Eighteen persons, namely, Feroze Khan, Sultan Muhammad, Dost Muhammad, Sher Muhammad, Ramzan, Elahi Bakhsh, Mian Muhammad, Ahmad, Abbas, Mehr Muhammad., Sultan Mahmood, Atta Muhammad, Farid, Sultan, Muhammad Rafiq, Muhammad Yar, Muhammad Zaman and.
Muhammad Yar son of Majhi were tried for offences, under sections 148 and 307/149, P. P. C. By Mr. Ali Hasan, Section 30 Magistrate, Jauharabad, who acquitted Abbas, Sultan Mahmood, Atta Muhammad, Farid Muhammad Yar, Muhammad Zaman, Muhammad Yar son of Majhi and Sultan son of Majhi on both the charges. Feroze Khan, Dost Muhammad and Mehr-Muhammad were convicted to undergo rigorous imprisonment for one year each under section 148, P. P. C. And five years' rigorous imprisonment each under section 307/149, P. P. C. Sultan, Ilahi Bakhsh and Rafiq to undergo rigorous imprisonment for six months each under section 148, P. P. C. And three years' rigorous imprisonment each under section 307/ 149, P. P. C. And Sher Muhammad, Ramzan, Mian Mohd. And Ahmad to undergo rigorous imprisonment for six months each under section 148, P. P. C.
And to years' rigorous imprisonment each under section 307/149, P. P. C. The sentences were ordered to run concurrently. They were also fined Rs. 5 and in default to undergo rigorous imprisonment for a further period of ten days each. They were also ordered to execute bonds in the sum of Rs. 1,000.00 under section 106, Cr. P. C. For one year each on the expiry of the sentences to keep the peace.
2. The convicted persons appealed.
3. Briefly, narrated the facts of the case are that on August 15, 1967, at sunrise, the eighteen accused went to dhok -of Dost Muhammad in the area of village Choha, where Sher Muhammad, Hadayat, Ramzan, Sarwar and Dost Muhammad were present with Fateh Khan who was ailing and attacked them. The assailants carried fire-arms, Dost Mohd. Challenged them. He shouted that he had come to avenge the murder of his uncle Barkhurdar. Thereafter, he fired and injured Sher Muhammad.
Ramzan was injured by a shot fired .By Mehr Muhammad. Sher Muhammad and Ramzan fell down after the receipt of the injuries. All the accused then fired at the complainant party, but no other person was injured. Sarwar P. W. Took out the licensed gun of his brother, Dost Muhammad, complainant and fired at the accused party, in self-defence to ward of the attack. The women folk present at the dera of Dost Muhammad raised the alarm that Sher Muhammad had been killed and the assailants left the spot.
The motive for the assault was enmity, which originated 15 or 20 years ago when Barkhurdar, paternal uncle of Dost Muhammad and Sher Muhammad accused, was put to death. The immediate cause of the attack was the putting up of a hedge by the com--plainant which Sher Muhammad, Ilahi Bakhsh and Ramzan accused had forcibly removed. Sher Muhammad, a brother of Dost Muhammad, had again fenced his land and the accused had told him that they would teach them a lesson.
4. After the occurrence, Dost Muhammad proceeded to Gunjial Police Station at a distance of 13 miles from the spot and reached there at 11-15 a.m. He lodged the report Exh. P. A, which was taken down by A. S. h. Sanaullah (P. W. 7). The case was partly investigated by A. S. I. Umar Hayat (P. W. 6) who interrogated Muhammad Rafiq and he led to the recovery of shot--gun Exh. P. 3 from his residential kotha, which was taken into possession by the police.
It may here be stated that the recovery in no way advanced prosecution case because no empty was recovered from the spot and the, weapon was not forwarded to the Ballistics Expert for examination and opinion.
5. The case against the appellants rests on the evidence of Dost Muhammad (P. W. 1), Sher Muhammad (P. W. 2), Ramzan P. W. 3). And Sarwar Dr. Saeed-ur-Rahman (P. W, 5) examined Ramzan P. W. On 17-8-1967 and found the following injuries on his person :-
(1) Lacerated wound --" x --" going deep in the muscle placed on the anterior surface of the deltoid region of the left arm 4", below the shoulder-joint. The edges were inverted.
(2) Lacerated wound 1--" x --" x going deep in the muscle placed on the posterior surface of the deltoid region of the left arm 3--" behind injury No. 1 and 4--" below the shoulder-joint. The edges of the wound were everted.
Both injuries were caused by fire-arm and simple in nature. Injury No. 1 was wound of entry and injury No. 2 was wound of exit.
The same doctor also examined Sher Muhammad the same day and found a laceration 2--" x --" going deep to the thoracic cavity placed on the left side of the anterior thoracic wall 2--" lateral to the mid thoracic line, 2" below the medial third of the clavicle. The edges were bruised, lacerated and inverted. The injury was caused by fire-arm and was simple in nature.
6. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They ascribed the case to enmity. Feroze Khan appellant pleaded self-defence and stated that he fired with his licensed gun when the complainant party had attacked them.
7. No evidence was produced in defence.
8. For the appellants, it has- been strenuously argued that the conviction is improper inasmuch as there is no corroboration of ocular evidence, which is inimical and that the evidence which had been disbelieved against eight out of 18 accused could not be safely relied on to convict the - appellants. There is substance in the argument which must prevail. It is in the statement of the complainant that fifteen or twenty years ago, Barkhurdar son of Khuda Yar, a paternal uncle of Dost Muhammad and Sher Muhammad, accused, was murdered. Dost Muhammad com--plainant and Sher Muhammad P. W. Were challaned in that connection. Dost Muhammad complainant was acquitted. Sher Muhammad P. W. Was sentenced to transportation for life. It is in the statement of the complainant that the remaining accused are related to them. Sher Muhammad (P. W. 2) admitted that there had been long-standing enmity between the parties. Ramzan (P. W. 3) admitted that his cousin Jehan Khan son of Fateh Khan was attacked by Allahyar son of Dost Muhammad accused and he was challaned in that connection. Mst. Bakhi Bhari, father's sister of Sarwar P. W. Was the mother of the complainant Dost Muhammad. Mst. Sat Bhari, mother of Sarwar, P. W. Is the paternal aunt of the complainant Dost Muhammad. Sher Muhammad, Ramzan and Sarwar P. Ws. Together with eleven others figured as accused persons in the cross case. It is thus clear that the complainant and his witnesses are not only interested, but also inimical towards the appellants. There has been a background of enmity due to the murder of Barkhurdar, the paternal uncle of Dost Muhammad and Sher Muhammad, accused. No corrob3ration of the prosecution evidence, which is interested as well as inimical, is forthcoming from an independent source. The evidence was disbelieved by the trial Magistrate against eight of the accused and by a strange process of reasoning, he decided to rely on it to convict the appellants without any corroboration of this evidence. The finding that there was a free fight is not based on any evidence.
Ocular evidence to carry conviction must come from an unimpeachable source or it must be supported by some strong circumstances, such as might serve to overcome the inherent doubt by which interested and inimical evidence is necessarily affected. Such a corroboration is totally lacking in this case. The com--plainant, in my opinion, threw his net to wide. He involved the innocent with the guilty. I feel it is not safe to maintain the conviction of the appellants. I accept the appeal, set aside the conviction and sentences passed upon the appellants and giving them the benefit of doubt order them to be acquitted. The fine is remitted. The order made under section 106 of the Code of Criminal Procedure is also set aside. The appellants are in jail and I direct that they be set at liberty forthwith, if not required in any other case.