A case was registered at Police Station Chishtian on Ist of April 1971, against petitioner Khushi Muhammad, his son Ahmad Khan, and one Zakir on the report of Muhammad Saleem that he was Stand Incharge of Abbasia Transport Company and had parked his Bus No. 3105-MY for departure to Haroonabad according to time schedule. The accused obstructed him and on protest of Muhammad Saleem, Khushi Muhammad got provoked, abused him and also fired at him with double-barrel gun which he was holding. The gun-shot did not hit the complainant where-- upon Zakir accused snatched the gun from Khushi Muhammad and fired at Muhammad Saleem which hit him on the flank, Muhammad Saleem snatched the gun from Zakir and gave him a stick blow.
Meanwhile Muhammad Sharif and Ibrahim arrived at the spot and helped him and they.
Muhammad Azeem and Mirza Nazir Baig all accompanied Saleem to the hospital where he died at 7-15 p.m. On the same day.
2. After the completion of the investigation report under section 173, Cr. P. C. Was presented to the Magistrate on the 3 of June 1971. The commitment proceedings concluded on the 13th of January 1972, when the petitioners were committed to the Court of Session by Rana Muhammad Afzal, Extra-- Assistant Commissioner I and Magistrate 1 Class, Bahawal--nagar.The petitioners have moved this application with the prayer that the commitment be quashed.
3. It may be mentioned at this stage that Zakir Hussain and the two petitioners had also received injuries. Zakir Hussain died as a result of injuries inflicted by Saleem, Abdul Raoof and Muzaffar Khan and a case under section 302/307/34, P. P. C. Was registered. Abdul Raoof and Muzaffar were challaned and after the evidence was recorded they were committed to the Court of Session byrd st the order dated 13 of January 1972 passed by the same Magistrate. Mr. Justice Aslam Riaz Hussain by his order dated the 17 of April 1972 quashed the commitment.
4. In committing the case to the Court of Session, the learned Magistrate observed: "Out of the 15 P.
Ws. Mirza Nazir Baig P. W. 4, Muhammad Sharif P. W. 5, Abdul Rauf P. W. 6, Zaffar Masud P. W. 7, Ghulam Sarwar P. W. 10 and Akbar P. W. 11 appeared as eye-witnesses. Out of them Ghulam Sarwar, Zaffar Masud and Abdul Rauf stated to know nothing about the occurrence. Nazir Baig, Muhammad Sharif and Akbar stated that Muhammad Salim deceased was murdered by Zakir Hussain deceased. Besides this evidence there are two dying, declarations on record. In the dying declaration recorded by Saghir Hussain, Naib-Tehsildar the deceased had attributed the fatal fire to Khushi Muhammad accused and it was also stated by the deceased to that dying declaration that the gun was brought by Ahmed Khan accused. Gul Muhammad P. W. 15 stated that he saw Zakir (now deceased) running along with gun P. 1 and he also saw Ahmad Khan accused running with injured arm. The evidence in the dying declaration Exh. P. K. Has been corroborated by the recovery of gun P. 1 and P. 4 from the spot. The evidence of Gul Muhammad P. W. 15 also gives some support to the dying declaration. This whole evidence has been corroborated by the medical evidence. In the opinion of Dr. Khurshid Ahmad Rana the deceased Salim died due to extensive haemorrhage and shock as a result of extensive injuries to the spleen and intestine which were apparently caused by fire-arm. The injuries on both the accused persons also show their indulgence in the crime".
It is manifest from this statement that none of the persons who were examined to depose about the incident as eye--witnesses supported the prosecution case. Mirza Nazi, Baig P.W. 4, Muhammad Sharif P. W. 5, and Akbar P. W. 11 have, in their statements, categorical Ally stated that Saleem died as a result of gunshot injuries which he received at the hand of Zakir deceased. It is established without any doubt that the petitioners had not participated in the crime. Mirza Nazir Baig P. W. 4 stated that there was an altercation between Khushi Muhammad petitioner and Saleem on the loading of the buses. He also stated that "Saleem had a dang with him. He gave 2 or 3 blows with that to Khushi Muhammad. Dang P. 7 was with Saleem. Khushi Muhammad fell down and became senseless. Zakir Hussain appeared there with the gun and immediately on his arrival fired at Saleem. Saleem gave 3 or 4 blows with Bang to Zakir and he fell down on the ground. The butt of the gun also got broken by the blow which was given by Saleem with dang. Saleem also fell down." Muhammad Sharer P. W. 5 made precisely the same statement. Akbar P. W. 11 also gave a similar statement. They are the eye-witnesses and not only that they do not allege any thing against the petitioners but they on the contrary completely exonerate both of them.
5. The learned Magistrate has also relied on the dying declaration Exh. P. K., the recovery of the gun and its broken parts from the spot and on the doctor's evidence.
So far as the statement of the doctor is concerned, it only proves that Saleem died as a result of gunshot injuries. It is stated by Nazir Baig, Muhammad Sharif and Akbar that the injuries were caused by Zakir. The medical report, therefore, it not a proof against the petitioners.
So far as the recovery of gun P. 1 and its broken parts are concerned, again they do not connect the petitioners With the offence, because the eye-witnesses have stated that gun P. 1 was used by Zakir deceased and also that it got broken as a result of the dang blow by Saleem. They also do not furnish and evidence against the petitioners. We are now left with only dying declaration Exh. P. K. It was recorded by Mr. Saghir Hussain Naib-Tehsildar, at 9-30 a.m. On 1st of April 1971 and Muhammad Saleem stated therein: "Khushi Muhammad fired at me which passed near my abdomen I on that gave a blow with the dang whereupon Khushi Muhammad again fired at me which hit me in my abdomen." The complainant had earlier when he was taken to the hospital made statement to the Sub-Inspector in the presence of Rana Khurshid Ahmad, Incharge Civil Hospital, Chishtian, and had stated: "Khushi Muhammad had a double-barrel gun with him whichth th he fired at me but it missed. On this I gave a dang blow on his arm. Afterwards Zakir snatched the gun from Khushi Muhammad and fired at me which hit me on my flank. I snatched the gun from Zakir and hit him with dang."
If there had been only one dying declaration Exh, P. K. Recorded by the Naib-Tehsildar, it could be said that there was some evidence against the petitioners, but in view of the earlier statement made by the deceased before the Sub-Inspector in the presence of the Medical Officer, his statement made in Exh. P. K. Attributing fatal injury to Khushi Muhammad become valueless. The earlier statement which also is a dying declaration attributing fatal injury to Zakir is true, because it is not his solitary statement but supported by the evidence of Nazir Baig P. W. 4, Muhammad Sharif P. W. 5 and Akbar P. W.
11. This is a case of no evidence at all and there was no justification for the learned Magistrate to have committed the case to the Court of Session.
6. The petition is accepted and the commitment is quashed under section 215 of the Criminal Procedure Code. The petitioners should be set at liberty forthwith.