' Haq Nawaz son of Dallan aged 26 years, a shopkeeper of Mauza Garhthana Wazeeri was tried alongwith his relatives Gulzar (26 years), Jumma (70 years) and Hassan Bakhsh (32 years) by Sessions Judge, Dera Ghazi Khan, under section 302/34, P. P. C. For having caused the death of Shamas Din (deceased), aged 48 years, and under section 307/34, P. P. C. For murderous assault on Shah Muhammad P. W. Haq Nawaz and Gulzar were also tried for an offence under section 379, P. P. C. For having stolen goat belonging to Shamas Din. The learned Sessions Judge while acquitting Gulzar, Jumma and Hassan Bakhsh, convicted Haq Nawaz under section 304, Part II, P. P.
C. And sentenced him to 5 years R. I. And a fine of Rs, 1,000 in default whereof to undergo further R. I.
For one year. He was, however, acquitted of the charge under section 379, r P. P. C. Haq Nawaz has filed this appeal challenging his conviction and sentence both.
2. The incident had taken place at 9-00/10-00 p. m. On 17th March, 1970 in the area of village Garhthana Wazeeri which was reported by Balochan (P. W. 10) through F. I. R. Exh. P. F. Recorded by A. S.-I. Sultan (P. W. 15) at 12-00 noon on 18th March, 1970 Police Station Harrand at a distance of 1+ miles from the place of occurrence.
3. Balochan P. W. Is brother of Shamas Din (deceased) and Sohna P. W. Is the servant of Shamas Din (deceased) and also brother of the wife of Balochan, complainant. They were sleeping in the Wara (enclosure of goats) of Shamas Din. At about Peherwela of the fateful night. They were aroused by the barking of dogs and found the door of Wara open. Suspecting theft, they came out of the Wara and saw two persons taking away a goat. They raised alarm "Thief ! Thief !' and chased those persons. They overtook them near the house of Naher Khan and surrounded them.
Meanwhile Shamas Din (deceased), his nephew Shah Muhammad son of Balochan complainant (P. W. 9) and Sindhi son of Mehrab (P. W. 8) were attracted to the spot and the thieves were identified to be Gulzar and Haq Nawaz who were armed with sotas. Hassan Bakhsh and Jumma (acquitted co-accused) also reached, there. Hassan Bakhsh at that time was armed with a pistol.
Haq Nawaz, appellant, gave a sota blow on the head of Shamas Din and felled him on the ground.
Sohna P.W. Was carrying a stick. He gave blow to Gulzar and Jumma (acquitted co-accused) in self-defence. Hassan Bakhsh aimed his pistol at Shamas Din but before he could fire Shah Muhammad P. W. Attempted to snatch it from his hands which went off hitting left palm of Shah Muhammad P. W. Balochan P. W. Also went forward but Gulzar gave him stick blow on his left hand.
The accused persons then fled away leaving the goat at the spot. Shamas Din and Shah Muhammad were removed in injured state to the hospital at Lalgarh where Dr. Hafiz Saad Ullah (P.
W. 1) examined them medically. The doctor found a lacerated wound 2"x 1/2" on the right side of the scalp 4" from the right ear and a bruise li" x 3/4" on the right upper eyebrow. Shamas Din was referred to D. H. Q. Hospital for treatment. On the person of Shah Muhammad, the doctor observed a through and through gunshot wound on his left hand on the palmer aspect 2/5 and the surrounding skin was blackened. The injury was declared as grievous.
