This is un appeal by Hayat Ullah Khan son of Hassan Khan and Faiz Ullah Khan son of Ata Ullah Khan Pathans by caste resident of Village Ban Sumbal Tehsil and District Mianwali front the judgment and order of Addl. Sessions Judge, Mianwah, dated 14-t 1-1968, whereby he found them guilty of an offence under section 302/34, P. P. C. And sentenced them to transporta--tion for life for the murder of Khan Muhammad son of Ghulam Muhammad Pathan of the same place.
2. The motive for the offence as alleged by the prosecution is that about five or six years ago Mst.
Barkat Bibi, mother of Faiz Ullah Khan accused had eloped with one Ghulam Muhammad alias Gaman who was a friend of Ghulam Muhammad complainant (P. W. 13). Ata Ullah Khan, father of Faiz Ullah Khan accused, is said to have initiated prosecution in which he named Ghulam Muhammad complainant (P. W. 13), his daughter Mst. Barkat Khatun and Ghulam Muhammad alias Gaman as accused persons. The aforesaid enmity, it is alleged, gave rise to the present occurrence which occurred in the following manner.
3. On 18-9-1967, Khan Muhammad deceased was coming towards his house from the side of a lane called Master Khailan-wali. When he reached near the house of Muzaffar Khan and Akbar Khan (not produced as witnesses) the accused emerged from the southern side. Hayat Ullah Khan was armed with a knife whereas Faiz Ullah Khan was empty-handed. Both the accused raised a lalkara. Faiz Ullah Khan grappled with Muhammad Khan and held him in his embrace while Hayat Ullah accused gave a knife blow to the deceased. The deceased died at the spot. The occurrence is alleged to have been witnessed by Ghulam Muhammad (P. W. 13) father of the deceased Gul Khan (P. W. 14) son of Nathu Khan, a brother of another Faiz Ullah who is P. W. 8 in this case and is a recovery witness, Latif Qureshi (P. W. 15) who is a friend of the deceased and is his close con-- federate. Ghulam Hussain was, however, given up as having been won over.
4. The F. I. R. Of the case was lodged by Ghulam Muhammad (P. W. 13), father of the deceased, at Village Khushrana where the A. S. I. Was present in connection with another case. The A. S. I.
Recorded the statement of Ghulam Muhammad in the form of Exh. P. D. At 11-30 P.M. 'which was sent by him to Poltos Station Sadar, Mianwali, where the formal F.I.R(Exh. P. D./1) was prepared at 2- 30 a.m. By P. W. 2 Muhammad Afzal A. S. I., on 19-9-1967. The occurrence is alleged to have taken place at Jhikki degarwela which according to Muhammad Ibrahim A. S. I., (P. W.16) in September means half-an-hour before sun-set time. The police arrived at the spot and conducted the usual investigation. 1 hey picked up the blood-stained earth from the spot; made the inquest report and completed the other formalities. According to the prosecution, Hayat Ullah Khan was arrested on 22-9-1967 and at his instance blood-stained knife (Exh. P. 1) was recovered which was taken into possession by memo. Exh. P. F., which was attested by Faiz Ullah (P. W. 8), Abdul Rehman (P. W. 9) and Muhammad Ibrahim Khan A. S.1. (P. W. 16). A recovery was made from a mound of sand known as Janamwala. Faiz Ullah Khan was arrested on 24-9-1967. It is a common ground between the prosecution and the accused that the accused had one left leg, left arm, and left foot.
5. According to the medical evidence the death of the deceased had taken place due to an injury caused with a sharp---edged pointed weapon and on this point there is no dispute between the parties that the deceased died as a result of assault on him. I, therefore, need not detain myself into the lengthy details of the medical evidence which was in the instant case given by Dr. Nazir Ahmad (P. W. 1) who performed the autopsy of the deceased.
6. Coming to the statement of Ghulam Muhammad (P. W. 13), it is to be noticed that he is father of the deceased. According to his own showing there exists an enmity between him and the accused which it is to be remembered is a double-edged weapon because whereas from one point of view it may afford a motive for the crime, but from another point of view, it may be a circumstance which has always to be kept in the forefront while assessing the evidentiary value of the complainant. I have gone through the statement of this witness but I must say that he has not appealed to me as a straightforward or truthful witness. He avoided answer to many questions which he was definitely in a position to give. For example, even though he admitted that Mst. Daulat Bibi was his sister but stated that he did not know that Nawaz Khan was her husband or not.
