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Criminal Appeal No. 51 and Murder Reference No. 135 of 1981, decided on 17th April, 1984.

‑‑‑S. 302/324‑‑Ocular evidence, appreciation of‑‑Occurrence allegedly taking place during night in moonlight and light also emanating from electric bulbs‑‑Evidence on record showing that area ‑ was not fitted with electric light at time of occurrence to noble identification of accused‑‑Name of injured eye‑witness not mentioned it F.I.R. although he also suffered injury by accused‑‑Medical examination of said witness by doctor as private case doubtful‑‑Injury suffered by said witness looking to be self‑suffered‑-Witness not appearing before Police for more than three days‑‑Presence of injured eye‑witness at time and place of occurrence disbelieved‑‑Statements of other two eve‑witnesses found to be discrepant and also disbelieved by trial Court‑‑Recoveries of blood‑stained Khanjar and blood‑stained clothes from person of accuse found to be fake and planted‑‑Motive not established‑‑Prosecution not proving its case beyond reasonable doubt‑‑Accused acquitted in circumstances.

-‑‑‑S. 302/324‑‑Recovery‑‑Recoveries‑ of blood‑stained weapon of, offence (Khanjar) and blood‑stained clothes of accused effected after 5 days of occurrence‑‑Carrying weapon of offence by accused with him for five days in Naifa of his Shalwar and wearing of clothes by accused for all that time to enable investigation to recover it as a proof for sending him to gallows found to be unnatural‑‑Such recoveries found to be fake and planted and consequently disbelieved in circumstances.‑ [Recovery].

Shehzad Jehangir and Sultan Alam for Petitioner.

Nisar A. Saeed for Advocate‑General for the State.

Date of hearing: 17th April, 1984.

Muhammad Aslam, aged 19 years, son of Muhammad Hayat was convicted under sections 302 and 324, P.P.C. by the Additional Sessions Judge, Multan, on 15‑3‑1981, for the murder of Zulfiqar, aged 16 years, and for simple injuries causes to Fida Hussain P.W. He was sentenced under the former to death subject to confirmation by this Court and to pay a fine of Rs.5,000 or further undergo R.I. for two years in the event of default in payment of fine. Under the latter he was awarded sentence of R.I. for two years and to pay a fine of Rs.1,000 or to suffer R.I. for six months. Half of the fine, if realised, was ordered to be paid to the heirs of Zulfiqar deceased as compensation under section 544‑A, Cr.P.C. Muhammad Aslam challenged his conviction and sentence by appeal and the trial Court sent reference this judgment will dispose of both the matters.

2. On 7‑7‑1979 at about 9‑15 p.m. Mahram Khan P.W. accompanied by Amir Bakhsh were sitting on a tea‑shop near Nadirabad Railway Crossing. They heard alarm from a road towards Industrial Estate across the railway crossing and both of them reached the spot wherein the light of electric bulbs of the shops and moonlight they saw Muhammad Aslam appellant with a Khanjar, trying to cause injury with it to the deceased, nephew of Mahram Khan P.W. The deceased was proceeding for duty towards fabrics Mills. Although Mahram Khan P.W. and Amir Bakhsh raised Lalkara but within their sight the appellant delivered a Khanjar blow on the left side of the abdomen of deceased upon which the deceased fell on the ground. The witnesses tried to capture the appellant but he escaped. Muhammad Usman P.W. had also reached the spot and witnessed the occurrence. The deceased in injured condition was carried in a wagon to the Civil Hospital, Multan, where after medical examination tire deceased was referred to Nishtar Hospital. The deceased died in Nishtar Hospital at about 10‑11 a.m. on 8‑7‑1979.

The motive giver, in the F.I.R. was that the appellant used to abuse the deceased and the deceased had restrained him from doing so.

After the death of Zu1fiqar in the Hospital, Mahram Khan P.W. was proceeding to the police station when he met P.W. Ghulam Shabbir Khan, A.S.I. at BCG. Chowk who recorded his statement at 12‑30 noon on the basis of which formal F.I.R. was registered at Police Station, Mumtazabad, on 8‑7‑1979 at 12‑45 p.m. It was explained in the statement that the first informant had remained busy attending the deceased in the injured condition.

