CHAMAN ABBAS Versus STATE

Chaman Abbas alongwith others was reported against for offences under section 302/307/148/149, P.P.C., to Police Station Jaranwala. and a case vide F.I.R. No.207, dated 11-6-1986 `was registered. Co-accused of Chaman Abbas were arrested and tried by a separate trial. Chaman Abbas could not be apprehended therefore, his trial was conducted after his arrest. Additional Sessions Judge, Faisalabad, vide judgment, dated 3-8-1991 convicted and sentenced him under section 302/149, P.P.C. to imprisonment for life with a fine of Rs.10,000, or in default two years' R.I. He was however, given the benefit of doubt and acquitted of the charge under section 307/149, P.P.C. He has filed an appeal against his conviction and sentence. Saran& brother of the deceased had filed a revision bearing Criminal Revision No.626 of 1991 for enhancement of sentence. Both the matters will be disposed of by this judgment.

2. Prosecution story in brief, as disclosed in F.I.R. Exh.P.F., lodged by Bashir Ahmad, P.W., was to the effect that ones Ayub and Manzoor had committed the theft of the buffalo of his cousin Abdul, for which they were prosecuted. The first informant with Khizar Hayat were P.Ws. The accused persons used to pressurise them not to depose against them. On 10-6-1986 at about 10 a.m., first informant with Jaffar and Yousaf was standing at the bus stop. All of a sudden, Chaman Abbas, appellant, armed with a carbine alongwith his co-accused, also armed, came there. They were raising Lalkaras. Zulfiqar co-accused gave a Lathi blow to Arif, P.W. on his head. Thereafter, Nazir, co-accused gave a blow with the butt of his gun to Arif, who fell down. The accused persons started belabouring the witnesses and Jaffar. Chaman Abbas caught hold of Yousaf, whereupon Ayyub co-accused gave a blow on his left hand, whereupon said Yousaf fell down and he was belaboured by other co-accused. Jaffar ultimately died on account of the-injuries.

The occurrence took place on 10-6-1986 at about 10 a.m. at Bus Stop in Chak No.355/GB, Jaranwala, six miles from Police Station Jaranwala. F.I.R. Exh.P.F. was, registered on 11-6-1986 at 11-5 a.m. on the statement of Bashir Ahmad, P.W.5, which was recorded by Muhammad Yar S.I., P.W.9.

Muhammad Yar, S.1. P.W.9, after registration of the case came to the spot and recorded the statements of the P.Ws. He went to Civil Hospital and f inquired from the doctor if Jaffar was in a fit state to make the statement. The doctor replied in the negative. Jaffar died on 12-6-1986, therefore, he prepared his injury statement Exh.P.H. and inquest report Exh.P.I. and sent the dead body for autopsy. On 20-6-1986 he arrested Zulfiqar, Liaqat, Dilmeer Khan, Walayat, Ayyub, and on 22-6-1986 he arrested Nazir and Khizar Hayat. He got prepared site plan Exh.P.A. and P.A./1 from the Draftsman. On 4-7-1986 co-accused of the appellant led to the recovery of different weapons, which he took into possession.

Dr. Anwar Saood Saqib, P.W.3 on 10-6-1986 at 5-15 p.m. examined Jaffar and found the following injuries:--

(1) Contusion marks 10 c.m. x 1 c.m., 12 c.m. x 1-1/2 c.m., 11 c.m. x 1 c.m. over front of left chest.

(2) Contusion mark 9 c.m. x 2-1/2 c.m. over front of right chest.

(3) Contused swelling 7 c.m. x 2 c.m. middle of right forearm.

(4) Lacerated wound 1 c.m. x 1/2 c.m. x 1 c.m. deep over right side of chin.

(5) Lacerated wound 4 c.m. x 1 c.m. scalp deep over left side of head 10 c.m. from left ear.

(6) Lacerated wound 3 c.m. x 1/2 c.m. x scalp deep 2-1/2 c.m. posterior to injury No.5.

(7) Contusion mark 11 c.m. x 1-1/2 c.m. over right side thigh.

(8) Contusion mark 11 c.m. x 3 c.m. over left upper arm.

On the same day he had also examined Arif P.W. and found the following injuries: -

(1) Lacerated wound 4 c.m. x 1 c.m. muscle deep on right side of forehead.

(2) Lacerated wound 2 c.m. x 1 c.m. x scalp deep on top of head.

(3) Contusion mark 20 c.m. x 2 c.m. over back of left chest middle part.

(4) Contusion mark 17 c.m. x 1 c.m., 1-1/2 c.m. away from injury No.3.

(5) Contusion mark 11 c.m. x 2 c.m. over back of right shoulder.

(6) Contused swelling 10 c.m. x 6 c.m. over right forearm about middle.

(7) Contused swelling 9 c.m. x 7 c.m. over right hand.

(8) Contused swelling 5 c.m. x 3 c.m. over right knee.

(9) Contusion mark 7 c.m. x 1-1/2 c.m. over right leg upper part.

