The sever appellant; have been convicted under sections 148 and 302 read with section 149, P. P. C.
For causing tree death of one Raja Khan in the area of village Sadwal Kalan, Police Station Lalauausa in the District of Gujrat. They were sentenced to two Years' k. I. Each on the first count and to transportation for life each oh the second.
2. It appears from the evidence that Bashir scan of Allah Ditta appellant is a brother's son of Raja Khan deceased. His father had left the village leaving the land in possession of his brother, but after his return he tried to take possession of the land. It is the story of the prosecution that Rehmat, Siraj, Bashir son of Lai, Bashir son of Allah Ditta, Mashooq and Muhammad Khan appellants tried to take possession of the laud. During this attempt Mien Khan the father of Mashooq appellant was assaulted by Raja Khan deceased and leis son Siddiq P. W. Along with eight others. The legs of Mian Khan were fractured and Bashir son of --Allah Ditta appellant also received injuries. The three eye- -witnesses who have appeared at the trial, namely, Muhammad Siddiq (P. W. 9), Adalat Khan (P. W.
10) and Karam Dad (P. W. 1) were among the accused in that case. Karam bad was convicted in that case and sentenced to one year's R.
1. The other accused were let off on probation. Siddiq P. W.
Had also brought a counter-complaint under section 308, P. P. C. Is that case but that was filed.
3. According to the prosecution it was in order to avenge the beating given to mina khan that the seven appellant came variously armed to the fields of raja khan at about 10 a.m. On 31 of January 1969. Akbar and Muhammad were armed with a gun and a pistol respectively and they deterred the witnesses from coming neat their co-accused. Bashir son of Lal and Mashooq were armed and lathis whereas all others had barchhis. After giving a beating to mian khan the accused left the place of occurrence. A cot was brought by Adalat khan (P. W. 10) form the house of Siddique andst the injured person was first taken to the dispensary at Kotla and there from to Lalamusa. The doctor at Lalamusa examined the injured person and since he found his condition to be precarious, he asked them to go to Gujrat Civil Hospital. On reaching Gujrat Civil Hospital Raja Khan breathed his last. Leaving his dead body in the verandha of the Gujrat Civil Hospital, Muhammad Siddiq proceeded to Lalamusa to lodge his report which was drawn up on 31 January 1969, at 10 p.m.
4. During the investigation the blood stained earth was taken from the place of occurrence. The licensed pistol of Muhammad Khan was also recovered and two lathis from Mashooq and Bashir son of Lal Khan were taken possession of. The two lathis were not produced at the trial while the pistol was. The recoveries in any case are inconsequential. There is no evidence that these lathis were used in the commission of the offence. Since there was no empty at the spot, the recovery of the pistol fro Muhammad Khan also does not help the prosecution.
There is no denying that the evidence in this case is interested. Out of the seven appellants, six were already involved in a fight with the complainant party when the legs of Mian Khan, the father of Mashooq appellant, were fractured. Mohammed. Akbar who is aged fifty-five years is the only fresh entrant in the list against the complainant party. I find that the learned Sessions Judge has not paid proper attention to some aspects of the case. The report was lodged after a delay of about twelve hours in this case. He repelled the argument advanced before him on the ground of delay in lodging the F. I. R. By observing that there was no evidence that this time was spent in deliberations. His view was that the first concern of this complainant party was to save the life of the injured person and, therefore, they took him from Lalamusa to Gujrat. This may' be so but in view of the inimical background between the parties it cannot be said that this delay does not affect the merits of the case. Police Station Lalamusa was not far off from the hospital where the injured person was examined. Actually, it was the duty of the doctor who hart examined the injured person to, -inform the local police immediately. This was not done. In my view, this delay does cast doubt on the assertion of the prosecutions that all the accused took part in the commission of the offence. Tyre is no corroboration of the part played by Muhammad Man and Muhammad Akbar.
They are said to have raised lalkaras and deterred the witnesses frown interfering with the ping givers by their co-accused.Adalat Khan asserted that he was actually, tired at but other witnesses do not support him.
I have said above that all the three eye-witnesses in this ease were accused in the case registered for giving a beating to the father of Mashooq appellant. Akbar's plea was that he vas introduced in the case as he had got the land restituted from the deceased without payment of the mortgage money for which it was pledged. He has produced documentary evidence in this respect. The brother of Siraj Din appellant had opposed the deceased in the elections to the Basic Democracies.
Karam Dad admitted that he had got a case registered against the accused, one and a half months before the present occurrence for assaulting his son. Some of the accused gave other reasons for the hostility of 'the accused party but the very face that six of the appellants had taken part in the earlier fight and that the three witnesses who have appeared against them were armed in the case clearly show that the evidence in this case is such that it should not be accepted without corroboration. Adalat Khan had also 'appeared' against Bashir son of Allah Ditta as a witness in at Arms Act case.
7. It appears to me that the first two eye-witnesses i.e. Muhammad Siddiq and Adalat Khan are chance witnesses. Siddiq said that he had gone to village show and was returning to his village when he saw the occurrence.Similarly Adalat Khan stated that he was going to his fields from his house when he happened to see the occurrence.The plea of the defence was that Siddiq was balder in the Arboriculture Department and he was present on his duty on a road at the time of the occurrence.A certificate was produced by Muhammad Khan appellant to this effect but it was not formally proved.It may not have been strictly proved that Siddiq was away from the village at thest time of the occurrence yet it cannot be denied that he was a chance witness.As to Adalat Khan, it is stated by Jamshed Ali Patwari (P.W.5) that he does not possess any filed in the locality.
8. The learned Sessions Judge said that the medical evidence lent corroboration to the prosecution story. It is not quite safe in all cases to seek corroboration from the medical evidence. The medical evidence may indicate the type of an injury but it docs not necessarily show as to which accused caused it. In this case three of the accused were armed with barchhis and one would expect that 14o injuries caused by them would be stab wounds, but the incised wounds on the person of the deceased are not of this "description. The learned counsel for the State says that the barchhis wend used in the form of hatchets, but this is just a hypothetical opinion not supported by any cogent evidence.
9. Some of the appellants may have taken part in the commission of the offence but the corroboration is to be sought with respect to the participation of each one of them. Since there is no evidence to point out positively as to who are, the actual t perpetrators of the crime there is no alternative brut to accept this appeal and acquit all of them. I set aside their conviction and sentences and direct that they shall be released forthwith unless they are required to be lawfully detained in some other case.