The petitioners who alongwith Bhai Khan, Kamal and Sahib Khan were tried under sections 307/148 and 307/149, P. P. C. By the Sub---Divisional Magistrate, Jauharabad were convicted under sections 148 and 323/149, P. P. C. Fateh Muhammad, Lal Khan and Fazal Ilahi petitioners were sentenced to six months' R.I. Each under section 148, P. P. C. And to six months, R. I. Each under section 323/149, P.
P. C., while the other petitioners and their co-accused were sentenced to 2 months' R.I. Each under section 148, P. P. C. And to 2 months' R. I. Under section 323/149, P. P. C. Sentences of imprisonment were ordered to run concurrently. An appeal was filed against the order of conviction passed by the learned trial Magistrate on 8th May; 1968 but the same was dismissed by the Sessions Judge vide, his order dated 13th July, 1968. Thereafter the petitioners filed the present revision petition challenging the order of their conviction in this Court. It was admitted to hearing on 23rd July, 1968 when the order of sentence passed against the petitioners was also suspended.
2. The facts of the case leading to the prosecution and conviction of the petitioners were that on 13th February, 1967 at about 9-00 a. m. The petitioners and their co-accused, while armed with a gun, hatchet and a stick stopped the bus in which Gul Jahan P. W.-1, Amir P. W.-3 and Surkhru P.
W.-7 were going to Jauharabad, near the dera of one Muhammad Ali. Fateh Muhammad. Lai Khan and Fazal Ilahi petitioners got into the bus. Fateh Muhammad hit Gul Jahan P. W. On his head with the butt of the gun and thereafter all the three petitioners pulled him out of the bus. Lai Khan petitioner gave a hatchet blow on his head and the other assailants hit him with the sticks. Aulia Khan P. W.-2, uncle of Gul Jahan P. W.-1 was also injured when he tried to rescue Gul Jahan. Report was made by Gul Jahan at the Police Station, Khatha Saghral about the incident. The motive for the murderous assault by the petitioners and their co-accused was that Gul Jahan P. W.-1 had caused injuries to Fateh Muhammad petitioner sometime back and he was being tried under section 307, P. P. C. For causing the aforementioned injuries. On the day of occurrence Gul Jahan P. W. Was going to attend the Court in the aforementioned case when he was attacked by the petitioners and their co-accused.
3. The prosecution, in order to prove its case, against the petitioners and their co-accused examined 7 witnesses. Gul Jahan P. W.-1, Aulia Khan P. W.-2, Muhammad Amir P. W.-3 and Surkhru P.
W.-7 gave the eye-witness account of the incident. Gul Jahan and Aulia Khan had received injuries at the time of occurrence. Dr. Shahid Hussain Bukhari P. W.-5 who had medically examined them proved his medico-legal reports. He had found 21 injuries on the person of Gul Jahan and 13 injuries on the person of Aulia Khan, which according to him, could be caused by sticks or butt of gun or with the wrong side of the hatchet. Iqbal Shah P. W.-4 had investigated the case and had recovered sticks from Lai Khan and Fateh Khan petitioners. P. W.-6 Inayat Hussain A. S. I. Had recorded F. I. R. Exh. P. A. And had prepared injuries statement of Gul Jahan. Muhammad Khan P.
W.-8 had witnessed the recovery of the sticks.
4. The petitioners and their co-accused refuted the prosecution story in their statements under section 342, Cr. P. C. Fateh Muhammad petitioner pleaded that he had been falsely implicated in the case as he was complainant in the case in which Gul Jahan and Ali Muhammad were facing trial in the Court of Sub-Divisional Magistrate. Bhai Khan one of the co-accused of the petitioners stated that Gul Jahan and Aulia Khan had quarrelled with each other over some amount and had caused injuries to each other, later on, they had falsely implicated him in the present case due to previous enmity. He also examined Muhammad Sher D. W.-1 in support of his above plea. Sahib Khan another co-accused of the petitioners stated that he had beer falsely implicated in the case as he was a prosecution witness in the case registered against Gul Jahan and others under section
307. P. P, C. Fazal Ilahi petitioner pleaded that he was not present at the time of occurrence and in support of his plea he produced Sher Muhammad D. W.-2.
5. The learned trial Magistrate, however, found the petitioners and their co-accused guilty under sections 148 and 323/149, P. P. C. And convicted them accordingly.
