K. E. CHAUHAN. J.-Four persons, namely, (i) Anwar Saeed (ii) Saeed Ahmad, (iii) Majid Ahmad and
(iv) Mujeeb-Ullah were tried by the learned Sessions Judge, Gujranwala, under section 302/34, P. P.
C., for the murder of one Muhammad Sadiq alias Sadu, a Peon at the Northern Octroi Post Qila Dedar Singh (District Gujranwala) and under section 307/34, P. P. C., for attempt to murder with revolvers two prosecution witnesses Muhammad Aslam (P. W. 5) and Rehmat Ullah (P. W. 6). By means of his judgment and order, dated 24-9-1970 the learned Sessions Judge acquitted Majid Ahmad and Mujib-Ullah (accused Nos. 3 and 4 mentioned above) and convicted Saeed Ahmad (accused No. 2) under section 302, P. P. C., for murdering the deceased hereinbefore mentioned and sentenced him to death and a fine of Rs. 5,(.00.00 (Rupees Five thousand only) or rigorous imprisonment for three years in lieu of fine. The fine imposed under section 302, P. P. C., if realised, is to be paid as compensation under section 544-A of the Code of Criminal Procedure to the heirs of Sadu deceased. He has also been convicted under section 307/34, P. P. C., for attempt to murder the injured P. Ws. And sentenced to undergo rigorous imprison--ment of five years and a fine of Rs.
1,000.00 (Rupees one thousand only) on two counts or rigorous imprisonment of one year's in lieu of fine. Anwar Saeed (accused No. 1) was convicted under section 302/34, P. P. C. And sentenced to transportation for life. He was also convicted on two counts under section 307/34, P. P. C. And sentenced to rigorous imprison--ment of five years. The fine imposed under section 307/34, P. P. C., if realised, is to be paid to the two injured P. Ws. In equal shares. All the sentences were to run concurrently. The convicted accused have come up in appeal to this Court under section 410 of the Criminal Procedure Code, and the case of the condemned prisoner has been referred to us for confirmation by the learned Sessions Judge, under section 374 of the said Code. There is a private Revision (being Cr. Revision No. 163 of 1971), filed by Qaim Din other of the deceased against the acquitted accused. This judgment will dispose of all the aforesaid three matters.
2. (a) The prosecution case is that in Town Committee, Qila Dedar Singh there was a party faction.
One party was of Ch. Muhammad Riaz, Chairman (also called as Riaz Ahmad) (P. W. 13) and the other was of Mujeeb-Ullah acquitted accused). The deceased who was a Chaprasi in the Octroi Post, Muhammad Aslam (P. W. 5) and Rehmat-Ullah (P. W. 6), who were Muharrirs belonged to the party of Ch. Riaz Ahmad, Chairman, whereas the accused belonged to the party of Mujeeb-Ullah.
The present occurrence, it is alleged, was a sequel of that party faction.
(b) 1t is further alleged that about 1f years prior to the occurrence, the deceased Muhammad Sadiq along with others had beaten Mujeeb-Ullah with sofas. This incident was sought to be proved from P. W. 3 Muhammad Saeed alias Lili, but as he was not an eye-witness of the alleged occurrence, and his testimony on this point was merely hearsay and also because he was inimical to Mujeeb- Ullah the learned Sessions Judge did not believe him in this respect.
(c) Another allegation was that 15/ 16 days prior to the occurrence, Muhammad Sadiq deceased, quarrelled with Anwar Saeed and Majid Ahmad accused at Bus Stand of Qila Didar Singh. This part of the motive was sought to be proved from Muhammad Saeed (P. W. 3), Aslam (P. W. 5) and Rehmat-Ullah (P. W. 6). P. W. 3 Muhammad Saeed was not an eye-witness of this occurrence and his testimony merely being hearsay, he was not relied upon by the learned Sessions Judge. As regards Rehmat-- Ullah (P. W. 6), he was confronted with his statement before the Police (Exh. D.
N.), wherein he had stated that the quarrel was with Khalid Mahmood and Salim Mahmood sons of Allah Ditta, Secretary and not Sadu deceased. His deposition in Court, therefore, to the effect that quarrel was with Sadu deceased was belied from his own previous statement. Due to that contradictory stand, the deposition of Aslam (P. W. 5) was also not relied upon by the learned Sessions Judge. We have examined these aspect of the matter and we agree with the learned Sessions Judge that motives mentioned in sub-paras. (6) and (c). Paragraph 2 of this judgment, have not been satisfactorily proved on the record.
