1989 P Cr (PLP)

(3) An incised wound 2 c.m. x 1 c.m. on the left upper lip (4) An incised wound 3 c.m. x 1‑1/2 c.m. muscle deep on the back of right upper arm just above elbow joint. (5) Multiple incised wound on the palmer aspect of left hand. (6) A stab wound 4 c.m. x 2 c.m. muscle deep on the inner and middle of left' thigh. (7) Three incised wounds 3 c.m. x 1 c.m. each muscle deep on the back of right forearm just above the wrist joint (8) Compound fracture of right leg. (9) Fracture of left leg. According to his opinion the deceased had died as a result of excessive haemorrhage and shock. During cross‑examination he stated that injuries on the person of Muhammad Sharif P.W. can possibly be the result of a friendly hand. Muhammad Sharif P.W.8 repeated the facts given by him in the F.I.R. He added that he had identified Malik and Haji alias Amjad accused in identification parades. The only improvement he made was that instead of stating that Muhammad Khan alias Malli had said that he was the same Javed Iqbal, he stated that he was the same Javed Iqbal who had been making applications against Muhammad Khan and Irshad Ali sons of Budhay Khan, and so he be caught and done to death. He added that he had handed over his blood‑stained Kurta P.5, Bunian P.6 and Chaddar P.7 to the Investigating officer, which were taken into possession vide memo. Exh.P.B. During cross‑examination he admitted that there were 35/36 passenger: in the Railway compartment in which the deceased was firstly attacked. He also admitted that there were many persons at Pejowali Railway Station. He denied the suggestion that he had not witnessed the occurrence and that on receiving information that Javed Iqbal had been injured, by somebody, he had reached Pejowali Railway Station wherefrom he had taken Javed Iqbal to Narowal and lodged report after consultations and deliberations. He denied that he had not suffered any injury during the occurrence but had got the same fabricated subsequently. He admitted that Zulfiqar Butt was from his Bratheri but professed ignorance about his political rivalry with Chan Peer of Narowal and of Muhammad Khan and Irshad Ali sons of Budhay Khan being party-men of Chan Peer. The suggestion that Muhammad Malik and Haji alias Amjad had been shown to him prior to the identification parade, was denied by him.

10. Munir Ahmad P.W.9 corroborated the statement made by Muhammad Sharif P.W.8. The reason, he gave for being at Narowal on the day of occurrence, was to purchase medicines for his father. While making statement about the motive, he added that apart from the applications which the deceased had been moving against Irshad Ali, Muhammad Khan (acquitted accused) to the Martial Law Authorities and Border Area, one Shaukat, a relative of Irshad Ali and Muhammad Khan had tried to forcibly take possession of a plot which was resisted by Javed Iqbal and that he had filed a suit in that connection also. During cross‑examination he admitted that Niaz Ali was real brother of the deceased and the complainant and they were sons of his father's sister. He also admitted during cross‑examination that there were about 35/36 passengers in the compartment in which the occurrence had started and that there were many other passengers at Pejowali Railway Station. He added that he had not given the names of Muhammad Malik and Haji alias Amjad to Muhammad Sharif P.W.8. He explained that he could not tell the names of the said persons to Muhammad Sharif on the first day because of the tense situation prevailing at that time. He denied the suggestion that he had not witnessed the occurrence.

11. Muhammad Bashir P.W.11 deposed about having witnessed the recovery of Chhuri P.7 from Muhammad Khan alias Malli and Chhuri P.8 from Ghulam Abbas alias Gami, and of having attested the recovery memos. P.F. and P.G. He admitted that he was residing in the village of Muhammad Sharif P.W. and was known to him but denied any specific friendly connection with him.

12. Raja Muhammad Nawaz, Magistrate, who had supervised the identification parade of Muhammad Malik held at District Jail, Sialkot, stated that he was correctly identified by P.Ws. Niaz Ali and Muhammad Sharif. During cross‑examination, he admitted that he had neither recorded the statements of the witnesses before the identification parade nor did he record any objection raised by the accused.

13. The evidence of identification of Amjad by Muhammad Sharif complainant in District Jail, Sialkot was deposed to by Mian Muhammad Saeed Akhtar, Magistrate P.W.18. During cross‑examination he admitted that the accused had brought to his notice before the identification parade that he had been shown to Muhammad Sharif complainant at Narang Police Station.

14. The evidence of identification of Haji alias Amjad by Niaz Ali P.W. in the identification parade held in District Jail, Sialkot was deposed to by Mr. Iftikhar Ahmad Hundal, Magistrate P.W.19. In that, also the accused had got recorded objection that he had been shown to the witness before the identification parade.

