This revision petition under section 439, Cr.P.C., has been filed against the order of Sessions Judge, Kasur, dated 16-12-1979, whereby he acquitted the respondents, namely, Mistri Fazal Din, his sons Zulfiqar Ali, Shaukat Ali and Mahmood Ahmad, his servant Muhammad Ashiq and his co-accused Muhammad Bashir and Ferzand Ali Lambardar from the charges under sections 148, 325/149 and 302/149, P.P.C.
2. The prosecution case briefly was that Riaz Ahmad, a Second Year student (deceased) had illicit connections with Mst. Munawar, daughter of Mistri Fazal Din (respondent). Mistri Fazal Din, his sons Zulfiqar Ali, Shaukat Ali and Mahmood Ahmad, and hit servant Muhammad Ashiq (accused- respondents) came to know of it and, therefore, they planned to kill him. About two days before the occurrence, the said accused-respondents asked the complainant party that they should restrain Riaz Ahmad (deceased) from pursuing his illicit connection with Mst. Munawar otherwise they would kill him.
3. On the fateful night (falling between 8/9-4-1978) Muhammad Aslam (P.W.15) brother of the deceased, was present at his shop at Pattoki. Riaz Ahmad (deceased) alongwith Akbar Ali (P.W.19) after having seen a picture show went to the shop of Muhammad Aslam P.W. Mushtaq Ahmad (P.W.16) also joined them. They all left for their village Jumber Khurd by bus which they boarded from Pattoki Bus-stand. They alighted from the bus near Chhanga-Manga-More and started towards their houses on foot. In the way Musthaq Ahmad P.W. Sat for urinating and Muhammad Aslam P.W. Stood there in his wait whereas Akbar Ali P.W. And Riaz Ahmad (deceased) continued walking towards their houses. As soon as they reached in front of the house of Mistri Fazal Din they were attacked by the accused-respondents. At that time Zulfiqar Ali was armed with a dagger, Muhammad Ashiq was armed with a pistol while the rest of the accused---respondents were armed with Sotas. Zulfiqar Ali attacked the deceased with dagger who caught hold of his hand and they started grappling with each other. Riaz Ahmad and Akbar Ali both fell down on account of the injuries caused to them with Sotas. Muhammad Aslam and Mushtaq P.Ws. Tried to intervene whereupon Muhammad Ashiq fired 2-3 shots in the air. All the accused then dragged Akbar Ali and Riaz Ahmad (the injured) into the house of Mistri Fazal Din, and closed doors of the house.
Muhammad Bashir accused then asked Shaukat Ali accused to bring Wadaan (big hammer) and with it the legs of Riaz Ahmad were smashed. Then the accused put Chhuris in the wounds of both the injured and extorted confession from them, which was tape-recorded on cassette (Exh.P.1). The occurrence was witnessed by Muhammad Aslam (P.W.15), Mushtaq Ahmad (P.W.16), Makhan (P.W.18) and others. Muhammad Aslam P.W. Allegedly went for making a report to the police. A.S.I.
Zakaullah (P.W.20) met him in the way who after hearing the statement of Muhammad Aslam P.W.
Asked him to go back to the spot. Muhammad Aslam P.W. On arrival found the S.H.O. And the A.S.I.
Present on the spot. Fazal Din and Muhammad Bashir accused persons took the S.H.O. Aside and talked to them in confidence. Both the injured were taken in a trolley to Rural Health Centre, Bhai Pheru, and they subsequently learnt that Muhammad Riaz had died. The police refused to register a case at the instance of Muhammad Aslam P.W. And contrarily registered a case (F.I.R. No.97/78) under section 458, P.P.C. The same night against Muhammad Riaz (deceased) and Akbar Ali, the injured P.W. At last many complaints were made to the police authorities and ultimately on the basis of application Exh. P.L. The instant case (F.I.R. No.219/78) was registered on 23-8-1978 under sections 148, 307/149 and 302/149, P.P.C. At Police Station Bhai Pheru. .
4. Dr. Muhammad Rafi, Medical Officer, Rural Health Centre, Pattoki (P.W.8) on 9-4-1978 medically examined Muhammad Riaz (deceased) at 4-30 a.m., Akbar Ali (P.W.19) at 5-00 a.m., Zulfiqar (accused) at 5-30 a.m., Fazal Din (accused) at 6-00 a.m., and Ashiq (accused) at 6-30 a.m. He noted a lacerated wound 2" x 1/2" on the front of right leg in the middle with defuse swelling. Bone of the leg was fractured and the wounds were bleeding profusely. This injury was declared grievous.