3. The prosecution story is that on 22-7-1967, Rehmat-- Ullah (P. W. 6), Chungi Muharrir remained on duty from 8 a.m. To g p. m., on Northern Octroi Post of Qila Dedar Singh and though he was relieved and the duty was taken over at 8 p.m., by Muhammad Aslam (P. W. 5), still Rehmat-Ullah (P. W. 6) stayed on for gossip. Muhammad Sadiq deceased, who was to remain on duty for all the 24 hours on that day, because the other Peon was on leave, went to sleep on a cot nearby. At 10-40 p.m., Safdar Rashid (P. W. 7) Octroi Inspector came to the Octroi Post for inspection and recorded his Inspection Note Exh. P. K. In the Octroi Register (Exh. P. 13). He also sat down on a chair near a table. At that time, all the four accused appeared on the scene with revolvers in their hands and stationing themselves at a place towards south-east of the cot of Muhammad Sadiq deceased, three out of them opened fire. The shot of Saeed Ahmad hit Muhammad Sadiq who died at the spot. The shot of Majid Ahmad accused hit Muhammad Aslam. (P. W. 5) and the shot of Anwar Saeed hit Rehmat-Ullah (P. W. 6). Mujeeb-Ullah accused, it is alleged, remained standing and did not fire. At the time of this occurrence, the prosecution case i9 that there had arrived a tonga of tonga driver Nazir (P. W. 4) in which Muhammad Saeed (P. W. 3) was sitting. They also saw the occurrence while sitting in the tonga. An alarm was raised and the accused ran away. The alarm attracted one Muhammad Afzal and Muhammad Yunis (both not produced), who took the two injured P. Ws., to Qila Didar Singh Hospital but as the Doctor was not available, they were taken to Gujranwala Hospital by the aforesaid Muhammad Afzal in a car and were admitted there.
Muhammad Saeed (P. W. 3) went to the Police Station Qila Dedar Singh at a distance of 1-- furlongs and made F. I. R. (Exh. P. E.) which was recorded by Bashir Hussain A. S. I. (P. W. 15) at 11 p. m. Safdar Rashid Octroi Inspector (P. W. 7), however, remained on the spot to watch the dead body. In the F. I.
R., all the four accused were alleged to have made the aforesaid attack due to the party-faction hereinbefore mentioned.
4. The post-mortem examination on the dead body of Sadiq deceased was conducted by Dr. Imtiaz Ali Cheema (P. W. 1) who found the following Injuries on his person:-
(1) A bullet entrance wound about -- ' x 1/3' x going deep in the chest cavity on the right side of the chest about J" right to the lower one-third sternum between sixth and seventh ribs.
(2) A bullet exit wound about -- " x 6/8", on the back of right lumber region 11" below the last rib and 2 from the vertebral column.
(3) Abrasion 1" x -- ", on the left side of forehead.
The edges of the wound of entrance were inverted and there was no blackening and charring around the edges of the wound. The edges of the wound of injury No. 2 were averted and the underneath ribs were found fractured. The bullet had pierced the lower lobe of right lung and diaphragm and had also pierced through the liver and the kidney. In the opinion of the doctor, death was due to the injury to lower lobe of right lung, liver diaphragm and the right kidney which had caused excessive hae--morrhage and shock. The injury was sufficient to cause death in the ordinary course of nature. The duration between injury and death was soon after the injury and that between death and post-mortem examination was one to two days. Exh. P. C. Is his post--- mortem report and Exh. P. C/1 is the diagram of the injuries. In cross-examination, the doctor deposed that if the deceased was lying on a cot and the assailants fired from the side of his front, Injuries Nos. 1 and 2 could not be caused.
5. The medical examination of the injured P. Ws., was conducted by Dr. Manzoor Ahmad Qureshi (P.
W. 2) on 23-7-67 between 9 to 10-30 a.m. Muhammad Aslam (P. W. 5) had the following injuries:- A bullet entrance wound 3/8" x -- ", on the back of right chest middle part two inches to the right of mid line. The edges of the wound were inverted. There was no blackening or charring of the edges of the wound. There was a corresponding hole on the shirt and banyan. The bullet was sound lying 2 -- " below the wound of entry which was removed and sealed in a packet.
The injury was kept under observation which was subsequently found simple and was caused by a bullet. The probable duration of the injury was about 3 to 12 hours. Exh. P.M. Is his medico-legal report.
6. Rehmat-Ullah (P. W. 6) had the following injury on his person:-- A bullet entrance wound on the outer side of left flank 1 -- above the iliac crest. The size of the wound was 3/8' x --, its edges were inverted and the wound was directed obliquely downwards and a little forwards.
