' Muhammad Bashir (32-33) son of Muhammad Din resident of Sardarpura Ichhra, Lahore, has been convicted under section 302, P.P.C. And sentenced to imprisonment for life and a fine of Rs, 2,000 or in default in the payment thereof to undergo further R.I. For two years, vide judgment dated 12th February, 1978, of the learned Additional Sessions Judge, Lahore. He has challenged his conviction and sentence through this appeal. Khalil Ahmad complainant has filed Criminal Revision No, 562 of 1980 praying that the sentence of the convict be enhanced to death. Both these matters shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that on 29th May, 1976, Khalil Ahmad complainant and Jahangir deceased were present at the shop of their brother, namely Munir. At about 4 p.m.
Jahangir deceased started for his house. When he reached near the shop of one Aslam, the appellant cut a joke with him resulting in an altercation between them. Khalil Ahmad complainant.
Munir, Muhammad Siddiq and Umar Din P.Ws. Separated them and they left for their houses. While leaving the appellant advanced a threat that he would take revenge.
3. On the following day i,e, 30th May, 19,76 at 7 p.m. Jahangir deceased was coming from his house towards the shop of his brother Munir. When he reached near the shop of Umar Din P.W. The appellant came there with a Chhuri in his hand and gave him three blows hitting his left flank, left chest and left shoulder, as a result of which he fell to the ground. Khalil Ahmad, Munir Ahmad, Umar Din, Muhammad Siddiq, Muhammad Sharif P.Ws. And many other persons saw the occurrence.
Munir and Abrar Shah (not produced) took the deceased to the hospital in a Rickshaw where he was medically examined. He, however, succumbed to his injuries later on at 9 p.m. Khalil Ahmad complainant reported the occurrence to Gohar Rehman Sub-Inspector at Mayo Hospital at 9-15 p.m. Vide his statement Exh. P.B. On the basis of which formal F.I.R. Exh. P.B/1 was recorded at Police Station, Ichhra at 9-149 p.m.
4. After recording the statement of the complainant, the Sub-Inspector prepared the injury- statement Exh. P.K and inquest-report Exh. P.L of the dead body and despatched it to the mortuary for post-mortem examination. He recorded the statements of Khalid Rehman and Munir P.Ws.
Under section 161, Cr.P.C. And thereafter reached the spot at 11 p.m. He secured some blood-stained earth from the spot and made it into sealed parcel vide memo Exh. P.M. On 31st May, 1975 he arrested the appellant. He found two injuries on his person. He prepared his injury statement Exh.
P.N and got him medically examined. On 1st June, 1976 the appellant led to the recovery of blood- stained Chhuri (P.1) from the graveyard known as Mehr Jattan, which was made into a sealed parcel vide memo. Exh. P.F. After the investigation the appellant was challaned.
5. On 30th May, 1976, Dr. Muhammad Saleem Janjua, examined Jahangir deceased, when alive and found the following injuries on his person:-
(i) Incised wound 14" x i" over left lower flank with omentum 3" x 1" coming out.
(ii) Incised wound 1" x 4" in the epigastric area.
(iii) Incised wound 2" x 4" over upper part of left arm. Injuries Nos. 1 and 2 were grievous and 3 simple in nature. On 31st May, 1976 Dr. Tahir Anis, Deputy Police' Surgeon, Lahore conducted the autopsy on the dead body of Jahangir deceased and found the following injuries on it:-
(1) Stab wound over lower front left part of chest 3/4" x 1/3" vertically oblique.
(2) Stab wound 1" x i" over outer back upper part of left abdomen with omentum protruding out.
(3) Incised wound 1/2" x 1" muscle deep over outer upper part of left arm, vertically oblique.
(4) Incised wound 1/2" x 4" muscle deep 4" below injury No,
3. It communicated under the skin with injury No, 3.
(5) Incised wound 1/3" x 4" x skin deep over upper back outer part of left forearm.
(6) Abrasion 1/3" x 1/3" back of left elbow.
(7) Incised wound i" x 4" x skin deep over inner front lower right leg.
(8) Abrasion 4" x 4" over left upper forehead.