Besides it the doctor noted two contusions, one on the front of left leg and the other on the side of right neck; four contused wounds, on left leg, right side of head, below the left eye and right eyebrow; and two abrasions, on right wrist and index finger of right hand. All these injuries were caused with blunt weapon. Excepting injury No.1 which was declared grievous the rest were kept under observation. The injured was in condition of shock. He died the same day at 6-00 a.m.
On the person of Akbar Ali (P.W.19), the doctor noted five contusions, on left upper arm, outer side of left fore-arm, left hand, left shoulder and back of chest left side; one multiple abrasion; one multiple contusion; and two contused wounds. Injury No.3 (contusion 2" x 1" on the outer side of left fore-arm 5" above the wrist joint, underlying bone fractured) was declared grievous and the rest as simple all caused with blunt weapon.
On the person of Zulfiqar (accused) the same doctor found two incised wounds, one on left eyebrow and the other on right side of neck below the angle of mandible. Both the injuries were declared as simple, caused with sharp-edged weapon.
On the person of Fazal Din (accused) the doctor noted two contused wounds, on right side of head and left eyebrow; and a contusion on the side of left chest, all simple in nature and caused with blunt weapon.
The same doctor noted on the person of Muhammad Ashiq (accused) one contusion on side of right elbow and a contused wound on the front of right chest on the clavicle. These injuries were also declared as simple, caused with blunt weapon.
Post-mortem examination on the dead body of Muhammad Riaz (deceased) was conducted by Dr. Muhammad Ashraf, Medical Officer, Civil Hospital, Chunian, (P.W.6) on 9-4-1978 at 1.00 p.m. And noted 13 injuries on it. They were two dressed wounds, one on the head and the other on right leg with tibia and fibula bones fractured; four lacerated wounds, on right leg, left leg, left lower eyelid and forelicade three contusions, on left leg, right arm and right middle finger; two contused areas, one on right side of neck and the other on back of chest; and an abrasion on left knee. In the opinion of the doctor, the deceased died of shock (sustained and irriversive) due to the injuries, which were caused with blunt weapon. The deceased died within few hours after receiving the injuries and post-mortem was conducted within 12 hours of his death.
5. S.I. Muhammad Yousuf of Crimes Branch, Lahore (P.W.21) who was entrusted with the investigation of the cases, secured photograph (P.12) of Muhammad Riaz (deceased) and that of Mst. Munawar Bibi daughter of Fazal Din (P.13) produced by Muhammad Yaqoob (P.W.12) a relative of deceased on 28-9-1.978. He recommended cancellation of case F.1.R. No.97/1978 lodged by Fazal Din, accused-respondent and challaned case F.I.R. No.219/78 i.e. The instant case.
6. At the trial, 22 witnesses were examined by the prosecution in support of its case. Of them, Muhammad Aslam (P.W.15), Mushtaq Ahmad (P.W.16), Makhan (P.W.18) and Akbar Ali, injured (P.W.19) supported the prosecution.
7. On the other hand, a counter-version was put forth by the defence. Fazal Din (accused- respondent) in his statement under section 342, Cr.P.C., stated that lie was asleep in the courtyard of his house while his servant Muhammad Ashiq (accused-respondent) was asleep in the courtyard of haveli adjacent to his house near the cattle. Hearing barking of dogs he got up and found Muhammad Riaz (deceased) and Akbar Ali P.W. Standing near the cot of Muhammad Ashiq while armed with pistol, revolver, dagger and Chhuri, who had trespassed into the haveli for committing theft. On seeing Fazal Din, Akbar Ali fired from his revolver twice but the shot did not explode. Then Akbar Ali gave injuries to him with butt side of revolver on his left eyebrow. He raised alarm whereupon his son Zulfiqar and his servant Muhammad Ashiq (accused-respondents) also got up. They tried to apprehend both Muhammad Riaz (deceased) and Akbar Ali P.V4' meanwhile many persons of the village also reached the spot hearing the commotion and caused injuries both to Muhammad Riaz and Akbar Ali taking them as thieves. He proceeded to Police Station Bhai Pheru and lodged F.I.R (Exh. P.S.) on 9-4-1978 under section 458, P.P.C. And section 13 of the Arms Ordinance, which was recorded by A.S.I. Zakaullah (P.W.20). But S.I. Muhammad Yousuf (P.W.21) who remained posted at Police Station Bhai Pheru in different capacities before the occurrence had in conspiracy with complainant party got his case transferred to Crimes Branch. He then got these cases entrusted to himself for investigation and then challaned the accused-respondents in the instant case. Zulfiqar and Ashiq (accused-respondents) adopted this statement whereas the rest denied their presence and participation in the Occurrence. No evidence was, however, produced in support of the defence plea.