(10) Contused swelling 8 c.m. x 4 c.m., 14 c.m. below injury No.9.

The same day he also examined Muhammad Yousaf, P.W. and found the following injuries:-

(1) An abrasion 6 c.m. x 2-1/2 c.m. over left shoulder.

(2) Lacerated wound 1 c.m. x 1/2 c.m. over right forearm upper part.

(3) Contused swelling 13 c.m. x 10 c.m. upper part of left forearm.

(4) An incised wound 6-1/2 c.m. x 1 c.m. x bone deep situated over medial side of left hand middle part 5th matacarpal cut and fractured.

P.W.4 Dr. Muhammad Afzal on 13-6-1986 conducted post-mortem examination on the dead body of Jaffar and found the following injuries:-

(1) A contusion mark 9 c.m. x 1 c.m. on left side of chest.

(2) A contusion mark 10 c.m. x 1 c.m. just below to injury No.l.

(3) A contusion mark 8 c.m. x 1 c.m. on the right side of chest.

(4) A stitched contused wound 1 c.m. x 1 c.m. x bone underneath (Mandible) fractured on right side of chin.

(5) A contused stitched wound 3 c.m. x 2.5 c.m. on left side of head 10 c.m. from left ear. Bone underneath was found fractured on dissection.

(6) A stitched contused wound.3 c.m. x 1/2 c.m., 2.5 c.m. posterior to injury No.5. On dissection there was linear fracture of underlying parietal bone about 11 c.m. in measurement, underneath injuries Nos.5 and 6. On removing skull there was subdural hema toma under injuries Nos.5 and 6.

(7) A contused swelling 7 c.m. x 2 c.m. on middle of right forearm.

(8) A contusion mark 11 c.m. x 3 cm. on left upper arm.

(9) A contusion mark 11 c.m. x 1 c.m. on right side of thigh.

The injuries were with blunt weapon. In his opinion, injuries Nos.4, 5 and 6 were sufficient to cause death independently.

3. The prosecution in support of its case produced ten witnesses in all. P.W.1 Muhammad Khalid, S.I. had formally arrested Chaman Abbas on 5-12-1988. Aurangzeb, Draftsman, P.W.2 had prepared site plan Exh.PA. and Exh.PA./1 Dr. Anwar Saood Saqib, P.W.3 had examined the injured and Dr. Muhammad Afzal, P.W.4 had conducted the post-mortem examination. The ocular account was furnished by Bashir Ahmad, Muhammad Yousaf, Arif Hussain, Sarang and Muhammad Akram, P.Ws.5, 6, 7 and 8, respectively. Bashir Ahmad, P.W.5 stated that he had got the case registered, but now he had forgiven the appellant in the name of Almighty Allah, therefore, did not wish to depose against him. Muhammad Yousaf, P.W.6 stated to the same effect. Arif, P.W.7, injured, also did not wish to depose against the appellant. Sarang, P.W.8 stated that Jaffar deceased was his brother. On the fateful day the appellant with his co-accused came and infected injuries on Jaffar as well as to the P.Ws., which resulted in the death of Jaffar. Chaman Abbas appellant had caught hold of Muhammad Yousaf, P.W. and co-accused Ayub had inflicted a hatchet blow on his hand and arm. Muhammad Akram, P.W.10 stated that he alongwith Sarang was present near the place of occurrence. On hearing commotion they came to the spot and witnessed the occurrence. Chaman Abbas appellant had caught hold of Muhammad Yousaf, whercupon Ayyub, co-accused, had given him blows.

At the conclusion of prosecution evidence, the appellant was examined without oath. He refuted the prosecution case and pleaded innocence.

4. It was contended by learned counsel for the appellant that the prosecution has not been able to establish its case against the appellant beyond doubt. Contended that the injured witnesses did not wish to depose against him, which was duly recorded by the trial Court, and in such circumstances it becomes a case of no evidence. Argued that the only role ascribed to the appellant is that he caught hold of a witness but did not cause any injury in spite of the fact that he was armed with a carbine. The contentions were opposed by learned counsel for the State as well as for the complainant.

5. 1 have heard the learned counsel at length and gone through the file. As far as the ocular account is concerned, the witnesses have not deposed against the appellant. Even otherwise, the role ascribed to the appellant is that he caught hold of a P.W. but did not commit any overt act though he was armed with a carbine. This fact alone makes it doubtful. If he was armed with a carbine and had joined hands with his co-accused, he should have used the weapon as well. There was no occasion for him to grapple. Since the concerned witnesses have declined to depose against him, therefore, the case is not established.

For what has been discussed above, I feel the prosecution has not been able to prove its case beyond doubt. Therefore, the appeal is accepted e and the appellant is acquitted of the charge. He shall be released forthwith if not required in any other case.

For the same reasons, Criminal Revision filed by the complainant for enhancement of sentence is dismissed.

N.H.Q./C-36/L Appeal accepted.