This criminal appeal arises from the judgment of the learned Sessions Judge, Dera Gazi Khan, whereby, he on 12th November, 1966, convicted Abdul Quddus, appellant under section 304, Part I, P.
P. C. For causing the death of Mushtaq alias Hercules and sentenced him to 7 years' rigorous imprisonment. He, however, acquitted the three co-accused namely, Ghulam Shabbir, Allah Ditta and Abdul Latif.
2. The occurrence took place on 13th April, 1964, at 2 p. m. In the area of village Sakhi Sarwar. The F. I.
R. Is the statement Exh. P. O. Of Kamal Din (P. W. 16), recorded by Ch. Bashir Ahmad S. I/S. H. O. (P. W.
20) at 2-30 p. m. The same day at Adda Larian Sakhi Sarwar. The formal F. I. R. Exh. P. O./1 was registered at Police Station Choti at 5-30 p. m. The same day.
3. Motive. The motive as alleged by the prosecution is that a day before the occurrence the complainant and the deceased were walking in the film costumes, the appellant and the acquitted co-accused met them and abused them saying that they were Banjars, dallas and mirasis while they told them that they were artists and not Banjars.
4. Story of the prosecution.---That on 13th April, 1964, Karnali Din (P. W. 16). Bunyad Ali (P. W. 17), Ghulam Mustafa P. W. 18 and Mushtaq deceased were standing in a queue to purchase tickets for Sadiq Theatre, the accused came there. Abdul Qaddus, appellant gave a push to Kamal Din P. W.
16. There was exchange of abuses between them. The deceased stepped forward to help Kamal Din (P. W. 16) when Ghulam Shabbir alias Shabu acquitted co-accused instigated others to kill them, whereupon Abdul Latif and Allah Ditta co-accused caught hold of Mushtaq deceased while Abdul Quddus appellant inflicted a knife blow in the chest of Mushtaq deceased which resulted in his death.
The prosecution case is that Ghulam Shabbir co-accused gave a fist blow to Kamal Din P. W. 16, and that Abdul Quddus, appellant wanted to attack Kamal Din P. W. With a knife. Kamal Din turned aside and the knife blow hit Abdul Latif co-accused resulting in an injury on his person. Meanwhile, Saif Ullah Head Constable P. W. 14, who vas on duty nearby and Malik Ghaus Bakhsh Chairman (P.
W. 15) reached the spot, they apprehended Abdul Quddus, Abdul Latif and Ghulam Shabbir and produced them before the S. H. O. Ch. Bashir Ahmad S. I. (P. V. 20). The deceased was taken to the hospital where he died.
5. Medical evidence ...
6. Investigation. The investigation was conducted by Ch. Bashir Ahmad S. I/S. H. O. (P. W. 20).
7. In order to bring home the guilt to the accused, the prosecution examined as many as 20 witnesses and relied upon the following categories of evidence Ocular evidence supported by
(1) Saif Ullah Khan Head Constable (P. W. 14).
(2) Malik Ghaus Bakhsh (P. W. 15).
(3) Kamal Dili (P. W. 16).
(4) Bunyad Ali (P. W. 17).
(5) Ghulam Mustafa (P. W. 18).
8. Recoveries.---Abdul Qudus, appellant was ar)trehended at the spot and knife Exh. P.
1. Was snatched by Malik P.-W. 15) from the appellant and produced before the police which was taken into Posses--sion vide memo. Exh. P. K. Attested by Ghaus Bakhsh (P. W. 15) and Bunyad Ali (P. W. 17) and prepared by S. H. O. (P. W. 20). The police had also got removed blood-stained clothes P. 2 to P.
6 from the person of Abdul Quddus appellant and took the same into possession vide memo. Exh.
P. M. Attested by the same witnesses.
9. The Chemical Report is Exh. P. S. And that of the Serologist is Exh. P. T. Both positive.
10. The appellant, in his statement recorded under section 342, Cr. P. C. Stated as follows:-- ---It was the 13th of April, 1964, I and my brother Abdul Latif had come to Sakhi Sarwar Fair. There was gambling going on in the form that there are some numbers on dias, the arrow is let loose on those numbers where it stops that man wins while the money put on other numbers is forfeited.
