1. ' This is an application under section 439, Cr. P. C. For revising the judgment of acquittal passed against all the 4 accused in a case under section 302, P. P. C. The revision application has however, been admitted in respect of respondent Mohammad Bux only and, therefore, it has been dismissed in respect of Karim Bux, Mitho and Moharram and I would, therefore, deal with the case of Mohammad Bux alone in this judgment.
2. ' In order to give background of this case I will reproduce the F. I. R. Recorded on 7th July, 1974 at 13- 30 hours at Police Station Qazi Ahmed Police Station, District Nawabshah on the complaint of Mohammad Rahim P. W. 1 :- "I reside in Village Abdul Hameed Mehar, and my cousins, namely Mohammad Yakoob and Mohammad Yousif and uncle Abdul Latif and Rajib who is my caste fellow, and other relatives namely Mohammad Bux, Mithoo, Moharram, Karim Bux and maternal uncle Khan Mohammad and others are residing in village Kasim Mahar. Today there was circumcision ceremony of Safar, son of Khan Mohammad therefore, I and other relatives had come there. Rano and Khuda Bux Mahar and other relatives were sitting under the shed outside. Today at about 12 o'clock, the circumcision ceremony of Zafar, son of Khan Mohammad had taken place therefore, I, Mohammad Yaqoob, Yousif, Haji Latif and others namely Mohammad Siddique Rajib, my maternal uncle Khan Mohammad and other relatives were in the house ; when in the meanwhile namely Karim Bux, Mohammad Bux, Mithoo, and Moharram came into the house. Out of them, Mohammad Bux, was armed with his licensed gun, Mithoo and Moharram were armed with hatchets, and Kareem Bux was empty handed. Kareem Bux told Khan Mohammad that they have come to attend circum- cision ceremony of his son. He gave abuse and instigated Mohammad Buz and others saying still they are seeing. On his saying so, Mohammad Bux within our sight opened first gun fire at Yousif, which hit him on his chest and he fell down while crying. He fired second time at Mohammad Yakoob, which he received on his chest, and he also fell down while raising cry and was alive whom Mithoo and Moharram gave blunt sided hatchet blow. Thereafter, he died, and Mohammad Yousif also died. Latif and Rajib have also received gun-pellets injuries on account of firing of Mohammad Bux. We raised cries as murder ! Murder ! Accused persons went away to the house. Thereafter I narrated the above facts to Rano and Khuda Bux who came from outside. They advised me to lodge report with the police. There is a dispute between Khan Mohammad and Kareem Bux and others over the wall of the house. Deceased Mohammad Yaqoob and deceased Yousif are sister's son of Khan Mohammad. Haji Kareem Bux and others are displeased with them. They on the above grudge, are not on dining terms with each other. Now I lodge complaint. Justice be done."
3. ' The prosecution had examined complainant Mohammad Rahim P. W. 1, P. W. Abdul Latif who had fire-arm injuries on his person, P. W. Rajib Khan who also had fire-arm injuries on his person, P. W.
4. Khan Mohammad an eye-witness and a corroborating P. W. Khuda Bux. The P. Ws, had substantially supported the version of the incident as given in the F. I. R. The trial Court came to the conclusion that on account of dispute deposed by the P. Ws. They were interested witnesses, and to this extent it was a correct finding but why the witnesses should be completely discarded has to be scrutinized. The injuries on the dead bodies of Mohammad Yaqoob and Mohammad Yousif, who were both sons of P. W. Abdul Latif, were proved through the evidence of Doctor Mohib Shah Exh. 36 and the injuries upon P. W. Abdul Latif and P. W. Rajib were proved from the statement of Dr. Mukhtiar Ahmed P. W.
9. All the injuries upon the deceased as well as on the injured were found to be from fire-arms. The circumstances relied upon by the prosecution in support were (1) the motive of a dispute in respect of wall between the house of P. W. Khan Mohammad and accused Karim Bux but the same was not found to be proved on account of diversion in the statements of P. Ws. In respect of the same and in my opinion it was a correct conclusion. Another circumstance sought to be proved was the recovery of 3 crime empties from the vardat coupled with the recovery of licensed gun from accused Mohammad Bux, but the report from the ballistic expert was negative and, therefore, this circumstance is not of any help to the prosecution and has been rightly discarded by the learned Sessions Judge. Another circumstance relied upon was the recovery of hatchet from the possession of Mitho and Moharram but those hatchets were not found blood-stained at the time of recovery and, therefore, they could not connect any of the accused with crime, and therefore the Sessions Judge was right in not placing any reliance upon them.
5. ' The learned Judge has acquitted the applicants on the ground that the prosecution witnesses were interested and the Doctor had found no hatchet injuries on any of the deceased or injured and thus the evidence of the P. Ws. Who had deposed that hatchet injuries had been caused by P.
