1992 P Cr (PLP)

8. Dr. Saeed Iqbal (P.W.12) found Saleem in serious, unconscious condition with blood pressure and pulse not record able. He observed the (1) Incised wound 2 x 1 c.m. x going deep on the right side of chest, 8 cm. infero‑lateral to right nipple. (2) Incised wound 5 x 3 c.m. x going deep on the back side of right scapula. (3) Incised wound 3 x 1 c.m. x going deep on the back of right abdomen, 5 c.m. below the inferior angle of right scapula. (4) Lacerated fire‑arm wound 3/4 x 3/4 c.m. x going deep on left side of abdomen, 3 c.m. supero‑lateral of pubic and 7 c.m. infero‑lateral to umbilicus. (5) Incised wound 2 x 1 c.m. x muscle deep on middle outer part of left forearm (6) Incised wound 2 x 1 c.m. x through and through on the back of left hand. (7) Incised wound 2 x 1 /2 c.m. x skin deep in inner side of left knee joint. (8) Lacerated fire‑arm wound 3/4 x 3/4 c.m. x going deep on outer side of left side 6 c.m. from knee cap on supero‑lateral portion. Injuries Nos.4 and 8 were by fire‑arm, the rest by sharp‑edged weapon of a duration of about one hour.

9. Dr. Syed Shoaib Shah (P.W.3) performed the post‑mortem examination. He observed the same injuries which were found by Dr. Saeed Iqbal except that these were stitched. He tracked injury No.8 and a `d' shape metallic piece was recovered from the depth of muscle,. sealed and handed over to the police. In the opinion of the doctor the injuries were ante‑mortem, injury No.8 was by fire‑arm, the rest were stitched wounds and the nature of the weapon used could not be given by the doctor. The death in the opinion of the doctor, was due to injuries Nos.1 and 3 which were sufficient to result in death in the ordinary course of nature. He did not observe any burning, charring or tattooing on injury No.8.

10. Nadeem (P.W.11) was examined by Dr. Muhammad Akhtar (P.W.6) on 25‑7‑1986 at 3‑35 p.m. He was having an incised wound 1.5 c.m. x 0.2 c.m. skin superficial on the outer side of right index ringer. It was within a duration of 24 hours. He was brought by the constable. The doctor did not rule out the possibility of the injury being by a friendly hand or self‑suffered.

11. Javaid Aftab S.I. (P.W.14) after recording the statement of Saeed complainant in Mayo Hospital, prepared injury statement and inquest report (Exhs.P.N. and P.O.) and sent the dead body for post‑mortem examination. He then reached the spot. He prepared injury statement of Nadeem (P.W.11) and got him medically examined. He searched for the accused who were not available. On the following day, the investigation was taken over by Barkat Ali Inspector S.H.O. (P.W.15). In cross‑examination, he could not tell the name of the person from whom he had learnt about the occurrence. He had also not seen the doctor in hospital at Gujranwala who medically examined the injured as none was available. He reached the spot at 6‑00 a.m. in the morning and did not find any crime empty at the spot. During inspection he had examined one Idrees and came to know that Jamil appellant was armed with a revolver. He also. admitted that the parties were inimical to each other and ha a been bound under security measures prior to the occurrence.

12. Barkat Ali Inspector S.H.O. (P.W.15) arrested Zulfiqar, Aslam and Jamil appellants on 2‑8‑1986. On 5‑8‑1986 Zulfiqar and Aslam appellants got recovered daggers (P.1 and P.4) from their houses, which were taken into possession, vide recovery memos. (Exhs.P.F. and P.H.) and sealed into parcels. The former got recovered his blood‑stained Shalwar (P.2) and blood‑stained shirt (P.3) from his house and the latter got recovered blood‑stained Shalwar (P.5) and shirt (P.6) and these were taken into possession vide memos. (Exhs.P.G. and P.J.). On the next day Jamil from his house, got recovered revolver and was securd vide memo. (Exh.P.V.). Barkat and Khuda Bukhsh were found innocent, were not arrested, were placed in column No.2 of the challan and were summoned by the Court to face trial.

13. The appellants also raised the plea of innocence and false involvement on account of enmity. They made statements on oath as well.

14. The eye‑witness account of the occurrence was given by Muhammad Saeed Muhammad Yousaf and Muhammad Nadeem (P.Ws.9, 10 and 11). The complainant also supported the motive part of the story. The medical evidence was provided by Drs. Syed Shoaib Shah, Mahmood Akhtar and Saeed Iqbal (P.Ws.3, 6 and 12). The recovery of daggers and clothes at the instance of Zulfiqar and Aslam appellants is stated to by Atiq‑ur‑Rehman and Barkat Ali Inspector (P.Ws. 4 and 15). The recovery of revolver at the instance of Jamil was deposed to by the Inspector. The case was investigated by Javaid Aftab S.I. and Barkat Ali Inspector S.H.O. (P.Ws.14 and 15).

15. The learned trial Judge after, appreciating the evidence thus produced by the prosecution as a measure of abundant caution granted benefit of doubt to the two acquitted accused. The evidence was believed as against the appellants with the conviction and the sentences as indicated above.

