MUHAMMAD NAWAZ vs PEHALWAN And Other

ORDER

1. JAVID IQBAL.J.-- This petition for leave to appeal is directed against the judgment, dated 17th February, 1980 of a learned Single Judge of the Lahore High Court, Lahore whereby Pehalwan, Abdul Ghafur and Sikandar respondents were acquitted of the charge under section 302/34, P.P.C.. Three of them were originally tried by the Additional Sessions Judge, Multan under section 302/34, P.P.C.

2. For the murder of Khan Muhammad deceased and vide judgment, dated 1st December, 1977 each of them was convicted and sentenced to life imprisonment plus fine.

3. The background is that on 19th April, 1976 an F.I.R. Was lodged with the Police at the instance of a brother of the deceased that the dead body of Khan Muhammad had been found on the bank of a watercourse and that he had suspected the aforesaid three respondents for having murdered him.

4. In the course of the investigation by the Police, the Investigating Officer was of the view that there were no marks of injuries or violence on the person of the deceased. There were also no marks of struggle at the spot from where the dead body was recovered. However, during the post-mortem examination of the dead body of the deceased, three abrasions were found on the left side of the neck and the doctor was of the opinion that death had occurred due to throttling. More than one month passed but there was no further progress in the matter. Eventually on 25th May, 1976 the D.S.P. Khanewal was moved by an application to the effect that aye-witnesses had been discovered who had seen the deceased being throttled by the three respondents with a Saafa.

5. Consequently, a case was registered against the aforesaid respondents. The three witnesses who came forward to support the prosecution version in this case after more than one month of the occurrence were Ghulam Mohammad P.W.10, Bahadar Shah P.W.11 and Ramzan P.W.13. Ghulam Muhammad and Bahadar Shah P.Ws. Claimed that they were passing close by the place of occurrence as they wanted to buy some bullocks. They saw the three respondents holding the deceased with a Saafa around his neck for the reason that the deceased had been committing thefts. Thereafter, they had stated that they met Ramzan P.W. At some distance from the place of occurrence and this Ramzan P.W. Claimed that when he reached the place of occurrence he found the deceased lying dead and the three respondents sitting near the dead body. A Saafa was found around the neck of the deceased. On the inquiry of Ramzan P.W. The aforesaid respondents told him that the deceased had suddenly died by some disease and that they were guarding the dead body. These three eye-witnesses then left that place, come to the village and neither disclosed the matter to the family of the deceased nor reported it to the Police until a month had passed, that they made this disclosure to the family of the deceased and on the basis of their claim as eye- witnesses of the occurrence the investigation was initiated afresh. The three respondents had vehemently asserted that they had nothing to do with the murder of the deceased and had been falsely implicated. They also led evidence in defence to show that the deceased during his life time had suffered from a mental ailment. Dr Altaf Gardezi P.W.4 who had conducted the post-mortem examination on the dead body of the deceased and had expressed the opinion that the death was caused due to throttling had also stated in the cross-examination that the three abrasions or finger marks present on the left side of neck of deceased might have been produced on the neck by a person who was gasping for air in an entoxicated condition or under an epileptic or phystorical fit. Thus, so far as the medical evidence is concerned, it does not provide a definite answer as to whether the deceased had been throttled by bare hands of an assailant or the' marks on his neck had been produced by his own hand because he was gasping for air under some kind of fit. While commenting on the ocular testimony in the instant case the learned Judge of the Lahore High Court, Lahore was correct in arriving at the conclusion that the conduct of the eye- witnesses was peculiar. First, they come forward in support pf the prosecution version after a period of more than one month. Second, they knew the family of the deceased for a long time and after witnessing the occurrence had returned to the village. Yet they did not care to inform the family of the deceased of what they had seen. On the contrary there is the testimony of Mst. Zohra Mai P.W.9 wife of the brother of deceased who had stated that Ghulam Muhammad and Bahadar Shah P.Ws. Had both visited their house on the day following the occurrence and had stayed there for more than an hour but they did not mention anything about the circumstances leading to the death of the deceased to any member of the family. And third, these were all chance witnesses, Ramzan P.W. Residing at a distance of 35 miles from the village of the deceased.

6. Learned counsel for the petitioner before us attempted to argue that the testimony of the eye- witnesses in the instant case should have been relied upon but in our view learned Judge of the Lahore High, Court, Lahore was correct in arriving at the conclusion that the so-called', eye- witnesses were planted subsequently and as their testimony was noteworthy of any credit, it was not safe to place reliance on them.' Furthermore the finding was also correct that the medical evidence itself did not clearly indicate that: the death had resulted due to any'' criminal act.