' This criminal appeal arises from the judgment of learned Additional Sessions Judge, Lahore whereby he on,9-12-1972 convicted Meraj Din, Muhammad Nazir and Abdullah appellants under section 302/34, P.P.C. For causing the death of Mehfooz-ul-Hassan and sentenced them to Transportation for life to each.
2. Since Meraj Din and Nazir appellants have died during the pendency of the appeal, therefore, the present appeal to their extent stands abated.
3. The occurrence took place on the night between 12/13-1-1970 at about Isha time in the house of Muhammad Yousaf Shah, approver, situated on Cooper Road, Lahore. The F.I.R. Exh.P.W,4/1 was lodged by Abdul Karim P.W.24 at P.S. Tibbi. Dr. Muhammad Aslam P.W.1 conducted post-mortem examination on the dead body of Mehfoozul Hassan on 13-1-1970 at 7-15 p.m. Since the complainant party was not satisfied with the post-mortem report, so, after about 18 days of the first postmortem examination, a special Medical Board comprising of three doctors, again conducted post-mortem examination. Dr. Muhammad Aslam P.W.1 did not find any mark of violence on the dead body of Mehfoozul Hassan. Lungs, Pleura, larynx and trachea were congested. Right side of the heart contained blood and the left side was empty. The brain membrance and brain substances were congested. The visceras of the body were sent to the Office of the Chemical Examiner for detection of the poison. Only alcohol was detected. The cause of death was alcohol poisoning. The doctor stated that the deceased had taken alcohol in large quantity. Dr. M.A.
Chohan P.W.2 who was the President of the Medical Board stated that the death could be due to the alcohol and the possibility of asphyxia could not be ruled out as a contributory factor.
4. The motive set up by-the prosecution was that Meraj Din appellants was suspecting illicit intimacy of the deceased with his daughter. It was also stated that there was business rivalry between Meraj Din appellant and the deceased as both were dealing in cement.
5. The prosecution case briefly is that the three appellants conspired to do away with the deceased. Yousaf Shah approver P.W.6 went to the house of the deceased on 12-4-1970 and asked the deceased to come to his house so that they may go to the house of Fareeda Dancer of Heera Mandi to enjoy songs and dance. At about Isha time, the deceased came to the house of Yousaf Shah P.W.6. Nazir and Abdullah appellants were present there. Meraj Din was sitting outside in a hotel. Yousaf Shah asked the deceased to have some liquor. He was given two pegs of wine by Yousaf Shah. Nazir appellant also gave more pegs of wine to Mehfooz who became intoxicated. On the instigation of Nazir, Abdullah appellant pressed the neck, Nazir pressed nose and Yousaf Shah put his hand on the nose of Mehfooz and gave him fist blows on his head. Mehfooz became unconscious. Nazir then brought Meraj Din inside the house. The three appellants and Yousaf Shah approver pressed the deceased for a considerable time and he died on the spot. Mehfooz had Rs,1,000 with him. He was wearing wrist watch. Nazir took out the cash and removed the wrist watch. The dead body was then placed in a Motor Car and thrown. Near the filth Depot near Shahi Mosque.
6. To prove its case, prosecution examined 34 witnesses. Yousaf Shah approver who was arrested on 26-1-1979 was tendered pardon. He was examined as P.W.6. He supported the prosecution case as detailed above. Dr. Muhammad Aslam P.W.1 had conducted post-mortem examination. Dr. M.A.
Chohan P.W. 2 alongwith other members of the Board reconducted post-mortem examination. Dr. Ghulam Nabi P.W. 3 was the member of the Board. The exhumation of the dead body was supervised by Mumtaz Baig P.W.4. Junaid Tahir P.W.5 had accompanied the deceased upto Chowk Fateh Sher Road from where the deceased left for the house of Yousaf Shah approver in a Rikshaw.
Muhammad Hanif P.W.11 is witness of the recovery of Keys Exh. P.25/1 and 2 from Yousaf Shah.
