' Mazhar son of Muhammad Shafi, Tarkhan and Ghulam Nabi, son of Ghulam Hussain, Faqir, residents of Haji Di Khuhl, P.S. Kahna, Lahore were tried by the Additional Sessions Judge, Lahore for the murder of Niamat Masih. Both were convicted under section 302/34, P.P.C. And sentenced to life imprisonment and a fine of Rs,10,000 each. In default of payment of fine to undergo R.I. For six months each. Half of the fine, if realised, was ordered to be paid to the legal heirs of the deceased.
The convicts have appealed to this Court.
2. On 6th October, 1980, at 3-15 a.m., report Exh.P.A. Was lodged by Rehmat Masih brother of the deceased, at Police Station, Kahna. This was recorded by Muhammad Yaseen A.S.I. The incident took place on 5th October, 1980 at 9-00 p.m.
' The motive was that both the appellants demanded Rs,50 from Niamat Masih. He said that he had no money with him. This conversation took place at Khokha near the Glaxi Bus Stop. As the demand put forward by the appellants was turned down, he was stopped. Ghulam Nabi caught hold of Niamat Masih and Mazhar appellant thrust a Chhuri in the left flank. Niamat Masih fell down. While he was lying on the ground, two more blows were given to him by Mazhar one on shin and the other on the ankle. After hurting Rehmat Masih, the appellants ran away.
3. Rehmat Masih and Issa Masih are the wintesses. The other evidence against the appellants consists of recovery of Chhuri P.3 which according to the Serologist's report Ex.P.N was found to be stained with human blood. The last piece of evidence is the post-mortem report of the deceased.
14. The appellants denied the charge put to them. Mazhar appellant said that the case against him was due to enmity. He had been falsely involved. He and Ghulam Nabi had a dispute with the father of the deceased over a vacant plot of land. The other reason given by him for falsely implicating was that his father was President of Glaxo Employees Union where Liaqat brother of the deceased also worked as a casual worker and he belonged to the opposite group of Mazhar's father.
' Ghulam Nabi while denying all the allegations said that he had been falsely implicated in this case. The reason was that the first informant wanted him to depose against Mazhar accused in this case. He did not agree and as a consequence of that he was roped in.
' Both the appellants led evidence in defence. They examined three D.Ws. Barkat Ali, Muhammad Rafiq Shah and Nawab Din. If need be. I shall discuss their evidence at the proper stage.
5. First of all I take up the ocular evidence. On the day of occurrence, at 8-45 p.m, Rehmat Masih was standing at the Glaxo Bus Stop. Both the appellants were standing there. Niamat Masih and Issa Masih got down from the bus. Both demanded Rs,50 from Niamat Masih. He said he had no money. This happened at the Khokha near the Bus Stop. Niamat Masih purchased cigarettes from the Khokha. In the meanwhile, Rehmat Masih and Issa Masih started towards their house. They were followed by Niamat Masih deceased and the appellants. When they covered about three Acres, Ghulam Nabi accused caught hold of Niamat Masih and Mazhar accused inflicted Chhuri blows.
' Issa Masih P.W.9 corroborated the testimony of Rehmat Masih. He alongwith Niamat Masih was coming from the direction of Bus Stop Hail Di Khui. Rehmat Masih was then standing there. Niamat Masih went to purchase cigarettes. The appellants demanded Rs,50. They wanted to go to the movie. Niamat Masih was then standing at the shop. Issa Masih alongwith others started towards their house. They were followed by the appellants and Niamat. In the meantime, Ghulam Nabi appellant caught hold of Niamat Masih while Mazhar inflicted Chhuri blow in the left flank. Niamat Masih raised hue and cry. Issa Masih and Rehmat Masih came running but they were threatened by the appellants to stay away otherwise they would be killed. Niamat Masih fell on the metalled road. He was then given two Chhuri blows by Mazhar appellant which were near foreleg shin and ankle. Thereafter, the accused ran away.
' On 10th October, 1980 Fazal Dad Sub-Inspector P.W.11 went to the spot. Mazhar appellant appeared before him and produced Chhuri P.3 which was taken into possession vide memo. Exh.P.G. And later on found to be stained with human blood,--vide report of the Serologist Exh.P.N. The recovery memo. Exh.P.G was attested by Amanat Masih P.W.8 and Muhammad Amin (not produced).
6. On 16th October, 1980, at 10-30 a.m., Dr.Sabir Ali, Senior Medical Officer, Police Surgeon's Office, Lahore P.W.3 conducted post-mortem of Niamat Masih. He noticed:
(i) Stitched incised wound 21 c.m. On the back lower half left chest inner to posterior auxiliary line over the 7th space. This wound was septic in the middle. The ends were almost healed, the wound being placed horizontally.
(ii) Almostly healed incised wound 2 c.m. On the back lower half right leg placed horizontally. In the opinion of the doctor, injury No,1 was sufficient to cause death in the ordinary course of nature and had been caused with sharp-edged and pointed weapon.
7. Both the appellants filed separate appeals. They are represented by two different Advocates.
' Learned counsel for Ghulam Nabi appellant contended that the part attributed to his client was Japha only. He was not even armed. Without implicating the other accused, learned counsel contended that whosoever may be the assailants, two persons could not be held responsible for the murder keeping in view the nature of the injuries on the deceased. Such type of injuries could be caused by one man.
' Learned counsel for the other appellant Mazhar contended that the prosecution evidence does not inspire confidence. The story put forward by the prosecution is unnatural and improbable. He first took up the motive and submitted that there was no evidence that the appellants knew the deceased previously. In the absence of any previous introduction, it is not open to reason that they would ask for some loan from a total stranger. He next submitted that the first informant was the real brother of the deceased. Although the other eye-witness was not a blood relation but he too belonged to their party.
' Learned counsel then challenged the evidence of recovery and submitted that it was not free from doubt. Both the learned counsel then drew my attention to the defence evidence.
8.After having gone through the evidence I am of the view that so far as Ghulam Nabi is concerned, he is entitled to acquittal on the short ground that no overt act is attributed to him. He was empty- handed. The number and the nature of injuries on the person of the deceased rule out the possibility that he was attacked by two persons.
I, therefore, acquit him. He is on bail. His bail bond shall stand cancelled.
9. The prosecution did not produce any evidence to show that the deceased and the appellants were known to each other. They met at random. It is unnatural that in such a meeting they would ask for loan from a stranger. The prosecution story does not inspire confidence.
' Issa Masih did not even say that the request of the appellants having been turned down by the deceased, he was attacked. The motive is very shallow. I am not prepared to believe it. The rest of the evidence, therefore, becomes doubtful.
10. There is yet another fatal flaw in the prosecution case and that is when the dead body was taken to hospital for post-mortem examination, it had nothing on it. The prosecution case is that Niamat Masih was knifed while he was purchasing cigarettes. After having been injured he fell on the metaled road and was then removed to the hospital. It is unbelievable that he would go to purchase cigarettes stark-naked. There is something wrong somewhere. It was the duty of the prosecution to place all the cards on the table. They withheld some important evidence.
' The story as such, given by the so-called two eye-witnesses is not free from doubt. Hence I do not think there is any need to advert to defence evidence. Mazhar appellant is also given the benefit of doubt and acquitted.