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Criminal Appeal No. 485 of 1981, decided on 20th February, 1983.
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--S.304 (I)‑Motive‑Prosecution not proved motive‑Its conduct, held, must react against case generally.
‑‑S).304(I)‑Presence of prosecution witnesses not established at place of occurrence‑Trying to hazard guesses about injuries iii cross examination‑Accused given benefit of doubt and acquitted.‑[Benefit of doubt).
Kh. Muhammad Sharif for Appellant.
Muhammad Altaf Khan for the State.
Dates of hearing :19th and 20th February, 1983.
Abdul Aziz was tried by an Additional Sessions Judge of Lahore under section 302, P. P. C. for the murder of Nasrullah, deceased. The learned trial Judge, by his judgment dated 28th July, 1981, convicted Abdul Aziz under section 304‑1, P.P.C. and sentenced him to life imprison ment with a fine of Rupees ten thousand (Rs. 10.000) or in default thereof to further rigorous imprisonment for two years. Half of the fine, if ‑ rea lized, was ordered to be paid to the heirs of Nasrullah, deceased, as com pensation under section 544‑A., Cr. P. C. The appeal (Cr. A. 485 of 1981) filed by Abdul Aziz, convict, is now before me for disposal.
2. The prosecution case is that on 27th September, 1980 at about 4‑00 p. m. Abdul Aziz, accused, on seeing Nasrullah, deceased, shouted a lalkara that he would teach him a lesson for abusing him and immedi ately picked a sua from his rehra and attacked Nasrullah, deceased, with it, causing him one injury on the left upper arm and another on the front and the right side of the chest. When the deceased fell on the ground, Abul Aziz, accused, picked up brickbats and flung them at the deceased, injuring him on the head, as a result of which the deceased became unconscious. The occurrence was witnessed by Naeem Akhtar P. W. 3, a brother of the deceased, and by Khalid P. W. 7, Shaukat alias Thanedar rickshaw driver P. W. 5 and Sohbat Khan (given up P. W.). Nasrullah, deceased, was rushed to the Mayo Hospital, Lahore, by Naeem Akhtar P. W. 3 but he died on the way. The motive for the incident is that on the morning of the day of occurrence, Abdul Aziz, accused, and Nasrullah, deceased, had a scuffle in front of their respective houses and in order to avenge the insult, the accused assaulted the deceased in the evening when he came out from the Ever New Studio. Naeem Akhtar P. W. 3, on the way back from the hospital, had his statement Exh. P. B. recorded at Chauk Samanabad by Sakhawat Ali S.‑I., P.W. 10 at 5.10 p. m. On the basis of the said statement, formal F. I. R. Exh. P. B/1 was recorded at Police Station Nawan Kot by Muhammad Akbar A. S‑I., P. W. 9 at 5‑25 p. m.
3. Abdul Aziz, accused, presented himself at the spot before Sakhawat Ali S.‑1. P. W. 10 who arrested him. He produced the blood‑stained Sua P. 4, which was also taken into possession, vide memo. P. F. in the presence of Khalid Pervaiz P. W. 7, Sakhawat Ali S.‑I. P. W. 10 and Sohbat Khan (given up P. W.).
4. On 28th September, 1980 at 10‑30 a. m. Dr. Tahir Anees P. W. 4 conducted the post‑mortem examination on the dead body of Nasrullah, deceased, and found the following injuries on it:‑
(1) Punctured lacerated wound 7 x.5 cm left part fore‑head.
(2) Punctured lacerated wound 5 x.5 cm left part of head.
(3) Lacerated wound 5 c m x 5. cm back left part of head.
(4) Punctured lacerated wound .8 cm x 6 cm upper front right part of chest.
(5) Punctured lacerated wound .5 .x .5 c m. upper outer left arm.
Injuries Nos. 1, 2 and 3' were found to be muscle deep, while injury No. 4 had penetrated into chest cavity. Injury No. 4 was individually sufficient to cause death in the ordinary course of nature. Time between death and injuries was few minutes and that between death and post mortem examination 12 to 24 hours.
5. Abdul Aziz, accused, in his statement under section 342, Cr. P. C. denied the accusations that were levelled against him. He took up the plea that he used to sell fruit on a rehri near Ever New Studio in front of the shop of Muhammad Ali Barber and Nasrullah, deceased, used to take fruit from him on credit and he owed some money to him. According to his statement, three days prior to the occurrence the said Nasrullah, deceased, again came to him and wanted to purchase fruit on credit, but, on his demand for the payment of the outstanding amount, an altercation took place between him and Nasrullah, deceased. Due to the said quarrel between him and Nasrullah, deceased, the police on suspicion arrested him on the day of occurrence at 7/8 p. m. after Nasrullah had sustained the said injuries. He also stated that Naeem Akhtar P. W. 3 was inimical towards him. He also produced one D. W. to prove the entries in the C.O.D. Register of the Casualty Ward of Mayo Hospital, Lahore, pertain ing to the entry of Nasrullah, deceased, when he was received at the said hospital.
