' Nasir alias Bittu and Farman Ullah acquitted co-accused were tried by a learned Additional Sessions Judge at Shcikhupura for the murder of Rehmat Ali (deceased) and attempted murder of Muhammad Anwar P.W. Vide his judgment, dated 10-6-1987, the latter was acquitted on benefit of doubt of both the charges, the former was convicted under section 302 P.P.C. For the murder of Rehmat Ali and sentenced to imprisonment for life and a fine of Rs,10,000 or in default to further undergo two years R.I. The fine, if realised, was directed to be paid as compensation to the heirs of the deceased. He was also convicted under section 307, P.P.C. For attempting at the life of Muhammad Anwar P.W. And sentenced to seven years' R.I. And a fine of Rs,5,000 or in default to further undergo one year R.I. The fine, if realised, was directed to be paid to the injured by way of compensation. He was, however, extended the benefit of section 382-B, Cr.P.C.
2. The prosecution story in brief is that Rehmat All (deceased) and his brother Ahmad Din complainant resided, alongwith their members of family, in the same lane at village Jandiala Sher Khan in District Sheikhupura. The appellant and acquitted co-accused, both of whom were young men, often indulged in holiganism in front of the house of Rehmat Ali (deceased) who alongwith his son Anwar P.W. Has strictly asked them twice or thrice not to do so. This had caused annoyance to them.
3. In this background on 29-11-1985 at 1-45 p.m. When Khalid, another son of Rehmat All (deceased) was standing in the lane in front of the house of Allah Ditta, the appellant and his acquitted co- accused came to him and asked him to call out his father and brother Anwar P.W. From their house but he refused to accede to their request. They got annoyed on his refusal and started slapping him as a result of which he raised alarm. Hearing his cries, Ahmad Din complainant hurriedly came out of his house and found that his nephew Khalid aged about 13 years was being beaten by them near the house of Allah Ditta. Meanwhile Rehmat Ali (deceased) and Anwar P.W. Also reached there. Farman Ullah acquitted co-accused caughthold of Anwar P.W. And felled him on the ground.
When he was so lying, Nasir alias Bittu appellant inflicted two dagger blows on the person of Anwar P.W., hitting his left flank: Rehmat Ali (deceased) in order to rescue his son stepped forward but Farman Ullah acquitted co-accused exhorted his companion Nasir alias Bittu appellant to finish him as he had often been pestering him. Thereupon the appellant gave a `chhurri' blow to Rehmat Ali (deceased), hitting the left side of his neck. Receiving this injury he fell down. During the occurrence Allah Ditta and Ahmad Din P.Ws. Also reached the spot and they too saw the incident.
They even tried to apprehend the assailants but they ran away after posing them threats and warding them off.
4. Ahmed Din complainant removed Rehmat Ali and Anwar P.W. In an injured condition to Civil Hospital, Sheikhupura by means of a wagon but reaching there the former expired. Anwar P.W. Was, however, admitted to the hospital and, after obtaining his medico-legal report, Ahmad Din proceeded to Police Station (Saddar) Sheikhupura for lodging the report but on the way he came across S.I. Muzaffar Hussain, to whom he narrated the occurrence and he recorded his statement (Exh.P.F.). After the registration of the case, the S.I. Took up its investigation. He got the post-mortem examination of the dead body of Rehmat Ali carried out and prepared the injury statement of Anwar P.W. Who stood admitted to Civil Hospital, Sheikhupura. He then proceeded to the spot and took necessary proceedings. On 29-11-1985 both the accused appeared before him at Police Station (Saddar) Sheikhupura and he arrested them as accused in this case. On 6-12-1985 Nasir alias Bittu got recovered blood-stained 'churri' (P-6). On 9-12-1985 he recorded the statement of Anwar P.W. In the hospital after ascertaining his fitness. In this way he completed the investigation and submitted the challan against both the accused to the Court concerned for trial.
5. On the commencement of the trial, the appellant and his acquitted co- accused were charged under section 302/34, P.P.C. For the murder of Rehmat Ali and under section 307/34, P.P.C. For the attempted murder of Anwar P.W. On their pleading not guilty the prosecution produced as many as 15 witnesses. Excepting Dr. Khalid Yazdani (P.W.2), Dr. Asif Mahmood (P.W.4), Ahmad Din complainant (P.W.7), Muhammad Anwar (P.W.8), Khalid (P.W.9), Allah Ditta (P.W.10) and S.I. Muzaffar Hussain (P.W.15), the rest of the witnesses were formal. To be a little more precise, Dr. Khalid Yazdani (P.W.2) deposed that on 30-11-1985 he conducted post-mortem examination on the dead body of Rehmat Ali aged about 60 years and found a stab wound 3 c.m. x 0.5 c.m. x deep to neck on the left side of neck. On internal examination the blood vessels of left side of neck were found to have been cut. In his opinion, death occurred due to the severe shock and haemorrhage from the said injury.