There was no blackening or charring of the edges of the wound. Bullet was found lying embedded deep in the muscles of the buttock about 3" from the wound of entry which was subsequently removed. There was a corresponding hole on the shirt.
The injury was simple in nature caused with a bullet and the probable duration of the injury was about 3 to 24 hours. The doctor sealed the removed bullet in a bottle. Exh. P. L. Is his medico-legal report.
7. The Investigating officer found two empty cartridges; one of 0.22 bore and the other of 0.32 bore, and four live-cartridges, one of 0.38 bore and three of 0.32 bore from the place of occurrence.
Some pieces of bullets were recovered from the body of the deceased and the injured P. Ws. And though on his arrest on 9-8-1967, Mujeeb-Ullah got recovered his licensed revolver (Exh. P. 1) and three live-cartridges (Exh. P. 14/1 to 3), vide Memo. Exh. P. H. Dated 11-8-1967, all the aforesaid material was not sent to any Expert for comparison.
8. The plea of Anwar Saeed appellant was that on the day of occurrence, he was in Karachi and had been involved due to the enmity between Muhammad Saeed (P. W. 3) and Saeed Ahmad accused (who was maternal uncle of Anwar Saeed). Anwar Saeed led no evidence about his alibi.nd
9. The plea of Saeed Ahmad was that he had appeared as a prosecution witness in a hurt case against P. W. 3 Muhammad Saeed alias Lilli. He further stated that Allah Ditta, Secretary of the Town Committee had been arrested in a raid case wherein he appeared as a P. W., for which reason Allah Ditta suspected him for that involvement. He also took up the position that he was in Karachi, on the day of occurrence. In support of his plea of alibi, he produced Dr. Mir Abdul Hanif Roshan (D.
W. 1) who deposed that on 21-7-67, the accused aforesaid came to him for treatment for a boy of a Chaukidar of his sister. He stated that Saeed Ahmad showed him infection of his own nailbed which he treated. According to the aforesaid D. W., the appellant again went to his Clinic on 22-7-1967 and complained of abdominal discomfort, for which he issued prescription Exh. D. S. He issued Certificate (Exh. D. R.) in this respect. This Doctor was not believed as it was found that he had no regular register; no accounts and the name of the concerned accused did not appear in any of his account books or registers.
10. Majid Ahmad took up the plea that he was in Padeedan Government Hospital of Sind. He produced Dr. Fazal Haque (D. W. 2) who deposed that on 19-7-67, he was incharge Medical Officer of Government Dispensary. Padeedan of District Nawab Shah and examined the accused who complained of acute pain in the abdomen. Exh. D. Y was the outdoor chit issued to the appellant on that day. The accused was admitted in the Hospital as an indoor patient and remained there till 26-7-67. The Doctor stated that on 20-7-67, he found that it was a case of acute appendicitis. He proved Exh. D. U., the Certificate, which he had issued to this effect and which contained the signatures of the concerned accused. The Certificate is, dated 28-7-1967, which was issued on the application of the accused (Exh. D. T.), dated 26-7-1967. Exh. D. V. Was the bed-- head ticket showing the admission and discharge of the accused. All these documents were taken into custody by the police on 9-10-1967, vile memo. D. X. The prosecution cross-examined this witness at length but could not shake his credit. The Police placed this accused in Column No. 2 of the challan. The learned Sessions Judge accepted the defence version and acquitted the accused.
11. Mujeeb Ullah accused deposed that he had been involved in the case due to party faction and enmity. He produced Exh. D. Q., judgment dated 18-8-1964, to show that he was involved in a case under section 341, P. P. C. At the instance of Safdar Rashid Octroi Inspector (P. W. 7), wherein Muhammad Saeed (P. W. 3) appeared as a witness against him. He also produced Exh. D. E.
Judgment of Sessions Judge dated 18-1-1965, to show that he was involved in another Octroi Case, wherein Safdar Rashid, Octroi Inspector and Allah Ditta, Secretary appeared as witnesses against him. He produced Exh. DD. Another judgment, dated 24-2-1966, to show that even though he had been acquitted by the Sessions Court, vide judgment Exh. D. E., but was prosecuted again for the same offence. The learned Sessions Judge found that the P. Ws., had enmity against this accused and also because even though he was a principal party-leader, he had taken no active part in the occurrence, inasmuch as, he was not alleged to have fired any shot therefore acquitted him.
12. From what has been stated above, it will be evident that the prosecution case consists of:--
(a) the evidence of motive;
(b) the medical evidence; and
(c) the ocular evidence of P. W. 3 Muhammad Saeed, who came in a tonga; saw the occurrence and lodged the F. I. R. Nazir Ahmad (P. W. 4) a Tonga Driver; Muhammad Aslam (P. W. 5) injured, Rehmatullah (P. W. 6) injured, and Safdar Rashid (P. W. 7) Octroi Inspector.
