RAJA SAEED AKRAM KHAN, J. -- The above titled appeal is directed against the judgment of the Shariat Court dated 21.5.2009, whereby while accepting the appeal filed by accused respondent No,1, he is acquitted, whereas the appeal filed by the complainant is dismissed.
2. The brief facts forming the background of the instant appeal are that a case under sections 302 and 34, A.P.C. was registered at Police Station, Kotli, on the written report of Nadeem Ahmed, complainant, against the accused respondents, herein, it was stated that on 16.1.2000, at 9.30 a.m., Muhammad Riaz and Muhammad Javed sons of Allah Ditta, accused-respondents herein, arrived on spot with intention to raise construction of shops over a thoroughfare (Shamlat Deh) despite the fact that temporary injunction with regard to land in dispute was in existence. Nazir Ahmed Khokhar, deceased, father of the complainant, reached at spot and asked the accused respondents to refrain from raising the construction over the disputed land, whereupon the accused respondent No,1, Muhammad Javed, inflicted an injury with a stone on the left side of the forehead of the deceased, whereas accused respondent No, 2, Muhammad Riaz, gave fists and kicks blows to the deceased. The occurrence was stated to be witnessed by Atta Razzaq and Muhammad Sadiq Khokhar including the complainant- appellant. After investigation, a challan was presented before the District Criminal Court, Kotli, on 26.1.2000 against the accused- respondents. The District Criminal Court, after completion of trial, acquitted Muhammad Riaz, accused- respondent, while Muhammad Javed, accused-respondent, was sentenced to life imprisonment under section 302 (b), A.P.C. vide judgment dated 30.6.2008. He was also extended the benefit under section 382-B, Cr.P.C. Against the aforesaid judgment of the District Criminal Court, two appeals were filed before the Shariat Court: one by Nadeem Ahmed, complainant, against the acquittal of Muhammad Riaz, respondent, as well as for enhancement of sentence awarded to Muhammad Javed; and the other by Muhammad Javed, accused-respondent, for his acquittal. The Shariat Court, as said earlier, acquitted Muhammad Javed, accused and dismissed the appeal filed by the complainant-appellant vide judgment dated 21.5.2009 which has been assailed through this appeal.
3. Mirza Muhammad Nisar, the learned counsel for the complainant-appellant, has argued that the judgment of the Shariat Court is against law and facts of the case which is not sustainable in the eye of law. He submitted that it is a broad daylight occurrence and all the witnesses being the residents of the locality are natural witnesses. The motive behind the commission of offence has been proved by the prosecution through oral as well as documentary evidence. He further submitted that in the post-mortem report, the doctor has clearly mentioned that injury No,1 was definite cause of death of the deceased. On an application filed by the accused-respondents to the District Magistrate, a medical board was constituted and the post-mortem of the dead body was again conducted and even that post-mortem report also supports the prosecution's version.
The recovery of the stones used in the occurrence was also effected at the instance of accused respondent No,1. The learned counsel for the appellant has argued that the accused respondents were raising construction on a thoroughfare, ln support of his contention has relied upon the copy of 'khasra-girdawari' to show that the place of occurrence is a thoroughfare. He argued that no enmity with the prosecution witnesses has been brought on record and the evidence of prosecution witnesses is trustworthy which has been ignored by the Shariat Court while passing the acquittal order. The litigation between the parties is admitted as in this regard a civil suit was pending before the Court of competent jurisdiction. He argued that the occurrence and the place of occurrence are not disputed. He further argued that due to the injury No,1, a pressure was mounted on the back side of the skull of the deceased, in the result of which a counter injury 'contrecoup' was caused which resulted in to the death. He argued that the report of Medical Board clearly reflects that the injury caused on the posterior part of skull was the result of injury No,1. This aspect has totally been ignored by the Shariat Court while passing the acquittal order.
4. Raja Ghazanfar AN, the learned Advocate- General, supported the arguments advanced by Mirza Nisar Ahmed, the learned counsel for the appellant.
5. On the other hand, Ch. Muhammad Taj, the learned counsel for the accused respondents, while strongly controverting the arguments advanced by the learned counsel for the appellant, has submitted that the judgment of the Shariat Court is perfect which has been passed after due appreciation of the evidence in its true perspective, therefore, the Shariat Court rightly held that the prosecution failed to establish any case against the accused respondents. He argued that the prosecution case is full of doubts and there are serious contradictions in the statements of prosecution witnesses which cannot be safely relied upon. He argued that both the parties are claiming the possession over the disputed land and the record shows that the complainant party was aggressor. He further contended that this is a case of two versions and the version of the accused-respondents is more natural which can be relied upon. He contended that a fake medical report was prepared on the interference of Medical Superintendent of the District Headquarter Hospital, Kotli, who is close relative of the complainant party which has been rightly disbelieved by the Courts below. He also supported the version of the accused respondents and stated that it revealed from the revenue record that the complainant party came on spot to demolish the boundary wall raised over the 'Shamlat Deh' land which was admittedly in the possession of the accused- respondents. He argued that the deceased died by natural death.