3. The investigation in this case was made by P.W. Ghulam Jafar, S.I. Incharge Police Post, Muzaffarabad ho visited Nishtar Hospital, Multan, and despatched dead body to mortuary after completing for malities. He inspected the spot and secured blood‑stained earth. He found that Fida Hussain P.W. was injured and took into possession his blood‑stained Kurta P. 5, blood‑stained Bunyan P. 6 and blood‑stained Shalwar P. 7 vide memo. Exh. P.K., on 12‑7‑1979. He arrested the appellant, on 12‑7‑1979, and secured from the Naifa of his Shalwar blood‑stained Khanjar P. 10, with which appellant caused murder, vide Memo. Exh. P.M. and also secured after the same removed from the person of the appellant blood‑stained Kurta P. 8 and blood‑stained Shalwar P. 9, vide memo. Exh. P.L. After completing investigation he challaned the appellant in Court.

4. Dr. Allah Nawaz, Medical Officer, Civil Hospital, Multan, medically examined Zulfiqar deceased aged 16 years, when in injured condition, on 7‑7‑1979 at 10‑30 p.m. He found a stab wound 6 c.m. x 1 c.m. x omentium and intestines lop out of the wound with cut on the Shirt and Bunyan. This injury was declared dangerous to life caused by sharp‑edged pointed weapon and he was referred to Nishtar Hospital, Multan.

On the same day at 10‑35 p.m. he medically examined Fida Hussain P.W. aged 17 years, and found one incised wound 2 c.m. x c.m. skin deep on the outer upper part of right thigh with corresponding cut in the Shalwar. The injury was fresh and simple caused by sharp edged weapon.

Zulfiqar deceased died in Nishtar Hospital, Multan, on 8‑7‑1979 at about 10‑11 a.m. The same doctor on 8‑7‑1979 at 6 p.m. conducted post‑mortem examination on his dead body. He found one stab wound 4 c.m. with three stitches on the left side of abdomen vertically in direction 11 c.m. out of left to umblicus. On dissection the doctor found that omentum, paritonium and small intestine were cut through and through from two places. He found operational stitch wound verticle in direction with sixteen stitches on the medial lower. Intestines were also repaired. In cross‑examination the doctor deposed that the deceased visited him in the hospital as a private case and was brought by his father. The doctor did not send any report abut this injured person to the police. He did not obtain thumb‑impression/signature of the father of the deceased on medico‑legal report. According to the doctor Fida Hussain P.W. was brought to the hospital for examination by one Bahadur and Fida Hussain himself stated before him that he has not been medically examined earlier. But no signatures of Fida Hussain were obtained on his medico‑legal report. The doctor did not find any cut mark on clothes of Fida Hussain except on his Shalwar.

5. At the trial prosecution examined first informant, Mahram Khan P.W. 12, real uncle of the deceased as eye‑witness, who also gave motive. Fida Hussain injured P.W. 11, a friend of the deceased was also examined as eye‑witnesses and to prove the motive. Muhammad Usman P.W.10 gave the eye‑witness account and proved recoveries. The incriminating recoveries of Khanjar and blood‑stained Kurta and Shalwar of the appellant were proved by hint, Muhammad Sharif P.W. 9 and investigating Officer Ghulam Jafar, P.W. 8. The positive report of Chemical Examiner, Exh. P.N. was confirmed by the Serologist, vide report Exh. P.O. according to which the Khanjar, Kurta and Shalwar of the appellant were found stained with human blood. The trial Court also examined three Court witnesses. Rafique Ahmad Constable deposed from daily diary of Police Post, Muzaffarabad that P.W. Ghulam Jafar, S.I. had written in his Zimni that case property pertaining to this case had been handed over by him at Police Station, Mumtazabad. In cross‑examination he deposed that the description of the Zimni and of the case property was not given in the report. Muhammad Harman, Moharrir Head Constable C.W. 2 also made similar statement. Muhammad Shafi Khan, Sub‑Divisional Officer, Buildings C.W. 3 deposed that Industrial Estate area situated in Multan was within his jurisdiction and installation of electric poles in that area was arranged by his office in the year 1974. But in cross‑examination he could not say whether light had been installed on the road which led to the Industrial Estate and also could not give the area of Industrial Estate.