13. Taking up the subject-matter of motive, it is well established on record that there was party faction in the Town Committee of Qila Dedar Singh and that one party was headed by Ch. Muhammad Riaz (P. W. 13) and the other by Mujeeb--Ullah accused. For this, reference may be made to F. I. R., (Exh. P. E.), as proved and adopted by Muhammad Saeed (P. W. 3) which may be read with the deposition of Muhammad Riaz Chairman (P. W. 13), the statement of Nur Hussain (C- W. 1) dated 27-2-1968 which was transferred to the Sessions File as the witness had died in the meanwhile. It has also come on record that various complaints were lodged and posters were issued against the employees and officials of the Town Committee and there was criminal litigation in that respect as well. The Point need not be thrashed out any further because it was admitted before us by all the counsel appearing in the case, namely, for the appellants, for the State and for the private complainant that party faction, as stated earlier, did exist in the Town Committee and that Mujeeb-Ullah accused belonged to the party of accused whereas the deceased and P. Ws. 3, 5, 6 and 7 belonged to the party of Ch. Muhammad Riaz, Chairman and Allah Ditta, Secretary. This part of the motive was pressed by the prosecution to establish cause for attack by the accused, whereas, on the other hand, the accused relied upon it as a ground for their false implication in this occurrence, which, according to them, was committed by some unknown assailants. Motive in the instant case, it will thus appear, is a double-edged weapon and we shall have to remain on guard while assessing its evidentiary value for finding the guilt of the accused.
14. Coming to the medical evidence, if we examine injuries Nos. 1 and 2 on the body of the deceased, we note that though the bullet hit the chest from the front but it went out from the back side from a place much below the chest, namely, the kidney. In other words, the missile did not continue in a straight line from the point of entrance but deflected down towards the kidney. Site plan (Exh. P. A.) which was prepared by Muhammad Ibrahim (P. W. 8), at the instance of the Police and Muhammad Saeed (P. W. 3), Nazir Ahmed (P. W. 4) and Safdar Rashid (P. W. 7) shows that the cot of the deceased was in a north-south direction and the deceased was sleeping on it with his face up--wards, head towards north and feet towards the south. The assailant in that plan is shown to be towards the side of the feet to be more exact towards south-east at a distance of 22 feet. A bullet fired from that place in ordinary course, cannot travel downward from chest towards the kidney side. For that type of injury the assailant should have been towards the head of the deceased Le., towards the north side of the cot. It was probably for this reason that the Doctor (P. W.
1) stated that such a fire could not have been made from the south-east (feet-side) of the deceased. No effort was made by the prosecution to demolish this statement of its own witness and no further questions were asked from him. All that was suggested at the time of argument by the learned counsel for the State was that the bullet may have deflected by obstacles of chest bones i.e., ribs, the obliquity with which it struck and the rotary motion on its axis. The general proposition that deflection in the course of a bullet is possible due to the reasons hereinbefore mentioned, cannot be seriously objected to. The following passage from "Ballistic Firearms And Jurisprudence" by R. L. Gupta (1964 Edn.), Chap. XI, "The Direction of Firing" at page 183, under the heading "Introduction" is worth reproduction "An expert of ballistics has to give his opinion regarding the direction from which a shot was fired.
Such opinion (f correctly given fixes up to a great extent the crime. The direction from which a shot was fired is ascertained from the position of the wound of entrance and the wound of exit found on the body of the victim. The direction through which the bullet passes in the body is also a factor for the ascertaining of the direction.
The position of the wound of entrance marks the part of the body which was at the moment of discharge nearest to the muzzle of the weapon, or rather in a straight line with mathematical precision whether the victim was facing the muzzle or with his back or side to it. . . Speaking in broad, general terms, the missile fired from a firearm has a tendency to continue in a straight line from the point of entrance to the point of lodgement, or to the wound of exit, so that, if the internal wound be straight, this straight line proves accurately the direction in which the barrel of the weapon was pointed when fired. But it must be particularly noted that very frequently this wound is not straight, but curved, the missile being deflected from its original course by slight obstacles, such as bones, etc. From the above rule it follows that if a person be shot in a standing position and a wound be found nearly transverse to the chest, the firearm was certainly fired from about the level of the shoulder, a position which may have important bearings as to intent. . When attempting to deduce the position of the assailant from the direction of the wounds, the observer must always keep in mind the possibility of the body having been in an abnormal position at the time of fire; thus a person stooping may be shot in the back with the direction of the wound from above downwards by a person standing in front of him. When a bullet traverses the body it sometimes happens that the two apertures are opposite to each other, although the bullet may not have taken a rectilinear course between them, but may have been variously deflected by the subjacent soft parts . . A bullet which entered at the ankle has been known to make its exist at the knee . . . The deflection of a bullet by slight obstacles has been ascribed partly to the obliquity with which it strikes, and partly to the rotary motion on its axis."
