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Criminal Petition No. 35‑R of 1985, decided on 17th December, 1985.
(From the judgment of the Lahore High Court, Rawalpindi Bench, dated 11‑3‑1985, passed in Criminal Appeal No. 77 of 1982 and Murder Reference No. 47 of 1982).
‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302/34‑‑Appeal against acquittal‑‑View of evidence taken by High Court reasonable, proper and supported by material on record :‑Judgment of High Court proceeding on grounds well accepted for safe administration of criminal justice‑ Petition for leave to appeal being devoid of merits, dismissed.
Ch. Tariq Azam, Advocate Supreme Court instructed by Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.
Sh. Zamir Hussain, Advocate Supreme Court instructed by Imtiaz M. Khan, Advocate‑on‑Record (absent) for Respondents Nos. 1 to 3.
Ch. Ghulam Ahmad, Advocate Supreme Court with Rao M. Yusuf Khan, Advocate‑on‑Record for the State.
Date of hearing: 17th December, 1985.
‑The petitioner, a complainant in a case registered under section 302/34, P.P.C. and 307/34, P.P.C. vide F.I.R. No. 108 P.S. Hazro, District Attock, seeks leave to appeal against the judgment of the Lahore High Court, dated 11th of March, 1985 whereby the conviction of the three respondents was set aside and they were acquitted of the charges.
Muhammad Iqbal, the complainant, had stood surety for Mansab respondent in a murder case in which on his acquittal another complainant in that case had filed a revision petition which was pending in the High Court for hearing. In September, 1979 Muhammad Iqbal applied and got himself released as a surety as the failures of Mansab respondent to attend the Court in response to its notices in that revision were frequent. This had‑Eggrieved Mansab and his brother Tufail and their brother‑in‑law Feroz, the respondents in the case.
It is said that on the 6th of August, 1980 Mahmood, a son of Mansab respondent, had given a Danda blow to Muhammad Nawaz (P.W. 6) nephew of the deceased and the complainant. In retaliation on the morning of 7th August, 1980 Muhammad Nawaz had inflicted Lathi injuries on Mahmood. The same day at about 5.30 p.m. Mansab and Tufail armed with Chhuris and Feroz armed with a Lathi came to the petrol pump of Sheikh Ifiaz in Hattian near bus‑stand village Saidpur and started abusing Muhammad Arif (P.W.9) another nephew of the complainant. This attracted dhulam Sarwar deceased, Ahmad Nawaz (P.W. 8) and Aurangzeb (not produced) from the vicinity who tried to intervene and pacify them but Ghulam Sarwar was caught hold of by Azeem and the three respondents inflicted injuries on him with their respective weapons. Ahmad Nawaz was also given injuries. In order to ward off the attack of the respondents, those on the complainant side pelted stones on them causing injuries to them. Muhammad Iqbal, the complainant (P.W. 7), reached the scene at the concluding stages of the occurrence and was told about it by Ahmad Nawaz and Aurangzeb. He removed the injured to the District Hospital, Attock as he did not consider the hospital at Hazro to be well‑equipped and from there after obtaining the medical report, he went to the Police Station, Hazro and lodged the F.I.R. at 8 p.m. with Riaz Ahmad Sub‑Inspector (P.W. 12).
Dr. Gul‑i‑Naukhez Ghauri .(P.W. 11) examined Ghulam Sarwar when he was brought in injured condition at 6.30 p.m. and noted the following injuries on his person:
"(1) A stab wound on the lower, part of outer side of left chest, 2.7 cm. x 1.5 cm.
(2) A stab wound on the back of left flank 11 cm. x 3.5 cm. which was going into abdominal cavity.
(3) A stab wound on the back of index finger 1 cm. x 0.5 cm. The underlying bone was fractured.
(4) A stab wound on the back of right‑flank 3 cm. x 1 cm. muscle deep. The pulse of the patient was feeble and fast."
Ghulam Sarwar died of his injuries the next day and his autopsy was performed by the same Doctor. Ahmad Nawaz has the following injuries on his person:
"(1) A contused wound on the left side of head, 6 cm. x 1 cm. x bone deep.
(2) A contusion on left shoulder 3 cm. x 3 cm.
(3) Multiple small abrasions on left knee."
The injured persons on the respondents' side were taken to Hazro Hospital. They were examined by Dr. Iftikhar Ahmad Qureshi (D.W. 1). Mansab Khan respondent had the following injuries:‑
"(1) Contused wound 4 x 3/4 cm. x bone deep over right forehead and right eye‑brow.
(2) Contused wound 0.5 x 0.2 cm. x skin deep over right side root of nose.
(3) Bruise 3 x 2 cm. below front of the left knee.
(4) Two bruises 4 x 2 cm. front of left knee.
(5) Incised wound 1 x cm. x 1 cm. deep directed downward medially and backward over lower half front of left thigh."
Mahmood son of Manwab Khan, not a respondent, had the following injuries on his person:
"(1) Contusion 4 x 3 cm. with swelling of left ear over mastoid bone behind left ear.
(2) Pain on the back of right shoulder with contusion 4 x 2 cm.
(3) Bruise 3/4 x 1/3 cm on front of right side of neck." Tufail respondent had the following injuries on his person:
"(1) Incised wound 4 x 3/4 cm. x bone deep, obliquely across back of left hand, over left metacarpo phalangeal joint of little finger:
(2) Contused wound 2 x 3 cm (with swelling) over right vertex 10 cm above right eye‑brow.
(3) Incised wound 1 x 1/3 cm. x muscle deep over front of left leg, lower half, 16 cm above left ankle.
(4) Contusion 7 x 3 cm. in front of middle of right chest.