6. The learned trial Judge, relying upon the ocular account, the recoveries and the medical testimony, held; that a sudden fight took place between the deceased and the accused over the purchase of fruit and that in the said sudden fight, the accused picked up a sua from his rehri and assaulted the deceased with it. Accordingly, the learned trial Judge convict ed and sentenced the accused, as stated in para. 1 above.
7. I have heard the arguments of the learned counsel for the appellant and the State and have also perused the record. The motive in this case, as set up by the prosecution has not been accepted by the learned trial Judge. Learned counsel for the State has not pressed the evidence of the witnesses in order to prove the motive. The prosecution has, therefore not proved the motive in this case against the appellant. Since the prosecution attempted to set up a motive, which it has not been able to establish its conduct must react against the case generally.
8. The ocular account in thi3 case is furnished by Naeem Akhtar p. W. 3, a brother of the deceased, and Khalid Pervaiz P. W. 7. Shaukat alias Thanedar P.W. 5 was produced at the trial, but he turned hostile. His evidence is of no value to the prosecution. According to Naeem Akhtar P. W. 3, on the day of occurrence at 4.00 p. m., he was present at the outer gate of Ever New Studio, Multan Road, Lahore, where he saw Abdul Aziz give 2/3 belows with his sua to his brother Nasrullah, deceased, and thereafter blows with brickbats. He took the injured to the hospital in the rickshaw of Shaukat P. W. 5. According to him, the said Shaukat P. W. 5, Khalid Pervaiz P. W. 7 and other persons had witnessed the occurrence. In cross‑examination he stated that he owned a tea shop at Pakistani Chauk Ichhra, Lahore, which was at a distance of 4/5 miles from the Ever New Studio. However, in cross‑examination he volunteered that he was employed in Ever New Studio at that time, but he had to admit that while lodging the report Exh. P. B. he had not disclosed that he was employed in the said Studio. He had to admit that his residence and place of business were at Chauk Pakistani Ichhra, but he shifted to Ever New Studio after the death of his brother. In cross‑examination he had to admit that in his statement Exh. P. B, he did not give the number of sua injuries inflicted by the appellant on his deceased brother, though in his examination‑in‑chief he had stated 2/3 sua blows. In cross‑examination be further stated that the appellant had thrown 3/4 brickbats with full force at the deceased, which had hit the deceased on the back of his head. He further stated in cross‑examination that he had not stated to the thanedar when he had recorded his statement Exh. P. B. that he was on way to his house from the hospital. He further stated that after recording statement Exh. P. B., Sakhawat Ali S.‑1 P. W. 10 went with him to the hospital and from there to the place of occurrence. He denied the assertion that he or any other P. W. was not present when his brother sustained the injuries, or that the story of the occurrence given by him was false, or that he bad received information about the death of his brother after he had been taken to the hospital. For more than many reasons, Naeem Akhtar P. W. 3 does not appear to have witnessed the occurrence. In his statement Exh. P. B. he never mentioned that he was employed in Ever New Studio, Multan Road, Lahore. As admitted by him in cross‑examination, he had a tea shop at Pakistani Chauk in Ichhra Lahore at a distance of 4/5 miles from the Ever New Studio. In cross‑examination he flung a surprise by voluntarily stating that he was employed in Ever New Studio at that time. Actually, the dead body of Nasrullah, deceased, was not taken by Naeem Akhtar P. W. 3 and Muhammad Shaukat P. W. 5 to the hospital, as stated by him. According to the testimony of Zakria Khalil D. W. 1, who was a Registration Clerk in the Casualty Ward of the Mayo Hospital, Lahore, on 27th September, 1980, Nasrullah injured was brought to the hospital by Khalid Pervaiz P. W. 7 and Muhammad Shaukat P. W. 5. The inquest report Exh. P. D. prepared by Sakhawat Ali S.‑I. P. W. 10 does not refer to the‑name of Naeem Akhtar P. W. 3 in column No. 4. The signatures of Naeem P. W. 3 and Khalid Pervaiz do not appear even at the end of the inquest Exh. P. D. 1. It is true that in the names of Naeem Akhtar, P. W. 3 and Khalid Pervaiz P. W. 1 stand recorded, but the happens to have been written later, which is obvious from The fact that the number of the F. I. R. is also recorded in the From all these circumstances, one thing is clear that Naeem Akhtar P. W. 3 was neither present at the time and place of ocurrence nor he took his deceased brother to the hospital, as clamed by him. This leaves me now with the evidence of Khalid Pervaiz P. W. 7. According to hi3 testimony, on the date and time of occurrence he came out of the Ever New Studio to see off a friend, when he saw the appellant raise a lalkara near the hotel of Akram Nehari Wala and thereafter stab Nasrullah, deceased, with sua blows. When Nasrullah, deceased, fell down, the appellant started brick batting him. Thereafter. Naeem Akhtar P. W. 3, the brother of the deceased, put the deceased in a rickshaw and took him to the