6. W. Mitho and Moharram was falsified by the medical evidence. No exception could be taken to the acquittal of Mitho and Moharram and Karim Bux on this account as the opinion of the doctor had falsified the P. Ws to the extent of part played by the said accused and taking in view the general tendency of the prosecution witnesses that they involve even innocent persons with the crime and since the P. Ws in the present case were interested, thertfore they had exaggerated in involving more persons then the actual cult:tits. But acquittal of Mohammad Bux was allowed without the process of skitng of gain from the chaff. He was also of the view that since the witnesses had deposed that only one shot was fired at deceased Yaqoob but medical evidence showed that 13 injuries were found on his person and were the result of two shots, therefore also the ocular evidence is in conflict with the medical evidence. This circumstance was a case of mere omissioh of mention of one shot and could not have resulted in the rejection of'the depositions of all the P.
7. Ws. He was also of the view that the distance from which the shots were fired by the accused as stated by the P. Ws was different from the distance specified by the medical evidence and hence the ocular evidence was contradicted by the medical evidence. It was not a correct view to take as the illiterate villagers cannot be condemned if they made some mistake in measurement of distances if their presence is established. He further found that there was differences in version in statements of P. Ws. In respect of the reaching of injured Abdul Latif and Rajib at the Police Station after the complainant as stated by the complaint or with the complainant as stated by the Investigating Officer. This could not be regarded as a difference on any material aspect of the case.
8. ' The finding of the learned Sessions Judge that the P. Ws. Were interested inter se and on account of their own showing that there was dispute either between Abdul Latif and Khan Mohammad on one side and Karim Bux on the other side was correct as there was admitted enmity between the parties and therefore their evidence could not be accepted in toto. But I do not find justification for rejecting their evidence in respect of the part assigned by them to accused Mohammad Bux. Right from the start of the F. I. R. Till the last every one of the P. Ws. Including the complainant, the two injured Latif and Rajib and another eye-witness Khan Mohammad, in whose house the occurrence has taken place, had all been unanimous that Mohammad Bux alone had caused the injuries on the two deceased and the two injured by fire-arm. I find that the learned Judge has failed to notice in detail the evidence of Abdul Latif and Rajib injured and he has condemned the evidence of Abdul Latif on the ground of his being interested P. W. And having made exaggeration in respect of part assigned to Mitho and Moharram accused for using the hatchets. The learned Sessions Judge had started with the observation on page 113 of the paper book that the presence of Haji Abdul Latif and Rajib at the vardat at the time of incident cannot be disputed in this case as they had received injuries at the time of incident. But he has discarded their evidence completely rather too easily. It is an admitted position that the incident has taken place during day time and the fire-arm injuries received by these injured are in the front of their body, and therefore they were obviously in a position to identify their assailants as well as the assailant of deceased Yagoob and Yousuf who were the two sons of one of the injured Abdul Latif. It was rather difficult to believe that injured Abdul Latif would not give the correct name of his own assailant as well as the assailant of his own two murdered sons and would substitute the name of some innocent persons instead of the real culprit. It was necessary that the learned Judge should have scrutinized the evidence of these two witnesses rather closely and he should not have rejected the total evidence out right. In fact I find that the evidence of Abdul Latif is rejected because the distance of the assailant and the deceased as given by him was found to be different by about five to ten feet from the distance given by the Medical Officer. I am not impressed that the evidence of an admittedly injured P. W. Could be discarded merely on this basis. It is too much to expect from ordinary illiterate agriculturist to remember the correct measurements in respect of distances for the occasion when he and his dear ones were being fired at, therefore this approach was evidently incorrect especially when the presence of the injured was undoubted. Reliance is placed upon PLD 1974 SC 65 where it was observed that illiterate people cannot be expected to measure distances.
9. ' Another aspect of the case on the basis of which the learned Sessions Judge has come to the conclusion that complainant P. W. Mohammad Rahim and P. W. Khan Mohammad were not present or that injured Rajib had come on the vardat after the accused had gone away is found by me to be based upon misapprehension and incorrect reading of the version of deposition of P. W.
10. Mohammad Rahim. P. W. Mohammad Rahim has stated in the F I R that Rano and Khuda Bux had come after the accused had gone away and Rano and Khuda Bux had been narrated the incident by the cotreelainant and they had asked the complainant to report to the police. In his deposition in Court complainant Mohammad Rahim bad clearly stated in the first instance that Abdul Latif and Rajib were fired at by the accused Mohammad Bux but in the same part of his examination- in-chief about 4 lines later P. W. Mohammad Rahim is seen to have stated that Rano and Rajib had come after the accused had gone away and they advised the filing of F. I. R. In this later part of the examination-in-chief of P. W. Mohammad Rahim the mention of the name of Rajib as the person having come after the accused had gone away appears to be an obvious mistake. The mistake was committed either by P. W. Rahim in mentioning the name of Rajib or it was a clerical mistake in recording deposition, but obvious mistake it is, as Rajib had suffered a fire-arm injury and his name had been mentioned in the F. I. R. As the person injured and P. W. Rahim in his deposition 4 lines earlier had clearly mentioned Rajib having been injured by accused Mohammad Bux. The mention of the name of Rajib appears to have been mentioned or recorded by mistake for the name of Khuda Bux who had been mentioned in the F. I. R. As the person having come with Rano after the accused had gone away. In fact P. W. 4 Khan Muhammad had clearly mentioned that Khuda Bux and Rano had been attracted on cries, but the learned Sessions Judge seems to have ignored that deposition and he has used this apparent but mistaken contradiction in the statement of Muhammad Rahim in respect of Rajib having come after the accused had gone away as the basis for finding that complainant and Khan Muhammad were not found at the vardat. If the learned Sessions Judge had seen the statement of Muhammad Rahim in its proper context he should have reached only one conclusion that by mistake the name of Rajib had been mentioned or recorded in place of Khuda Bux.
