1. ' MUHAMMAD AFZAL ZULL AH. J.-Review is sought of the order dated 16th October, 1977, whereby petitioner's leave to appeal petition against his conviction for murder and sentence of death was dismissed.
2. ' The petitioner was accused of causing injuries to two persons Mohammad Rafiq deceased and his brother Mohammad Asghar P. W. With a knife which was recovered from him after his arrest. In addition to murder the petitioner was also charged of attempted murder, regarding Mohammad Asghar P. W. The learned trial Judge- acquitted him of this latter charge because "no independent or circumstantial corroboration is forthcoming. The prosecution even did not care to examine the doctor who medically examined Mohammad Asghar P. W. In order to substantiate the injury. He was, therefore, given benefit of doubt regarding offence under section 307, P. P. C. Notwithstanding this acquittal the learned Judge held Mohammad Asghar as reliable witness, amongst others for the reason, that he being himself injured, his presence at the scene of occurrence was established.
3. ' The learned counsel has urged the ground that although the contention raised with regard to the above-noted seeming inconsistency in the approach of the learned trial Court was raised in the grounds of the leave petition and was also noted in the order of this Court, the same has not been disposed of. Reference has been made to para. (e) of the grounds which. Reads :- "Their Lordships also failed to appreciate that the appellant was charged under section 307, P. P. C.
4. For allegedly having injured ' P. W.-8 Mohammad Asghar. Having considered the evidence in respect of injuries of Mohammad Asghar as unsatisfactory the same evidence could not have been made the basis of conviction of the appellant under section 302, P. P. C. The entire evidence was closely knit together and the evidence in respect of injuries of Mohammad Asghar P. W. And those of the deceased could not be separated from each other. The acquittal of the appellant from the charge under section 307, P. P.
5. C. Also warranted acquittal of the appellant under section 302, P. P. C."
6. ' We do not agree with the learned counsel. Apart from the so-called inconsistency on the question of formal conviction of the petitioner for various offences committed during the same occurrence, the judgment of the learned trial Judge shows conscious application of mind to the substance of the question raised. He noted the argument in para. 6 of the judgment as follows :- "(b) That the prosecution has committed to prove the injuries of Mohammad Ashgar P. W.
7. Therefore, in the absence of any such evidence he cannot be legally called an injured P. W. Hence his presence at the spot is highly doubtful."
8. ' This argument was disposed of in para. 8 of the judgment as follows :- ' As discussed earlier although the prosecution should have been at guard to produce every piece of evidence which may link the accused with the alleged crime, the prosecution has omitted to produce the Doctor who had medically examined Mohammad Asghar P. W. In order to prove his injuries? But the fact remains that he is an injured P. W. Which may be established by two ways
(i) That the defence has not put a single question nor there is any' suggestion put to Mohammad Asghar P. W. In his cross-examination that he was not injured or that his injury was self-inflicted.
(ii) By taking a judicial notice I have taken a judicial notice of the injury. The injury sustained by Mohammad Asghar P. W. Is found to have been caused with a sharp-edged weapon and it is so alleged by the prosecution. 1, therefore, see no hesitation in holding that the eye-witnesses, are truthful witnesses and their testimony cannot be rejected on surmises or conjectures."
9. ' Thus the so-called inconsistency was resolved by the learned trial Judge himself.
10. ' The learned Judges in the High Court also noticed and repelled the, same argument in para 9 of the judgment by observing that "the learned counsel for the appellant pointed out that there was no medical evidence regarding his injuries, therefore, it cannot be said that he was injured during the occurrence. There is abundance of evidence on the record to show that he sustained injuries during the occurrence at the hands of the appellant. His, medico-legal report is on the file of the committing Court but it was not formally proved. According to this report he had a stab wound 1 x 1 1/2 on front of right abdomen and the omentum had come out of the wound. The injury was grievous and dangerous to life. This witness was medically examined by Dr. M. Ikramul Haq and he was cited as a P. W. In the calender. However, for the reasons best known to the prosecution. He was not examined in the Courts below. Muhammad Asghar P. W. Stated that he was injured at the hands of the appellant and remained in hospital for 22 days. The complainant deposed that the appellant inflicted a knife blow on the abdomen of Muhammad Asghar P. W. And even the defence witness stated that when he reached the spot on hearing the alarm he saw Muhammad Asghar P.
11. W. And Mohammad. Rafiq deceased lying injured in their courtyard. The occurrence took place in front of the house of the complainant and he too is a natural witness of the occurrence. After going through their evidence, we feel that their conduct was really commendable. In this case one person was killed and the other was seriously wounded. Only a few hours before the occurrence Muhammad Iqbal, a friend of the appellant, had slapped and insulted Muhammad Asghar P. W. But there was no attempt on their part to involve him in this case although they could conveniently do so to avenge the insult. They had absolutely no motive to falsely implicate the appellant in this case. The account of occurrence given by them is consistent and inspires confidence".
12. ' This Court while dismissing the petition took note of the fact that the petitioner was acquitted of the charge of causing injuries to Mohammad Asghar P. W. But agreed with the High Court that notwithstanding the non-production of the doctor, the fact that he was injured in the same occurrence stood established from other evidence. It was observed in para .9 of the order : As regards the injuries suffered by Asghar P. W. In the . Present occurrence, the learned Judges observed that there was abundant evidence on the record to show that he sustained injuries during the occurrence at the hands of the petitioner. His medico-legal report was on the file of the committing Court, though not formally proved. They further observed that the above-mentioned P.
13. W. Had absolutely no motive to falsely implicate the petitioner in this case, and the account of occurrence given by them was consistent and inspired confidence". After noticing the High Court judgment on the question raised, the argument as then raised was also independently disposed of and repelled as follows :- "Before us, it was submitted that the Courts below had not appraised the evidence on the correct principles of appreciation of evidence. Elaborating this submission, it was urged that the Courts have taken as 'proved that was not proved, in that, that they had held, that Muhammad Asghar P.
14. W. Was an injured person even though his injuries were not proved by the evidence of any medical witness.
15. ' We find no force in this submission. It is true that the medical witness, for one reason or the other, did not appear at the trial, but Mohammad Asghar P. W. Did appear as a witness and stated that he was injured in this incident and remained in the hospital for twenty-two days. Not a single question was put to him disputing his injuries. Even P. W. 1 Muhammad Suleman admitted that he saw Muhammad Asghar lying injured in his courtyard. There can thus be no doubt that Mohammad Asghar P. W. Was injured in this incident. ...So far as the submission that the presence of Mohammad Asghar P. W. At the spot was not proved because the injuries is person were not proved at the trial, it has already been observed that the statement of this witness that he was injured in this incident at the hands of the petitioner was not disputed in the cross-examination and, therefore, his presence at the spot stands established beyond any doubt."
16. The above resume of the treatment of the argument in so far as its substance is concerned shows that it was dealt with both on the question of principle as also the details. An attempt has been made now for the rehearing of the case in the garb of a review petition. The conditions laid down for review in the recent judgment of this Court in the case of Zulfikar All Bhutto v. The State (1) are not satisfied. This petition accordingly is dismissed.
(1) PLD 1979 SC 741