hospital. According to him, after some time, the police reached the place of occurrence, where he was also present. In cross examination he admitted that his working hours in Ever New Studio were from 9.00 a. m. to 5.00 p. m. He admitted that in his police statement Exh. D. A. he had not mentioned that the appellant had raised a lalkara near the shop of Akram Nehari Wala, through in his evidence he had mentioned the name of the owner of the shop, tie further admitted that in his statement Exb. D. A. he had mentioned that the appellant had given two sua blows, though in his examination‑in‑chief he did not mention the number thereof. He further mentioned that he neither intervened to save Nasrullah deceased, nor he went to Police Station Nawan Kot, which was 1J furlongs away, for lodging the report about the incident, nor he telephoned the said Police Station from the Studio nor he sent anybody to the Police Station to convey the info mating. In cross‑examination he further stated that two of the brickbats had hit Nasrullah, deceased, on the back and right side of his head and the injury on his forehead was sustained by him when he fell on the ground with his head downward and struck his head on the ground. He denied that the injury on the right side of the head of the deceased was caused with a sua. He admitted that around the place of, occurrence, there were Ii/20 shops and a large number of persons were present when the incident took place, of which none had been cited in the challan. He further stated that after the occurrence, he went to his Laboratory at the said Studio and after closing the Laboratory again came down to the place of occurrence. For more than many reasons, Khalid 1'ervaiz P. W. 7 also does not appear to be a person who has witnessed the occurrence. It is true that both he and Nasrullah, deceased, were employed in the Ever New Studio and that from the evidence of Zakria Khalil D. W. 1, the Registration Clerk of the Casualty Ward of the Mayo Hospital, Lahore, he and Muhammad Shaukat P. W. 5 had brought Nasrullah, deceased, to the hospital, but for some unknown reasons, instead of admitting that he had brought the deceased to the hospital, he persisted in his evidence to state that Naeem Akhtar P. W. 3, the brother of Nasrullah, deceased had brought the deceased to the hospital and that after the occurrence he had gone to the Laboratory at the Studio and after closing the laboratory had again come down to the place of occurrence where he also met the police later. The main question that arises is whether he actually saw the occurrence. His reason for being present at the spot when the occurrence arose, appears to be more than fortuitous. His name is also not found in column No. 4 of the inquest report Exh. P. D. 1. His signature has also not been taken at the foot of the inquest report Exh. P. D. 1. In column 12 of the said request report, there is no reference to brickbats having been used to injure he deceased. In short, when column Nos. 1 to 21 of the inquest report Bib. P. D./I were being filled up by Sakhawat Ali S.‑ I., P. W. 10 at the hospitals neither Naeem Akhtar P. W. 3 nor Khalid Pervaiz P. W. 7 were present. It appears that Haji Abdul Rahim and Muhammad Shaukat P. W. 5 were then present, as their names and signatures appear in the said inquest report. The conduct of Khalid Pervaiz P. W. 7 clearly shows that he never saw the occurrence. He neither intervened when the occurrence took place nor he himself went to lodge a report at Police Station Nawan Kot nor he phoned up the said Police Station nor he sent any other person there. His conduct clearly shows that he was never present there. In his cross‑examination he stated that the appellant gave. two injuries on the head of Nasrullah, deceased, with brickbats and one injury the deceased suffered on his forehead when he fell downed his head struck the ground. The medical testimony, however, clearly shows that the deceased only suffered one lacerated wound on the back of the head, whereas the other two injuries on the head were simple punctured wounds due to a‑ sua. In his police statement Exh. D. A he mentioned that the appellant gave two sua blows, but in his examination in‑chief be did not mention their number in order to bring his evidence in line with the medical testimony. All this clearly shows that he never saw the occurrence and that he tried. to hazard guesses about the injuries when put questions in cross‑examination. All these circumstances detailed above leave me with no option but to hold that Khalid Pervaiz P. W. 7 was not present at the spot when the incident occurred, though perhaps he later came to the scene of occurrence and with the assistance of Shaukat P. W. 5 rushed the deceased to the Casualty Ward of the Mayo Hospital, Lahore. For all these reasons, the ocular account does not inspire any confidence. The appellant is, therefore, entitled to the benefit of doubt.
10. In view of the above, this appeal is accepted and the judgment of the Additional Sessions Judge, Lahore, dated 21st July, 1981 is set aside. The appellant shall be set at liberty forthwith, if not required in any other case. Fine if recovered from him, shall be refunded to him.
M. A. K. Appeal allowed.
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