1990 SCMR 170 (PLP)

5. The above report was recorded by Abdul Ghafoor, S.I. Talagang (then S.H.O. P.S. Fatehjang) the same day at 2-30 p.m. at the instance of Mumraiz Khan at the police station. Mumraiz Khan was accompanied by Amanat Khan and Amir Khan P.Ws. who were all injured. After preparing their injury sheets, their statements under section 161, Cr.P.C. were recorded and they were sent for medical examination. The Investigating Officer then proceeded towards the spot. On reaching there he prepared the injury sheet and inquest report of the deceased and sent the dead body for post-mortem examination. He collected blood-stained earth from the spot and on the following day collected the clothes of the deceased as per memo. Ex. P.E. On 16-8-1980 he arrested Buland Khan and his brother Sumandar Khan, Nawah Khan, Sarfraz Khan and Taj Khan. On the same day Taj Khan led to the recovery of the Soti from his residential house which was taken into possession. The same day, Sarfraz Khan led to the recovery of the hatchet from his house which was taken into possession. On 18-8-1980 Buland Khan in police custody volunteered to get recovered the hatchet which was accordingly done as per memo. EX.P.J: Nawab Khan also led to the recovery of hatchet from his house. On 22-8-1980, Muzaffar Khan and Muhammad Aslam were arrested. Three days later Mu7affar Khan led to the recovery of Soti from his house. Sumaridar Khan was absconding and he was proceeded against under section 87/88, Cr.P.C. He was later on arrested on 28-9-1980 and on 3-10-1980 led to his house wherefrom a Soti was recovered. The Investigating Officer also received site plans prepared by the Revenue Patwari. After the completion of the investigation, the accused were put to trial.

6. At the trial, the prosecution produced as many as twelve witnesses of them, Dr. G.N. Ghauri, Medical Officer, D.H.Q. Hospital, Attock, appeared as P.W.1. He conducted post-mortem examination on 13-8-1980 at 8-15 and found the following injuries on the dead body of Sarfraz Khan: "(1) A cut wound on the top of back of head, occipital and left parietal bones were cut; brain was cut and brain matter was coming, out of the wound. Its dimension was 12 x 5 x 6 c.m. (2) Contusion 8 x 2 c.m. on front of left shoulder. (3) Contusion 12 x 1.5 c.m. on front of left chest, 5 c.m. below injury No.2. (4) Contusion 6 x 5 c.m. on front of right side of lower part of chest. (5) Contusion 8 x 2 c.m. on the back of right lower chest close to the central line of the body. (6) Abrasion just below injury No.5, 7 x 3 cm. (7) Contusion 8 x 3 c.m. on front of right thigh near its root. (8) Abrasion 3 x 3 c.m. on the back of right forearm near chest." The scalp and skull were found cut, 11th and 12th ribs on the right side of chest were fractured against injury No.5 pleura was also injured and right lung punctured. Stomach and intestines were empty. The doctor opined that injury No.l was caused by a sharp-edged weapon while the rest by blunt. He also examined Amir Khan on 12-8-1980 and found as many as five contused wounds of various descriptions on his hcad, left shoulder and left chest. On the same day he also examined Mumraiz Khan and found a stab wound 1 x 2 c.m. bone deep on the inner side of left forearm in its distal 1/3rd four contused wounds on the back of right head, outer side of right chest, left scapula and outer side of right thigh; and a punctured wound on the back of right side of hand 1 x 2 c.m. All the injuries were found simple. Injuries Nos.l and 5 were caused by sharp-edged weapon while the rest by blunt. Amanat Khan P.W. was also examined the same day and a contusion 3 x 3 c.m. on the left side of the back of hand was found. The injury was simple.

7. The appellant in his statement under section 3-12, Cr.P.C. has totally denied the charge. He also denied the motive set up by the prosecution. In order to establish his enmity with the witnesses, he made a statement which is available on the record.

8. The trial culminated in the conviction of the appellant, his brother Samundar Khan and Taj Khan as stated earlier. In the High Court, on the appeal by the convicts, the conviction of the appellant was maintained but his sentence reduced to imprisonment for life. The rest were acquitted for the offence under section 302/34, P.P.C. but their conviction under sections 323 and 324, P.P.C. and the sentence imposed upon them by the trial Court was maintained.

9. Leave was granted in this case to reappraise the evidence. l

0. After hearing the learned counsel for the parties for and against the appeals, we have come to the conclusion that the appeal of Buland Khan must succeed. In this occurrence Sarfraz son of Mumraiz Khan was done to death while Mumraiz Khan (who later on died his natural death), Amir Khan (P.W.10) and Amanat Khan were also injured. Amanat Khan, the injured P.W. was not produced by the prosecution at the trial and instead in support of its case it produced Najabat Khan and Fazal Khan who appeared as P.Ws. 5 and 11 respectively. The trial Court and the learned Judges of the High Court did not believe the motive alleged in the F.I.R. and came to the conclusion that the immediate cause of the incident was the straying of the cattle of Buland Khan appellant in the fields of Mumraiz Khan which ultimately led to the incident. Both the Courts did not believe the other alleged eye-witnesses but relied only on Amir Khan (P.W.10) and in doing so upheld the conviction.

11. On our examining the case we too do not disbelieve the presence of Amir Khan (P.W.10) at the spot as he had received injuries in the occurrence. A close examination of his evidence has, however, led us to the conclusion that this solitary witness is not a truthful witness. While appearing at the trial he has contradicted himself on most crucial point. As regards the head injury of the deceased he deposed that Buland Khan gave a hatchet blow to Sarfraz Khan (deceased) hitting him on his head. He was followed by Nawab Khan who gave a hatchet blow on his left shoulder but in his statement under section 161, Cr.P.C. Ex. D.B. he had stated that the hatchet blow of Nawab Khan accused also landed on the head of the deceased. At the trial he further stated that then Sarfraz Khan accused gave hatchet blow on the front chest of the deceased as a result of which he fell down but it is not so recorded in Ex. D.B. The above statement of this witness about the hatchet injuries on the left shoulder and front chest of Sarfraz Khan deceased by Nawab Khan and Sarfraz Khan accused, respectively, has been belied by the medical evidence inasmuch as according to the post-mortem examination report, these injuries were inflicted by a blunt weapon. Obviously the above material contradictions have made the case of the prosecution against the appellant extremely doubtful and it cannot be said with certainty whether it was the blow given by the appellant or Nawab Khan accused which landed on the head of the deceased. Further, other corroborative evidence in this case is also lacking.

12. In this view of the matter, Criminal Appeal No.12 of 1987 filed by Buland Khan is accepted, his conviction and sentence is set aside and he is ordered to be set at liberty forthwith if not required in any other case. Since the above appeal of Buland Khan has been accepted, Criminal Appeal No.13 of 1987 filed by Mst. Mubarak Jan automatically fails and is hereby dismissed. The bail bonds of Sumandar Khan and Taj Khan shall stand discharged. N.H.Q./B-141/S Order accordingly.