(5) Bruise 3 x 1 cm. on back of left thumb."
Feroz Khan respondent had the following injuries:
"(1) Incised wound 5 x 3/4 cm. x bone deep over left vertex anterior part, 8 cm. above left eye‑brow.
(2) Contused wound 2 x 1 cm. x through whole thickness of upper lip with corresponding crushing of inner mucosa of right upper lip.
(3) Contusion wound 1 x 1/2 cm. x skin deep over right lower lip with crushing inner mucosa and shaking right lower canine.
(4) Contusion 4 x 3 cm. on back of vertex 14 cm above left ear.
(5) Contusion 5 x 3 cm. across inner side middle of left fore‑arm.
(6) Contusion 7 x 3 cm. across upper 3rd right fore‑arm.
(7) Contusion 8 x 2 cm. across left upper arm middle.
(8) Two bruises 6 x 2 cm. over back of right elbow.
(9) Bruise 4 x 3 cm. on front of right knee."
All these injuries to the respondents, according to the doctor, were caused within two and a half hour of his examining them. He had examined them at about 7.25 p.m. on 7‑8‑1980, that is, the day of occurrence itself.
The respondents were arrested on the 9th of August, 1980 and it is said that on the 15th of August, 1980 they got recovered in the presence of Abdul Khaliq (P.W. 10), a Chhuri P. 3 (attributed to Mansab), another Chhuri P. 4 (attributed to Tufail) and a Lathi P. 5 (attributed to Feroz).
The plea of the respondents at the trial was the same and a common one as reproduced hereunder in the statement of Mansab:‑
"On the day of occurrence, I alongwith my co‑accused was sitting at the shop of our cousin Khan Bahadur. We normally come to Hatian Adda to purchase provisions. While we were sitting at the shop of said Khan Bahadur, Sarwar deceased armed with Chhuri and Ahmad Nawaz P.W. armed with Danda, Ghaus, Ashraf and Sadiq brothers of Ghulam Sarwar deceased were armed with Dandas raised "Lalkara" and launched attack on us, we ran away towards the petrol pump of Sh. Riaz, all the five persons mentioned above chased us and overtook us and gave us nineteen injuries with their respective weapon. In order to save lives we acted in our self‑defence and gave injuries to Sarwar and Ahmad Nawaz to save our lives. Later on we come to know that a day earlier that my son Mehmood had insulted Muhammad Nawaz nephew of Sarwar deceased and for that reason, they had attacked us. Soon after the occurrence we were taken to the police station by our relatives who had reached the spot and took us to Police Station Hazro, we lodged the report with the police which was recorded on a white paper stating all the facts mentioned above and then we were taken to the hospital where our medical examination was conducted. On 9th August, 1980 we were arrested by the police from the hospital while we were still under treatment."
The trial Court believed the motive, the ocular evidence and the recovery and rejecting the plea of the respondents convicted the three of them under section 302/34, P.P.C. and under section 307/34, P.P.C. Mansab and Tufail were sentenced to death subject to confirmation by the ‑High Court. Feroz was sentenced to life imprisonment. They were also convicted under section 3(07/34 and sentenced to five year. R.I. each. Sentence of fine and order of compensation was also passed.
On appeal and while seized of the question of confirmation the sentence of death, the learned Judges in the High Court disbelieved the motive, found the explanation of the prosecution for the injuries the respondent to be highly unsatisfactory and the case of the prosecution implausible. It also disbelieved the recovery. Hence the acquittal of the three respondents was recorded.
The learned counsel for the petitioner has taken us through the evidence with a view to demonstrate that the defence advanced by the respondents was unsustainable, that the prosecution case stood prove by the death of Ghulam Sarwar an by the statement of the injure witness Ahmad Nawaz (P.W. 8) and the statement of Muhammad Arif (P.W. 9). According to the learned counsel for the petitioner, the acquittal of the respondents does not proceed on sound principles we accepted for safe administration of criminal justice.
The view of the evidence taken by the High Court is not only reasonable and proper but finds good support in the material on record None of the witnesses to the occurrence stated above any other weapon having been used for causing injuries to the respondents except the stones picked up from the spot. The doctor who examined the respondent was questioned about their injuries and rejected the plea that some the incised injuries could be caused by stones thrown at the respondents, There were admittedly incised injuries on the person of the respondent and these could only be caused by sharp‑edged weapon.
As regards the motive, the morning occurrence in which Mehmood was said to have been injured and which alone could have provided as the exciting cause to the respondents, stood disproved by the fact that the injury on the person of Mehmood was only two and a half hour old. It was not one which was caused in the morning. This fact supported the defence version that it had been caused in the so occurrence for which the respondents were charged.
It is also significant to note that the complainant Muhammad Iqbal is the brother of the deceased. He was picked up for making, report at the police station. He had not seen any party of the occurrence His statement was based on the information received by him from Ahmad Nawaz, the injured, and Aurangzeb, not produced. As there were other witnesses who were present and had seen the occurrence and were close relatives of the deceased himself, a more natural course would have been to pick up any one of them for lodging the report.
The recovery has also been disbelieved. It took place after six days of the arrest of the respondent. It took place from an open public place. The only cover said to have been used was of the gray/ growing and wild bushes existing. The witness selected for stab/ about this recovery was Abdul Khalid (P.W. 10) who had his of enmity against the respondents.
Considering all the factors noticed by the two Courts, we find that the judgment of the High Court proceeds on grounds well accepted for safe administration of criminal justice and in extending the benefit of doubt to the respondents and in finding their plea more plausible the High Court has only given effect to it. There is no merit in this petition and the leave to appeal is refused.
M . I. Petition dismissed:
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