16. Learned counsel for the appellants contended that the F.I.R. was prepared later on, the claim that Javid Aftab S.I. reached the hospital at Gujranwala, and then Mayo Hospital, Lahore, where he recorded the statement of the complainant was wholly unbelievable, the parties were inimically disposed towards each other since before the occurrence, so the eye witnesses could not be believed unless there was corroboration. No corroboration was forthcoming on the record, according to him. He also asserted that the eye‑witnesses were not present at the spot. Learned counsel for the complainant and the State defended the judgment delivered by the learned trial Judge and also asserted that the eye‑witness account having been believed, Khuda Bukhsh and Barkat accused could not have been acquitted just on the pica of innocence raised by them and accepted by the police. According to them Yousaf was independent and disinterested witness and there was no reason to discard his testimony.

17. After hearing the learned counsel for the parties and going through the record, we think that there is much substance in the argument of the learned counsel for the appellants that the statement (Exh.P.B.) the base of the F.I.R. was not recorded in a straightforward manner. Javaid Aftab S.I. (P.W.14) claims that he learnt about the occurrence when he was in the town alongwith other police officials, came to the hospital at Gujranwala, did not find the doctor or any body else and rushed to Lahore by a bus and reached the hospital on a rickshaw where he found the dead body and there recorded the statement of the complainant. It is not believable that the police who normally and in practical life make it rather difficult for the people to get recorded their case, the S.I. would have been so enthusiastic that without knowing the person who informed him; without going to the spot or trying to contact any relative of the injured should have rushed to Lahore at the dead of night and that too by a bus.

18. However, the time and place of occurrence as stated by the eye-witnesses is believable. The blood‑stained earth was recovered from the spot. The injured was carried to D.H.Q. Hospital Gujranwala, where he was medically examined within about one hour of the occurrence. The medical evidence supports the eye‑witnesses as to the 'time of the occurrence. The condition of the injured was very serious and he was advised to be taken to Lahore by Dr. Saeed Iqbal. Eventually he was taken to Lahore where post mortem examination was performed on the next day. The family must have been extremely upset and engaged in the transportation of the deceased and his medical treatment thus they could not report the occurrence. Their late report to the police would not otherwise affect the merits of the version of the occurrence given by the eye‑witnesses.

19. The claim of the eye‑witnesses is that they were returning from the shop on a scooter and were confronted by the appellants and their co‑accused in the Chowk. The complainant was running the cloth shop and his returning alongwith the deceased and Nadeem (P.W.11) on the same scooter at the time of occurrence, after the day's job is also understandable. The house of Muhammad Yousaf (P.W.10) was only about 50 yards from the place of occurrence and so his presence in the Chowk is also something not unusual. The estrangement and enmity between the complainant family and the appellants is an admitted fact. Nadeem is a brother of the deceased and Saeed complainant is also very closely related. It seems that Yousaf is also related to them and the deceased but otherwise he seems to be an independent and confidence inspiring witness. When he was put into witness‑box, objection was raised that he having been convicted under section 21.3, P.P.C. was not a competent witness. Only if a witness has perjured he would be an incompetent witness under Article 3 of the Qanun‑e‑Shahadat, 1984, Yousuf was not convicted for perjury and so the provisions of the said Article have no application need complainant is the son of Mst. Haleeman Bibi, the sister of Miraj. Miraj has two sons namely Saleem and Asghar who are respectively married to a sister of the complainant and Mst. Nnsrat, a sister of Yousaf P.W, This relationship appears from the statements of Haji Faiz Muhammad (P.W.13) and Muhammad Yousaf himself. The accused in their statements on oath after the close of the trial admitted that neither Yousaf had been involved against them nor they against him in previous cases nor had they appeared as witnesses against each other. The eye‑witnesses particularly Yousaf were, therefore, properly relied upon by the learned trial Judge.

20. Learned counsel for the appellants further contended that the case of Jamil appellant stood on a different footing than his co‑appellants. It was rather on the same footing. He elaborated that according to the eye‑witnesses Jamil had a Chhuri and inflicted two blows to the deceased but the police had recovered a revolver from him. The police were, perhaps of the opinion that it was Jamil appellant who had caused the fire‑arm injuries to the deceased but this was not the version of the eye‑witnesses and so his case called for caution. The eye‑witnesses have supported the version in the F.I.R. in unequivocal terms that Jamil appellant was armed with Chhuri and had given two blows to the deceased. The deceased was having 6 sharp‑edged injuries as per the medical evidence and two each are ascribed to each of the three appellants. The witnesses have been believed as to their eye‑witness account and so in spite of the thinking of the police to the contrary, as to weapon of Jamil we are inclined to accept the version of the eye‑witnesses that Jamil was having a Chhuri and gave blows therewith to the deceased.

21. The deceased was having two firearm injuries. From the statement of Dr. Saeed Iqbal, it appears that the shot/shots was/were fired from sufficient distance the possibility that both the injuries were the result of the one and the same shot cannot be entirely ruled out. The opinion of the police is not binding upon the Courts. Nonetheless the fad remains that the two acquitted co- accused are sufGcie9tly aged and when young men like the three appellants were there to mount the assault, the participation of the old men perhaps was uncalled for and that too to a very active manner. They had raised the plea of innocence right from the beginning and the same was accepted by the Investigators throughout. They were acquitted as a measure of abundant caution by the learned trial Judge and we think that the caution was not undue in the circumstances of the case.

22. The sentences awarded to the appellants in view of the nature of the injuries ascribed to them do not call for any interference.

23. The upshot is that the appeals and the revision fail and are hereby dismissed. The reference is accepted and the death sentence is confirmed. Aslam and Jamil appellants are on bail. They be taken into custody and sent to jail to serve out the sentences. N.H.Q./Z‑39/L Appeals dismissed.