FAKHRUDDIN H. SHAIKH, J.-This is an appeal under section 417 (2), Cr. P. C. From the judgment of learned II Additional Sessions Judge, Karachi, dated 23rd December, 1981, whereby the learned Judge had acquitted respondent Nos. 1, 2 and 3 of offences under sections 307/34, P. P. C. For which they were tried on a direct complaint filed by appellant Ali Khan. Leave to appeal under subsection
(2) of section 417, Cr. P. C. Was granted by a bench of this Court, vide order dated 24th June, 1982, whereby the appeal was admitted for regular hearing.
2. Ali Khan had originally filed direct complaint in the Court of Additional City Magistrate No, XV, Karachi for offences under section 307/324/325 read with section 34, P. P. C., against four persons namely, Lai Khan, Sher Sammad, Shah Mir and Sahib Khan. Shah Mir died before commencement of the trial, hence his name was deleted from the array of the accused persons and the case proceeded against the three accused only, who are respondents Nos. 1, 2 and 1 The learned Additional City Magistrate held preliminary inquiry under section 202, Cr. P. C. And as a result of it took cognizance of the offences under section 324/325 read with section 34, P. P. C., vide order dated 7th August, 1972.
3. It appears that in the incident in respect of which Ali Khan had filed direct complaint, one Gul Rang Khan was also alleged to have received injuries at the hands of the respondents. Gul Rang Khan therefore, filed another direct complaint for offence under section 307/34, P. P. C. Cognizance of which was taken by IIIrd Additional Sessions Judge, Karachi. As the two complaints of Ali Khan and Gul Rang Khan pertained to the same incident, hence an application was made to the learned Additional Sessions Judge for consolidating the two cases into one, which was done by his order dated 15th October, 1981. The facts of the incident related by Ali Khan and Gul Rang Khan in their respective complaints are almost identical. It may be stated that Gul Rang Khan also died before commencement of the trial, therefore, he could not be examined as a witness. It will, therefore, suffice if the facts stated in the complaint of Ali Khan only are narrated for the purpose of decision of this appeal, which are as under :- On 9th June, 1972 at about 1-20 p. m. Ali Khan was preparing to take lunch in his house with Gul Rang Khan, Muhammad Yakoob Khushdil and Dost Muhammad. In the meanwhile Muhammad Khan son of Noor Khan came there with injuries on his body from which he was bleeding. He informed Ali Khan and others that he was attacked by Shah Mir Khan, Muhammad Khan son of Sharif Khan, Lal Khan and Khan Bahadur, while he was going to Dhobi-Ghat. Appellant Ali Khan, alongwith his companions who were sitting with him, took Muhammad Khan son of Noor Khan to Kalakot Police Station for lodging report. It is alleged that when the police was about to record the F.
I. R. Of Ali Khan, the three respondents accompanied by deceased Shah Mir Khan and Afzal Khan, reached the Police Station armed with chhuris, lathies and sticks and started attacking Ali Khan's party. In this incident Ali Khan and Gul Rang Khan received injuries. It is stated that Afzal Khan was armed with a chhuri and he was caught by Gul Rang Khan. Afzal Khan tried to disengage his hand from Gul Rang Khan and in this attempt Afzal Khan got injured by his own chhuri in the stomach and died later as a result of injury. A case against Ali Khan was registered by the Police, which was investigated separately. It is alleged that in this incident Ali Khan sustained several injuries on his body. His thumb was dislocated. Respondents La! Khan, Sahib Khan, Sher Samad and Shah Mir Khan are alleged to have given lathi blows to Ali Khan and Gul Rang Khan. Gul Rang Khan was removed to the hospital, but Ali Khan was arrested by the Police in connection with the murder of Afzal Khan. He requested the police to get him medically examined, but the police refused to do so.
He was remanded to Jail on 12th June, 1972 i. e. After three days of the incident. The appellant made applications to the Court, by whom he was remanded to custody, to direct the Jail authorities to get him medically examined. Upon one of' such applications dated 17th June, 1972, he was examined by a Doctor, but no medical certificate has been produced. Gul Rang Khan was, however, examined first by Dr. Abdul Sattar on 9th June, 1972 i. e. On the very day of the 'incident who had found three incised wounds on his forearm, abdomen and lateral side of the chest. On the next day he was also operated upon by Dr. Moosa Khan. All the injuries were reported to have been caused by a sharp-cutting weapon.
