Asadullab, aged 20 years, was tried along with his brother Zafarullah and their friend Mahboob Ahmad by Qazi Muhammad Dastgir, Additional Sessions Judge, Lahore, for the murder of Javid aftas Bawa. The learned trial Judge acquitted Zafarullah and Mahboob Ahmad co-accused vide his judgment 12-6-1970, but found Asadullah appellant to be gullty of an offence under section 302, P. F. C. And sentenced him to transportation for life. He also imposed a fine of Rs. 5,000 upon him. In case of non--payment of the fine he was ordered to undergo a further R.
1. For a period of 2 years.
Half of the fine, if recovered, was ordered to be paid to the heirs of the deceased. Asadullah appellant was also directed to pay a sum of Rs. 5,000 under section 544-A, Cr. P. C. As compensation to the heirs of the deceased, failing which he was ordered to undergo a further R. I.
For a period of two years in addition to the punishment awarded for the main offence. Asadullah appellant has filed an appeal against his con--viction and sentence.
2. The background of the case is that Javid deceased was employed at Schazoo Laboratories, Lahore. Sometime prier to the incident Mr. Ahmad Saeed Kirmani a Provincial Minister was invited to the Schazoo Laboratories by its proprietors and the crowd gathered on the road displayed Chamchas (spoons). It appears that Javid deceased was a favourite of Mian Shujaur Rehman one of the Proprietors of the Laboratories, he therefore came to be called as "Chamcba of Mian Chamcha." Asadullah appellant and his friends used to tease the deceased by calling him by this name. On the day oaf the occurrence i.e. 22-9-1969 at about 6 p.m. Asadullah appellant had a quarrel with Javid deceased near the octtoi post over the same issue. They were however, separated by some passers-by. Thereafter, at about 7 p.m. Javid deceased and his friend Muhammad Inayat P. W. 16 went to the house of Muhammad Ishaq P. W. 12, a relative of the latter in connection with the khatarn of his (Muhammad Ishaq P. W.'s) father. They had dinner at his place and returned at about 9 p.m. On a bicycle. Javid deceased was cycling while Muhammad Inayat P.
W. Was sitting in front. When they reached the hotel of one Yunus, they saw the three accused persons stand--ing there. Zafarullah (acquitted accused) stopped the bicycle while Asadullah appellant threw a brick at the deceased froth behind. Both Muhammad Inayat P. W. And Javid deceased fell from the bicycle. The parties thereafter grappled with each other and also exchanged abuses. Ghulam Qadir P. W. 13 and Muhammad Rafiq P. W. 14 separated them. Javid deceased said that he would report the matter to the police. He and Muhammad inayat P. W.
Thereafter pry to polio Station Misri Shah.
This time Muhammad Inayat P. W. Was cycling while Javid deceased sat on the front bar. When they reached near the kasha road of Sultanpura, the three accused persons, who had followed them in a rickshaw, overtook them. The rickshaw hit the bicycle and Muhammad Inayat P. W. And the deceased there--upon fell down. Mahboob Ahmad (acquitted accused) caught hold of Javid deceased. Zafarullah (acquitted accused) fell upon Muhammad Inayat P. W. And in the meanwhile Asadullah appel--lant ran to the shop of a barber (Tufail Ahmad P. W. 15) situated in front of the place of occurrence and brought a scissors from there. He stabbed Javid deceased with the same, first on the left side of the chest and then on the right side of the chest. Many people including Yusuf and Mushtaq gathered there. The last mentioned two persons are said to have seen the occurrence and were mentioned in the F. I. R. But were not produced at the trial. The assailants then left the place. The appellant is said to have taken the scissors, P. 4, with him. Javid (deceased) had been badly injured. Muhammad Inayat P. W. Placed him on a rickshaw and took him to the Mayo Hospital, where be was examined by a doctor. Thereafter Dr. Javed Bashir Ghauri (Surgeon) P. W. 5 opened up his chest with a view to massage, and revive the heart. Javid deceased, however, expired at about 11-10 p.m. In tine meanwhile Bashir Ahmad S. L, P. W. 17 of Police Station Misri Shah had received a telephonic message from the Mayo Hospital about Javid deceased having been brought there in an injured condition. He recorded a report about it in the daily diary and rushed to the Mayo Hospital. The deceased had however, expired before his arrival. He contacted Muhammad Inayat P. W. 16, who was present in the hospital and recorded his statement Exh. P. A.