' In the opinion of the doctor, injuries Nos.6 and 8 were caused by blunt weapon and the rest with sharp-edged weapon. Injury No,7 appeared to be a surgical incision. Injuries Nos. 1 and 2 were sufficient to cause death in the ordinary course of nature. On the same day Dr. Maqsood Sarwar, Casulty Medical Officer, Mayo Hospital, Lahore examined Muhammad Bashir and found two simple injuries caused by blunt weapon. The duration of these injuries was within twodays.
6. In support of its case the prosecution examined two eye-witnesses.
It also relied on the evidence relating to motive and recovery of Chhuri at the instance of the appellant.
7. The appellant pleaded not guilty to the charge, he denied that he cut a joke with the deceased on 29th May, 1976. He also denied having declared that since Jahangir had bitten him with teeth, therefore, he would take revenge. When asked to explain his injuries, he stated that he was beaten by the police. He admitted having quarrelled with the deceased on 29th May, 1976 but gave a different version as under: "On 29th May, 1976 I was sitting at the shop of Muhammad Aslam Bhallaywala. On his asking I was getting water from a tap meanwhile the deceased passed from that way. Some splashes had fallen on him, he gave me a filthy abuse. Meanwhile Aslam Bhallaywala came there the deceased was taken to task by Aslam Bhallaywala on my behalf. Thereafter the deceased and Aslam Bhallaywala started quarrelling with each other. I interfered in that quarrel on behalf of Aslam Bhallaywala. Some people came there and separated us. Khalil and Munir P.Ws. And Umar Din were not present at that time. On the next day the deceased was murdered by someone and due to one day earlier occurrence, I have been falsely implicated in this case."
' No evidence was led in defence.
8. The learned trial Judge accepted the prosecution evidence and convicted and sentenced the appellants as mentioned above.
9. The learned counsel for the appellant contends that the presence of the eye-witnesses at the spot is not established the recovery is fake and the appellant was falsely implicated due to earlier incident of 29th May, 1976.
' The learned State counsel submits that the eye-witnesses had no enmity with the appellant and it is the case of a single accused, therefore, it is unbelievable that the appellant was substituted for the real culprit.
10. At the trial Khalil Ahmad and Umar Din P.Ws. Supported the prosecution version as detailed in the earlier petition of this judgment. Muhammad Siddiq (P.W.3) did not support the prosecution so far as the main occurrence is concerned. He stated that he had not seen as to who had caused Chhuri blows and to whom. He was cross-examined by the A.P.P. With the permission of the Court.
Two other eye-witnesses, namely Munir real brother of the deceased, and Sharif son-in-law of Phupha of the deceased were given up as having been won over. Khalil complainant is the real brother of the deceased and Umar Din P.W. Is the husband of the sister of their father. During the days of occurrence the complainant was working as a conductor in the Omni Bus Service. He claims to have seen the occurrence when he was present at the shop of his brother Munir. In cross- examination he stated that he was a partner of Munir in the said shop. It need be mentioned that the aforesaid shop is not shown in the site plan. In reply to a question the complainant stated "Perhaps we used to close our shop on Sunday. Now we close our shop on Friday". He denied the suggestion that the shops were close on the day of occurrence as it was Sunday. There is no dispute that the occurrence took place on 30th May, 1976 which was Sunday. If it is true that the complainant and his brother used to close their shop on Sunday then there was no occasion for the complainant to be present at the said shop and to have seen the occurrence. Umar Din (P.W. 4) stated that when deceased reached in front of his shop, the appellant came there and gave him three Chhuri blows and after a short while on hearing Raula, Khalil complainant and Munir P.W.
Turned up at the shop. He has excluded the presence of Khalil complainant as his statement unmistakeable shows that he (Khalil P.W.) had reached the spot a short while after the infliction of injuries. According to Umar Din P.W. The deceased was taken to the hospital in injured condition by Bundu and Bare Shah. If a close relation like a real brother had been present at the spot he must have taken this task on himself and not left it to be performed by strangers. These circumstances create a serious doubt about the presence of Khalil complainant at the spot.
' The complainant was not in a position to say as to where he made the report to the police. He stated: "Before going to the hospital from the spot I went to Police Station lchhra where I made. I do not remember where I made a report whether in the Police Station or in the hospital. I do not remember at what time I made report .Now I remember that I made report Exh. P.B. At Police Station. Again said that I made statement Exh. P.B. In Mayo Hospital at 7/8 p.m." He further stated that he went to the police station to make a report about the occurrence but he did not make it because his mind was not working properly. He claims to have made the report in Mayo Hospital at 7/8 p.m. But the report is shown as having been made at 9-15 p.m. These contradictory statements made by the complainant about the place and time of reporting the matter to the police lead to the conclusion that the F.I.R. May have been recorded after the preliminary investigation.