6. Learned counsel for the petitioners had challenged the order of their conviction on the ground that the prosecution had failed to produce any independent and disinterested eye-witnesses in the case. Gul Jahan complainant was facing trial under section 307, P. P. C. For having committed murderous assault on Fateh Muhammad petitioner. Aulia Khan P. W.-2, Muhammad Amir P. W.-3 and Surkhru P. W.-7 were also interested witnesses because of their relationship with Gul Jahan P.
W. According to the learned counsel for the petitioners Gul Jahan P. W.-1 is not reliable as his testimony is inconsistent with medical evidence inasmuch as he has stated that 'Lai Khan petitioner had given him a hatchet blow (without mentioning that the blow was given with the wrong side) on his head but at the time of his medical examination no such injury was found on his head by the Medical Officer. Learned counsel for the petitioners has further contended that prosecution story is highly doubtful because although it is alleged that two of the assailants were armed with a gun and a hatchet, yet they had not used their weapons for causing injuries to the complainant and his uncle Aulia Khan it is difficult to believe that the butt of the gun was used for causing injuries because if the person armed with the gun had no intention of using it, there was no point in his carrying the gun with him.
6. I have heard the learned counsel for the petitioners and have gone through the record of the case. No one has appeared to represent the State in this case. It is an admitted fact that all the eye-witnesses produced by the prosecution to prove the charge against the petitioners and their co-accused are related inter se. A reference to this fact has also been made by the learned trial Magistrate in his judgment but he has observed that the deposition of these witnesses cannot be discarded merely on the ground of their inter se relationship because Aulia Khan, Muhammad Amir and Surkhru P. Ws. Had no enmity with the petitioners to make false statement against them. It may be noticed that the enmity of Gul Jahan, complainant with Fateh Muhammad petitioner is not disputed. He also had a grouse against Sahib Khan petitioner -as he was one of the prosecution witnesses in the case under section 307, P. P. C. Pending against him in Court. Aulia Khan, Muhammad Amir and Surkhru P. Ws. Being related to Gul Jahan were naturally interested in him and were bound to support him. It is true that mere relationship of the prosecution witnesses intense is not sufficient to discard their testimony but where it is found that independent and disinterested witnesses had also seen the occurrence and they could be examined as witnesses by the prosecution, it is not safe to rely on the testimony of the interested witnesses. In the present case the occurrence had taken place partly inside the bus and partly in the open after Gul Jahan P.
W. Was allegedly pulled out of the bus by the assailants. A number of passengers were travelling in that bus. They must have seen the occurrence. The driver and the conductor of the bus must have also seen the occurrence. But none of them has been examined as witness by the prosecution. The learned trial Magistrate has expressed the view that the driver and the conductor, of the bus had not seen the occurrence because they had taken away the bus after Gul Jahan P. W. Had been dragged out of the bus by the assailants. According to the learned trial Magistrate the petitioners could have examined them as witnesses if they had seen the occurrence. It appears Ethat the learned trial Magistrate has overlooked the fact that even in the F. I. R, Gul Jahan had stated that Fazal Ilahi petitioner had hit him with the butt of the gun on his head after getting into the bus and later on, Fateh Muhammad petitioner had grappled with him and had dragged him out of the bus.
This part of the incident, therefore, must have been seen by the driver and conductor of the bus.
Learned trial Magistrate's conclusion that the occurrence was not seen by the driver and the conductor of the bus, therefore, is not correct. As regards the petitioner's failure to examine them as witnesses it may be noticed that it was the duty of the prosecution to produce them as prosecution witnesses to prove the charge against the petitioners because they bad seen the occurrence. No duty was cast on the petitioners to examine them as witnesses to prove their innocence.Prosecution's failure to examine independent and disinterested witness in the present case raises a strong presumption against it because such witnesses were available and could have been produced to prove the charge against the petitioners. Under the circumstances, testimony of inimical and interested witnesses cannot be relied upon for holding the petitioners guilty. There is also a material discre pancy in the statement of Gul Jahan P. W.-1 and the medical evidence with regard to the hatchet injury allegedly caused by Lal Khan petitioner on his head as no such injury was noticed by the Medical Officer at the time of his medical examination.
7. Having regard to the aforementioned facts, the conviction of the petitioners which, as noticed above, is based upon the testimony 9f inimical and interested witnesses is not legally sustainable.
Their revision petition is, therefore, allowed and the order of conviction and sentence passed against them by the Courts below is set aside. The petitioners, who are on bail, are discharged from the bail bonds.