6. Appellate pleaded not guilty to the charge. He denied the recoveries of blood‑stained Khanjar and blood‑stained clothes. He stated that the witnesses were inter se related, interested and inimical towards him due to which they formed themselves into one party and after consultation and deliberations had falsely implicated the appellant after considerable delay by suppressing the true story. He examined three witnesses in his defence Ch. Hidayat Ali, Draftsman in the Industrial Estate, Multan, D.W. 1 had brought blueprint of the area which showed railway line, highway from Multan to Muzaffargarh over it and the railway crossing. From the highway a road emanates to the Industrial area and the first pole installed on the roadside is at a distance of more than two furlongs from the railway gate. He deposed that there was no street light pole on the right side of that road and the street lights were on that left side of the road which were provided in 1974 but because of overload the light never functioned and the work was completed on 5‑5‑1980 and electricity was commenced in the month of February 1980. According to him MESCO connections were obtained for the street light from that date. He deposed that the Executive Engineer, Buildings and Manager, Industrial Estate jointly inspected this site mentioned in letter No. 9403, dated 5‑5‑1980 on 28‑4‑1980 and prior to it there was no light in the street of the Industrial area. He had brought the original file containing the relevant letter and blueprint. Habib Alam D.W.2 who was Superintendent of Industrial Estate, Multan, since 1970 inter alia deposed that street light in the Industrial Estate area started functioning from February, 1980. Mutiur Rehman P.W. 3 was posted as Assistant Meter. Superintendent, MESCO, Ltd., Multan and had brought consumers' consumption record register with him, which disclosed that new connections were given in the Industrial Estate area for street lights in the name of Manager of the Estate on 23‑2‑1980 and it was thereafter that meter started consuming electricity.

7. The trial Court disbelieved. Muhammad Usman and Mahram Khan first informant P.Ws: for the reason that they had made contradictory statements which were discrepant and created doubt about their presence at the spot at the time of occurrence. It was also found by the trial Court that there was no light at the spot and identification of the accused person was highly doubtful but did not agree with the learned counsel for the defence that appellant could not be identified in the moonlight because it was 14 of lunar month when the occurrence took place and the appellant was previously known to Fida Hussain P.W. The trial Court found that Fida Hussain injured P.W. was present at the spot at the time of occurrence and witnessed it. His testimony was supported by medical evidence and corroborated by incriminating recoveries from the appellant and the motive which had been established by the prosecution.

8. It has been argued before us that Fida Hussain P.W. was not present at the spot to witness the occurrence and did not identify the appellant because there was no electric light when the occurrence took place. It has also been submitted that the medico‑legal report did not prove that he was medically examined because his thumb‑impression was not obtained on it and also for the reason that the injury suffered by him was superficial and self‑suffered. It has also been submitted that Fida Hussain P.W. did not appear on the scene for about three days after occurrence and even according to the police he was examined for the first time under section 161, Cr.P.C. only on 10‑7‑1979 at 8 a.m. while according to Fida Hussain P.W. himself the police recorded his statement at 4 p.m. on that day. It has been further submitted that the recoveries from the appellant had not been proved by the prosecution and the motive alleged against him was not established.

9. The occurrence allegedly took place on 7‑7‑1979 at 9‑15 p.m. at a place in the moonlight and light emanating from electric bulbs. The evidence on record discloses that the area was not fitted with electricity at the time of occurrence is alleged to have taken place and there was no street light to enable identification of the appellant. The name of Fida Hussain was not mentioned in the F.I.R. although he allegedly suffered injury at the hands of the appellant. It is doubtful if he was medically examined by the doctor as a private case because the medico legal report does not bear his thumb impression/ signature. The nature of injury is such which can be self‑suffered. He did not appear on the A scene for more than three days. According to the Investigating Officer his statement under section 161, Cr.P.C. was "recorded on 10‑7‑1979 at 8 a.m. but Fida Hussain P.W. deposed in Court that his statement was so recorded it 4 p.m. on that day. We are satisfied from the evidence on record that Fida Hussain was not available and did not witness the occurrence at the time and place the deceased suffered injuries. P.Ws. Mahram Khan and Muhammad Usman were also examined as eye‑witnesses. The trial Court found their testimony discrepant and came to the conclusion that they were not present and did not witness the occurrence. We agree with that finding. The recoveries of blood‑stained Khanjar and blood‑stained Kurta and Shalwar of the appellant have also not been proved. It is not natural that the appellant will carry the weapon of offence with him for five days in the Naifa of his Shalwar and keep B on wearing the clothes for all that time only to enable the Investigating officer to recover it as proof for sending him to gallows whereas the occurrence took place on 3‑7‑1979 at 9‑15 p.m. the recoveries were allegedly effected on 12‑7‑1979. The recoveries appear to be fake and planted. The motive has also not been established in this case. The prosecution has failed to prove the case against the appellant beyond reasonable doubt.

For the foregoing reasons the conviction and sentences of the appellant are set aside and he is acquitted, of the charge.

The death sentence of the appellant is not confirmed.

S.A Appeal accepted.

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