Mani/appellant was challaned in the said case. This shows their previous criminal litigation background. Two/three days before, a scuffle took place in the school situated in front of the house of the complainant which was not reported to the police. He stated that Pervez (deceased) was lifted but he died on the spot. Clothes of Allah Yar (PW-2) were statedly simmered with blood of Pervez (deceased) but the complainant (PW-1) did not hand it over to I.O. He denied the suggestion that Pervez (deceased) remained alive for 30 to 45 minutes and did not die immediately after sustaining injuries which does not corroborate with the medical evidence. He stated that the post mortem was conducted at 01:00 p.m but denied the suggestion that it was conducted at 05:00 p.m which is again negligence of the autopsy report. He admitted that Allah Yar (PW-2) received only one injury which is quite unnatural.

10. Allah Yar (PW-2) the injured witness is younger brother of the complainant (PW-1) who repeated the same story and narrated the same motive. He is the witness of recovery of blood stained earth vide recovery memo. (Exh.PC). On 19.07.2016, he and Shahbaz, joined the investigation and in his presence Abdul Sattar alias Bagga/appellant led to the recovery of dagger, the weapon of offence from his house concealed in the drawer of bed taken into possession vide recovery memo. (Exh.PD). In cross-examination, he admitted that his statement was not recorded by the police. He admitted that both Shahbal Khan/complainant (PW-1) and he reside in the same house. His cursory statement was recorded in the private complaint where he admitted that he accompanied his brother/complainant (PW-1) to the Police Station for registration of FIR (Exh.PF). Pervez (deceased) received 4 dagger injuries on his person but denied the suggestion that 3 injuries were received on non-vital part of his body again raising suspicion on his presence at the spot. He also admitted that the police was informed by the un-named villager and it reached at the place of occurrence at 12:15 a.m. Then volunteered that police came between 12:15 a.m. to 01:00 a.m. If he was present he should inform the police by any number. He admitted that nothing was recovered from the possession of Sajjad alias Mani/appellant during the police remand. He also admitted that I.O. did not collect any source of light; i.e. bulb or tube light from the place of occurrence showing the doubt over narration of a true story. According to him, the dagger was blood stained and during the recovery proceedings no respectable of the locality was associated. This was violative of Section 103 Cr.P.C.

11. Umar Daraz (PW-3) identified the dead body of the deceased in the mortuary in front of Dr. Zaid Ali (not produced). In cross-examination, he admitted that he identified the dead body at 03:30 p.m. and the post mortem was conducted after 3 hours from the said identification; i.e. 06:30 p.m which does not coincide with the autopsy time of 05:00 p.m. (ii) MEDICAL EVIDENCE.

12. Dr. Azmat Abbas Khichi (CW-5) appeared for Dr. Zaid Ali, and identified his signatures on the post mortem report (Exh.CW-5/A) and the hand writing of the said doctor. In cross-examination, he admitted that according to the injury statement Pervez (deceased) (incorrectly named as Shahabal Khan) (Exh.CS-5/B) he received 5 injuries, but there are 3 injuries as per the post mortem report (Exh.CW-5/A) and injuries Nos. 1, 2,4 and 5 are abrasions. All the injuries were on the non-vital part of the body of the deceased. He also admitted that all injuries were not dangerous and the deceased could have been saved had he been brought to the hospital by the attendants in time. He stated that the dead body was brought to the mortuary at 01:00 pm and the autopsy was conducted at 05:00 p.m.

13. Dr. Sibtain Mazhar (CW-4) examined both Shahabal Khan/complainant (PW-1) and Allah Yar (PW-2) and according to him complainant (PW-1) sustained following 4 injuries:-

1. An incised wound of 1.5 cm x 0.5 cm on right clavicle area only skin deep bone not exposed.

2. Second incised wound of about 1.5 cm x 0.5 cm on right supra clavicular area about 1 cm from first wound.

3. Third incised wound of about 2.5 cm x 1 cm on interior aspect of left forearm, 3 cm below joint. Muscle deep. Bone not exposed.

