1. ' SARDAR MUHAMMAD ASHRAF KHAN, J.-Appellant, Nasir Ahmed, Bostan Khan, Abdul Hussain and Subedar Munshi Khan were tried by the District Criminal Court, Poonch, for offences under section 302/307, A. P. C. And sections 5 and 15, Islamic Penal Laws Act, 1974 read with section 34, A. P. C., for committing the offences of murder of one person and causing injuries to many and out of them only Nasir Ahmed was convicted under sections 5 and 15, Islamic Penal Laws Act while the others were acquitted. The appellant was awarded the sentence of Qassas' under section 5 and was also sentenced to fine (Hakoomat-e-Adil) of Rs, 40,000, under section 15, Islamic Penal Laws Act, to be payable, on realisation, to the injured persons.
2. ' The appellant has filed the present appeal against his above convictions and sentences while the trial Court has made a reference for the confirmation of the sentence of `Qassas' awarded to the appellant. This order will dispose of both the above appeals and the reference.
3. ' The brief facts of the case are that the complainant, Sub. Abdul Razzaq, lodged an F. I. R. With the Police Station, Pallandri, on 13-7-1979 at 9. a.m. To the effect that the marriage of his brother's daughter with Hay. Muhammad Hanif, P. W. Was scheduled to take place on the 13th of July, 1979 and as a preliminary to said marriage, the ceremony of 'tail' and `mehndi' was being performed in a room of the house of the bridegroom where about 40-50 men, women and children had gathered around the bridegroom who was sitting on the `Chowki' in connection with the performance of the said ceremony. At about 11-30 p. m. The appellant accompanied by Bostan Khan, Abdul Hussain and Sub. Munshi Khan, the acquitted accused, appeared on the spot and threw a hand-grenade inside the room where the said ceremony was being performed and ran away alongwith his companions from the place of occurrence. The hand-grenade so thrown exploded inside the room causing injuries to as many as 16 persons including women and children out of whom Aftab Ahmed died after some time as a result of the injury sustained by him on his left temple by the splinter of the hand-grenade. In the F.
1. R. The motive for the commission of crime was alleged to be that Muhammad Hanif, P. W. Had divorced the daughter of Abdul Hussain who after having been divorced, had married to Zaheer Ahmed, brother of the appellant and that due to this marriage, the accused had become common enemies of Hay. Muhammad Shafi, P. W. It was further alleged that Bostan Khan had been ex- communicated on account of his undesirable activities and his forcible possession of the `Khalsa' land which grievance had also prompted him to commit the offences with a view to taking revenge from the complainant party. The police after registering the case went to the spot from where it recovered blood-stained earth and the splinters of the hand-grenade and after carrying necessary investigation, put up the challan against the appellant and acquitted accused before the District Criminal Court. All the accused pleaded not guilty and stated that they had been implicated falsely in the case by the complainant party due to enmity with them. The trial Court after holding the trial of the case convicted and sentenced the appellant as stated above and acquitted the other accused in the case, vide its judgment and order dated 7-4-1981.
4. ' We have heard the learned counsel for the parties and also perused the record. The learned counsel for the appellant has contended that the delay of about 9 (1/2) hours has been caused in making the F. I. R. Which fact casts a serious doubt on the truthfulness of the prosecution story as the said delay has been used in cooking up the false case against the appellant and other acquitted accused. It is further argued that the ocular evidence in this case consists of interested and partisan witnesses which also does not find any support from any independent source with the result that the conviction based on such evidence is not .Sustainable. The learned counsel for the appellant has also contended that the eye-witnesses have made substantial improvements in their statements before the Court on their previous statements got recorded before the police and that their statements, inter se, also contain substantial contradictions. On the other hand, it has been argued by the learned counsel for the State that the ocular testimony furnished by as many as 5 witnesses out of whom 3 were also injured in the occurrence, fully establishes the charge against the appellant of committing the offences of murder and causing hurt and there is no reason to discard their evidence.
5. ' After giving or anxious consideration to the arguments addressed at the bar, we find that there is much force in the contentions of the learned counsel for the appellant and that the prosecution has not been able to bring home the guilt to the accused beyond any reasonable doubt. The F.