4. A. S.-I. Sultan Khan (P. W. 15) investigated the case. Reaching the scene of occurrence on 18th March. 1970 he picked up two live cartridges P. 4/1-2 and two missed cartridges P. 5/1-2 which were separately made into sealed parcels and secured under memo. Exhs. P. J. And P. K. Respectively. He took into possession a goat produced by Balochan P.W. Under memo. Exh. P. L. On his inquiry the doctor reported on 22nd March, 1970 that Shamas Din was not fit to make a statement. Besides the acquitted co-accused he arrested Haq Nawaz. Appellant on 24th March, 1970 who got recovered a blood-stained sota P. 7 from his house on 28th March, 1970 which was sealed and secured vide memo. Exh. P. Q. He also produced blood-stained shirt P. 8 and shalwar P. 9 which were seized under memo. Exh. P. Q. After making them into a sealed parcel. It revealed during the investigation that the cartridges recovered from the spot were of prohibited bore, therefore, he took into possession revolver from Ghulam Hassan Moharrar (P. W. 6) vide memo. Exh. P. R. This revolver belonged to Shamas Din (deceased) who was a Deffadar in the Border Military Police and possessed this weapon at the time of occurrence but was later deposited with the Muharrir of B. M.
P. By Ahmad Khan son of the deceased.
5. Shams Din died in D. H. Q. Hospital on 22nd March, 1970 at 8-15 p. m. i,e, after 5 days of the occurrence. Dr. Salim Beg Mirza (P. W. 16) conducted post-mortem examination on his dead body on 23rd March, 1970 at 8-15 p. m. And noted thereon following injury :- ' A lacerated wound 2" x wound stitched and partially healed obliquely situated on the right side of the head 4" from the right ear.
' Blood extravasated on the right side of scalp. There was a fracture of right parietal and frontal bones of skull underneath the injury. Membranes of the brain were congested and full of blood clots on right side. A tear in the right parietal area 2" long underlying brain was lacerated 2" x 1/2" x 1/2 with haematoma, 4" x 3" around the injury. In the opinion of the doctor this injury was grievous and fatal to life. Death had occurred due to injury and compression of brain from haemorrhage and shock which was sufficient to cause death in the ordinary course of nature. The probable time between injury and death was about 5/6 days vide postmortem report Exh. P. A.
6. The case was committed to the Court of Session for trial under the old procedure. The statement of both the doctors, namely Dr. Saad Ullah and Dr. Saleem Beg Mirza, were transferred to the record of sessions 14 other witnesses were examined at the trial. The prosecution relied on the ocular evidence furnished by Sindhi (P. W. 8), a cousin of the deceased, Shah Muhammad (P. W. 9), nephew of the deceased, Balochan (P. W. 10), brother of the deceased and Sona (P. W. 21) an employee of the deceased ; and the incriminating recoveries supported by Balochan P. W. And A.
S.-I. Sultan (P. W. 15) besides the medical evidence provided by Dr. Hafiz Saad Ullah and Dr. Saleem Beg Mirza P. Ws.
7. Ahmad Khan (P. W. 3) a son of the deceased admitted that there was a dispute over land situate in the area of Post Naurang between his father Shamas Din, Sona, Balochan and Sindhi P. Ws. On one side and Hassan Bakhsh, accused on the other which was finally resolved by the Commissioner in favour of Hassan Balchsh. He further admitted that Dalian, father, and Allan and Jumma uncles of Haq Nawaz, appellant were party with Hassan Bakhsh accused, against Shamas Din deceased.
8. Ghulam Hassan (P. W. 5) Muharrir B. M. P. Lines, D. G. Khan, had produced pistol P. 10 before the Sub-Inspector on 30th March. 1970 and stated that it was owned by the Government and was given to Shamas Din in his capacity as Dafedar. Mr. Abdul Rashid. Fire-arms Expert (P. W. 7) had compared the missed cartridges P. 5/1-2 with the life cartridges fired from pistol P. 10 and stated that due to insufficient data he was unable to give any opinion as to whether the missed cartridges P. 5/1-2 were fired from pistol P.
10.
9. Haq Nawaz, appellant, in his statement under section 342, Cr. P. C. Denied that he had anything to do with the incident of theft or the incident resulting in injuries to Shamas Din and others.
According to him, there was litigation between his father and Hassan Bakhsh on one side and Shamas Din and others on the other hand that he had been falsely involved due to enmity. To substantiate the dispute over land he produced certified copy Exh. D. F., dated 15th November, 1967.