This statement formed the basis of the formal F. I. R. Bashir Ahmad S. I. Then prepared the injury statement and the inquest report in respect of Javid deceased and sent the body for post-mortem examination. There--after he reached the place of occurrence but as it was late in the night, be could not do any investigation. On the next morning i.e. 23-9-1969 he inspected the spot. No blood- stained earth could be recovered from there as the occurrence had taken place on a public path and the blood had probably disappeared due to rush. The S. I. Arrested Asadullah appellant and Mahboob Ahmad (acquitted accused) from their houses. The appellant while in custody led to the recovery of a blood-stained scissors P. 4 from a flower bed in his house. This scissors was shown to Tufail Ahmad P. W. 15, the barber from whose shop it is said to have been lifted. He identified the same as belonging to him. This identification took place outside the house of the appellant.
Thereafter the scissors P. 4 was sealed into a parcel vide memo. Exh. P. G. Asadullah appellant was also found to be in an injured condition at the time of his arrest. The S. I. Therefore prepared his injury statement and sent him for medical examination. Muhammad Yusuf P. C., P. W. 7 produced clothes of the deceased, shirt P. 1, Bunyan P. 2 and Pant P. 3 before the S. I. After the post-mortem examination. The shiest and Bunyan had cut marks on them. The clothes were taken into possession vide memo. Exh. P. E. The S. I. Then got the statements of the main witnesses, 'lamely, Muhammad Inayat, Muhammad Yusuf, Rafi a Ahmad, Tufil Ahmad, Ghulam Qadir, Muhammad q and Muhammad Ishaq etc. Recorded under section 164, Cr. P. C. Lahore. Were recorded by Mr. Muhammad Masud Khan,M. I. C. Lahore.
3. Dr. Nusratullah P. W. 3, who conducted the post-mortem examination on the dead body of Javid on 23-9-1969 at 2-30 p.m., found the following injuries on his person.
(1s) Thoractomy incision left side chest 8' long and bearing 14 stitches at 4th inter costal space.
Pleura was damaged. One stick present over pericardium. There was cut-- long in left ventricle. Left pleural cavity contained blood. Pericordial cavity contained blood.
(2) An abrasion --' x --' right side front of chest lower part.
(3) A bruise 1--' x 1--" left deltoid region with margins abraded.
4. After the completion of the investigation, all the accused persons were challaned and were ultimately committed to stand their trial before the Court of Session. The result of the trial has already been mentioned above.
5. At the trial, the prosecution produced 17 witnesses in support of its case. It relied mainly on the evidence of motive and the earlier incidents between the parties, at 6 p.m. And. 9 p.m. On the same day. Muhammad Inayat P. W. 16 gave the full account of the earlier incidents. Muhammad Ishaq P.
W. 12 stated that Muhammad Inayat P. W. And the deceased had come to his house to join the khatam ceremony of his father. Ghulam Qadir P. W. 13 and Muhammad Rafiq P. W. 14 stated that they had separated the parties when they fought to each other at about 9 P.m., shortly before the main incident. Tufail Ahmad Barber P. W. 15 only stated that at about 10 p.m. On 22-9-1969 some one rushed into his shop, picked up a pair of scissors lying on the counter and ran out. When he came out of his shop, the murder had already been committed and people were shouting 'Kainchi Mardi-Kainchi Mardi'. Subsequently, he identified Asadullah appellant as the person who had picked up the scissors from his shop. He also identified the scissors P. 4 said to have been acquitted it would not be necessary to discuss the statement of these defence witnesses.
7. I have heard the leaned counsel for the appellant as well as the learned State counsel at some length and have also gone through the entire evidence on the record.
According to the prosecution story friction and ill-will existed between the parties and earlier on the same day there had been a fight between them. This fact is actually admitted by the defence itself inasmuch as Asadaullah appellant himself lodged a report, Exh. P. F. At Police Station Misri Shah at 6-25 p.m. On the same day (i.e. 22-9-1969), which is to the effect that Muhammad Inayat P. W. And the younger brother of one Humayun, whose name he (Asadullah appellant) did not know, had caught hold of him on G. T. Road. They alleged that the (Asadullah) had called Muhammad Inayat P. W.'s companion as 'Chamcha of Mian' and that for this reason they gave him a beating. It may be mentioned here that this Hymayun is a brother of the deceased. Moreover, the boy whose name Asadullah appellant was not able to mention but who complained that he was being called 'Chamcha of Mian' by Asadullah appellant could be none other than Javid deceased himself.