15. Riaz Harried who was Guard of the train (No. L‑376 Down), in the compartment of which the occurrence had started, appeared as P.W.6. He stated that he had seen four persons dragging one person from the platform of Pejowali Railway Station. According to him, two of them were armed with Chhuris while the other two were armed with Dandas. He stated that clothes of the man who was being dragged were stained with blood. During cross‑examination he stated that he had not made any report. He, however, stated that he had asked the Station Master of Rayya Khas Railway Station to send a report in writing. He admitted that he had appeared before the Police to make statement at a later stage.

16. Muhammad Akram, A.S.I. who had registered and partly investigated the case, and Gul Muhammad S.1. who had later taken over the investigation and arrested the accused, appeared as P.W.21 and P.W.22 respectively. They gave the account of registration and investigation of the case. Gul Muhammad S.I. also gave details of the recoveries at the instance of the accused.

17. Haji Muhammad Aslam Butt, Mayor, Municipal Corporation, Gujranwala was also examined as C.W.4 who deposed about the complaint made to him by Javed Iqbal deceased, against certain persons of his village and of his having requested the D.I‑G. to look into the matter.

18. All the appellants during their statements under section 342, Cr.P.C. denied the prosecution case as a whole. They denied to have led to the recoveries of weapons of offence. Haji alias Amjad and Muhammad Malik stated that before the identification parades they had been shown to the witnesses.

19. The two acquitted accused Irshad Ali and Muhammad Khan examined Manzur Ahmad, A.S.I. and Aurangzeb Superintendent of Police in defence as D.W.1 and D.W.2. Aurangzeb stated that he had found both of them innocent during investigation.

20. Learned counsel for the appellants after going through the evidence, criticised the impugned judgment. He contended that the F.I.R. in this case was lodged with an unexplained delay of quite a few hours; that the appellants were involved in this case after consultations and deliberations; that no motive is alleged against any of the appellants, that the occurrence had not taken place in the manner and at the places mentioned by the prosecution. According to him, the deceased had been caused injuries by some persons outside the Railway Station of Pejowali; that no independent witness was produced in spite of the fact that a large number of persons admittedly had seen the occurrence, that the evidence of recoveries is not worth reliance, that appellants Muhammad Malik and Haji alias Amjad were not named in the F.I.R. and that the evidence of identification against them is of no value as they had been shown to the witnesses before the identification parades were held.

21. Learned counsel for the State/complainant has defended the judgment of the trial Court.

22. The motive in this case is directed against the two acquitted real brothers, i.e. Irshad Ali and Muhammad Khan sons of Budhay Khan. No allegation was levelled against them of having actually participated in the occurrence. They were alleged to have abetted the crime. They were acquitted by learned trial Court. No State appeal was filed against them. The criminal revision filed by the complainant against them has been withdrawn. The contention of learned counsel for the appellants, therefore, that there is no particular evidence of motive against the appellants, is not without substance.

23. The occurrence had taken place on 26‑5‑1982 between 2‑00 and 2‑30 p.m. Statement Exh.P.E. of the complainant on the basis of which F.I.R. was recorded on 27‑5‑1982 at 4‑30 a.m., was recorded some time after 11:30 p.m. even though the complainant had reached Narowal alongwith the deceased before 5‑00 p.m. and according to Ghulam Hussain Constable P.W.4 the information had been received about the admission of injured to the hospital before sunset on 26 5‑1982. In the circumstances, the argument of learned counsel for the appellants that the occurrence was reported with a considerable delay, is based on correct assumption. However, the delay per se is no ground to discredit the credentials of the F.I.R. unless an F.I.R. is found to have been lodged after deliberations and consultations and contains the names of known enemies of the complainant party, giving an impression that they were involved falsely. The F.I.R. cannot be out-rightly held as a doubtful piece of evidence.

24. In the case in hand the complainants even according to the accused party had enmity with Irshad Ali and Muhammad Khan sons of Budhay Khan, who were put to trial for having abetted the offence. Both of them were not strangers. They were residing in the same Ilaqa. If the F.I.R. had been lodged after consultations and deliberations to involve the enemies even if innocent, then the names of Irshad Ali and Muhammad Khan would have been definitely put as actual assailants and they would not have been assigned the role of merely having abetted the crime. The stance of the defence that Irshad Ali and Muhammad Khan belonged to the party of Chan Peer who was a political rival of Zulfiqar Butt, from the Bratheri of the complainant and that Zulfiqar Butt was present at the time the statement of the complainant was recorded by Muhammad Akram, Head Constable and so he got this case cooked up, seems to 'be absolutely without any logic and cogent reasons. No doubt, there is evidence that Zulfiqar Butt was present at the time, the statement of the complainant was recorded by Muhammad Akram, H.C. but if the statement had been made by Muhammad Sharif P.W.8 on his advice and with his consultation, then Irshad Ali and Muhammad Khan son of Budhay Khan, as noted earlier, should have been assigned the principal role. It is not the case of the defence that any of the appellants had any animosity with the complainant before the happening of the case nor is it their case that the said Zulfiqar Butt had any animosity with them. In the circumstances, the argument of learned counsel for the appellants that the F.I.R. was lodged after consultations and deliberations and the accused were involved because of enmity, in my assessment, is' without any foundation.

