RASHID AZIZ KHAN, J.-Muhammad Ilyas son of Salamat Khan and Muhammad Iqhal son of Muhammad Ali were sent up for trial for an offence under section 302/34 PPC by Police Station Factory Area, Faisalabad. The trial Court vide its judgment dated 23-12-1987 found them guilty under section 326 PPC and sentenced each of them to seven years R.I. And a fine of Rs.25,000/- each or in default one year R.I. Each. The convicts have appealed against their conviction and sentence.
2. According to the prosecution story in brief as disclosed by Muhammad Ali first informant is that between the night of 12-13/4/1986, at about one at night Muhammad Ilyas and Muhammad Iqbal appellants while armed with Churri attacked Muhammad Shafique who was working on the looms of one Sheikh Zahid, sitauted in Mohallah Mujahidabad, Faisalabad. The first informant along with one Muhammad Khalid by chance passed from the said place, therefore, witnessed the occurrence. Muhammad Ilyas and Muhammad Iqbal gave a number of injuries to Muhammad Shafique.The first informant along with Muhammad Khalid tried to intervene but were threatened with dire consequences by the appellants. Muhammad Ali along with Muhammad Khalid PWs took Muhammad Shafique who was unconscious to Civil Hospital for treatment. The motive for the commission is that a few days earlier Muhammad Ilyas appellant had cut a joke with Muhammad Shafique who gave him beating and the matter was patched up. The present occurrence is the result of the said incident.
Complaint, Exh.PE was lodged by Muhammad Ali real brother of the deceased. It was recorded by Abdul Samad, SI, PW-5, on 13-4-1986, at 12-15 noon, at Madni Chowk Samanabad. Formal FIR Exh.PE/1 was registered at Police Station Factory Area, Faisalabad, on the same day by Rashid Ahmed, H.C. PW-3.
3. The case was investigated by Nazir Ahmed, Inspector, who died, therefore, it was entrusted to Zahoor Ahmed, SI, PW-12. After receiving the news of the death of Muhammad Shafique injured on 13-6-1986, he went to the hospital and prepared injury statement Exh.PC and inquest report, Exh.PC/1. He got the site plans, Exh.PF and Exh,PF/l of the place of occurrence prepared from the draftsman and gave his note thereunder. After the completion of the investigation both the appellants were challaned.
The prosecution in support of its case produced 13 witnesses in all. Dr. Imtiaz Ahmed Gill, PW-1, examined Muhammad Shafique injured on 13-4-1986 at 2-IS AM and found the following injuries on his person: -
1. An incised wound 3 cm x 1/4 cm muscle deep on the back of left upper arm.
2. An incised wound 1h cm x 3/4 cm x muscle deep on the front of left side of chest.
3. A stab wound 2% cm x 1 cm on D.N.P. On the front of right shoulder.
4. A stab wound 2 cm x h cm x D.n.p. On the right side of chest. 6 cm away from the nipple. Surgical emphysam was present around the wound.
5. An incised wound 1h cm x 1 cm x D.N.P. On the back of right shoulder.
6. A stab wound 3 cm x 1 cm D.N.P. On the back of right side of chest.
7. A stab wound 1 1/2 cm x cm D.N.P. Oh the right side of abdomen.
According to the report of the doctor injuries Nos. 4 and 7 were grievous and the rest were simple.
All the injuries were caused by sharp edged weapon.
Dr. Muhammad Ajmal Mian, PW-2 conducted the post-mortem examination on the deadbody of Muhammad Shafique, on 14-6-1986, at 11-00 A.M. And found seven injuries out of which except for two injuries the rest were simple.
4. In his opinion the death had occurred due to injuries Nos.4 and 7 which were sufficient to cause death in the ordinary course of nature. Rashid Ahmed, Headconstable, PW-3 registered the formal FIR, Exh.PE/1. Aurangzeb Draftsman, PW-4 prepared the site plan, Exh.PF of the place of occurrence.