4. Charge under section 307 read with section 34, P. P. C. Was read over to the respondents Nos. 1, 2 and 3 for having attempted to commit murder of Ali Khan and Gul Rang Khan. All the three respondents pleaded not guilty. Their case as alleged by La! Khan in his statement under section 342, Cr. P. C. Was to the following effect :- "The fact is prior to the murder of Afzal Khan, Muhammad Khan had quarrelled with deceased Khan Bahadur and then after two days his relatives planned to commit murder and they succeeded with the help of Muhammad Khan and Manzoor who both fired and killed Khan Bahadur.
Thereafter Muhammad Khan considering that he will be saved if he goes and lodges the report of injuries sustained two days prior to the incident for which F. I. R. Was recorded and ultimately during investigation 182, Cr. P. C. Were taken against Muhammad Khan.
On 9th June, 1972 Sahib Khan and 2/3 others had taken deceased Khan Bahadur to the Civil Hospital, Karachi, while accused Lal Khan and Samad Khan had gone to lodge report at P. S. Kalakot while Lal Khan was lodging F. I. R. Before Anisur Rehman he found Ali Khan, Gul Rang Khan, Muhammad Khan and others present in the P. S. Duly armed and they created such a situation at P.
S. That no body was able to lodge the report. Complainant Ali Khan in presence of Police Officers committed murder of Afzal Khan and was accordingly arrested at the P. S. Lal Khan was given knife injuries by Alam Khan and Sher Khan caused injuries to Sher Samad Khan. Alam Khan and Sher Khan were also challaned by the police for those injuries given to accused Lal Khan and Sher Samad. Complainant Ali Khan was arrested by the police and blood-stained knife was secured from him. Complainant Ali Khan is facing trial in this Court for murder of Afzal Khan. In order to save himself this case has been concocted against us. Deceased Khan Bahadur is son of accused Lal Khan and accused Lal Khan is brother of Afzal Khan. We are innocent."
Respondents Nos. 2 and 3, who are related to Lal Khan, have also given the same statement.
5. In support of the prosecution the following witnesses have been examined ;-
(1) P. W. Ali Khan Exh. 8.
(2) P. W. Khushdil Khan ... Exh.10.
(3) P. W. Yakoob Exh. 12.
(4) P. W. Muhammad Khan son of Noor Khan Exh. 13 and
(5) Dr. Abdul Sattar Exh. 15 Dr. Moosa could not be examined, because he was reported to be untraceable. Hence his statement, recorded by the A. C. M. During preliminary inquiry under section 202. Cr. P. C. On 10th August, 1972, was placed on record as Exh.
17. The respondents did not produce any witness in defence.
6. The learned Additional Sessions Judge framed following points for determination "(1) Whether Ali Khan and Gul Rang Khan sustained injuries at the time of incident ?
(2) Whether there was free fight at P. S. ?
(3) Whether the present accused intentionally gave injuries to P. Ws. As claimed by prosecution ?
(4) What offence if any committed by the accused?'
After recording prosecution evidence the learned Judge 13eld that injuries on the person of Gul Rang Khan were proved but it was not proved that Ali Khan was also injured. There is no finding whether injuries the person of Gul Rang Khan were grievous or simple or that they could have proved fatal. On point No, 2 the learned Judge held that there was a free fight between the parties.
On point No, 3 it was held that it was doubtful if the present respondents had caused any injuries to All Khan or Gul Rang Khan. In view of the above findings the learned Judges acquitted all the three respondents.
