1. Pervez Ahmad son of Sarwar Lambardar and Javed son of Allah Rakha were tried for the murder of Iftikhar Rasool by the Sessions Judge, Toba Tek Singh. The learned Judge acquitted Javed. Pervez Ahmad was found guilty. He was accordingly sentenced under section 302, PPC to life imprisonment and fine of Rs.10,000 or in default to undergo R.I. For one year. He was given the benefit of section 382-B, Cr.P.C. The convict has appealed to this Court.
2. The occurrence in which Iftikhar Rasool was alleged to have been killed took place on 21-2-1982, at 6-00 p.m. In the area of Chak No.354 JB, Police Station Gojra. The report Exh. PE was lodged by Sadiq Ali at the aforesaid Police Station.
3. Motive for the alleged occurrence was that 1i years prior to the occurrence, Iftikhar Rasool abducted Mst. Arifa sister of Pervez. Later on, he married her and brought her to the village just a month before the occurrence.
4. On the day of occurrence, Iftikhar Rasool had gone to the Court of R.M., Gojra. He was returning to his village Chak No.415 JB. When he was caught hold by the two accused, dragged and brought to the Dera of Manzoor Ahmad Cheema, maternal uncle of Pervez Ahmad appellant. There he was hit with a Kassi as a result of which he died.
5. Prosecution examined Sadiq Ali the first informant, father of the deceased as an eye-witness and Akbar Ali, a cousin of the deceased.
6. Reliance was placed on the recovery of Kassi which was found to be stained with human blood vide Serologist's report.
7. The appellant denied to have killed Iftikhar Rasool.
8. I shall refer to his statement in detail later on. But first of all I would like to deal with the ocular account. Sadiq Ali deposed that the appellant and the acquitted accused were friends. He accompanied by Muhammad Yousuf and Akbar Ali was returning from Gojra to their village Chak No.415 JB on a tonga. When they were at the distance of three acres away from the Puli Masjidwali in the area of Chak Qadarabad they saw the appellant intercepting. Iftikhar who was on cycle and was on his way towards his village. Iftikhar was then three acres from Sadiq Ali and others. The accused caught hold of him and dragged him by the arms to the Dhari of Manzoor Ahmad Cheema which was at a distance of 3 or 4 acres from the Puli. When the accused dragged Iftikhar for a distance of 2-- acres the tonga reached near the Puli. Sadiq, Akbar Ali and Yousuf got down.
9. They ran towards the accused in order to save Iftikhar but by that time the accused reached the Dhari of Manzoor Ahmad Cheema. The accused while taking Iftikhar towards Dhari also took his cycle there. Javed had caught hold of cycle by one hand and the arm of the deceased by the other. When Sadiq and his companions were still at a distance of 20/25 Karams, Javed threw away his cycle and caught hold of Iftikhar. Pervez gave him Kassi blow hitting on the left side of the head.
10. Iftikhar fell down. When he was lying on the ground, Pervez gave 2 or more Kassi blows on his head and face. When Sadiq and others were at a distance of 10 Karams, the accused ran away.
11. Sadiq's version is supported by Akbar Ali. He said that when they reached near Puli Masjidwali in the area of Chak Qadarabad they saw the accused dragging Iftikhar towards the Dera of Manzoor Ahmad. He also saw Javed holding Iftikhar at the Dera of Manzoor and Pervez giving Kassi blows.
12. Iftikhar fell down when he received Kassi blow. While he was lying on the ground he was given more Kassi blows. But before Akbar Ali and others reached there, the accused ran away. Iftikhar after shortwhile expired.
13. The appellant was arrested on 26-6-1982. Kassi Exh.P.5 was recovered on 28-6-1982 at his instance from his Dera Dr. Abdul Khaliq Medical Officer, Civil Hospital, Gojra, performed the post-mortem and found six injuries. Five were incised wounds. One was contusion mark on both eye-lids of right side. Death was due to five incised wounds caused by sharp-edged weapon which were on left cheek, left ear, left side of head and back of head. The doctor noticed the brain matter coming out from the incised wound 5 cm x 2 cm x bone cut. According to the doctor the interval between injuries and death was about 1/2 hour.
14. The appellant admitted that this sister was abducted by the deceased but he denied that he married her. Appellant said that the deceased had been keeping Arifa some time at Jhang and some time at his village. He denied that the Kassi belonged to him. When questioned why the P.Ws.
15. Deposed against him he gave the following answer:- "The deceased had no doubt abducted my sister but we took no action against him. After abducting her he had been often visiting his village and we faced each other many a time, once we travelled even in the same bus but I did not say anything to him. I was present in the house of my sister at Sargodha when I read in the newspaper that Iftikhar Rasool had been killed by me and by co-accused and I appeared before the police of my own accord. Mst. Arifa stood betrothed to Shabbir our mamoonzad and he and his father were demanding for her return and once or twice the deceased accompanied by a few bad characters even went to their Dera and threatened them, that if they insisted on her restoration they would come to sorry end and it is possible that they might have killed him. Nobody saw the occurrence and I have been falsely implicated on the basis of suspicion."
16. With regard to the acquitted accused he said that he was his co-villager and as such known to him. He pleaded not guilty. He said that he would like to produce defence.
17. Learned counsel contended that the evidence of the eye-witnesses was not worth relying. Story told by them was not only unnatural but it did not appeal to reason. It was submitted that according to the prosecution both accused were empty-handed. Still no effort was made by anyone of the prosecution witnesses or their companions to rescue the deceased.
18. Learned counsel further submitted that the deceased was criminal. He was involved in number of criminal cases and as such he had many enemies. He could have been killed by anyone of them.
19. The A.A.-G. And the counsel appearing for the complainant supported the impugned judgment.
20. Both of them argued, that the appellant had been rightly convicted and sentenced.
21. Learned counsel for Sadiq Ali who has filed private criminal revision which was ordered to be heard along with criminal appeal argued that the acquittal of Javed be set aside and the sentence of appellant be enhanced to death.
22. After going through the evidence of the two eye-witnesses I am clear in my mind that this appeal must be allowed. My reasons for the same are that the version of Sadiq Ali and Akhtar Ali does not appeal to reason. It is ridiculous.
23. There is evidence to the fact that there were three passengers in tonga. They watched the deceased being caught by the appellant and dragged to the Dera of Manzoor Ahmad Cheema. It is there where he was attacked.
24. I am not prepared to believe that when all this happened in the presence of the eye-witnesses, they 'remained silent.
25. In any case the following piece of evidence from the deposition of Sadiq Ali demolishes the entire prosecution case. He deposed:- "My son Iftikhar was not being actually dragged on the ground but he was dragging his feet and he was in a slow motion."
26. If such a thing happened in the presence of father, I do not think that he would not make any effort to rescue his son when some other persons were also with him and the assailants were empty- handed.
27. It is, therefore, obvious that the prosecution story is absurd. Prosecution as such has not been able to prove its case against the appellant. He is hereby acquitted. Appellant is on bail. His bail bond stands cancelled.
28. The revision filed by Sadiq Ali has no merit, which is dismissed in limine.