This gambling device was set up by Achha party. I and my brother Abdul Latif had also set up the same device nearby. Achha party restrained us, saying that they had taken the permission of the Deputy Commissioner, Ch. Mohammad Bashir. W e insisted. We had hay business. After some time a car came from which Achha Pehlwan, Mushtaq alias Hercules, Kamal Din P. W. And one Ayyub Khan came out. Mushtaq alias Hercules was holding the gun. After enquiry from their men, they alongwith some more persons came towards us. Achha Pehlwan had a knife. He gave lalkara.
Persons standing near us ran away. Mushtaq fired a shot which hit Abdul Latif accused. I was then given stick blows and some stone blows. I then became unconscious. I have no knowledge who had given the knife blow to Mushtaq alias Hercules.
He further stated that they had filed a complaint against Achha Pehlwan and his party which was pending.
Abdul Latif, acquitted co-accused produced Muhammad Ayub Khan D. W. 1, Muhammad-Hussain D. W. 2, Muhammad Anwar D. W. 3 and Muhammad Sadiq D. W.
4. Muhammad Ayub D. W. 1 stated that Achha co-accused ordered Mushtaq to fire. He fired; the first shot hit Abdul Latif accused who fell down and then there was a general fight wherein the deceased received knife blow.
Muhammad Hussain D. W. 2 was the Deputy Superintendent. Jail, he stated that on 14th April, 1964, Abdul Latif complained that the police had not got him medically examined and that he had received gunshot injuries. This complaint was entered in the Report Book and the accused was got examined by Assistant Medical Officer Muhammad Anwar D. W. 3, proved the copy of the note Exh.
D. E made in the hand of Excise and Taxation Inspector, Malik Munir, Muhammad Sadiq D. W. 4 was the Proprietor and Manager of Sadiq Theatre and Co. He stated that no ticket for the Theatre Show was sold on 12th April, 1964, 13th April, 1964 and 14th April, 1964, during the day time.
11. The learned counsel for the appellant contends that the prosecu--tion has failed to prove its case beyond reasonable doubts and the ocular evidence produced by it cannot be safely relied upon and that there is reasonable possibility of the defence version given by Abdul Quddus, appellant being true.
On the other hand, the learned counsel for the State has stated that the prosecution has proved its case as there is sufficient reliable evidence to connect the appellant with the commission of the alleged offence.
12. I have gone through the record with care. Keeping in mind the guiding principles laid down by the superior Courts for the appreciation of evidence in such like cases I proceed to consider the prosecution case first.
The ocular evidence is the corner-stone of the prosecution case. I first of all deal with it.
13. P. W. 14 Saifullah had not seen the actual occurrence. His evidence is that when he went to the spot after hearing the alarm he arrested three accused persons. In cross-examination, lie stated that Abdul Quddus, appellant was holding a knife in his hand and the others were empty-handed.
P. W. 15 Malik Ghaus Bakhsh has supported the story of the prosecution as given in the F. I. R.
I have appreciated his evidence and the impression gained by me is that he has given evidence with a motive other than telling the truth. He was put several questions by the Court but in answer thereof he stated that "I do not know". When asked to explain the injuries of the accused persons, he stated that he did not remember as to and at whose hands they received the injuries. When he was confronted with his statement made by him before the committing Court, be stated, that he did not exactly remember whether he made that statement or not. I find that he has suppressed the injuries suffered by Abdul Quddus, appellant.
P. W. 16, Kamal Din is also not a reliable witness. The cross--examination shows that he made numerous contradiction and dishonest improvements. He has also suppressed the injuries of the accused person: P. W. 17, Bunyad Ali has also failed to inspire confidence. He dis--owned major-part of his statement recorded under section 161, Cr. P. C. He has also suppressed the injuries of the accused person.
P. W. 18, Ghulam Mustafa, by trend of his statement, has not impres--sed me. He has also suppressed the injuries of the accused persons, when he stated that they did not cause any injury to any of the accused.
The above discussion shows that the ocular evidence has to be dis--carded as being unreliable.
14. The remaining evidence is not sufficient to earn conviction. Since I have disbelieved the prosecution evidence, there is no need to go into the statement of the accused. The statement shows that he has not accepted the liability of killing the deceased.
15. The upshot of the discussion is that the prosecution has failed to prove its case beyond reasonable doubt. The, appellant is given the benefit of doubt and acquitted. He, is on bail, the bail bond shall stand discharged. The appeal is accepted.