6. We have heard the arguments of both the learned counsel for the parties at length and perused the record minutely. As the whole case revolves around the medical evidence, therefore, we are inclined to discuss the same. The case was registered on 16.1.2000. On the same day, the bruised dead-body was brought in the Hospital at 1:15 p.m., whereas admittedly the post-mortem was conducted at 2.p.m. by Dr. Mehmood Ahmed, Child Specialist, DHQ Hospital, Kotli, who appeared as P.W.10. We have gone through the statement of Dr. Mehmood Ahmed, Child Specialist, DHQ Hospital Kotli, who stated that the dead-body was brought in the hospital at about 1:15/1:30 p.m., whereas his duty was till 2:00 p.m. He also admitted that the duty of Dr. Akhlaq Ahmed was going to start at p.m. but it is the practice of the hospital that if a dead- body is brought during the duty hours of a Doctor, then he would conduct the post-mortem, lt would be useful to Reproduce the relevant portion of the statement of Dr. Mehmood Ahmed which is as under:--- {{URDU TEXT}} While considering the post-mortem report in the light of the statement of Doctor recorded by the Court, we are of the view that the Doctor has categorically sated that all the injuries were Shujah Khafifa i.e, simple in nature. The Doctor has also observed that it is correct that injury Nos.2, 3 and 4 could be caused due to fall on the ground. He further stated that injury No,1 may have also been caused due to fall on the ground. He clarified that injury Nos.2, 3 and 4 do not affect the other part of the body. He further stated that there was no bleeding from injury No,1 which was inflicted on the left orbit and there was no Huma Tuma. He admitted in his statement that there was no injury on the brain and it is true that due to all the above said injuries, the vasovagal shock could have occurred and this can be a cause of death, It is also correct that due to fear or anxiety, the vasovagal shock could be caused. He finally stated in his statement that all the injuries are not the cause of death.
7. It may be observed that Ch. Muhammad Taj, the learned counsel for the accused-respondents has strongly argued that Dr. Anaytullah, M.S. District Headquarters Hospital, Kotli, was real nephew of the deceased, therefore, while asserting his influence, on his direction the postmortem of the dead body conducted by Doctor Mehmood Ahmed despite the fact that Dr. Akhlaq was present in the hospital whose duty had been started 2.00 PM who have never shown his inability to conduct the post-mortem of the dead body, In presence of Dr. Akhlaq, there was no occasion for Dr. Mehmood Ahmed to the job of another doctor. Even otherwise, no plausible explanation has been brought on the record as to why Dr. Mehmood Ahmed conducted the post mortem of dead body in presence of other doctor whose duty has already started. This creates a doubt in our mind that undue influence might have been used by Dr. Anayatullah, M.S. District Headquarters Hospital, Kotli.
8. While adverting to the findings of Medical Board which has constituted on the application of the accused party, it may be stated that the Courts below have not considered it properly. However, the same can be considered under Article, 120 of the Qanoon-e-Shahadat Order, 1984. According to the report of Medical Board, the tissues of the back side of the skull were affected, however, the brain was not damaged and remained intact. Therefore, the learned counsel for the complainant- appellant try to get the benefit of this opinion and establish his case that it was an injury of the "Contrecoup" which can be caused due to the pressure develop by injury No,1. He relied upon the meaning of word "Contrecoup" while placing on the record a photocopy of a page from Medical Dictionary, It would be appropriate to reproduce the meaning of the word "Contrecoup":- "Contrecoup"; an injury that is the result of a blow suffered on an opposite part of a part at a distance, e.g. a fracture appearing on the side of the skull opposite to that on which the blow fell."
Admittedly, there was no fracture on the protion of skull where injury No,1 was inflicted but it caused a bruise/cracks on the back side of the skull of the deceased. The brain admittedly remained intact. A perusal of the post-mortem report prepared by Dr. Mehmood Ahmed and findings of the Medical Board, reveals that there is no definite cause of death of the deceased. While appearing before the Court the Doctor has categorically stated that injury Nos.1 to 4 are simple in nature, whereas according to the prosecution story the deceased did not fall on the ground which makes the whole story doubtful. The injuries were noted by the Doctor at the time of conducting the post- mortem and the Doctor has opined as under:-- "In my opinion injury No, (01) is the definite cause of death which has provocated, the neurogenic and vasovagal shock which has led to cardiac arrest resulted in death."