1. R. Was lodged after the lapse of more than 9 hours from the time of occurrence. The incident took place at about 11-30 p. m. On the night of 12th and 13th July, 1979, whereas the report of the same was lodged at 9.30 a. m. On 13-7-1979 at the Police Station, Pallandri which is situated only at a distance of 9 miles from the place of occurrence. The said distance could easily be covered within 3-4 hours by foot and thus the delay of 5-6 hours that has occurred in lodging the F. I. R., remains unexplained by the prosecution. When there existed enmity between the complainant party and the accused, the possibility of this delay having been used in consultation and deliberation or falsely implicating the accused is not altogether ruled out. Therefore, this delay in making the F.
1. R. Does cast doubt about the genuineness of the allegation made therein against the appellant and the acquitted accused when the same is viewed in the light of other circumstances of the case. It is also an admitted fact that a long deep-rooted enmity existed between the complainant party and the accused. There is also no denying the fact that the witnesses of the occurrence are not only closely inter-related but are also relatives of either deceased or one or the other persons injured in the incident that took place on the unfortunate night of the occurrence. As regard the accused and the complainant party being on inimical terms with each other, it would suffice to state that before the occurrence Bostan Khan, an acquitted person, was facing trial under section 307, A. P. C. For attempting to murder the brother of Hay. Muhammad Shafi. Similarly, a case was also pending against some of the eye-witnesses on the accusation of setting the house of Bostan Khan on fire. A litigation was also pending in the Court of law between Hassan Muhammad, P. W.
6. And Bostan Khan, an accused in the case, over the `Khalsa' land. Similarly, Muhammad Aslam, P. W.
7. Had also filed a case under section 307, A. P. C. Against some of the accused before the present occurrence took place.
8. ' So far as the relations of the eye-witnesses inter se and with the deceased are concerned, it may be pointed out that Abdul Razzaq, complainant's sister is married to Sub. Muhammad Azam Khan, P. W. Who is father of the deceased. Mst. Nasreen Akhtar, P. W. Is the cousin of the deceased. Abdul Khaliq, P. W. Who was also injured in the incident, is the brother of the complainant. The above- narrated instances of enmity between the complainant party and the accused and the relationship of the eye-witnesses with each other, would show that the ocular evidence is furnished by the highly interested and partisan witnesses which is not at all corroborated by any direct or indirect evidence coming from any independent and reliable source. It is an established principle of criminal jurisprudence that the evidence of the interested and related witnesses cannot be relied upon to base a conviction on a criminal charge unless the same is corroborated by some impartial and disinterested testimony. But in the case in hand, there is no evidence on the record which may provide some sort of corroboration to the eye-witnesses account which, as stated earlier, consists of testimony of partial and related witnesses. Not only that there is no corroborative evidence to the ocular testimony, the statements of the eye-witnesses produced in this case even do not inspire confidence. The statements of the eye- witnesses are full of contradictions on material particulars. These witnesses have also made substantial improvements on their previous statements got recorded before the police or in the F.
1. R. It is not believeable that at such a huge gathering, few independent and neutral persons having no enmity, or friendship with either of the parties would not have been present at the time of the occurrence. Even the prosecution admits the presence of Khaliq' Massali at the time when the incident took place in the house of Muhammad Shafi, P. W. This man has appeared as D. W. And stated that at the time of occurrence, the culprit was not identified.
9. ' Moreover, their statements when examined in the context of the facts and circumstances of the case, also appear to be most unnatural and unbelieveable. There is no mention in the F. I. R. That the persons named therein as accused had commanded the gathering that none of them should move from his place when they appeared on the scene but in their statements before the Court, the eye-witnesses have stated that one or the more accused have sounded such a warning before the appellant threw the hand-grenade in the room i. e. Place of occurrence. There is, again, contradiction on the point as to who among the accused gave the above caution. Some of the witnesses say that it was only the appellant who had sounded such a warning, whereas some of them attribute such a Talkara' to two accused while the others say that all the accused had asked the persons present there not to move from their places. If the witnesses had seen the accused and also heard the Talkara' from them at the time of occurrence, there was no reason why this fact should not have been mentioned in the F. I. R. And that there would have been any difference in their statements op the point as to who among the accused gave the warning to the gathering before the hand-grenade was thrown inside the room by the appellant. The eye-witnesses have also stated in their statements before the Court that the appellant had attempted to throw another grenade from some distance inside the room of the house of Muhammad Shafi, P. W. After throwing the first one but he was prevented from doing so by Abdul Hussain and Bostan Khan, acquitted accused, by saying that the first grenade had achieved their object of doing away with their enemies but this part of the prosecution story finds no mention at all in the F. I. R. Had the above happening taken place, we find no `reason why such an important incidence would have been omitted by the complainant to be included in the F. I. R. Similarly, Sub. Muhammad Azam, P. W.