8. A.SJ. Zakaullah (P.W.20) admitted to have registered case F.I.R. No.97, dated 9-4-1978 (Exh. P.S.) under section 458, P.P.C. And section 13 of the Arms Ordinance, 1965, at the instance of Fazal Din (accused-respondent). He visited the spot and found Akbar Ali and Muhammad Riaz lying injured in the house of F anal Din. He prepared injury statements and sent them to Pattoki Hospital for medical examination and treatment. He also secured blood-stained earth from there and seized a wooden beam (P.19) from the spot. He secured a cassette courtyard produced by Ferzand All (accused-respondent) and a belt (P.20) lying in the courtyard. He arrested Akbar Ali P.W. And Muhammad Riaz deceased it case F.I.R. No.97/1978 (Exh. P.S.) Muhammad Riaz died in the hospital, therefore, he prepared inquest report and sent the (lead body to the mortuary for post-mortem examination. He then handed over the file to S.H.O. Police Station Bhai Pheru for further investigation. He also mentioned that lie found Fazal Din, Zulfiqar and Ashiq (accused- respondents) injured and got them medically examined
9. Learned trial Court on consideration of the material on record observed that photograph (P.13) produced by the complainant party, to be that of Mat. Munawar, daughter of Fazal Din accused, was neither clear enough and identifiable and also it was not proved positively to be of Mst.
Munawar and that there was no reliable evidence whatsoever establishing deceased's illicit connection with Mst. Munawar, so the story that on account of this motive the accused- respondents killed the deceased was not proved. Learned trial Court further expressed doubts about truthfulness of prosecution story that the respondents sat in front of their house waiting for the arrival of the deceased and Akbar Ali P.W. Because they did not know about their programme of returning to their house at the fateful time. He further observed that the ocular evidence is belied by the medical evidence inasmuch as Zulfiqar (accused-respondent) allegedly caused a dagger blow to Riaz but no incised wound was found by medical witness on deceased's person. Similarly, it observed that there is only one Grievous hurt on the leg of the deceased, which does not indicate that the leg was smashed with blows of Wadaan (big hammer). Learned trial Court did not believe that confession of Muhammad Riaz (deceased) and also that of Akbar All (P.W.19) was extorted by placing Chhuris on their wounds because this fact does not find mention in the F.I.R. It also found that the F.I.R. (Exh. P.S.) lodged by Fazal Din (accused-respondent) against Muhammad Riaz (deceased) and Akbar All (P.W.19) under section 458, P.P.C. Had not been cancelled since S.1.
Muhammad Yousuf (P.W.14), the Investigating Officer, himself admitted it. Learned trial Court observed that even if it is found that defence story is improbable yet the prosecution is supposed to stand on its own legs and it cannot get benefit of weakness of the defence. In the circumstances, learned trial Court giving benefit of doubt to the accused-respondents, acquitted them, hence this revision petition.
10. I have heard learned counsel for the petitioner who challenges the legality and propriety of the impugned order of acquittal. I have also perused the record and feel satisfied that the inferences drawn by the learned trial Court by considering the material on the file and the findings given to the effect that charges framed against the respondents were not brought home to them beyond reasonable doubt, are well-founded and do not call for interference. I would additionally hold that since the blood was found in the house of the respondents; Muhammad Riaz (deceased) and Akbar Ali (the injured P.W.) were recovered by the police from the house of the respondents alongwith their weapons and that Fazal Din's F.I.R. (Exh. P.S.) incorporating the defence story was recorded promptly on that very night show that there was possibility of defence story being true and its such learned trial Court rightly extended benefit of doubt to the respondents.
11. For all these reasons, I find no merit in this petition, which is hereby dismissed in limine.