11. The occurrence took place in front of the shop of Umar Din (P.W.4). Apparently he is a natural witness of the occurrence but this fact per se is not sufficient to clothe him with credibility. He is the husband of the sister of the father of the deceased. Like Khalil complainant, he too did not bother to accompany the injured (deceased) to the hospital. He stated that after the occurrence he remained at his shop for half an hour and thereafter went to his house but did not inform his wife about the occurrence. He further stated that thereafter he did not go to the house of the deceased and even after hearing the news of his death, he did not go to the hospital or the police station. It is in his statement that the police called him at the police station at 11-30 p.m. And after making statement he again went to his house. He further stated: "2/3 days after the occurrence I had attended the funeral of the deceased. Munir and Khalil met me on the Janaza after the occurrence." He was unable to advance any reason why he had not gone to the house of Munir and Khalil P.Ws. After the occurrence till he "joined the janaza". His conduct at the time of occurrence and after that was highly unnatural. Being a close relation of the deceased, he was expected to take the injured to the hospital, approach the police for reporting the occurrence and visit the house of the deceased to console the members of his family. The assailant was not armed with a fire-arm. He was armed with a weapon like Churri. If five eye-witnesses out of whom four were close relations of the deceased had been present at the spot, they must have intervened to save the deceased from the assailant and not allowed him to repeat the blows and escape.
12. The medical evidence shows that the deceased had eight injuries out of which Nos. 6 and 8 were abrasions which could be the result of a fall. According to the doctor, injury No,7 appeared to be a surgical incision. Out of remaining five injuries, two were stabs and the rest incised wounds.
Both the eye-witnesses are consistent that the appellant inflicted only three injuries to the deceased, all on front side. One of the aforementioned five injuries namely injury No,2 was over outer back upper part of left abdomen with omentum protruding out. Thus, the ocular evidence regarding the number and location of injuries is in conflict which the medical evidence.
13. The evidence relating to recovery also does not inspire confidence. Muhammad Aslam (P.W.6) who supported the recovery is a colleague of the complainant being an employee of Omni Bus Service, Lahore. He admitted that the place of recovery was surrounded by inhabited houses. No resident of the said houses was made to join the recovery proceedings. The recovery was effected from a graveyard which was an open and accessible place. In the circumstances, no reliance can be placed on the alleged recovery of Churri.
14. The motive alleged by the prosecution was that a day prior to the occurrence the appellant cut a joke with the deceased, upon which an altercation took place between them but they were separated. The appellant declared that since the deceased had bitten him with teeth and also abused him therefore, he would take revenge. The appellant admitted that a quarrel did take place between him and the deceased on 29th May, D 1976 but he gave a different version of the same.
The case of the prosecution is that the main occurrence took place due to the incident of 29th May, 1976. In the circumstances of the present case, it is equally possible that the appellant might have been named as the assailant of the deceased due to the aforesaid incident.
15. According to the complainant his younger brother Munir and another relative Sharif had seen the earlier incident as also the main occurrence and Munir had taken the deceased to the hospital.
It is important to note that aforementioned Munir and Sharif (son-in-law of the Phupha of the deceased) were not prepared to support the present story. The mere fact that it is the case of a single accused and the eye-witnesses had no enmity with the appellant is per se no ground for recording the conviction of the appellant. The presence of the two eye-witnesses at the spot is not established, their conduct was highly unnatural and their testimony regarding the number and location of injuries is in conflict with the medical evidence. In the circumstances of the case, the possibility of the appellant having been named as the assailant due to the incident of 29th May, 1976 cannot be ruled out. I am, therefore, of the view that the prosecution has not been able to prove its case beyond a reasonable doubt.
17. For the foregoing reasons, this appeal is allowed, the conviction and sentence of the appellant is set aside and he is acquitted of the charge. He is on bail. He shall be discharged from his bail bond.
' Criminal Revision No, 562 of 1980 automatically fails and is dismissed.