Similarly, he admitted that Mst. Khan Bibi was his other sister but then said that he did not know what was the name of her husband. Ghulam Muhammad (P. W. 12) had been produced to prove the relationship and enmities of the parties and it was admitted by P. W. 13 that this witness was known to him, but he i.e., P. W. 13 stated that he did not know as to whether Ghulam Hussain son of Ghulam Muhammad (P. W. 12) had a son by name of Sardar and two daughters, though he conceded that he resided in the same village where P. W. 12 resided and the distance between their houses was hardly fifteen karams. He further stated that he did not know whether his sister Mst.
Khan Bibi was the wife of Ghulam Hussain. He also deposed that he did not know whether she bad been married or not. He stated that he did not know whose daughter his wife was and deposed that he did trot know the name of his mother-in-law. Apart from this, the manner in which he states to have lodged the F. I. R. Has also not impressed me. He deposes that he went on a pony to Police Post Kundian, which was at a distance of three or four miles from the place of occurrence. He learnt that the S. H. O. Had gone to another village Khushrana in connection with an investigation of another case. Khushrana had a direct route from Kundian and the distance between Kundian and Khushrana was four or five miles. The witness strangely enough does not proceed from Kundian to Khushrana but comes back to Ban Sumbal and there from goes to Khushrana. The distance between Khushrana and Ban Sumbal is five or six miles. The statement (Exh. P. D.) was recorded by the A. S. I. Muhammad Ibrahim (P. W. 16) at 11-30 p.m. And it is in his evidence that he sent a message to the Police Post Kundian stating that some guard should reach the place of occurrence.
In obedience to that message, Saghir Hussain Shah F: C. (P. W. 5) along with one more constable, proceeded to Ban Sumbal and reached there at 10 p.m. Saghir Hussain (P. W. 5) has stated that they left the Police Post Kundian at 8 p.m. And when they reached Ban Sumbal, they found that Ghulam Rabbani Constable, Allah Yar Constable, and Haq Nawaz Head Constable were already present at the spot with Muhammad Ibrahim A. S. I. (P. W. 16). Saghir Hussain Shah has deposed that they recorded the message which they had received from the A. S. I. Muhammad Ibrahim in the Station Diary. This explodes the myth of the F. I. R. Strangely enough though the F. t. R. (Exh. P'. D.) is stated to be recorded at 11-30 p.m., and the message was sent to Kundian Police Post thereafter, but nevertheless the guard from the Police Post Kundian, reaches Ban Sumbal at 10 p.m. Where Muhammad Ibrahim A. S. I. Was already found present. This shows that the F. I. R. In the instant case was not an honest document and Ghulam Muhammad (P. W. 13) in not a truthful witness. Another thing to be noticed is that even though the relevant officials were present in the Police Post Kundian but still no F. I. R. Was lodged at that place and Ghulam Muhammad (P. W. 13), came back to village Ban Sumbal and there from went to Khushrana though at all if he had a mind to go to Khushrana straightway he could have proceeded to that place directly from Kundian. The F. I. R., it would thus appear; is nothing but a fabricated document which appears actually to have been prepared at the spot though apparently it purports to have been prepared at 11-30 p.m. At village Khushrana.
The very foundation of the case thus having been based on a false document, I shall have to proceed with caution and care in assessing the evidentiary value of the prosecution case as a whole.
7. I may further mention that the wrong timing mentioned in the F. I. R. Has created a doubt in my mind about the actual timing of the occurrence as well. In the F. I. R., the time given is Jhikki degarwela namely half an hour before sunset. 1n the circumstances hereinbefore explained, it will be quite in order to assume that this timing is not correct and half an hour before sunset has deliberately been put up to make the occurrence visible and possibility cannot be ruled out that it may have taken place well after the sunset in darkness when nobody saw it.