25. Yet the other aspect of the matter is that if the F.I.R. had been lodged after consultations and deliberations, the complainant would have named Muhammad Malik alias Malu and Haji alias Amjad and would not have merely mentioned that there were .two unknown persons. For the reasons enumerated above, I do not find any merit in the contention that the F.I.R. in this case was lodged after consultations and deliberations in order to involve innocent persons, even though some delay had occurred in lodging the F.I.R. yet that delay also stands explained in view of the manner in which the occurrence had taken place, and the fact that the injured who was in precarious condition, had to be shifted to the hospital and attended to.

26. The argument that both Muhammad Sharif and Munir Ahmad P.Ws. had not witnessed the occurrence, is based on the fact that none of them had explained satisfactorily their presence at Narowal on the day of occurrence. It was contended that Muhammad Sharif P.W.8 could not have gone without Niaz Ali for engaging his son. It was pointed out that the argument gains force particularly when Niaz Ali is also said to have been present at Narowal on that day. Muhammad Sharif P.W. was real brother of Niaz Ali. So was the deceased. There is nothing uncommon in two brothers going for asking the hand of a girl for their real nephew. The presence of the father in our village society is not always a must in such matters if he has father and real brothers to attend to such matters. I do not think, there was anything unnatural in the complainant and the deceased alone having gone for that purpose.

27. The contention that the injuries found on Muhammad Sharif P.W. did not appear to have been suffered at inimical hands, again, according to my assessment does not possess any weight. One of the injuries was with a sharp -edged weapon. He could not have thought of suffering injuries when his brother was already in precarious condition. The opinion expressed by the doctor during cross‑examination, at the best is a mere probability. The statement of Muhammad Sharif P.W. that he had suffered injuries during the occurrence, also finds support from the fact that he had produced his blood‑stained clothes before the police on the same day. All such things could not have been begotten by a person whose brother was in a precarious condition and was at the threshold of death. His presence, therefore, alongwith his brother and during the occurrence, cannot be doubted.

28. The criticism about the presence of Munir Ahmad P .W. again does not possess much weight. In that, it was argued that not only that he had failed to explain his presence at Narowal beyond doubts but his presence during the happening of occurrence was also doubtful, for the reason that if he had been present at Pejowali Railway Station at the time of last phase of the occurrence, he would not have gone away and would have certainly accompanied the deceased who was in precarious condition to the hospital, at Narowal. It is‑ on record that many persons had accompanied the deceased to Narowal. The occurrence had taken place away from the village of the deceased, and all other relatives. In such a situation, it was but natural for Munir Ahmad P.W. to have gone home to inform other relatives. His absence during journey of the deceased from Pejowali Railway Station to' Narowal therefore, stands explained. The criticism that his explanation of being at Narowal on the day of occurrence was not probable, is again of not much consequence. In that he stated that he had gone to fetch medicines for his father. He was living in a village. No suggestion was put that his father was not ill. No question was asked that there was any other city nearer to his village than from Narowal from where he could purchase the medicines.

29. The last criticism about ocular account of the occurrence put forth by learned counsel for the appellants was that in spite of the fact that a large number of persons had seen the occurrence but none was named as a witness, although sounds well for the reason that there were positively many persons who had witnessed the occurrence but the fact is not to be lost sight of that all those persons in whose presence different phases of occurrence had taken place, were passengers. They were going to their own ‑destinations. The complainant could not have known any of them nor could the passengers have any interest being strangers. Even otherwise` the apathy of the people to come up as witnesses in such matters is not only known but almost is an accepted fact. In the circumstances, non‑production of witnesses other than the eye witnesses examined in this case, to my mind is hardly any ground to reject the prosecution case.