Muhammad Sharif P.W.14 attested the recovery memo. Of 3 keys Exhs. P.30 to 32 from Nazir appellant. Mehr Din P.W.15 also attested memo. Exh. P.K. Mst. Rani P.W.19 deposed that Mehfooz deceased used to visit her Kotha alongwith Yousaf Shah approver to enjoy songs and that once the deceased had shown her photograph Exh.P.10 wherein he is standing with a girl. Muhammad Rafiq P.W.20 attested the recovery memo. Exh.P.K. Of keys Exh. P.25/1 and 2 which were recovered from Yousaf Shah. He also attested recovery memo. Exh.P.R. Of Khari Exh.P.26, Mosii Exh.P.26/1, bed- sheet Exh.P.27. Haji Nawab Din P.W.22 stated that Meraj Din appellant had approached him 6 months before the occurrence for the return of photograph and letters of his daughter from the deceased which was returned by the deceased. He identified Mst. Abide Kausar and Mehfooz in photograph Exh.P.10. Muhammad Ishaq Bhatti P.W.3 had informed the father and brother of the deceased that the dead body of Mehfooz was lying near Shahi Mosque. Qamar-ud-Din P.W.25 is a Handwriting Expert. He examined letter Exh.P.12 and compared the same with the writing on exercise book Exhs. P.9, 11 and 13. His report is Exh.P.38/A. Ijaz Ahmed P.W. 28 is a recovery witness. He stated that Nazir appellant had led to the recovery of wrist watch Exh.P.18 and Insurance Book Exh.P.19 which were taken into possession vide memo. Exh.P.N. He is also witness of the recovery of Carpet Exh.P.20, licence Exh.P.23, Registration Copy Exh.P.21 and spare wheel Exh.P.24. Rukan Din P.W.29 stated that Copy Books Exhs. P.9,:11 and 13 were recovered from the house of Meraj Din appellant. Yasoobul Hassan P.W.30 is brother of the deceased. He identified the wrist watch Exh.P.18, clothes of the deceased and pair of shoes of the deceased Exh.P.1 to P.7/1 and 2. He suspected that someone had administered poison to his brother. He went to lodge report but the case was not registered. On this he approached the D.-I.G. And Made report ExII.P.G. Before the second post- mortem examination, he, pointed out grave of the deceased and also identified his dead body.
Ayyubul Hassan P.W.31 stated that the deceased had illicit relations with Mst. Abida Kausar, daughter of Meraj Din and that he had made report Exh.P.W.20/B at Police Post Lytton Road, Lahore.
He identified photograph Exh.P.10 of the deceased and Mst. Abida Kausar. He produced photograph Exh.P.10 and letter Exh.P.12 before the police. Muhammad Siddiq P.W.33 had partly investigated the case. He took into possession photo Exh.P.10, letter Exh.P.12 and also recovered Exercise Books Exhs.
P.9 to 13 from the house of Meraj Din and took the same into possession vide memo. Exh.P.J. He took into possession articles Exhs. P.20 to 23 vide memo. Exh.P.O. Niaz Haider P.W.34 had also investigated the case.
7. When examined under section 342, Cr.P.C., the appellants denied all the incriminating circumstances.
8. Learned counsel for Abdullah appellant contended that the prosecution has failed to prove its case beyond reasonable doubts and that the approver has, made false statement which stands contradicted by the medical evidence. On the other hand, the learned counsel for the State has supported the judgment of the trial Court.
9. I have considered the arguments advanced by the learned counsel for the parties with care. I find that there is no eye-witness of the occurrence except Yousaf Shah P.W.6, the approver. The approver stated that the three appellants alongwith him, had pressed the mouth, A nose and neck of Mehfoozul Hassan deceased and thereby caused his death whereas the medical evidence shows that there was no mark of violence on his dead body. The death was due to the taking of alcohol in large quantity. Since the statement of the approver is falsified by the medical evidence, it appears that he was not present on the spot and has given false statement. Most probably as tutored to him. Furthermore, there is no corroboration of his statement qua Abdullah appellant.
Nothing incriminating was recovered from him. He had no direct motive to do away with the deceased. From the statement of Mst. Rani it is very much obvious that the deceased used to go to the Kotha of a prostitute and as such, the possibility that he himself had taken alcohol in large quantity before proceeding to the Kotha of the prostitute which resulted in his death, cannot be excluded. For all these reasons, I am of the view that the prosecution has failed to prove its case beyond reasonable doubts.
10. The upshot of the discussion is that there being no satisfactory basis to uphold the conviction of Abdullah, while giving him the benefit of doubt, he is acquitted of the charge. He is on bail. He stands discharged of bail bonds.