8. The next eye-witness to be attended to is Gul Khan (P. W. 14). He is a brother of Faiz Ullah (P. W. 8)
(who is a recovery witness). Faiz Ullah (P. W. 8), on page 1 of his cross-examination, has admitted that Gul Khan P. W. Is my brother. About twelve years back, I, Gul Khan (P. W. 14) and my nephew Alam Khan and others on one side and Hassan Khan, father of Hayat Ullah accused, and others on the other side were challaned under section 107, Cr. P. C. This will show that Gul Khan is not an independent witness. He has stated before the police that Ghulam Hassain P. W. (given up) was present at the shop of Latif P. W. He was, however, confronted Exh. D. B. (his police statement) where it was not so recorded. He had stated before the police that Ghulam Hussain P. W. Came at the spot after his arrival but in the Sessions Court he denied to have made any such statement. This will show that in view of --the aforesaid credentials, it is not safe to rely upon this witness.
9. The next witness is Latif Qureshi (P. W. 5). He has a grocer's shop in the village. He deposes that Gul Khan and Ghulam Hussain son of Ghulam Muhammad P. W. Came to his shop and they wanted to purchase certain things from him. He saw the accused coming from 'the southern side whereas the deceased was coming from the eastern side. When the accused came near his shop they challenged the deceased and caught hold of him and then assaulted him in the manner hereinbefore mentioned. The accused, according to this witness, ran away. It is to be pointed out that he was a confederate of Khan Muhammad deceased inasmuch as, he, the said Khan Muhammad and three others were convicted in a theft case at Sargodha (Police Station Gunjial) and were sentenced to six months' rigorous imprisonment. He deposed that Gul Khan had come to his shop to purchase khal, though he admits that he had not brought any gunny bag with him. He also admitted that there were other shops in the village and some were nearer to the house of Gul Khan. It is to be noticed that even though the deceased was done to death in the presence of all these eye-witnesses, namely, (P. W. 13), (P. W. 14) and (P. W. 151, but none of them made an attempt to apprehend the accused and rather it is being suggested that the accused after the occurrence ran away. Ghulam Muhammad was the father of the deceased and Gul Khan was also related to the same family. Latif Qureshi was also a confederate of the deceased but none of them made an attempt in perusing the accused. Hayat Ullah Khan, as already mentioned, was a sort of invalid inasmuch as his left leg, left arm and left foot were, defective. Obviously, there could have been no difficulty in overpowering such a disabled person. The conduct of the eye-witnesses in the circumstances hereinbefore mentioned is such which has not inspired my confidence. All of these witnesses have given their helping hand to the story contained in the F. I. R. Which as already mentioned. Is a document of great suspicions. This is not the end of the matter. Faiz Ullah (P. W. 8) has admitted in his cross-examination that accused Hayat Ullah was present in the crowd when the A. S. I. Reached the spot though accused Faiz Ullah was not there. Nevertheless Hayat Ullah Khan was not arrested and his arrest, strangely enough, has been shown to be of 22-9-1967 through Ch. Karam Elahee (P. W. 10) the then S. H. O. Sadar Mianwali. Faiz Ullah (P. W. 8) has however, deposed that Hayat Ullah Khan was arrested on the third day which would be 20-9-1967.
This is vitally different from the story of Ch. Karam Elabee S. H. O. The police has in this case staged a recovery from Hayat Ullah Khan on the alleged date of his arrest, namely, 22-9-1967 through the aforesaid S. H. O. The disparity in the dates of arrest and other circumstances relevant in that behalf-makes the recovery of the blood-stained knife highly doubtful, especially, when no person of village Ban Sumbal is an attesting witness of the relevant recovery memo. The attesting witness of the recovery memo is Abdul Rahman (P. W. 9) who is a resident of another village Ghandi, which was at a distance of three or four miles from village Ban Sumbal. He is a relation of the complainant party and his evidence does not inspire confidence. The first Zimni in the case was sent by the police on 20-9-1967 and the second Zimni on 23-9-1967. This would show that there was enough scope for the police to prepare such fictitious documents on such dates as it might like to do.
10. The upshot of the above discussion is that the case on the whole is not free from doubt and the evidence produced is such which has not inspired my confidence. Giving the accused benefit of doubt, I accept this appeal and set aside the judgment and order of the learned Addl. Sessions Judge and the convictions and sentences recorded by him. The appellant should be set at liberty forthwith unless required in connection with any other case in accordance with law.