7. We have perused the evidence of P. W. 1 Ali Khan (Exh. 7), P. W. 2 Khushdil (Exh. 10), P. W. 3 Yakoob (Exh. 12) and P. W. 4 Muhammad Khan (Exh. 13), all of whom have claimed to be the eyewitnesses of the incident. It may be stated at the very outset that all these witnesses are inimical to the respondents as admitted by them in examination-in-chief. Ali Khan has admitted that he is being tried for the murder of Afzal Khan who was said to be one of the companions of the respondents in this incident. Other P. Ws, are close relatives of Ali Khan. Although the incident is said to have taken place inside Kalakot Police Station, where several Police Officers and policemen were present, but none of them has been cited as a witness. The witnesses have given highly exaggerated version of the incident. According to Ali Khan, he had received a knife injury from the hand of Shah Mir Khan on his right buttock, but there is no medical evidence on this point. Dr. Ali Raza, who is said to have examined this man, has not been produced as witness, nor any cogent reason has been assigned for his non-examination. Even the learned trial Judge held that there was no corroborative evidence to prove that Ali Khan received any injury. So far as Gul Rang Khan deceased is concerned, he was examined by Dr. Muhammad Moosa, but even this Doctor has not been examined by the trial Court. Statement of this witness recorded during preliminary inquiry under section 202, Cr. P. C. Has been brought on record as Exh. 17, but this statement cannot be treated as evidence at the trial, because the Doctor was not cross-examined. No statement recorded during the preliminary inquiry can be treated as substantive evidence unless the witness has been cross- examined or an opportunity has been given to the opposite party to cross-examine him. The evidence of Doctor Muhammad Moosa should, therefore, be excluded from consideration. Dr. Abdul Sattar (Exh. 15), who had earlier examined Gul Rang Khan, could not produce the original certificate of injuries prepared by him. He, therefore, produced a true copy of the certificate issued by him from the judicial record. It is not clarified by the learned trial Judge as to from which record this true copy was obtained. However, this copy of the certificate which is Exh. 16 on the record, shows that there were three incised wounds on the forearm, abdomen and chest of Gul Rang Khan. The certificate further shows that the nature of injuries was simple. From the medical evidence it is clear that the witnesses have given highly exaggerated version according to which the respondents had tried to commit murder of Gul Rang Khan and Ali Khan. The four eye-witnesses have further deposed that Afzal Khan (deceased) only had knife while the respondents had lathis and that all the three respondents had given lathi blows to Ali Khan and Gul Rang Khan. So far as Ali Khan is concerned, there is no medical evidence whatsoever of any injury suffered by him. The copy of the medical certificate produced by Dr. Abdul Sattar shows that there was no lathi injury on the person of Gul Rang Khan deceased. It was, therefore, rightly concluded by the learned trial Judge that it was doubtful if any of the respondents was responsible for causing injuries to Ali Khan or Gul Rang Khan. We have no reason to hold that the trial Court has not appreciated the evidence of the prosecution properly, or that the above finding of the trial Court is based on misreading of evidence,
8. It would be appropriate at this stage to refer to the well-established minciples which have been laid down by Supreme Court and the High Courts, from time to time, governing the question of interference with the orders of acquittal. In the case of Bashir Ahmed v. Muhammad Azam and another , the Supreme Court observed as under on the above question "The principles, which have been consistently followed by this Court for justifying interference with orders of acquittals passed by the High Courts, have been clearly laid down in the cases of Lalu v.
The State PLD 1959 SC 258 and Fateh Muhammad v. Bagoo and others. They seem to indicate that unless it is possible to demonstrate with certainty that none of the grounds upon which the learned Judges have purported to acquit is at all supportable, this Court will be reluctant to interfere, even though upon the evidence on the record and the facts and circumstances of the case this Court might well have come to a different conclusion if it was trying the case."
9. In the'case of Bagh Ali v. The State , it has been held by the Supreme Court that ocular evidence in order to carry conviction on capital charge, must come from an unimpeachable source or may be supported by some strong circumstantial source. This Court also in the case of Khurshid Ahmed v. Kabool Ahmed and others , held as under :- "The principles which justify interference by the superior Courts with orders of acquittals have repeatedly been laid down by our own Supreme Court and are to be found enunciated in the cases of Lalu v. The State, Fateh Muhammad v. Bago and another, and this year again in the case of Sirajuddin v. Kala with certainty that none of the grounds on which the trial Court has purported to acquit is at all supportable, the superior Court will be reluctant to interfere even though upon the evidence on record and the facts and the circumstances of the case, this Court might well have come to a different conclusion it was trying the case."
In support of the above view H. T. Raymond, J. Who had delivered the judgment had relied on the cases of Laloo v. The State , Fateh Muhammad v. Bagoo and others and Sirajuddin Kala v. The State .
10. In view of the above principles, we are of the view that the evidence in this case has not come from unimpeachable source. All the witnesses are deadly enemies of the respondents. The respondents are closely related to each other, and the appellant is being tried for murder of Afzal Khan, a companion of the respondents. Moreover we do not find any error of law or serious error of fact having been committed by the trial Court in appreciating the ocular testimony. There is no corro-boration whatsoever of the ocular testimony which has been given by highly interested1 2 3 4 5 6 witnesses. No exception, therefore, can be taken to the finding of acquittal recorded by the learned trial Judge.
Mr. Murtuza Hussain Advocate, who appeared for the State, has also not supported the appeal and has argued that respondents Nos. 1, 2 and 3 were rightly acquitted.
For the above reasons the appeal is dismissed. The bail bond of the respondent stands discharged. PLD 1969 SC 469 PLD 1973 SC 321 PLD 1964 Kar. 356 PLD 1959 SC 258 PLD 1960 SC 286 PLD 1964 SC 26