Abdul Samad, SI, PW-5 recorded complaint Exh.PE/1 on 13-4-1986 Madni Chowk Samanabad, District Faisalabad. Muhammad Hanif, PW-6 identified the deadbody. Haitam All, PW-7 on 26-7- 1986 took three parcels containing Chhuris blood stained earth for onward transmission to the office of the Chemical Examiner. Eye witness account has been furnished by Muhammad Khalid and Muhammad Ali PWs 9 and 11 respectively. They have given a detail of the eye witness account and ascribed role to each of the appellants. Shauka! Ali, PW-10 witnessed the recovery of chhuri P-3 at the instance of Muhammad Iqbal and chhuri P-4 at the instance of Muhammad Ilyas. He signed the recovery memo as well. The case was partly investigated by Zahood Ahmed, SI, PW-12. Dr.Sajid Hamid, PW-13 stated that Muhammad Shafique was admitted in the Mayo Hospital, Lahore, on 21- 5-1986 and expired on 13-6-1986 at 12-45 AM.
The appellants at the conclusion of the prosecution evidence were examined under section 342 Cr.P.C., wherein they denied the prosecution allegations and pleaded innocence. Both of them, however, did not appear on oath in defence nor produced any defence evidence.
5. It is contended by learned counsel for the appellants that the prosecution has not been able to prove its case against the appellants. Submits that no reliance on the statements of the eye witnesses can be placed for the reasons that they have not been able to give satisfactory explanation with regard to their presence at the spot. Contends that the presence of the eye witnesses at the spot is belied by the medical evidence. Submits that the learned trial Court had rightly ruled out of consideration the recovery of Chhuris at the instance of the appellants because they were got recovered on 19-4-86 but were sent to the Chemical Examiner in July, 1986 with an unexplained delay of three months.
6. I have heard learned counsel and gone through the evidence with their assistance. As far as the recoveries of Chhuris P-4 and P-5 are concerned, 1 think that they have rightly been ruled out of consideration by the trial Court. Chhuris were recovered on 19-4-1986 yet they were kept in the Malkhana till 26- 71986. There is no explanation whatsoever why the said parcels were retained in the Malkhana for such a long period. The report of the Chemical Examiner in this respect will also be not of much help to the prosecution because during summer the blood cannot remain intact for three months and it should have disintegrated, therefore, I hold that the learned trial Court had rightly ruled out of consideration the recoveries of Chhuris at the instance of the appellants.
7. The eyewitness account has been furnished by Muhammad Khalid and Muhammad Ali PWs 9 and 11 respectively. Muhammad Ali PW was the real brother of the deceased. He lodged the HR on the following day of the incident wherein he stated that he and Muhammad Khalid both reached the spot per chance at night and witnessed the occurrence. In order to explain the delay for the registration of the case he stated that he got busy with the medical treatment of his brother. Dr. Imtiaz Ahmed Gill, PW-1 stated that the injured was brought by Muhammad Hanif son of Nazir Ahmed. This clearly indicates that Muhammad Ali PW was not present at the spot and he did not take the injured to the hospital for treatment. Had he taken his younger brother to the hospital for treatment the doctor would have recorded his presence. It can not be assumed that he sent the injured through Muhammad Hanif to the hospital and went to the police station to lodge the report because the report was lodged with the delay of about 11 hours. Similarly, Muhammad Khalid PW-9 stated that on the night of 13-4-1986 he was working as a labourer in the power-looms of one Salim Malik and at about one at night he went out to have tea from a tea-stall. While passing in front of the house of Sheikh Zahid where Muhammad Shafique was working as labourer, he heard some commotion, went in and saw the occurrence. He further stated that thereafter Muhammad Ali PW came there. This witness was cross-examined at length and during cross-examination he had to admit that the story given by him before the police was different from the one disclosed in the Court. He had not stated before the police that he was working as labourer in the factory of one Salim Malik. Similarly, he had not stated before the police that he was going out for having tea when witnessed the occurrence. He also admitted that his statement before the police was recorded on 14-4-1966. A dose scrutiny of the statements of the witnesses dearly indicate that they had contradicted each other on all material aspects of the case and their presence at the spot was highly doubtful. Muhammad Ali, PW-11, real brother of the deceased if present, should have taken him to the hospital or should have got the case registered at the first instance but he did nothing. There is no explanation on the file why the statement of Muhammad Khalid PW was recorded by the police on 14-4-1986 with regard to an incident which took place between the night of 12-13/4/1986.
For what has been discussed above, I hold that the prosecution has not been able to prove its case beyond doubt. Therefore, while giving the benefit of doubt to the appellants, I accept the appeal and set aside their convictions. They are in Jail, they shall be released forthwith if not required in any other case.