Muhammad. Inayat P. W. Is admittedly a fast friend of the deceased. This is not only indicated by the prosecution story itself but also bar the report Exh. P. F. As -already mentioned above, Muhammad Inayat P. W. 16 is the sole eye-witness in this case. He is the only person who has named the appellant as the person who stabbed Javid deceased. But for his statement the rest of the evidence on the record would be worthless. As already mentioned, this witness was not only a fast friend of the deceased, but there was admittedly bad blood between him and the appellant, which is evident, inter alia from the contents of Exh. P. F., the report lodged by the appellant at 6-25 p.m. On the same day. Apart from this it may be mentioned that this witness has been involved in other cases. He has admitted that he had been tried for an offence under section 307, P. P. C. For attempting an the life of one Baz. He has also admitted that he as well as Mushtaq and Yusuf (the two persons who were mentioned in the F. I. R. As eye-witnesses but were subsequently not produced) were arrested together in a decoity case along with some others. Even if it be said that these cases do not east any reflection on Inayat P.W.'s character, his testimony at the trial is such as does not inspire confidence. On going through the same, I find that it is replete with contradictions with the F. I. R. And iris earlier state4ients, made under section 164, Cr. P. C. And before the committing Magistrate. He has tried to make improvements at a number of places to make his statement consistent with the other evidence on the record. For the reasons noted above, I do not feel it safe to rely upon this witness for maintaining the conviction of the appellant. Even if it be argued that his statement could be believed if independent corroboration for the same, qua the appellant, was available, it may be mentioned that no reliable corroboration is forthcoming on the record. For this purpose the prosecution has relied strongly on the alleged recovery of blood- stained scissors P. 4, which was found by the Serologist to be stained with human Mood. I, however, feel that the recovery of scissors P. 4 is highly doubtful. The scissors was recovered vide memo. Exh.
P. G. And Muhammad Yusuf and Muhammad Inayat attested the same. At the trial however the prosecution has produced only Muhammad Inayat P. W. To prove the recovery. Now. It is his testimony that requires corroboration and it is well settled that on piece of tainted evidence cannot be used to corroborate another piece of tainted evidence. Moreover, before the trial Court Tufail Ahmad P. W. 15 stated that he had identified the said scissors at the Co-operative Store of G. T.
Road shortly after its recovery at the instance of the appellant from a flower bed in his house.
Thereafter the police is said to have sealed it into parcel. However in his statement under section 164, Cr. P. C., which was recorded much earlier, Tufail Ahmad P. W. Had not mentioned that he had identified the scissors for the first time on G. T. Road near the appellant's house. It is obvious, therefore, that the story that Tufail Ahmad P. W. Was called by the police at the Co-operative Store at G. T. Road to identify the scissors, was introduced subsequently with a view to over--come a possible argument that this witness could not have identi--fied the scissors after at had been taken into possession and sealed into a parcel by the police. This witness has also stated at the trial that Asadullah appellant was the person who had picked up the scissors from the counter of this shop. It is admitted that he did not know the appellant prior to the occurrence. It is also admitted that no identification parade was held by the prosecution to test the memory or the power of identification of Tufail Ahmad P. W. He is said to have identified the appellant once at G. T.
Road at the Co-operative Store where he is said to have been shown the blood-stained scissors P.
4 by the police and on second occasion at the police station. I have already rejected the story of his having been called by the police to G. T. Road for the identi--fication of the scissors. Moreover, he has admitted that at that time the appellant was the only person under arrest with the police.
Under these circumstances it would not have been difficult for any one to 'identify' the 'accused person'. Such identification is of highly doubtful nature and does not advance the prosecution case in any manner. Apart from this it is admitted by Muhammad Sharif A. S. I., P. W. 11 that he had kept the parcel containing the scissors P. 4 in the malkhana from the 23rd to the 30th of September 1969, although there are instructions for expeditious transmission of such article to the Chemical Examiner. He could not give any satisfactory explanation for retaining the scissors P. 4 with him for so many days. As a result I think that even if the alleged recovery of scissors P. 4 is believed it cannot be used for corroborating the testimony of Muhammad Inayat P. W. 16.
8. It may also be mentioned? That the medical evidence in the case not only contradicts Muhammad Inayat P. W. With regard to a salient feature of this case, but some of the doctors produced by the prosecution also contradict the other doctors. Dr. Ghulam Abbas Cbaudhry (P. W.
