1. SHAFIUR REHMAN, J.--Leave to appeal was granted to the convict under section 302, P.P. C.
2. Sentenced to life imprisonment and a fine of rupees two thousand, to examine the correctness of the judgment of the Lahore High Court, dated 13th of Junuary,1982, whereby his appeal against conviction and sentence was dismissed notwithstanding the facts that the version given in the First Information Report and the eye-witnesses mentioned therein were all substituted, the investigation was found not to have been properly conducted and the injuries of the deceased were not fully and satisfactorily accounted for.
3. On the night of 3rd November,1977, Ata Hussain deceased was at his House No.835/B, Peoples Colony Faisalabad alongwith his four sons, .Namely, Abdul Shakoor Shah (P. W.9), Zulfiqar Hussain Shah (P. W.10), Abrar Shah (not produced) and Ehsan Ahmad Shah (not produced). At about 9 p.m., he heard a knock outside. Ata Hussain came out and found the appellant Aleem Nasir and his companion Muhammad Ramzan alias Ruldoo present at the door who asked him to send his sons Abrar and Ehsan. On his refusal to do so on the ground that the appellant and his companion were bad characters and were spoiling his sons, the appellant and his companion protested :hereupon the deceased caught hold of Muhammad Ramzan from behind. In that position Aleem Nasir who had a revolver in his one hand and a dagger in the other, inflicted a dagger blow on his back and fired in the air. Ata Hussain fell on the ground and others got attracted. The appellant and his companion escaped.
4. Rukare Alain Shah, S.I. (P.W.5) was on patrol duty in the neighbourhood. He reached the spot.
5. Hameedullah (not produced) appeared before him and lodged a report about the occurrence which was recorded by him. In that report, he stated that he had entered the house on the alarm coming from inside, found that the appellant was armed with a revolver and a dagger and his companion with a .12 bore gun and Ehsan Shah also had a revolver. They were asking Abrar Shah to come out. When Ata Hussain came out, he caught hold of Ranazan. The appellant inflicted knife blow on him. Ehsan, according to this report, was shouting and calling out Abrar Shah to come out of the house. People gathered. The assailants escaped and injured Ata Hussain was removed to the hospital.
6. Dr. A . A . Khalid attended to the injured on 3rd November,1977 at 11 p.m. But did not examine his injuries or prepare a report of it as according to him none asked for it. It was on 5th of November, 1977 at about i1-45 a.m. That he examined the injured and prepared his injury statement showing the following injuries--
(1) A stab wound 3" x 1 --" upto depth not probed on right back lower part limber region, horizontal.
(2) A lacerated wound 1" x 1" bone deep on right forehead above the eye-brew.
(3) A wound 1/4" x 1/4" into depth not probed on left front neck middle part.
(4) A contusion 1/4" x 1/4" on left chin.
7. It was on the 7th of November,1977 that Ghulam Qasim (P.W.11) the Investigating Officer made an inquiry from the doctor about the fitness of Ata Hussain to make a statement and tie was informed that he was not in a position to make it. Ultimately, on the 9th of November, 1977 he succumbed to his injuries.
8. The case disclosed at the trial was that there were four other persons accompanying the appellant and Ramzan and they were identified as Muhammad Riaz, Sultan Masih, Maqsood A.I and Muhammad Ishaq. All armed with fire-arms who had remained in the background while the appellant had inflicted the injuries on the deceased. The maker of the First Information Report was the produced on the ground that he was the sworn enemy of the complainant party and so were the eye-witnesses mentioned in the First Information Report, namely, Muhammad Rafiq and Bashir.
9. Instead, Abdul Shakoor (P.W.9) and Zulfiqar (P.W.10) were produced as eye-witnesses of the occurrence. The plea of the appellant was that he had been implicated falsely on account of enmity and that he was present on duty in the Textile Mills the attendance register of which was produced to show that he was marked present there.
10. The trial Court considered the two eye-witnesses Abdul Shakoor and Zulfiqar to be natural witnesses having no grudge or enmity against the accused. Their statement was recorded by the police on 6-11-1977 and the trial Court held that "of course the delayed recording of the statement by the prosecution agency is a serious matter and introduced an element of infirmity in the prosecution case but the main question to be seen in this case is if the witnesses are in any way to be lamented for this delay or it was lethargic act of the prosecuting agency". The recoveries of the weapons were disbelieved and so was the presence of the other four companions of the appellant and Muhammad Ramzan. The alibi of the appellant was not believed. He was convicted under section 302, P. P. C . And sentenced to life imprisonment and a fine of rupees two thousand or in default to suffer two years' R.I. Muhammad Ramzan alias Ruldoo was convicted under section 451, P.P.C. And sentenced to two years' R.I. And a fine rupees five hundred or in default to suffer six months' R.I.
