' ZIA MAHMOOD MIRZA, J.---This appeal by leave of Court is directed against the judgment of Lahore High Court, dated 6-12-1992 acquitting the respondent Javed Sarwar of the charge of murder.
2. Javed Sarwar respondent and his co-accused Muhammad Arshad, both police constables, were tried under section 302/34, P.P.C. For the murder of Saif Ullah. Learned Additional Sessions Judge, Sheikhupura by his judgment, dated 9-9-1991 acquitted Muhammad Arshad, accused and convicted the respondent under section 302, P.P.C. And sentenced him to life imprisonment with a fine of Rs,10,000 and in default to undergo further R.I. For one year. The respondent was also directed to pay Rs,10,000 as compensation to the heirs of the deceased under section 544-A, Cr.P.C. And in default thereof, to undergo R.I. For a further period of six months. On appeal by the convict, learned Single Judge of Lahore High Court acquitted him giving him benefit of doubt.
Khadim Hussain, complainant, filed a petition for leave to appeal to, challenge the acquittal of the respondent. His petition was time-barred by 45 days. Leave to appeal was, however, granted to him subject to limitation, as it was found that prima facie there was misreading of material statements of Muhammad Malik P.W.4 and Pervez Iqbal P.W.S.
3. Case of the prosecution in nutshell was that on 19-5-1989 at about 10-00 p.m., the deceased Saif Ullah accompanied by his friends Muhammad Malik P.W.4, Pervez Iqbal P.W.5, Mushtaq Ahmad and Abdul Ghafoor (given up P.Ws.) had gone to 'Meta of Pir Bahar Shah'. When they reached Chowk Pir Bahar Shah near the Lorry Adda, the respondent, a Police Constable who at the relevant time was in plain clothes met them and tried to search them. Saif Ullah deceased resisted but the respondent searched his person forcibly and took away Rs,35 from his pocket on which an altercation took place between them. The respondent called some other constables in uniform and all of them started giving beating to the deceased and took him to Lorry Adda. The deceased's companions on seeing the policemen ran away but after some time they looked for the deceased and after about an hour found his dead body lying on the road. Pervez Iqbal P.W. Then informed the complainant who came to the place of occurrence, took the dead body of his brother to hospital and later on lodged information with the police.
4. Post-mortem examination of the dead body of Saif Ullah deceased was conducted by Dr. Manzoor Hussain Kazmi, who at the relevant time was Medical Officer, D.H.Q. Hospital, Sheikhupura.
He found following injuries on the person of the. Deceased:---
(1) Whole of the scrotum was contused, congested and an healed abrasion 8 c.m. x 7 c.m. Present over the frontal aspect, both the testes were contused and haemorrhage, Clotted blood present around and in the substance of the testes. All the soft tissues under skin of the scrotum was ecchymosed.
(2) An abrasion 1.5. c.m. x 1.5. c.m. On the bridge of the nose upper part
(3) An abrasion 4 c.m. x 2 c.m. On the front of tip of nose and on the right side of nose, underlying nosal bone was fractured.
(4) A lacerated 1 c.m. x 1 c.m. x 0.5 c.m. On the inner surface of upper lip mid part with an abrasion 0.5 c.m. x 0.5 c.m. On the outer surface, of upper lip mid part.
(5) An abrasion 9 c.m. x 2.5 c.m. On the right of the face right cheek just under the right eye.
5. At the trial, the prosecution rested its case on the ocular testimony and the medical evidence.
Ocular testimony was furnished by Muhammad Malik P.W.4 and Pervez Iqbal P.W.S. Both of them deposed that on the night of the occurrence, they had accompanied Saif Ullah deceased to witness 'Mela Peer Bahar Shah'. They reached 'Mela Peer Bahar Shah' at about 10-00 a.m. Javed Sarwar and Muhammad Arshad accused were present there in civil dress. Javed Sarwar wanted to search the person of the deceased who resisted but Javed Sarwar searched him forcibly and took out Rs,35 from his pocket. Saif Ullah demanded back his money which resulted in an altercation between him and the accused. Javed Sarwar then started beating the deceased with kicks and fists while Muhammad Arshad accused put the turban around the neck of the deceased and took/dragged him towards footpath at Lorry Adda. The accused then called out the constables in uniform. On seeing the police, they hid themselves behind the buses. Later, they found the dead body of Saif Ullah lying there. Dr. Manzoor Hussain Kazmi was stated to have died in a car accident and his report of post-mortem examination of the deceased was proved by Muhammad Akram, Dispenser, P.W.12.