The Doctor has further made the remarks as under:- "Probable time between injury and death is less than 30 seconds due to above mentioned cause and time between injury and postmortem is about 4:30 hrs to 5:30 hrs."
The Medical Board opined as under:- "The board is of the opinion that deceased received primary impact injury on the left side of the forehead as a result he fell down on the ground and received secondary impact injuries over right tempro-occipital area of head, These secondary impact injuries to the brain may have received defused coup and contrecoup injuries which were sufficient to cause death, therefore, the cause of death is Head Injury."
The perusal of above opinion of the Medical Board as well as the Doctor shows that in the post- mortem report, the Doctor has opined that due to vesovagal shock, the deceased succumbed to the injuries while the Medical Board has opined that the deceased received primary impact injury as a result of which he fell down on the ground and received secondary impact injury which created 'contrecoup' due to which the deceased has died. Both the reports are contradictory which create serious doubt as to what was the injury which caused the death of the deceased. According to the statement of Dr. Mehmood Ahmed during the postmortem, the brain of the deceased was opened and he did not find any injury in the brain, therefore, the Shariat Court has rightly held that the question of 'contrecoup' does not arise. Therefore, we are not convinced by the argument of the learned counsel for the complainant-appellant in this regard. As it is admitted position according to the statements of PWs that the deceased did not fall on the ground, therefore, finding of the Medical Board that injury was caused at the left side of the head due to which the deceased fell on the ground is devoid of force and no material came on the record to find out any definite cause of death of deceased.
9. Now we advert to the ocular account furnished by the prosecution. The star eye-witness of the case is Atta- u-Razzaq son of Muhammad Bashir. The relevant portion of his statement reads as under;-- He further stated that there was only a wall which had already been constructed prior to the incident. Moreover, the place of occurrence is near the thoroughfare and the presence of general public is also admitted by the P.W. but no person from the public side was associated or cited as a witness.
The Shariat Court has observed that the case of the complainant is that the accused-respondents were raising construction of shops in the thoroughfare whereas the case of the defence side is that they had already constructed a boundary wall and the complainant party wanted to demolish the same due to which the whole occurrence took place, ln view of the above portion of the statement of Atta-u-Razzaq, P.W., it is clear that the deceased did not fall on the ground, therefore, it creates a reasonable doubt that how the Doctor as well as the Medical Board opined that the injury caused on the left side of the head of the deceased was caused due to fall on the ground, lt is also the case of defence side that with regard to the land there was status-quo order passed by the District Judge Kotli and this fact has been admitted by the prosecution witness.
10. We have also gone through the statement of Atta-u-Razzaq in which he has stated that at the time of occurrence o n 16.1.2000, he was a playing cricket, lt is also no denied that he is real nephew of the deceased. The Shariat Court has also observed that the accused party belongs to Jamat- Ehle-Sunnat and the complainant was of Qadiani sect. Atta-u-Razzaq, P.W., has deposed that he is the real nephew of the deceased, therefore, some doubt arise in our mind that he might be an interested witness. Moreover, when the statement of a related witness is considered along with the observation made by the Shariat Court that both the parties belong to different sects, a doubt is created that the alleged accused might have been enroped in the case due to sectarianism.
11. The other witness Muhammad Sadiq, who is real brother of the deceased in his Court statement, has also not denied the fact that the wall was constructed prior to the alleged incident, lt reveals from the record that survey No,264 out of which 2 marlas of land has been shown under the possession of Muhammad Riaz Bhatti over which a boundary wall was constructed and this fact has thoroughly been examined by the Shariat Court while taking into consideration al the revenue record specially, Ex. PM which is 'Khasragirdawari' for the year 1999. Therefore, the versions of the defence that other party tried to demolish the constructed wall cannot be overlooked which is admitted by the complainant himself. This fact has also been supported by the report of Patwari, site-plan and the revenue record.
12. As we have discussed the main evidence, i.e, medical evidence, in detail, therefore, we are fully convinced with the findings given by the Shariat Court while disagreeing with the version of the complainant as no real cause of death came on the record. Both the eye-witness have themselves admitted that the deceased did not fall on the ground, therefore, the injuries caused on the right side of the head of the deceased are shrouded in mystery. We also agree with the findings of the Shariat Court that the report of the Medical Board suggests that the Board did not notice any injury on the left side of the head of the deceased while examining the dead body and it is strange as to how it came to the conclusion that there was an injury on the left side of the head of the deceased due to which he fell down on the ground and sustained injuries on the right side of the head which could be the cause of death.
Resultantly what has been discussed above we do not feel any hesitation to hold that the judgment passed by the Shariat Court is well reasoned and no element of perversity has been found by this Court, It is settled principle of law that acquittal can only be interfered with if the judgment is fanciful, perverse and arbitrary. Hence, we could not find any such element in the judgment; therefore, this appeal is dismissed.