In Ramaswa mi v. State ((1951) 2 M L J 630) the shot hit the temple but the bullet buried itself in the neck. Argument was raised that it was extremely impossible that this bullet could have been fired from a revolver by a man some distance away unless the deceased was to a crouching posture.
The contention was rejected because evidence existed on the record that the deceased and the assailant were engaged in a struggle at the time the shot was fired and possibility existed that the deceased may have been forced into bent position at which the bullet fired by the assailant entered into his temple at the angle it did. This would show that in that case some evidence existed regarding the posture of the deceased which made the deflection of the course of the bullet possible. Similarly, In re: T. Munirathnam Reddi and another (AIR 1955 Andh. Pra. 118), (which was a converse case), the argument was that if the accused shot the deceased on the side of the abdomen, the bullet could not have passed in a straight line from one side to the other; but should have passed in a direction in which the gun was placed, that is, the wound should not have been in a straight line but in a slanting line. The argument was repelled and it was held that there was no guarantee that the bullet would pass only in a slanting direction, for there might have been the deflection of bullet when it came into contact with the vertebra and the direction of the gun, in the circumstances of the case, could not be fixed with any certainty. We need not multiply the case- law on the subject and would be prepared to accept in general that deflection of the course of a bullet is possible but we cannot refrain from observing that the nature of the injury, its direction and the deposition of the Doctor has created a reasonable doubt in our mind about the place in which, and the position from where, assault is said to have been made and unless there is either some intrinsic evidence establishing the possibility of deflection of the course of the bullet or some other independent corroboration of the evidence of the eye-witnesses, the benefit of doubt shall have to be given to the accused. It may be pointed out that unlike the cases hereinbefore cited, there is no evidence of any struggle of the assailant with the deceased at the spot nor any other circumstance making deflection possible to such an extent that has occurred fin this case. No doubt the area of blow is chest where there are generally ribs-bones and possibility of deflection is there, but whether the deflection could be to such an extent as has occurred herein, was a point which should have been got established from some Expert and the matter being in doubt we would not like to take it any further so as to open discussion.
15. Coming to the ocular evidence, P. W. 3 Muhammad Saeed claims to have arrived from Gujranwala to Qila Didar Singh in the tonga of Muhammad Nazir (Tonga Driver P. W. 4).
Muhammad Saeed was a registered bad character and belonged to the hostile camp. Saeed Ahmad accused was a witness against him in a criminal case in which he was convicted. He himself was a witness in a criminal case under section 341, P. P. C. Against Mujeeb-Ullah accused which was registered on the report of his nephew Safdar Rashid (P. W. 7) Octroi Inspector. Mujeeb-- Ullah was acquitted but P. W. 7 again got him challaned for the same offence. He said, he boarded the tonga of Nazir P. W. 4 from Gujranwala but did not remember the fare he had to pay. He stated that he was sitting on the front side whereas P. W. 4 In his statement before the committing Court had stated that Muhammad Saeed was sitting on the back seat of the tonga. Muhammad Saeed stated that he hired the tonga from Gandanala In Gujranwala, whereas P. W. 4 stated that it was from a place near Baghbanpura Tonga Stand. It has not been shown that the places mentioned by P. Ws. 3 and 4 from where tonga was hired are one and the same and the finding of the learned Sessions Judge was that these were different. The police station of Qila Dedar Singh is situated towards the south, 1 -- or 2 furlongs from the Octroi Post that is the place of occurrence. The houses of P. Ws. 3 and 4 are towards the southern side of Police Station as deposed to by P. W. 14 Muhammad Siddiq and P. W. 3 himself on page 51, lines 21-22 and P. W. 4 at page 55, line 37 of the paper Book. It is not understandable that if they were coming from Gujranwala side then why they did not get down near their houses and why they went ahead towards the northern Octroi Post.