6. The accused when examined under section 342, Cr.P.C. Denied the allegations levelled against them. Javed Sarwar, respondent, stated that he was falsely implicated in the case due to suspicion on the instigation of the local police of Police Station 'A' Division, City Sheikhupura. He was not present at the spot and was absolutely innocent. Muhammad Arshad took the plea of alibi and also stated that he was not named in the F.I.R. In their defence, the accused examined Rana Muhammad Aslam, D.S.P., who at the relevant time was posted as Inspector, CIA., Sheikhupura and had conducted final investigation of the case. He deposed that he had examined many persons, who had stated that Saif Ullah deceased was given beating by a Head Constable and two Constables in uniform and as a result of his investigation, he gave an opinion that participation of the two accused was doubtful.
7. Learned trial Court after appraisal of the evidence on record found the case against Arshad accused to be doubtful for the reasons that his name was not mentioned in the F.I.R. And it was only during the trial that he was implicated; that he had set up a strong plea of alibi which was supported by documentary evidence; that his participation was also found doubtful by the Investigating Agency and even the role attributed to him was negated by the absence of any marks of violence around the neck of the deceased. As regards the respondent, finding of the learned trial Court was that 'the prosecution has successfully established that it was Javed Sarwar, accused, who had taken out an amount of Rs,35. It also stands proved that there was an altercation between Saif Ullah deceased and accused Javed Sarwar and that thereafter Javed Sarwar accused had given kicks and fists blows on the person of Saif Ullah deceased, which resulted in his death. There is absolutely no reason to disbelieve the statements of P.W.4 and P.W.5 as there was absolutely no motive for them to falsely implicate an innocent person in such a heinous crime like murder. So the ocular account fully connects Javed Sarwar with the commission of the crime". With reference to post-mortem .Report, the learned Judge observed that there were five injuries on the person of the deceased out of which injury No,1 was dangerous and injury No,3 was grievous and that "both were individually and collectively sufficient to cause the death". With these findings/observations, the learned trial Judge found the respondent guilty of the charge of murder, convicted him under section 302, P.P.C. And sentenced him as aforesaid while the respondent's co-accused (Arshad) was acquitted by giving him benefit of doubt.
8. On appeal, the learned Judge in the High Court while appraising the prosecution evidence pointed out a discrepancy in the statements of Khadim Hussain complainant P.W.3 and Muhammad Rafique S.I. P.W.7 by observing that while the former stated that he had taken the dead body of the deceased from Lorry Adda to Civil Hospital, the statement of P.W.7 was that after recording Exh. P.C. (the statement of the complainant on the basis of which formal F.I.R. Was registered), he proceeded to the spot and found the dead body of the deceased lying there at Lorry Adda. The learned Judge further observed that "P.W.4 Muhammad Malik and P.W.5 Pervaiz Iqbal have not specifically stated that they had witnessed the appellant causing an injury to the deceased". The learned Judge also observed that the evidence of these two witnesses regarding the dragging of the deceased by the respondent-accused and putting a turban around the neck of the deceased by the co-accused of the respondent was not in conformity with the medical evidence in so far as "no ligature marks or bruises were found on the dead body of the deceased by the doctor, who conducted the autopsy". Learned Judge also noted that P.W.4 made improvement in his previous statement while stating that "the acquitted co-accused (Arshad) had wrapped a turban in the neck of the deceased". The learned Judge further proceeded to hold that "the doctor had not found marks of any fist blows on the dead body of the deceased and had found all the five injuries caused by blunt weapon. There is no eye-witness of the case i,e, who had actually seen the appellant causing blunt weapon injuries to the deceased. The ocular testimonies furnished by the statements of P.W.4 and P.W.5 are not in consonance with the medical evidence on record. There is no recovery of any incriminating article at the instance of the appellant. P.Ws. 4 and 5 have stated that they had seen the deceased last alive with the appellant, but nobody knows what happened thereafter". The learned Judge accordingly took the view that the case against the respondent-accused was not free from doubt and thus acquitted him of the charge giving him benefit of doubt vide the judgment impugned in this appeal.
9. We have heard the learned counsel appearing for the appellant and the respondent. We shall first deal with the question of limitation which was left open in the above-grant order. Petition for leave to appeal filed by the appellant was barred by 45 days. The explanation furnished in the application for condonation of delay filed along with the leave-petition is that the appellant had engaged a counsel in the High Court and had also filed a power of attorney, but when the appeal of the convict, respondent herein, was fixed for hearing, the name of his (appellant's) counsel did not appear in the cause-list with the result that the appeal was heard in his absence and without notice to him. The appellant came to know about the acquittal of the respondent later on and the moment he came to know of it, he applied for copies of the judgment and filed a petition for leave to appeal in this Court without any delay. The factual position stated in the application for condonation of delay is supported by an affidavit and it has not been controverted by the learned counsel for the accused-respondent. He, however, contended that in view of the law laid down by this Court in the cases reported as Abdul Qayyum v. Ghulam Yasin PLD 1963 SC 151, Mst. Rabia Bibi v.
