' Zahoor Elahi alias Jhoora appellant aged 28 years was tried in the Court of learned Additional Sessions Judge, Gujrat alongwith Inayat, Talib and Khundi co-accused. Through judgment dated 29-1-1995 the learned trial Court acquitted Inayat, Talib and Khundi while the appellant was convicted under section 315, P.P.C. And sentenced to 14 years' R.I as Tazir and also directed to pay Rs,2,00,000 as Diyat to the legal heirs of the deceased.
2. Feeling aggrieved the appellant has challenged his conviction and sentence through the present appeal while the complainant has challenged the acquittal of the three co-accused and also prayed that the sentence awarded to the appellant be enhanced through the connected Revision Petition No,183 of 1995. Both the appeal and the revision petition have been heard together and are disposed of by this single judgment.
3. The occurrence took place on 14-1-1993 at 4-00 p.m. At the shop of Muhammad Siddique situated in Sabzi Mandi, Gujrat within the area of Police Station Civil Lines being at a distance of three miles from the said place of occurrence.
4. Nawab Khan (P.W.5) father of the deceased Abdul Ghafoor got recorded his statement Exh.P.D.
Before Muhammad Azam A.S.-I./P.W.9 at Chowk Ramtali, Gujrat on 15-1-1993 at 6-00 p.m. The said statement was sent to the Police Station where on its basis Mukhtar Ahmed Moharrar (P.W.7) recorded formal F.I.R. Exh.P.D./1.
5. Briefly the facts as stated by Nawab Khan complainant are that on 1-4-1993 at 4-00 p.m. He alongwith his three sons, namely, Abdul Ghafoor (since deceased), Mukhtar Ahmed and Anwar had brought scrap for sales to the shop of Muhammad Siddique situated in Fruit Market, Gujrat and they found present over there all the above given four accused, who also run the same business.
Abdul Ghafoor asked Manzoor alias Jhoora accused for repayment of loan of Rs,2,000 to him which he availed 15/20 days prior thereto upon which Manzoor alias Jhoora started grappling with Abdul Ghafoor, Talib and Inayat accused raised Lalkara that get hold of Abdul Ghafoor and teach him a lesson for making demand for return of the loan upon which Manzoor alias Jhoora accused gave an iron bar blow on the head of Abdul Ghafoor, who as a result fell down whereafter Khundi accused who was armed with carbine gave Butt blow with it on the left eye of Abdul Ghafoor whereafter he became unconscious and then all the four accused started dancing and jumping over Abdul Ghafoor who was lying on the ground. The complainant and his two other sons who were witnessing the occurrence made entreaties to the accused, who ran away towards Shadiwal Road while abusing. The injured Abdul Ghafoor thereafter was taken to the local hospital, wherefrom he was referred to Lahore for treatment where he died during the night of 15/16th January, 1993.
6. The accused and the appellant were arrested in the abovesaid case on 18-1-1993. Inayat, Khundi and Talib co-accused were found innocent and only the appellant was challaned and sent up for trial. On 18-1-1993 Zahoor Elahi also got recovered Sarya Exh.P.4 which was taken into possession vide memo.
' Exh.P.B. In the presence of Umar Hayat P.W.2, Muhammad Azam P.W.9 and Muhammad Khalid (not produced).
7. The learned trial Court summoned Khundi, Talib and Inayat co-accused to face trial and the prosecution produced as many as nine witnesses to prove the charge against all the accused before the Court. After the close of evidence the accused were examined under section 342, Cr.P.C.
And in answer to question No,6 Khundi accused made the following statement:-- "On the day of occurrence while I was at the shop of Siddique where deceased fell down on the scrap while riding the bicycle. Siddique shopkeeper told the deceased that his scrap was muddy and it should be made clean on which I supported the shopkeeper, the deceased grappled with me and during that scuffle fell down on the scrap and he became unconscious. He was removed to the hospital who later on died. As I was not at fault, I was declared innocent. But the complainant party with the connivance of police got me and my brother Ghafoor involved in the case by giving him fictitious name of Zahoor Elahi alias Zahoora."
' Talib and Inayat accused denied the prosecution case while Zahoor Elahi in answer to question No,7 has stated as under:-- "I am innocent and have been involved falsely. In fact the deceased while on cycle grappled with Manzoor accused and fell down on the scrap in the shop of Siddique who later on died due to the fall. Nobody gave him any injury. The police declared Manzoor innocent but later on with the connivance of the complainant party got me involved being brother of Manzoor giving me the name as Zahoor Elahi alias Zahoora although my name is Abdul Ghafoor. This has been manoeuvred by the complainant."
' He has also submitted two documents Exh.D.B. And Exh.D.C. In his defence.
8. The deceased was medically examined on 14-1-1993 at 5-30 p.m. By Dr. Tahir Khalil Uppal P.W.8 and Dr. Tahir Rashid (P.W.3) performed the autopsy on the body of Abdul Ghafoor on 16-1-1993 at 4-10 p.m. And found the following injuries on the person of the deceased:--
(1) An abrasion measuring 5 c.m. x 3 c.m. On right lateral aspect of right shoulder.