They deposed to have taken longish route, but why it was done has not been explained on the record. In his statement before the committing Court, Muhammad Saeed stated that Rehmat Ullah (P. W. 6) was sitting on a cot, when he was fired at, but later on in Sessions Court, he stated that he was sitting in a separate chair around a table. On this point, the finding of the learned Sessions Judge also was that there were two cots at the place and not only one of Sadu deceased, as was later on being deposed before him. Similarly, P. W. 4 pretends to have brought his tonga from Gujranwala to Qila Didar Singh and a sure check of his statement was to see as to whether he had paid any toll tax on it. To cover this situation, though he admitted that no toll tax for entering Qila Didar Singh was paid, but gave the explanation that when there was only one passenger in a tonga, the toll tax was not charged. No such law, rule or regulation was produced in support of this plea. He had charged Rs. 3 from Muhammad Saeed but did not remember as to where the payment was made to him, namely, in Gujranwala, in the way, or in Qila Didar Singh. He stated that there were two cots at the spot and that Aslam P. W. 5 was shot at when he was sitting on the cot- which was a statement different from those of the other eye-witnesses. All this discussion will show that the story of their having come from Gujranwala In a tonga to the spot is highly doubtful. If actually Muhammad Saeed had been on the spot, being the staunch enemy, he could not have been spared and when he could see the assailants, there was no reason as to why they could not have seen him and dealt with him. The fact that tonga was not utilised even for going to the police station or to the hospital also throws a grave doubt on any tonga being present at the spot at all at that time. It was admitted by P. W. 4 in his statement in the committing Court that Aslam and Rehmat Ullah P. Ws. Had become unconscious after being injured, but in Sessions Court he stated to the contrary and denied of his having so stated before the committing Court. The testimony of these witnesses has not inspired confidence in us.
16. P. W. 7 Safdar Rashid is nephew of Muhammad Saeed P. W.
3. He is from a hostile camp. His evidence creates all the more doubts about the veracity of prosecution case. He visited the Octroi post three times on the day of occurrence once at 11-20 a.m., secondly, at 4-35 p.m. And thirdly, at I0-40 p .m. As is evident from entry in register Exh. P.
13. The reason for this abnormal checking on this particular day, has not been explained. He endorsed a writing in the Inspection Register about the arrival of one Abdul Ghani Peon just at the time of occurrence, but then scored it out. He sometimes denied and sometimes admitted the said endorsement or its portion or portions. His conduct in this respect is highly suspicions and he cannot be called a truthful witness. He is a partisan and is inimical to the accused party. Particulars of his enmity and partisanship have already been mentioned earlier. If his writings are taken at their face value, then it is evident that Peon Abdul C Ghani had just at that time reached the place of occurrence, but as he was not prepared to support the prosecution case, not only that he was not produced but his name was also scored out from the aforesaid register.
17. This brings us to P. W. 5 Aslam and P. W. 6 Rehmat Ullah. No doubt they are injured and the factum of injuries shows that they were present at the spot. But whether they saw their assailants and whether they were speaking the truth and are worthy of credit, has yet to be seen. The learned Sessions Judge called them as independent witness qua the convicted accused though he disbelieved them qua the acquitted accused and also qua the injuries on P. W. 5 Aslam himself.
This apparently is not correct. We have already mentioned that it is prosecution's own case that Muhammad Sadiq deceased, Muhammad Aslam and Rehmat Ullah P. Ws., belonged to the party of Muhammad Riaz, Chairman whereas the accused belonged to the other party. These witnesses, therefore, are clearly opposed to all the accused and to call them independent, in this circumstance, is not justified. Though Aslam P W 5 is supposed to have left the spot for hospital immediately after the occurrence, but there are certain Octroi reports which bear his signatures and purport to have been issued at 4-30 or 5 a.m. (see receipt Nos. 79 and 80). He explained that he put his signatures on blank forms of those receipts in advance but when he was injured he left the place and the receipts were actually issued by the next Muharrir Abdul Khaliq who scored out the signatures of Muhammad Aslam and put his own signatures on them. This Abdul Khaliq was not produced as a witness. This will show that things were not all normal at the spot. He was hit by Majid Ahmad accused who has, however, been acquitted, which means that he has not been believed even qua his own injury, and there is no State appeal against the said acquittal. Majid Ahmad proved his alibi which has been believed by the learned Sessions Judge. The said defence evidence has been gone through by us and we find no ground to discredit the same. The deposition of P. W. 5, therefore, is highly doubtful due to the factors hereinbefore mentioned. As regards P. W. 6, he deposed that the assailant who attacked Sadu deceased was towards the south-east of his cot-a point about which lot has been said earlier by us. He denied that there was a second cot on the spot in which he was taking rest though evidence to the contrary exists on the record. From what has been written about this witness herein before, It will transpire that his evidence on its intrinsic worth is not free from suspicion.
