MUHAMMAD SHAFT Versus STATE

SH. RIAZ AHMAD, J.-- - Appellant Ghulam Rasool and his two sons namely Anwar and Arshad were tried by an Additional Sessions Judge at Sialkot on the charge under section 302 read with section 34, P.P.C. for having committed the murder of Muhammad Tufail deceased. Vide judgment, dated 6-12-1979 the learned Additional Sessions Judge found the appellant Ghulam Rasool guilty of the charge under section 302, P.P.C. and accordingly convicted and sentenced him to undergo imprisonment for life and a fine of Rs.5,000 or to further undergo simple imprisonment for three months.

2. Aggrieved by the conviction the appellant has preferred this appeal while the complainant filed Criminal Revision No.29 of 1930 for seeking enhancement of sentence from life imprisonment awarded to the appellant to death. Another revision bearing No.1061 of 1980 was also filed by the complainant assailing the acquittal of Anwar Rashid alias Noona and Arshad sons of Ghulam Rasool. Both these revisions were ordered to be heard alongwith this criminal appeal. This judgment will dispose of the appeal as well as both the revisions.

3. The unfortunate occurrence resulting in the death- of Muhammad Tufail deceased took place on 10th November, 1978 at 1/1-30 p.m. on Lari Adda Narowal situate one mile from Police Station Narowal. The injured Muhammad Tufail was taken to the hospital from where the doctor sent an intimation about the admission and injured condition of Muhammad Tufail to the S.H.O. Narowal. On the receipt of this information Muhammad Bashir A.S.I./S.H.O: promptly reached the hospital and moved an application P.H. to ascertain the state of health of Muhammad Tufail as to whether he was fit to make a statement. On this application opinion P.H./1 was made by the doctor indicating that Muhammad Tufail was fit to make statement. Muhammad Bashir A.S.I. contacted Syed Sabir Hussain, Assistant Commissioner and requested to accompany him to record the dying declaration of Muhammad Tufail lying in the hospital where his statement Exh.PA. was recorded and the same was sent to the police station for registration of a case. On the basis of the aforesaid statement Exh.P.E. was recorded by Muhammad Ashraf Moharrir Head Constable at Police Station Narowal. In brief the deceased in his statement stated that he was running a hotel near Dera Pehlwan Sahib on the bypass Zafarwal Road and his employee Aslam Jat went on leave for 20 days and returned on his duty on the fateful day at about 6/7 a.m. According to Muhammad Tufail deceased his aforesaid employee Aslam for these 20 days worked at the hotel of Ghulam Rasool: According to the deceased he was sitting on hotel where at about 1/1-30 p.m. aforesaid Ghulam Rasool accompanied by his sons Arshad and Anwar alias Noona reached the hotel of the. deceased who was busy in making tea. According to the deceased Arshad and Anwar alias Noona sons of Ghulam Rasool caught hold of him and Ghulam Rasool inflicted dagger blow on his abdomen whereupon he fell down. The occurrence was seen by Muhammad Boota and Barkat Ali besides Khurshid. Muhammad Boota and Barkat Ali were Bhatti by caste and were residents of Abbas Nagar. Khurshid was also Bhatti by caste and resident of the same Mohallah. According to the deceased on account of Aslam, his employee, he was subjected to this attack.

4. At the trial the prosecution placed reliance on the statement of three eye-witnesses namely Barkat Ali P.W.8, Muhammad Boota P.W.10 and Khurshid P.W.12. The evidence of these P.Ws. was used to corroborate the dying declaration made by Ghulam Rasool. Reliance was also placed upon the medical evidence.

5. With the assistance of the learned counsel for the complainant Khaqan Babar and Sh. Najamul Hassan, counsel for the accused and Mr. S.D. Oureshi, counsel for the State we have carefully perused the record of the case and we have also heard the various contentions of the learned counsel.

6. At the very outset Mr. Najmul Hassan stated that Ghulam Rasool has since died and, therefore, his appeal stands abated and, therefore, he would not press this appeal. There is no proof on the record about the death of Ghulam Rasool. In this view of the matter we dismiss this appeal riled by Ghulam Rasool.

As far as criminal revision seeking enhancement of the sentence of Ghulam Rasool is concerned the same has become infructuous.

7. Adverting to the other revision petition assailing the acquittal of Anwar and Arshad, the learned counsel for the complainant vehemently argued that there was no justification to acquit them. It was also urged that the learned trial Judge gave them benefit of doubt for which there is no material on the record. It was also argued that since the appellant was an old person, therefore, necessarily the respondents caught hold of the deceased facilitating the appellant to kill the victim of the attack. It is further urged by the learned counsel for the petitioner that Anwar and Arshad acquitted accused were vicariously liable and the learned Additional Sessions Judge while acquitting them has not at all discussed this aspect of the case. According to the counsel for the appellant they also serve who merely stand.

8. We have carefully examined all the contentions but we find no force in them. There is a tendency on the part of the victim of the attack or his relatives to throw a wide net so as to involve all the male members of the family of the accused. There is sufficient proof on the record that only a single knife blow was inflicted on the abdomen of the deceased. To us it was a sudden attack which hardly necessitated such arrangement to catch hold of the deceased. Had it been so, the number of injuries would have been greater. Therefore, we are not impressed by the prosecution version qua the involvement of Anwar and Arshad sons of appellant Ghulam Rasool. Furthermore, it is well-settled that merely another view of the evidence can be taken is hardly a ground to I interfere with the acquittal unless it is shown that the judgment is perverse and has caused miscarriage of justice.

In view of above we find no merit in this revision petition and the same is dismissed.

N.H.Q./G-180/L Acquittal upheld.