2), Senior House Surgeon of the Surgical Ward, Mayo Hospital, Lahore, stated that the deceased deceased had been admitted In his war 3 at 10-30 p.m. And expired on the same night at about 11- 10 P.M. He stated further that it was a case of sib on the left side of the chest. Dr. Javed Bashir Ghauri P. W 5 is the Surgeon who treated the deceased. He has stated that the patient was in a bad state; he was given a blood transfusion as well as interavenous injections of coramine and adrenalin. He also gave 'cardic massage' to the deceased "who had a stabbed wound in left chest.- For this purpose (i.e. For the Cardic massage), the Surgeon gave an incision on his chest.
Enlarging the wound so as to be able to explore the heart and carry out cardic massage. Dr. Nusratullah P. W 3. Who had conducted the post-mortem examination, found 3 injuries on the body, which have been reproduced in para. No. 3 above. Out of these only one is a serious wound over which surgery bad been performed. A thoracotomy incision 8' long was present. It was on the left side of the chest. The other two have an abrasion -- x -- on right chest and a bruise on the left deltoid. He also stated that the clothes worn by the deceased were handed over by him to the police. In this connection he mentioned that the shirt of the deceased bore one corresponding cut and the Bunyan also bore one such cut. From the above it is more than obvious that only one stab injury was given to the deceased which was located on the left side of his chest. The above- mentioned cuts on the shirt and the Bunyan had evidently been caused by the solitary stab on left side of the chest. This doctor (Dc. Nusratullah neither noticed, nor mentioned, any stab wound on the right side of the deceased's chest. The only injury at this place has been mentioned by him in his report as injury No. 2, and has been descirbed as an abrasion -- x --' on the chest. It may be mentioned that Dr. Ghulam Abbas Chaudhry P. W. 2 had been asked during his cross-examination as to whether the incision given by the Surgeon had extended to the right side of the chest. The purpose of asking this question was obviously to show that the stab wound on the right side of the chest had merged into 8' long incision given by the Surgeon and could not, therefore, be detected by the doctors who subsequently conducted the post-mortem examina--tion. The answer given by Dr. Ghulam Abbas Chaudhry P. W. 2, however, is that: - "This incision was extended up to the left side of the sternum and was not extended beyond that to the right side of the chest."
This answer completely negatives any possible assertion that another stab wound had in fact been inflicted but could not be visibleto Dr. Nusratallab or Dr. Ghulam Abbas Chaudhry because of the long incision given by Surgeon Javed Bashir Ghauri. It i: surprising, however, that Dr. Muhammad Shafique P. W. 4 stated that he had noticed two incised wounds on the person of the deceased, one of these being on the left side of the chest, and the other on the right side of the chest and that the shirt and Bunya of the deceased bore corresponding holes. This assertion is wholly different from what ' the other doctors have stated. In this connection the statements of Dr. Nusratullah P. W. 3 and Dr. Java Bashir Gbauri; P, W, 5 are, morereliable; specially that of Dr. Nusratullah P. W. Who had conducted the post-mortem examination because he at least was in no hurry and must have examined the injuries at leisure. Moreover, he also had the advantage of opening up the wounds and examining their depth. As already observed he has mentioned another injury, i.e. a small abrasion --'x -- on the right side front of the chest. It appears Muhammad Inayat P. W. 16 took this injury to be a serious one and therefore mentioned in the F. I. R. That he had seen Asadullah appellant giving two stabs with the scissors on the chest of the deceased. Dr. Muhammad Shafiq P.
W. 4, has, for reasons best known to him, supported Muhammad Inayat P. W. 16 in this respect and has stated that the deceased had two stab wounds on his chest, one on the left side and the other on the right side. Dr. Nusratullah and Dr. Muhammad Shafiq were called by the trial Court as C. Ws. 1 and 2. They tried to reconcile their statements but I am not impressed by their attempt at bringing the same in conformity to each other. I am of the view that the evidence of Dr. Muhammad Shafiq P. W. 4 in this case has not been above board. It is amply proved from the medical evidence mentioned above that the deceased had been giving only one stab, which was located on the left side of his chest. This completely falsifies the solitary eye-witness in the case.
9. The net result of the above discussion is that I reject the statement of the solitary eye-witness as false. The rest of the 'evidence, even if believed, would not advance the prosecution case in the absence of reliable ocular evidence. Consequently I accept the appeal, set aside the impugned order and acquit the appellant. He should be released forthwith if he is not wanted in any other case.