18. Before proceeding further, something may be said about the intrinsic worth of the prosecution case in general:--
(a) The prosecution has sought to establish that the First Information Report in this vast was recorded very promptly without any deliberation or even without their being any scope for deliberation.
We have grave doubts in this respect. It is in evidence of P. Ws. 5 and 6 that they first went to the Qila Dedar Singh Dispensary on foot which was at a distance of 1-- furlongs but as the Doctor was not available, therefore, they went in a car to Gujranwala, which was at a distance of eleven miles.
They have stated that they reached there before morning's Azan, though the Doctor examined them late. In the medical examination report (Exh. P. L.) of Rehmat Ullah (P. W. 6), the time of his arrival in the Gujranwala hospital is recorded as 5 a.m. The First Information Report was recorded at 11 p.m., and if by that time the injured P. Ws. Were on their way to Gujranwala (as is recited therein), they could have reached there at the most in half an hour's time or say even one hour; because it is in the deposition of P. W. 6 that the car did not stop in the way. Since the arrival in Gujranwala is at 5 a.m., it casts serious doubts at the time given for recording the F. I. R. Conversely, if we count backward from 5 a.m., then allowing reasonable time of journey, the parties seem to have left Qila Didar Singh say at about 4 or 3-30 a.m. In this way, if they left promptly after the occurrence, as was being suggested, then the occurrence has to be fixed at some late hours of past midnight which will throw overboard the whole prosecution case and especially, the arrival of the tonga at those odd hours and the inspection allegedly conducted by Octroi Inspector Safdar Rashid (P. W.
7). Another thing to be noticed at this juncture is that after recording the First Informa--tion Report, Syed Bashir Hussain Shah (P. W. 15) A. S. I. States, that he reached the place of occurrence at I1-15 p. m, and prepared at once the Inquest Report In that Inquest Report, It is, however, written that the injured P. Ws., have (already) been admitted in the Civil Hospital in Gujranwala. It means that at the time when the Inquest Report was written, information about actual admission of the injured P. Ws., in Gujranwala Hospital was available at the spot with the Police. This also shows that the time of recording of F. I. R. Is not correct and serious doubts exist in this respect.
(b) In this perspective, if we now attend to the Receipt Nos. 79 and 80, they were issued by Aslam P.
W. 5 Octroi Muharrir at 4-30 and 5 a.m. Respectively which means that even after receiving injuries he was working till that time and it is only at morning time (sunrise being at 05-09 Hrs. On that date), that the F. I. R. Was recorded and Inquest Report was prepared giving retrospective time of occurrence but the matters could not remain hidden and the thing trickled out from the sub-- conscious use of the word that the injured P. Ws., had already been admitted in the Civil Hospital in Gujranwala. P. W. 15 tried to explain it by saying that he so recorded in the Inquest Report on the basis of the F. I. R. But it is to be noticed that what the F. I. R. Stated was that the injured P. Ws. Had just gone to Gujranwala Hospital and not that they had been admitted there. The possibility of Aslam P. W. Being in a position to work even after receiving injury till 4 a.m., or so, cannot be ruled out because it is prosecution's own case that the injured P. Ws., went on foot to the Police Station Qilla Didar Singh and in this way if they could walk for sometime, there is nothing improbable to assume that Aslam P. W. Could work till 4 a.m., or so (even after receiving the injury) and Receipts Nos. 79 and 80 were issued by him. A plea had been taken that he hid filled in those receipts in blank, which were later on issued by Abdul Khaliq another Muharrir but the said Abdul Khaliq has not been produced and no reason has been suggested for his non-production. In this connection, it may also be mentioned that according to P. W. 5, there was an attendance register at the Octroi Post which had not been produced. That was a very important piece of evidence to show as to when any Muharrir or any other employee of the Octroi Post arrived and left, but the said register, for the reasons, best known to the prosecution, has been withheld and, in these circumstances, an inference adverse to the prosecution can legitimately be drawn both with regard to the presence of Abdul Khaliq (hereinbefore mentioned) or Abdul Ghani Peon whose name appeared in the endorsement/ writing of the Octroi Inspector Safdar Rashid which was later on scored out.
(c) That the record was not prepared correctly is evident from another aspect and that is, when P.