10. Stated that he had seen the accused running from the place of occurrence while he was going to the house of Muhammad Shafi, P. W. But this fact is altogether omitted in the F. I. R. Although it is on record that it was the said witpess who had sent the complainant to the Police Station to make report of the incident. The above omission in the F. I. R. Would show that Muhammad Azam, P. W's. Evidence that he had seen the accused fleeing from the place of occurrence soon after it, is factually not correct. The aforesaid improvements and omissions clearly point out that the witnesses of the occurrence produced by the prosecution in this case have deliberately tried to implicate the accused persons by hook or crook by making improvements of substantial nature in the prosecution story as set up earlier at the stage of making the F. R. Their testimony Also appears to be quite unnatural and does not appeal to one's mind in the given circumstances of the case.
11. According to their statements, two Patromax were lit at the place of occurrence when the accused made attack there and threw hand-grenade and they further also attributed `Lalkara' to them before the grenade was thrown inside the room. Such a behaviour and action is not expected from a man of ordinary intelligence that he would go to commit the offence of murder by throwing a grenade at the gathering of 40-50 persons in sufficient light not only so openly but also sounding warning and `Lalkara. Such an act cannot be described less than suicidal because it amounts to a clear attempt on the part of the culprit for getting himself identified as a murderer by the persons present there, thereby making him liable to be hanged. The natural conduct of an accused person in such like situation would have been to take all necessary precautions to conceal his identity and to commit distardly act of throwing the grenade on a large number of persons as clandestinely as possible so as to avoid the consequences of his such a criminal act, but in this case, we find altogether a different picture where the accused instead of trying to take steps to hide their identity and to perform their criminal act secretly, have openly and loudly made themselves available to be seen and identified by the persons who were attending the aforesaid ceremony.
12. The sum total of the above discussion is that the ocular evidence produced in his case consists of statements of highly interested and partial witnesses. It is also full of contradictions, omissions, and improvements on material particulars which does not find any corroboration from any other plausible evidence. Beside suffering from the above infirmities, it also does not inspire confidence as to its truthfulness. Therefore, it is not safe to rely on such evidence to hold any one guilty of offence with which the appellant is charged as the prosecution has failed to discharge his burden to prove the case against the appellant beyond any reasonable doubt with the result that the appellant, is entitled to get the benefit of such doubt.
13. ' For the foregoing reasons, the appeal is accepted and the conviction and sentence of the appellant is set aside and he is acquitted giving him the benefit of doubt. He shall be released forthwith if not required in connection with some other case. The reference for the confirmation of the sentence of `Qassas' awarded to the appellant stands rejected.
14. Appeal accepted. THE END HIGH COURT OF AZAD JAMMU & KASHMIR PLD 1983 Azad J & K I Before Sardar Said Muhammad Khan and Sardar Muhammad Ashraf Khan, JJ MUHAMMAD RAFIQUE-Petitioner versus ABDUL HAMID KHAN AND OTHERS-Non-Petitioners Civil Revision No, 48 of 1981, decided on 4th November, 1982.