11. On appeal, the High Court maintained the conviction and sentence of the appellant. The learned Judge took note of the fact that none of the eye-witnesses who were the sons of the deceased had gone to police to make a report about the occurrence and explained it in the following words- "It seems that the sons of the deceased were more concerned with carrying the deceased in injured condition to the hospital to save his life than with rushing to the police station to get a case registered. The arrival of the police officer at the scene not long after the occurrence possibly obviated the necessity of going of anyone to the police station.
12. The failure of the Medical Officer to examine the injured and prepare the report of his injuries, was explained in the following words---- "It was the duty of the Medical Officer to have examined the deceased as soon as he arrived in the hospital when he had actually seen him and admitted him. The prosecution case cannot suffer from the lapse of the Medical Officer for delaying the medico-legal examination. The hard fact remains that the deceased, when he came to the hospital, had on his person the injuries which resulted in his death."
13. Like the trial Court, Abdul Shakoor and Zulfiqar were taken to be the natural witnesses with no grudge or enmity to prompt a false charge.
14. Shaikh Shaukat A.I, Advocate, the learned counsel for the appellant, contended that none of the witnesses mentioned in the F . I . R . Was produced at the trial and the F.I.R. Itself was not proved by producing Hamidullah, the maker thereof. There was, according to the learned counsel for the appellant, a reluctance at every stage on the part of the sons of the deceased to actively pursue the matter and get real culprits apprehended. This is borne out by the fact that none of them lodged a report with the police though the police was at their doors and they did not get the injured medically examined when he was brought for treatment before the medical officer. The police had to get the report recorded at the instance of an outsider who could not have possibly seen the entire occurrence from the beginning to the end. The involvement of Ehsanullah, according to the learned counsel was established and that alone explained the reluctance of the other sons of the deceased to take active interest in the matter.
15. The observation of the learned Judge in the High Court that the sons were more concerned about getting the injured medically examined than about lodging the report, is borne out from the record.
16. For example, Abdul Shakoor (P.W.9) made the following statement-- "After some time the police came there. We kept the injured at the spot on a Charpai. He became unconscious. After 10 p.m. I carried the injured to the hospital. The Dr. Gave first aid and bas admitted my father in the ward. The injured did notgain consciousness till he died in the hospital on 9-11-1977. 1 made statement to the police at the spot about the incident but they did not record my statement."
17. He clarified further that--- "A police officer came to the spot one hour after the occurrence. About 45 minutes after the arrival of the police, I took the injured to the hospital. I or my brothers did not inform the police about the occurrence. Police Post Satiana Road is three furlongs away from my house and not one furlong. I did not send any body to the police nor did I go there to inform them. He enquired about the incident from and my brothers: Ehsan Shah was present there."
18. Zulfiqar Hussain Shah (P.W.10) was put a pointed question as to why the injured was kept on the spot for 1-- hours and not taken to the hospital. The reply that he gave was as follows-- "The neighbours started coming there. We narrated the incident to them. Then police came there and we narrated the occurrence to them, Then it took some time to bring rickshaw."
19. When further questioned, he stated as follows-- "On 4-11-1977 police came to the spot. We narrated the facts but the police objected that we were trying to save Ehsan by giving a fabricated statement."
20. Sardar Muhammad (P.W.7) who was produced as an eye-witness admitted that the deceased had five sons and all except Anwar were present at the spot. This will establish the presence of Ehsan in the house at the time of the occurrence.
21. Dr. A. A. Khalid attended to the injured but still did not prepare the injury statement. The injury statement was not prepared even by the Investigating officer. This unusual conduct on the part of the official functionaries can be attributed only to the reluctance of the sons of the deceased to pursue the matter actively with a view to reach the culprit. There were four injuries on the person of the deceased. The account of the occurrence given by the eye-witnesses who have been taken to be the natural witness explains only one injury and none else. In a case where the First Information Report is not proved and the eye-witnesses are substituted, version of the occurrence is altered and is not complete, all the injuries of the deceased are not properly explained and lapses in the investigation and handling of the case are evident, it cannot be said that the prosecution has proved its case beyond reasonable doubt. It was a case where benefit of doubt was clearly available to the appellant. His appeal against conviction is accepted and the conviction and sentence are set aside. He shall be released forthwith unless his detention is required in some other case.