4. Fourth incised wound of about 1 cm x 0.5 cm on medial left forearm 3.5 cm below elbow joint. Skin deep not exposed. Injuries were declared as 337-F(i), 337-F(i), 337-F(ii) P.P.C for the above said injuries respectively. The doctor ruled out the possibility of fabrication and described the duration of only 30 minutes to one hour caused by sharp edged weapon. He also examined Allah Yar (PW-2) and according to him he sustained one injury of skin deep incised wound of "1.5 cm x 0.5 cm on lateral aspect of left leg about 8 cm above lateral malleolus". Injury was declared under Section 337-F(i) P.P.C. Likewise, the probable duration of injury between 30 minutes to one hour was stated and he ruled out the possibility of fabrication. In cross-examination, he admitted that injuries sustained by both the witnesses were not serious in nature and were not on the vital part of their bodies. He had shown his inability to answer as to whether the said injuries were self-inflicted with intention to become a witness in the murder cases. (iii) Investigation

14. Aftab Ahmed, SI/I.O (CW-3) stated that on 01.07.2016 he along with Jan Muhammad, Mian Khan and Nadeem Afzal/constables reached in the area of Chak No. 399/GB where Shahabal Khan/complainant (PW-1) presented to him application (Exh.PA) bearing his thumb impression upon which FIR (Exh.PF) was registered. During the investigation, he inspected the dead body, prepared injury statement (Exh.CW-3/B) and inquest report (Exh.CW-3) and escorted the dead body through Jan Muhammad 2722/HC (not produced) to the mortuary for post mortem. He inspected the place of occurrence, recorded the statement of PWs, prepared un-scaled site plan (Exh.CW-3/D), collected the blood stained earth (Exh.PC), sent Shahbal Khan (PW-1) and Allah Yar (PW-2) to hospital for medical examination. Jan Muhammad 2722/HC received last worn clothes of Pervez (deceased) (Exh.CW-3/E). Allah Yar (PW-2) and Shahabal Khan (PW-1) presented to him clothes worn by them at the time of occurrence (Exh.CW-3/F) and (Exh.CW-3/G), respectively. On 03.07.2016 he summoned Muhammad Nawaz/Draftsman (CW-2). On 15.07.2016 the soaked cotton parcel was presented to him which he deposited in the office of PFSA. He then arrested Abdul Sattar alias Bagga/appellant on 15.07.2016 and on 19.07.2016 Abdul Sattar alias Bagga/appellant led to the recovery of knife resembling dagger from his residential house which was taken into possession vide recovery memo. (Exh.PD) and prepared un-scaled site plan (Exh.CW-3/H). He deposited the said knife in the office of PFSA on 22.07.2016 after receiving it from Muharrir (CW-1). He recorded the statement of Shahabal Khan/complainant (PW-1) showing his satisfaction that 2 accused persons had committed the murder of his son and injured him and his brother, therefore, on 31.07.2016 prepared the challan against Abdul Sattar alias Bagga/appellant. He got issued non-bailable warrants of arrest of Sajjad alias Mani/appellant on 23.08.2016 and then arrested him on 03.02.2016. In cross-examination, he admitted that he did not take into possession the motorcycle on which the assailants escaped. He admitted that many respectable of the locality appeared before him and tendered their affidavits to the extent that at the time of occurrence the appellant Sajjad alias Mani was sleeping at his Dhari (cattle shed) at a distance of 2 square away. He also admitted that he concluded the investigation on the night of occurrence at 12:00 p.m. He admitted that the complainant side did not produce any evidence of previous enmity. He admitted that he visited the place of occurrence at 01:30 a.m. where the deceased had died. He could not explain the reason for delayed post mortem and also admitted that both the eye-witness have received normal injuries on non-vital part of their bodies but denied the suggestion that they made self-inflicted injuries. He admitted that he had not sent the last worn clothes of the deceased to PFSA to identify whether they were stained with human blood. He admitted that he did not take into possession the electric bulb nor he verified any source of light at the time of occurrence at the place of occurrence.

15. Zahid Iqbal, Muharrir, 2753/HC (CW-1) stated that he received the dagger parcel on 19.07.2016 and admitted that I.O (CW-3) did not record his statement conclusion.