(a) Civil Procedure Code (V of 1908)- -- 0. XXI, r. 35(2) read with S. 115-Decree for joint possession-Execution of-Decree passed for joint possession of land but Sub-Judge issuing warrant of execution for delivery of `Khas' possession- Held, issuance of such warrant of execution illegal, being against decree.-[Decree]. [p. 2]A
(b) Civil Procedure Code (V of 1908)- - S. 115 read with S. 47-Revision - Remedy of-Court issuing warrant of execution against terms of decree-Neither executing Court determining question between parties within meaning of S. 47 nor order amounting to decree, hence not appealable-Held, revision petition only remedy available and not appeal or separate suit.-[Appeal (civil) - Revision (civil)]. [p. 2]B AIR 1958 Raj. 287 and AIR 1957 Azad J& K 17 ref. Syed T. H. Tariq and Raja Muhammad Hanif Khan for Petitioners. Date of institution : 16th August, 1981.
15. ' SARDAR SAID MUHAMMAD KHAN, J.-This revision petition has been directed against the order of Sub-Judge Rawalakot dated 5-7-1981.
16. The brief facts giving rise to the present revision petition are that a decree for joint possession was passed in favour of the non-petitioners. The non-petitioners sought execution of the said decree and the learned Sub-Judge instead of directing the delivery of joint possession of the suit land, issued warrant of execution directing delivery of `Kbas' possession.
17. ' We have heard the arguments and gone through the file. It has been contended by Syed T. H.
18. Tariq, Advocate that delivery of symbolic possession should have been ordered by beat of drum or by other modes of execution of decree for joint possession visualised under Order XXI, rule 35(2) of the C. P. C. He has further argued that despite the fact that learned Sub-Judge mentioned in his warrant of execution that decree was for joint possession, as it undoubtedly was, he directed the delivery of `khas' possession and the Patwari 'Halo in pursuance of the said direction, measured and demarcated the land measuring one kanal and 18 (1/2) marlas out of the land comprising Survey No, 374 and delivered the `Khas' possession of the same to the non-petitioners. He has further urged that execution of decree not being in consonance with the terms of the decree, is violative of relevant provisions contained in Order XXI, rule 35(2) of the C. P. C. The learned counsel for the non-petitioners did not controvert the proposition that decree was for joint possession and only a symbolic possession should have been delivered in manner provided under Order XXI, rule 35(2) of the C. P. C., but he has raised the objection that revision petition is not competent because the petitioner had an alternate remedy by way of a civil suit.
19. ' We have considered the arguments advanced at bar. Under Order XXI, rule 35(2) of the C. P. C. a decree for joint possession is to be executed by delivering symbolic possession, by affixing a copy of warrant in some conspicuous place on the property and proclaiming by beating of drum or other customary mode, at some convenient place.
20. ' If in pursuance of a decree for joint possession the decree holder is delivered has' possession of the land decreed that would be clearly violative of Order XXI, rule 35(2) of the C. P. C. In the instant case, the decree was for joint possession while it was executed as if it was a decree for `Khas' possession. Thus, it is or considered view that issuance of warrant of execution for delivery of `Khas' possession being against the terms of the decree was illegal.
21. ' So far as the argument that revision petition is not competent because the remedy by way of suit was available to the petitioner is concerned, that is devoid of any force. The learned counsel has referred to AIR 1958 Rajisthan 287 and AIR 1957 A J & K 17. It has been held in the aforesaid cases that where any other efficacious remedy by way of civil suit or otherwise is available to an aggrieved party, no revision lies under section 115 of the C. P. C. In the instant case, the matter relates to the execution of the decree and thus, a civil Court is barred under section 47 of the C. P.
22. C. An appeal was not competent either because the. Executing Court did not determine any question arising between the parties within the meaning of section 47 of the C. P. C.. It simply issued warrant of execution against the terms of the decree. Therefore, it cannot be said that the order of the executing Court amounted to a 'decree' and was appealable as such. The only remedy available to the petitioner was by way of revision petition and not by way of an appeal or by a separate suit.
23. ' In the light of what has been stated above, we set aside the warrant of execution and subsequent execution proceedings and hold that delivery of `Khas' possession' to the non-petitioners being violate of Order XXI, rule 35(2) of the C. P. C. Was unlawful. Therefore, we remand the case to the trial Court with the direction that if the `Khas' possession of the disputed portion of land is still with the non-petitioners as a result of the execution of decree that shall be restored to the petitioner and thereafter, the Court shall execute the decree for joint possession by issuing a fresh warrant of execution according to the provisions contained in Order XXI, rule 35(2) of the C. P. C.