11. ' The other important aspect of the case where the learned Judge has committed an obvious mistake is that he has come to the conclusion on page 123 of the paper book that the injured had received the injuries at least 12 hours before they were examined by the doctor at 5-33 p.m. On 7th July, 1974. I do not find any justification for that finding as I find that the doctor had opined that the injuries were within twenty-four hours old and he had gone to explain further that injuries could be 6 hours, 9 hours, 12 hours, 15 hours, 18 hours or 20 hours old. On that basis it could not be said that injuries were at least 12 hours old and therefore the time of incident should be before 12 noon. In any case even if the time of incident was recorded as 10 or 10-30 a.m. In the morning, the same could at the most place some doubt upon the authenticity of the F. I. R., but it could not be used for the purpose of saying that the injured could not have seen the incident or that it was a completely witnessed crime.
12. Mr. Hayat Junejo, learned counsel for the applicant has rightly argued that the learned Sessions Judge has proceeded on the principle A "falsus in uno falsus in ominibus" which principal has not been followed by the Court in this country. Reliance is placed on PLD 1970 SC 13. In the same judgment Mr. Justice Sajjad Ahmad Jan had also observed that the rule that the integrity of a witness is indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal application. "The grain has to be sifted from the chaff". In each case, in the light of its own particular circumstances." With respect I am of the view that the circumstances of the present case amply justified that grain should, have been sifted from the chaff in the deposition of at least the injured P Ws and their evidence could not be completely brushed aside against Muhammad Bux. Mr. Hayat has also relied upon PLD 1970 Supreme Court 406 where on an appeal against acquittal made by the High Court under section 325/149, P. P. C. The Supreme Court had given benefit of doubt to some accused but had convicted others on the ground that some prosecution witnesses bearing injuries on their persons had assigned specific part to those accused who were convicted by the Supreme Court.
13. Mr. Imam Ali Kazi for the accused Mohammad Bux contended that the witnesses having falsified themselves in respect of Mitho and Moharram, they could not be relied upon at all in respect of Mohammad Bux as well or at least independent corroboration involving the accused B Mohammad Bux should have been provided by the prosecution, but that I lacking in the case. I do not agree that merely because the witnesses were found to be false in one aspect of the case should have been completely disbelieved in respect of the other aspects as well. I do not wish to comment upon the evidence of Latif and Rajib but I can only say that the evidence should have been considered against Mohammad Bux and not completely ignored if it was found to be false in respect of Mitho and Moharram, Mr. Imam All Qazi also says that since there is no appeal by the Government, therefore, this application for revision should not be entertained. I do not agree with this submission as the High Court is c invested with powers of revision in appropriate cases and is not bound by the policy pursued by the Government in filing the appeals or not. Mr. Imam Ali Kazi also stated that the whole version has been distorted by the P. Ws. I do not find any justification for this submission. Mr. Kazi relied upon PLD 1966 Supreme Court where it was observed that in revision perversity need not be shown but the High Court should be slow to interfere against an order of acquittal unless miscarriage of justice would result, if interference was not made. It was further observed that merely the fact that another view of the facts could be possible would not justify interference by the High Court. Mr. Hayat Junejo submitted that the present case was not a case of merely taking a different view as it was a case of discarding the total evidence of even the injured eye-witnesses whose presence was found to be undisputed even by the trial Judge.
14. ' In these circumstances, I am of the view that there has been a misapprehension or misreading of the deposition of P. W. Rahim in respect of injured Rajib having been alleged to have come after the accused had left. I also find that the total exclusion of the evidence of the P. Ws. In respect of accused Mohammad Bux about whose role each one of the P. Ws. Was unanimous and who alone was alleged to have fired from the gun was wrongly excluded from consideration. I am further of the view that the depositions of the injured P. Ws. Latif and Rajib had to be considered in all its parts and failure to consider the same in their entirety has occasioned miscarriage of justice. I would, therefore, set aside the order of acquittal passed by the Sessions Judge, Nawabshah on 6th July 1977 in Sessions Cas No. 37 of 1975 (1) State v. Muhammad Bux and others to the extent of theacquittal of Mohammad Bux alone and order that Mohammad Bux be retried by Sessions Judge, Nawabshah and he may be taken in confine ment, but this being an old case it should be given top priority in disposal. 'but the trial Court should approach the case independently without in an way being prejudiced by any of the observations in this judgment in respec of merits of any deposition.