(2) An abrasion 1 c.m. x 1 c.m. On right middle of scapular region. There was scab formation on both the abrasions.
(3) Swelling measuring 4 c.m. x 3 c.m. On right temporal region.
(4) Blackening present around left eye.
' Injury No,3 on the right temporal region of the deceased was opined to be fatal and sufficient to cause death in the ordinary course of nature.
9. With the assistance of the learned counsel for the appellant I have gone through the entire record of the case and perused the evidence adduced at the time of trial. The learned counsel for the complainant while controverting the arguments of the defence has prayed that not only the conviction and sentence of the appellant be maintained but the same be enhanced. He has very candidly stated that he is not pressing the revision petition as far as the acquittal of the three accused Inayat, Talib and Khundi are concerned. Hence to this extent the revision petition stands disposed of as not pressed. The learned counsel for the State has also argued his case and he also supports the judgment and prays that the conviction and sentence be maintained.
10. The record perused and arguments heard.
11. The main thrust of the defence for the acquittal of the appellant is firstly that Nawab Khan and Anwar P.Ws. Were not present at the time of occurrence and secondly that the appellant has been substituted, he was not mentioned in the F.I.R. And is thus innocent. To substantiate this point the learned counsel has referred to the contents of statement Exh.P.D. Wherein it is mentioned that Manzoor alias Jhoora son of Inayat, Khundi son of Inayat, Talib son of Inayat and Inayat son of Muhammad Bakhsh were the persons present at the time of occurrence. In his statement recorded at trial the complainant has admitted that Inayat accused is his real brother and that Khundi, Talib, Ghafoor, Liaquat, Muhammad Saleem and Ashiq are the six sons of his brother. It is also stated in this statement that Khundi is also known as Manzoor alias Jhoora. Inayat accused has no son by the name of Zahoor alias Zahoora. Abdul Ghafoor was never mentioned as an accused in F.I.R. By his real name but has now been challaned under this alias of Zahoor alias Zahoora. In fact this alias was admittedly affixed with the name of Manzoor alias Jhoora alias Khundi. It is not understandable why the complainant who is the uncle of the accused does not know the names of his nephews and is creating blunder and confusion in names and alias. Firstly he very clearly says that Manzoor alias Jhoora and Khundi are sons of Inayat are two different persons but later on he says that Manzoor alias Jhoora is actually Khundi. Then he changes his stance to say that his nephew Abdul Ghafoor is Zahoor Elahi alias Zahoora the appellant who was never mentioned in F.I.R. By his name or alias. This confusion created by the complainant is neither healthy nor in any manner to his advantage. The police found that all accused mentioned in F.I.R. Were innocent and placed them in column No,2. Abdul Ghafoor was challaned under alias as Zahoor alias Zahoora though it was never mentioned as an accused in the F.I.R. Which was recorded after a considerable delay on 15-1-1993 almost after 26 hours of occurrence. The complainant was fully aware of the fact that Inayat had no son by name of Zahoor alias Zahoora and that Abdul Ghafoor whose marriage he had attended in 1988 was never called by this alias and yet he kept quiet and deliberately gets the appellant to be prosecuted on a very serious charge. This fact coupled with the fact that Nawab and Anwar P.Ws. Never accompanied the deceased to the hospital rather the name of Mukhtar is mentioned in the M.L.R. It can be presumed that both these P.Ws. Were not present at the time of occurrence. Mukhtar who could be placed at the spot was never produced as a witness. The most natural and independent witness was Muhammad Siddique the shopkeeper where the occurrence took place who has not been produced. The only assumption which can be drawn is that he was not supporting the prosecution case and for that reason his evidence has been suppressed.
12. The defence version put forward by Khundi co-accused cannot be ignored. The appellant while supporting this version has explained that he is actually Abdul Ghafoor and he is innocent and has been falsely challaned under this alias. Keeping both the versions in juxtaposition one fact that emerges clearly is that the complainant and his son Anwar who are eye-witnesses in this case are not sure who out of the sons of Inayat is responsible for the death of the deceased or the manner in which the occurrence initiated and culminated. All the persons named by them in F.I.R. Have been declared innocent and the person who was not seen at the spot by them nor named in F.I.R. Has been saddled with this murder by the police. It is also very strange attitude of an uncle that knowingly Abdul Ghafoor is not called by this alias he allows prosecution of an innocent person under a false name and alias. How can this Court believe the statement of such a person. Thus, the defence version appears to be nearer the truth and I have no hesitation to accept the same.
Hence, the natural result which follows is that the benefit of doubt is extended and given to the appellant and his appeal is accepted. The conviction and sentence awarded to him is set aside. He shall be released and set at liberty forthwith if not required in any other case. The revision petition is devoid of force and is accordingly for reasons stated above dismissed.