Rasool Bakhsh and 2 others PLD 1966 CS 531 and Mst. Zeenat Sultan v. Mumtaz Khan and 9 others PLD 1994 SC 667, delay in an appeal filed by a private complainant against an order of acquittal cannot be condoned. We find no merit in this contention. Question as to whether delay in a petition/appeal competently filed against a judgment of acquittal, should or should not be condoned, has to be decided on merits keeping in view the facts and circumstances of each individual case. It may pertinently be observed that even in the case of Mst. Zeenat Sultan cited by the learned counsel which too was a case of an appeal with the leave of the Court filed by the mother of the deceased against acquittal of the accused persons), this Court after noticing the principle enunciated in some earlier cases saying "once a charge for capital offence, duly tried, results in acquittal, the accused person acquires a very precious right and he should not, therefore, be put in jeopardy of his life by a petition for leave to appeal out of time. The law that enables interference with acquittal must, therefore, be strictly applied in favour of the accused person", proceeded to decide the application for condonation of delay on merits holding that "the reasons stated by the appellant in support of her application for condonation of delay besides being conflicting, are totally vague. She has failed to make out a case for condonation of the delay in filing the petition for leave to appeal". Appeal of Mst. Zeenat Sultan was accordingly dismissed as time-barred. Considering the plea of the appellant herein on merits, we are persuaded to accept the explanation offered by him for the delay in filing the petition in this Court as genuine and valid.
As noted above, the plea of the appellant that he had engaged a counsel to represent him in the High Court, but his name was not mentioned in the cause list issued for the date fixed for hearing of the respondent's appeal has not been denied by the respondent and it is also borne out from the copy of the cause list available on the present record. We, therefore, have no hesitation in accepting the appellant's contention that he had no knowledge of the hearing and decision of the appeal resulting in the respondent's acquittal and that as soon as he came to know of the order of acquittal passed by the High Court, he took necessary steps without any loss of time to challenge it in this Court. In the circumstances, we condone the delay in filing the leave petition.
10. 'Coming now to the case on merits, we find on perusal of the evidence on record that the learned Judge in the High Court misread the evidence and misconstrued the prosecution case in recording the afore noted findings and holding on the basis thereof that the case against the respondent was not free from doubt. As noted above, the learned Judge sought to highlight the discrepancy/inconsistency in the statement of Khadim Hussain complainant and the statement of P.W.7 Muhammad Rafiq, S.I. By observing that while P.W.3 Khadim Hussain stated in his complaint Exh. P.C. That he had taken the dead body of his deceased brother Saifullah from Lorry Adda, Sheikhupura to the Civil Hospital, P.W.7 had stated that after recording the statement Exh.P.C. He proceeded to the spot and "found the dead body of the deceased lying there at the Lori Adda and prepared injury statement Exh.P.D. And inquest report Exh.PE." We have gone through the evidence of P.W.7 and find that he has made no such statement that he found the dead body of the deceased lying at the Lorry Adda. The statement in question attributed to him appears to be conjectural. Even otherwise, factual position forthcoming from the record negates the assumption/observation of the learned Single Judge. It may be stated in this behalf that in the police `Karwai' on the complaint of Khadim Hussain, Muhammad Rafiq SI is shown to have reached the D.H.Q. Hospital, Sheikhupura where the dead body of Saif Ullah deceased was lying on `Charpai' and it appears that it was in the hospital that he prepared the injury statement and inquest report of the deceased. This piece of evidence seems to have escaped the notice of the learned Judge.
Be that as it may, the so-called discrepancy pointed out by the learned Judge is clearly the result of misreading of the evidence of P.W.7.
' The learned Judge in the High Court was also in error in observing that P.W.4 Muhammad Malik and P.W.5 Parwaiz Iqbal did not specifically state that they had witnessed the accused respondent causing injury to the deceased and then taking the view "there is no eye-witness of the case, i,e, who had actually seen the appellant causing blunt weapon injuries to the deceased". This finding observation of the learned Judge is the result of gross misreading of evidence of the two eye- witnesses. Both of them have categorically stated in their examination-in-chief that when the deceased demanded back his money which the accused-respondent had forcibly taken out of his pocket, the accused-respondent started beating the deceased with fists and kicks. They have further deposed in their cross-examination that they had been seeing the accused respondent when he had been giving the kick blows on the testicles of the deceased.