16. Scanning the prosecution evidence, it has been noticed that Shahabal Khan/complainant (PW-1) father of Pervez (deceased) lodged the FIR but he admitted that someone from their village had informed the police about the occurrence which fact is unexplained. He claimed to have made his efforts to save the deceased from the onslaught by the two assailants during which he also sustained minor injuries, but his blood stained clothes could not be verified by the PFSA as stained with blood. The alleged recovery memo. of said clothes (Exh.CW-3/E) and (Exh.CW-3/G) were not sent to laboratory. Besides, it appears very an un-natural conduct on the part of the complainant (PW-1) and his brother (PW-2) who just rushed to the hospital after sustaining minor injuries on the non-vital part of their bodies without taking the deceased with them. If Pervez (deceased) had died immediately after sustaining injuries making it a futile effort to take him to the hospital, why did Dr. Sibtain Mazhar (CW-4) state that the injuries sustained by Pervez (deceased) were not dangerous and that the time between the death and injury was 35 minutes and that he could be saved had he been properly provided the first aid. The doctor did not state that the cause of death was excessive bleeding from the same wound (injury No.3) which was otherwise not covered with any part of cloth so as to stop the continuous bleeding. The dead body was received in the hospital at 01:00 a.m. whereas the autopsy was conducted at 05:00 p.m., therefore, such a delay of 16 hours for conducting autopsy appears to be fatal for the prosecution. Reliance is placed upon Muhammad Ijaz alias Billa and another v. The State and others reported as (2024 SCMR 1507). The dead body was not brought by any of the close relatives in the hospital which was identified by Umar Daraz (PW-3) before the autopsy. Another aspect of the case is that Dr. Azmat Abbas Khichi (CW-5) appeared on behalf of Dr. Zaid Ali, just to identify his signatures and hand writing. Admittedly, he never participated or facilitated in the said autopsy, therefore, he could not answer the vital questions in cross-examination. Reliance is placed upon Allah Ditta and another v. The State and another (2024 YLR 1924) wherein the secondary evidence of doctor was discarded. Surprisingly, the time between death and post mortem was given with precision of 15 hours and 40 minutes and between death and injury was 35 minutes which appears to be a tutored statement.

17. As far as the motive is concerned, no proof of previous altercation was produced to substantiate that there was a planned design behind the occurrence. On the injuries upon the eye-witnesses (PW-1 and PW-2) the statement of the doctor (CW-4) is indicative of the fact that these injuries could have been self-inflicted to become the witness of murder as he did not categorically denied the suggestion. It has been held in case titled Ishtiaq Hussain and another v. The State and others (2021 SCMR 159) and Amin Ali and another v. The State (2011 SCMR 323) that injured eye-witnesses will not be a stamp of truthfulness as to their contents. This statement is, therefore, discussed.

18. Shahabal Khan/complainant (PW-1) and Allah Yar/injured witness (PW-2) appear to be natural witnesses but their conduct is not natural. A son receiving stab wounds in front of his father and uncle obviously require some efforts to save the more seriously injured person instead of getting the first aid in the hospital on minor injuries. If they could reach the hospital quickly what stopped them from taking the deceased to the hospital even if his condition was serious. Excessive bleeding could obviously be stopped by providing him initial first aid like wrapping the wound with cloth if they had been there at the time of occurrence. The I.O. (CW-3) himself admditted that he concluded the investigation on the night of occurrence. He also admitted that so many persons appeared before him in proof of innocence of the appellant. Abdul Sattar alias Bagga/appellant led to the recovery of dagger which was said to be blood stained but Sajjad alias Mani/appellant did not and he was alleged to have attributed injury No. 3 which was said to be fatal. However, this was to be proved by the eye-witnesses. No source of light was taken into possession, therefore, keeping in view the judgment titled Muhammad Asif v. The State (2017 SCMR 486) it appears to be a case in which eye-witnesses are not narrating the truth.

19. In view of the above, Criminal Appeals Nos. 18343-J of 2020 and 8865-J of 2020 are allowed and the appellants are acquitted of the charges levelled against them. Abdul Sattar/appellant be released forthwith if not required in any other case. However, Criminal Revision No. 5874 of 2020 is dismissed. JK/S-21/L Appeals allowed.