W. 15 reached the spot, he deposes, he prepared an "Inspection Note" (copy of which was supplied to the accused afterwards and) about which he was cross-examined at length in the Sessions Court. He admitted that in that Inspection Note he had written that at the time Sadiq deceased was hit he was lying on one of his sides though all the P. Ws. Are persistent in saying and very firmly took a stand that he was lying with his face and chest upwards the sky when he was shot at-that is the condition to which the dead body was found lying on the cot. He further admitted that in the Inquest Report he did not note down that the dead body was lying on a cot-seriousness of this omission is self-- evident and need not be magnified. He deposed that in that Inspection Note he had written that he had found only two chairs and one cot on the spot. Evidence, however, has conic on the record and same was the finding of the learned Sessions Judge, that there was one more cot on the spot. If, as alleged by P. Ws. One chair was occupied by Aslam P. W. 5 another by Rehmat Ullah P. W. 6, then on which chair was Safdar Rashid Octroi Inspector (P. W. 7) sitting? He admitted that in that inspection note, he did not make mention of any chair as occupied by Safdar Rashid (P. W 7). In the said inspection note, he also noted seven shops towards the west of the place of occurrence. In the subsequent site plan (Exh. P. A.) however the occupants of these shops on the western side are not disclosed in detail. He prepared a rough site plan which he did not file with the challan. In the Inquest Report, he mentioned the names of persons whom he found near the dead body but the name of Safdar Rashid P. W., is not amongst them. If Safdar Rashid had been there, we see no reason as to why the name of such an important witness should not have figured in the Inquest Report. A further thing to be noticed is that though the A. S. I., deposed that if the deceased was in the condition as found by him, parts of the bullets which had gone out of the body should have fallen on the ground but he surveyed the place carefully and did not find any lead of a spent bullet under the cot.
(d) According to the F. I. R., and the depositions of witnesses, immediately after the occurrence Haji Muhammad Afzal and Muhammad Yunis Opium Contractor reached the place of occurrence and took the injured P. Ws., to Gujranwala Hospital. These two persons have not been produced but it is contained in the evidence of P. W. 5 that their houses were at a distance of 1/2 mile from the spot. It has not been explained as to how from such a distant place they reached the place of occurrence within a short time. The discussion hereinbefore made will thus show that the prosecution case has intrinsic defects and cannot be safely and with certainty relied upon without some other corroboration.
19. Stage is now ripe to see as to whether P. Ws. 5 and 6 can be safely relied upon qua the appellants. The broad features of the case are that they have not been relied upon qua the acquitted accused which means that they have not been considered truthful in that respect. The defence evidence o alibi led by Majid Ahmad (acquitted accused) shows that they falsely implicated him. They are partisan witnesses and, in these circumstances, we think that their evidence, which has not been believed qua other accused, cannot be relied upon against the present appellants unless some independent corroboration is brought-forward which, however, is not forthcoming in this case. There are no recoveries of any kind which may connect the appellants or as a matter of fact any of the accused with the crime. The mere fact that it was a moonlit night or that an electric light was burning at the place, is no corroboration of the fact that what they were deposing to was correct on the merits of the case. Learned Sessions Judge was of the view that since the alibi of Saeed Ahmad was not accepted by him, therefore, it must reflect upon the guilt of the accused. This is not correct. Weakness of defence is no proof of the truthfulness of the prosecution case which must stand or fall on its own legs and should be positively proved against the accused. For the pro--position that where prosecution witnesses are not believed qua some accused, they should not be believed against the other F accused, without independent corroboration; See Muhammad and 2 others v. Crown (PLD 1954 FC 84), Adalat and another v. The Crown (PLD 1956 FC 171), Nisar Ali v. The State of Uttar Pradesh (PLD 1957 SC (Pak.) 297), Rehmat and others v. The State (PLD 1959 SC Ind. l09), Wasiullah v. Mirza Ali and another (PLD 1963 SC 25), Thoba and another v. The State (PLD 1963 SC 40) and Bashir Ahmad v. Muhammad Azam and another (PLD 1969 SC 469). As to what is the type of corroboration required will depend upon the facts and circumstances of each case as was laid down in Asadullah v. Muhammad Ali and S others (PLD 1971 SC 541). In the instant case there is no corroboration either of an indepen--dent character or of any intrinsic nature to show that the statements of these P. Ws. Are true qua the appellants when they are untrue about the acquitted accused. In these circum. Stances, it is obvious that the benefit of doubt must go to the appellants. It may be mentioned that the learned counsel for the State conceded that this was a case which needed corrobo--ration and that, as a matter of fact, no corroboration existed on the record.
20. The upshot of the above discussion is that the case being rot free from doubt, the benefit of the same must be given to the accused. The result is that we accept the appeal of the appellants and do not confirm the reference made by the learned Sessions Judge. The convictions and sentences of the appellants are set aside. They should be released forthwith, if not required in any other case.
The Criminal Revision No. 163 of 1971, filed by Qaim Din brother of the deceased fails and is rejected. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.