RUSTAM S.SIDHWA, J: --This is a petition by Khair Shah and another, petitioners, seeking leave to appeal against the judgment of the Lahore High Court, Rawalpindi Bench, dated 23-11-1988 acquitting Muhammad Riasat respondent No.1, whilst confirming the acquittal of Hikmat Khan and others, respondents Nos.2 to 4, and against the rejection of their revision petition.
2. The brief facts of the case are that on 26-5-1985 at 10,30 a.m. When Ansar Khan complainant PW 8 and Muhammad Arif deceased were at the shop of a butcher near High School No.2 for buying meat, Hikmat Khan accused, armed with a hatchet, Muhammad Riasat, armed with a chhuri, and Fidr Hayat and Abdul Ghani accused, both armed with dandas, appeared at the scene. All the four accused injured Muhammad Arif deceased with their weapons. Fidr Hayat accused also gave danda blow to Ansar Khan PW.8, on which he ran away and stood at a distance witnessing the occurrence. Muhammad Safdar PW 9, who also had reached the spot also witnessed the occurrence.
3. The motive for the occurrence was that a few days prior to the occurrence a dispute had arisen between Yaqoob Khan, brother of Abdul Ghani accused, on the one hand, and Muhammad Arif deceased and Sultan Sikandar, on the other. Due to this dispute, the accused had launched the attack on the deceased in order to take revenge.
4. The trial Court Acquitted Fidr Hayat and Abdul Ghani on the ground that there were no blunt weapon injuries on the dead body of the deceased, whereas these two accused had been imputed to have inflicted danda blows to the deceased and that the recovery of blood-stained dandas at the instance of these two accused falsified the recovery and rendered the testimony of the recovery witnesses as open to serious doubt. The trial Court acquitted Hikmat Khan accused who had been imputed to have inflicted a hatchet blow on the head of Muhammad Arif deceased, as there was no such injury on the person of the deceased and the recovery of hatchet at his instance also suffered from the same defects as pointed out in respect of the recoveries effected at the instance of Fidr Hayat and Abdul Ghani accused. The trial Court, however, convicted Muhammad Riasat, on the basis of the ocular account furnished by Ansar Khan PW 8 and Muhammad Safdar PW 9. However, the trial Court did not convict Muhammad Riasat accused under section 302, P.P.C., but under section 304-1, P.P.C. On the ground that Dr. Muhammad Naqeeb PW 1 who had conducted the post-mortem examination of the dead body of Muhammad Arif deceased had found the cause of death to be shock and haemorrhage as a result of the operation, which contradicted with his view that injuries Nos.1 to 3 were responsible for his death and it appeared that the doctor himself was not certain about the cause of death.
5. The appellate Court whilst dealing with the appeal of Muhammad Riasat and revision petition filed by Ansar Khan PW 8 allowed the appeal and dismissed in limine the revision petition. In ac4uitting, Muhammad Riasat accused, the appellate Court found that Ansar Khan PW 8 was not a natural witness and his presence was doubtful at the spot, that the ocular account stood materially contradicted by the medical evidence and the fact that Muhammad Arif deceased at one stage was capable of making statement in the hospital, which statement was not recorded, made the prosecution version doubtful.
6. On behalf of the petitioner it is submitted that the motive, the ocular account furnished by Ansar Khan PW 8 and Muhammad Safdar PW 9, coupled with the recoveries and the medical testimony clearly prove the case of the prosecution to the hilt against all the four acquitted accused. It is further submitted that the trial Judge erred in holding that Dr. Muhammad Naqeeb PW 1 had made contradictory statements, the effect of which was that he was not sure about the cause of death, whereas post-mortem report is clear that injuries Nos.1 to 3 were directly responsible for the cause of death of Muhammad. Arif deceased.
7. With the assistance of the learned counsel for the petitioners, we have gone through the record.
Post-mortem report Ex.P/A clearly shows that injuries Nos.1 to 3 to Muhammad Arif deceased were caused by a sharp-edged and pointed weapon and that the said injuries were the result of a single stab and the weapon had penetrated the lateral chest wall. The right lung lower lobe was found to be oedematous and cut section of the same exuded clear fluid with frothy fluid in the supplying bronchi. The cause of death is stated in the post--mortem report as shock and haemorrhage. The post-mortem report is not on the pattern prepared by doctors conducting post mortem examinations in civil hospitals. This autopsy report appears to has been prepared on the pattern prepared by doctors working in the military hospitals. However, one cannot totally avoid the view that the analysis of this evidence by the Court is somewhat confused. The case does not appear to have received the proper attention which it deserved, and the case requires a further scrutiny to determine whether the evidence was properly examined in accordance with the well known principles laid down by this Court regarding appreciation of evidence. We would therefore, grant leave in this case to consider whether the acquittal of Muhammad Riasat respondent No.1 was based on a proper appreciation of the evidence on the record and the law on the subject. The petition is dismissed qua Hikmat Khan and others, respondents Nos.2 to 4. Bailable warrant in the sum of Rupees twenty-five thousand (Rs.25,000) with two sureties each in the like amount returnable to the Assistant Commissioner/Duty Magistrate, Attock, shall issue against Muhammad Riasat respondent No.3 to ensure his presence in this Court when the appeal comes up for hearing.