30. It was argued also by learned counsel for the appellants that the occurrence had neither initiated in the compartment nor had taken place at the platform of Pejowali Railway Station and in fact the deceased was caused injuries by some persons outside Pejowali Railway Station, in the fields. I have attended to this argument keeping all the facts of the case in mind. It is hardly possible to believe that the complainant .would have made such a story wherein he could have been easily contradicted. After all, what could he have gained by making a statement that his brother was attacked while being in the compartment and that he was given injuries on the platform of the Railway Station and then thrown away outside the Railway Station? If the story had not been correct, he would have known that manufacturing of such a false story would put him to lot of criticism, i.e. non‑production of persons from the compartment and the railway station. Had the occurrence taken place as argued by learned counsel for the appellants, the complainant could have straightaway lodged the F.I.R. saying that his brother was attacked in the fields and he could have named and assigned part to anybody that he would have thought convenient. The argument advanced in this connection that no Railway official was named, nor was any produced, may sound well but does not possess weight. One of the Railway officials, i.e. the Guard of the train was produced to say that part of the occurrence had taken place at the platform of Pejowali Railway Station. The other Railway officials could not be forced by the complainant to come up as eye‑witnesses. The mere fact that the blood‑stains were not collected from the compartment, cannot be enough ground to throw away the statement of the complainant, that initially the injuries were caused to the deceased in the compartment. The fact that no blood stains were collected from the platform, would be obviously for the reason that by the time the investigation was taken up on the next day of the occurrence, there could have been no blood stains in the compartment because of having been used by the passengers while travelling. The mere fact that blood stains having not been collected from the compartment, is no proof of the fact that the deceased was not initially caused injuries while travelling in the compartment.

31. For all the reasons mentioned above, I am of the view that the ocular account furnished in this case is not questionable and does not call for admission of any doubts, for any reasons. It is worth noticing that none of the appellants had any animosity with these two witnesses, at-least no such thing was pointed out. The P.Ws. also had no direct enmity with them. As noted in the earlier part of the judgment if they had to lodge F.I.R. at the instance of anybody or were determined to set up a false case, they could have done that effectively against Irshad Ali and Muhammad Khan (acquitted accused).

32. The case of Haji alias Amjad and Muhammad Malik alias Malu requires consideration and examination in view of the fact that none of them had been named in the F.I.R. Although, Munir P.W. claimed that he had identified them and had told their names to the complainant on 27‑5‑1982, yet that statement does not appear to be worth acting upon for the reason that if that had been so, the complainant would have made a supplementary statement to the police that he had come to know about the names of the other two unknown culprits. Moreover, Munir P.W. would not have kept this information back from the complainant on the 1st day and would have certainly informed him about their names before leaving Pejowali Railway Station. The explanation given by him that he could not do so because of tense situation, is not believable. Their identification parade was held after more than a month. In the case of one, the Magistrate had not even cared to record the objections of the accused while in the case of others, the accused had clearly taken the objections that he had been shown earlier to the witnesses. Moreover, both of them were identified by Muhammad Sharif P.W.8 alone. The other person, who had identified them, i.e. Niaz Ali, was not examined at the trial. The Sota recovered from Muhammad Malik alias Malu was not blood‑stained while nothing was recovered from Haji alias Amjad. The statements of Sharif and Munir P.Ws., thus do not find corroboration from any other evidence. It is worth noticing here that complainant had not given their identification marks even in the F.I.R. All, he stated was that he will be able to identify them, if they are shown to him. The evidence of identification of persons whose marks of identification even are not given in the F.I.R. would riot be of much value if there is no evidence in corroboration of the evidence of identification. Reference in this connection can be made to Maula Dad alias Maula and another v. The Emperor A I R 1925 Lah.

426. In the circumstances, I am of the view that the prosecution has not been able to prove the case against Muhammad Malik alas Malu and Haji alias Amjad, beyond reasonable shadow of doubt. Their appeal is, therefore, allowed, and they are acquitted. They shall be released forthwith if not required in any other case. Muhammad Khan alias Malli and Ghulam Abbas alias Gami appellants were named in the F.I.R. specific injuries caused by them have also been mentioned in the F.I.R. Both the eye‑witnesses made categorical and corroborative statements about their participation in the occurrence. Blood stained chhuris were also recovered from both them. The evidence of recovery of chhuris is corroborative of the ocular account. Although no motive directly has been alleged against them, yet mere failure of the prosecution to bring on record the exact motive is not always enough ground to acquit the accused if there is reliable ocular account corroborated by some other good evidence, i.e. the evidence of recovery of weapons of offence. In this case the ocular account is not only corroborated by the recovery evidence but also finds corroboration from the medical evidence as well. The prosecution case against them stands proved, beyond any reasonable shadow' of doubt. The appeal filed by them is, therefore, dismissed. They shall, however, be given the benefit of the provision of section 382‑B of the Code of Criminal Procedure. H.B.T./M‑1016/L Order accordingly.