His co-accused Gulzar and Jumma (since acquitted) admitted that they were present in Basti Nahar on the night of occurrence. Hearing alarm at about Isha time, they went and found that a fight was going on. They were hit by some one from among the lighters. They, however, did not know what that fight was about. They also attributed their false involvement to the litigation between them and Shamas Din deceased.
10. Hassan Bakhsh, co-accused of the appellant had however, examined Ghulam Murtaza, a Jamadar of B. M. P. Kot Sabzal at D. W. Who had brought a roznamcha of the said yost and stated with reference to its entries that Shamas Din (deceased) had gone on 4 days leave on 17th March, 1970. He had taken with him revolver No, 25 with 40 bullets. According to him, a B. M. P. Official cannot take weapon supplied to him by the Government while on leave unless he is allowed by the officer in-charge, Sardar Ata Hussain Khan. Jamadar, B. M. P., Post Harand stated that revolver P. 10 with 32 bullets was deposited with him by Ahmad Khan P. W. Son of the deceased which was sent by him to B. M. P. Lines Saddar, B. G. Khan on 28th March, 1970. It means 8 bullets were not accounted for.
11. On overall analysis of the evidence on record the learned trial Judge observed that the witnesses who had been proved to be related inter se and also had litigation with the accused party had suppressed these facts in their anxiety to appear to be disinterested witnesses whereas in fact they were not. He further observed that story of theft had not impressed him. He, therefore, concluded that it was difficult to believe that Haq Nawaz, appellant and Gulzar, acquitted co-accused, had been detected taking away a goat belonging to Shamas Din or injuries to Shamas Din and Shah Muhammad were the result of theft incident. The prosecution story that Hassan Bakhsh the acquitted accused, was armed with pistol and that Shah Muhammad was injured when he gripped the barrel of the pistol, was also disbelieved, for Hassan Bakhsh did not allegedly fire at Shamas Din deceased although there was nothing to prevent him to fire another shot at Shamas Din if he intended to kill him. Learned trial Judge further observed that injury on the person of Shah Muhammad was self-suffered and was inflicted to strengthen the case against Hassan Bakhsh the acquitted accused. He also found the participation of Jumma and GuIzar co-accused of the appellant in the occurrence as doubtful.
12. In these circumstances I am of the view that the whole of the prosecution case was overcast by thick clouds of doubt. It is true that the principle of divisibility of testimony is not being followed by the Courts of this country and have rather favoured the idea to sift grain out of chaff but where it is proved that the prosecution witnesses in order to implicate innocent persons have gone to the extent of fabricating fire-arm injuries there I am afraid, it would be highly dangerous to believe such evidence against one (Haq Nawaz appellant) while his three co-accused have been let off on the basis of the same evidence. I have not been able to lay my hand on any evidence on the record in support of the conclusion arrived at by the learned trial Judge that a sudden fight had taken place between Haq Nawaz and Shamas Din. The evidence of the eye-witnesses having been disbelieved qua three co-accused of the appellant, there is no differentiating feature which could satisfy the mind of the Court to believe the same evidence qua Haq Nawaz, appellant. For the safe administration of criminal justice it has been pointed out time and again by the superior Court that where it comes to the knowledge of the Court that a witness C has tried to implicate an innocent person then his evidence should be thrown out qua others also, until and unless it is corroborated by some other independent strong circumstances. The only additional evidence which has been used against the appellant is the recovery of blood-stained sota P. 7 but the learned trial Judge has lost sight of the fact that both the public witnesses of recovery were given up and the evidence of the Investigating Officer alone in the peculiar circumstances of the case narrated by me is not sufficient to hold Haq Nawaz, appellant guilty of a serious charge as under section 304, Part-II, P. P.
C. I, therefore, do not find the material on record as sufficient and satisfactory for holding the appellant guilty.
13. The result is that this appeal succeeds and the conviction as well as the sentence of the appellant is set aside. The appellant is on bail. He is discharged of his bail bonds.