6. Dr. Asif Mahmood (P.W.4), who had carried out the medico-legal examination of Muhammad Anwar P.W., stated that he had observed incised wound 3 c.m: x 1 c.m. On the left illiac fossa and another incised wound 6 c.m. x 1 c.m. On the lateral side of abdomen just above illiac crest and 4 c.m. Back from the injury No,1. According to him, both these injuries were kept under observation and were ultimately declared simple in nature. He proved the medico-legal report (Exh.P.C.).
7. Ahmad Din (P.W.7), Muhammad Anwar (P.W.8), Khalid (P.W.9) and Allah Ditta (P.W.10) gave, the eye-witness account. Their testimony shall be subjected to detailed appraisal, where necessary. S.I.
Muzaffar Hussain (P.W.15) gave the details of investigation.
8. The appellant and his acquitted co-accused, in their respective statements recorded under section 342, Cr.P.C. Denied all the incriminating circumstance figuring against them in the prosecution evidence and, alleging their false implication, professed innocence. They declined to appear as their own witnesses under section 340, Cr.P.C.
9. On the conclusion of the trial, vide judgment, dated 10-6-1987, where Farman Ullah co-accused was acquitted on benefit of doubt, Nasir alias Bittu appellant was convicted and sentenced in the manner aforesaid and aggrieved by it, he came up in appeal.
10. It is argued on behalf of the appellant that the recovery of blood-stained Chhuri (P.7) was allegedly witnessed by Masood Akbar and Allah Ditta P.Ws. But the former was never examined as a prosecution witness while the latter was an interested witness, being closely related to the deceased. In his opinion, the recovery of blood-stained Chhuri (P.7) did not provide any corroboration, particularly when Allah Ditta P.W. Was also an eye-witness and deposed accordingly. In this connection lie cited 1982 P Cr. L J 1204.
11. Masood Akbar was one of the two witnesses who had witnessed the recovery of blood-stained Chhuri (P.7) at the instance of the appellant but he was not produced by the prosecution. His non- production was not fatal to the prosecution case on the point of recovery because Allah Ditta P.W., another witness of recovery, had been produced and he had amply proved the same. He was no doubt related to the deceased and was also an eye-witness of the occurrence but neither of them was a legal infirmity sufficient to discard his testimony on the factum of recovery of the blood- stained Chhuri (P.7) because he had no previous enmity with the appellant and had no reason to falsely depose against him.##TE ##
12. Much stress was laid by the learned counsel for the appellant on the variation regarding the number of injuries mentioned in the F.I.R. And the postmortem report . According to him, as per contents of the F.I.R., the appellant inflicted two Chhurri blows on the person of Rehmat Ali (deceased), while as per post-mortem report there was only one injury on the left side of his neck.
This discrepancy is no doubt apparent but it does not adversely affect the prosecution case. At the most it can discredit the testimony of Ahmed Din complainant but in this case there was an injured witness, namely, Muhammad Anwar (P.W.8), whose presence at the spot cannot be doubted. He had categorically deposed that the appellant had given one Chhurri blow on the left side of the neck of his father Rehmat All (deceased) after he had given two Chhuri blows to him (witness) on his left flank. There was, therefore, no substance in this contention of the learned counsel as well.##TE ##
13. It was urged that Farman Ullah, who had been assigned a specific role in the occurrence, was acquitted by the trial Court on the benefit of doubt and his acquittal had the necessary effect of falsifying the entire prosecution story. There is no force in this contention either. Farman Ullah was assigned the role of grappling with Muhammad Anwar P.W. And felling him down, thereby enabling the appellant to inflict two Chhuri blows on his flank. With regard to Rehmat Ali (deceased), he had allegedly raised a Lalkara exhorting the appellant to finish him. For this innocuous role he was given the benefit of doubt more as a matter of abundant caution than for any other reason. The injuries to two persons, one of whom died and the other survived, by itself indicated that there were more than one assailants and even Farman Ullah co-accused could be convicted if the trial Court had so wished. He should thank his stars that he was acquitted by the trial Court and nobody from the complainant side came forward to challenge his acquittal. Therefore, his acquittal cannot be made a ground to pick holes in the prosecution story so far as the liability of the appellant is concerned.
14. The learned counsel for the appellant has also tried to undermine the validity of the F.I.R. By making reference to certain minor discrepancies with reference to the contents of the 'daily diary' but there was nothing of note to necessitate detailed discussion.
15. Therefore, in my view, the prosecution had fairly succeeded in proving the guilt of the appellant beyond any shadow of doubt and he was rightly convicted and sentenced by the trial Court on both the charges, the sentence of which shall, however, run concurrently. Therefore, the appeal is dismissed.
16. Since the appellant is on bail, the learned District Magistrate, Sheikhupura, to whom a copy of this judgment should be endorsed, is directed to immediately cause his arrest and send him to the prison for serving out his remaining sentence, under intimation to the Deputy Registrar (Judl.) of the High Court.