' The learned Single Judge was also wrong in holding that the ocular testimony was not in consonance with the medical evidence. The injuries mentioned in the post-mortem report could well be caused by the kicks and fist blows attributed to the accused-respondent. It was rightly observed by the learned trial Judge that "the aim of the accused Javed Sarwar for his kicks was the testicles. It appears that he used kicks so furiously that these were completely contused and ecchymosed.' In our view, medical evidence fully supports the eye-witness account in so far as it relates to the accused-respondent. It appears that the learned Judge was under an erroneous impression that the injuries on the person of the deceased were inflicted by some blunt weapon like Sota or Dang and it was for this reason that he observed that there was no recovery of any incriminating article at the instance of the accused-respondent. It may pertinently be observed that even the injuries caused by kicks and fists could appropriately be described as having been caused by a blunt weapon. That being so, there was no question of recovery of any incriminating article. It is true that no ligature marks or bruises were found on the dead body of the deceased by the doctor who conducted the autopsy, but this circumstance cannot be pressed against the accused-respondent as it was his co-accused Arshad who, according to the prosecution case, had put the turban around the neck of the deceased and dragged him. The learned Single Judge has erroneously observed that both the eye-witnesses had stated that the deceased was dragged by the accused respondent. Testimony of the two eye-witnesses does not support this observation.
On the contrary, they deposed that it was Arshad accused who had put the turban around the neck of the deceased and according to P.W.5, Arshad accused had dragged the deceased towards the outer gate. Needless to observe that Arshad accused was acquitted by the trial Court for the reason, inter alia, that the role attributed to him was negated by the absence of any marks of violence around the neck of the deceased.
11. The foregoing discussion quite clearly shows that the reasons given and the findings recorded by the learned Single Judge are not supported by the evidence on record and are in fact based on gross misreading thereof. On reexamination/reappraisal of the evidence on record, we are satisfied that the case against the accused respondent for causing the death of Saif Ullah deceased by giving him kicks and fist blows is fully proved by the ocular testimony furnished by two eye-witnesses, which is amply supported by the medical evidence. Out of the two eye- witnesses, Parwaiz Iqbal P.W. Was related to the deceased and the complainant, but Muhammad Malik P.W. Is quite an independent person and in any case, none of them had any enmity against the accused-respondent and as such they had no reason/motive to falsely implicate him in this case. In the circumstances, we hold that since the accused respondent was responsible for taking away the life of an innocent person, his clean acquittal has resulted in grave miscarriage of justice.
The impugned judgment of the High Court acquitting the accused-respondent cannot, therefore, be sustained and the same is accordingly set aside.
12. Next question which requires determination is as to what precise offence has been committed by the accused-respondent. As noted above, there were five injuries on the person of the deceased out of which injury No,1 was stated to be dangerous to life, injury No,3 was declared grievous and the rest of the injuries simple in nature. The doctor who conducted the autopsy, however, did not give the cause of death which he postponed till after the, receipt of the report of the Chemical Examiner, but by the time the requisite report was received the doctor had died in an accident. The fact thus remains that the medical evidence did not state the cause of death of the deceased.
Apart from this, we also find that there was no previous enmity between the accused-respondent and the deceased. According to the prosecution case, the occurrence had taken place all of a sudden and the deceased was given only kicks and fist blows by the accused-respondent which resulted in his death. In the circumstances, it cannot possibly be held that the accused-respondent intended to kill the deceased or to cause him such injuries as would in ordinary course cause death. It is also difficult to hold in the circumstances of the case that the accused-respondent knew or had reason to believe that the injuries he was inflicting on the deceased were likely to cause his death. At the most the accused respondent, by inflicting kicks and fist blows, could only be said to have intended to cause grievous hurt and he actually did cause the grievous hurt to the deceased which unfortunately resulted in his death, but which result, in all probability, the accused respondent never contemplated. In this view of the matter, the offence committed by the accused respondent falls within the purview of section 325, P.P.C. He is accordingly convicted under section 325, P.P.C. And sentenced to seven years' R.I. With a fine of Rs,10,000 or in default to undergo further R.I. For six months. It is further directed that the amount of fine, if recovered, shall be paid to the legal heirs of the deceased. The appeal is allowed in these terms.
' It may be stated that the appeal was allowed by a short order dated 28-3-1995 for reasons to be recorded later, which reasons have been set forth in this judgment.