ATAULLAH SAJJAD, J.-Sarong appellant and Ali Muhammad were tried for offence under sections 302/34 and 307/34 of the Pakistan Penal Code by Mr. Abdul Alim Dareshani, Additional Sessions Judge, Lyallpur, for causing the death of Chera and for making a murderous assault on Amir Ali (P.
W. 10) who is the nephew of the deceased. Ali Muhammad was acquitted while Sarang was convicted under section 304, Part IT of the Pakistan Penal Code and was sentenced to rigorous imprisonment for a period of ten years. He was further sentenced to pay a fine of Rs.1,000 or in default thereof was to suffer rigorous imprisonment or one year. The learned Additional Sessions Judge did not record any separate conviction under section 307 against Sarang appellant.
Shahadat a brother of Sarang was also an accused in the case but he died before the trial started.
2. Sarang has filed Appeal No. 451 of 1966 against his conviction and sentence while Amir Ali complainant has filed Criminal Revision No. 492 of 1966. Notice was issued to Sarang in the above criminal revision to show cause why he should not be convicted for an offence under section 302, P.
P. C. Notice was also issued to Ali Muhammad to show cause why the order of his acquittal should not be set aside. This judgment will dispose of both the matters.
3. The occurrence took 'place on 20th of July 1964, at about 8 a. m. n the area of Chak No. 544/G. B.
Danaabad Police Station Garh in the District of Lyallpur. The facts which gave rise to this case are these.
One Muhammad had died leaving, a son, namely, Chera (deceased) and two daughters, namely Mst. Thari and Mst. Bhari, The other son of Muhammad, namely, Shera had died during this lifetime.
This Shera was the father of Amir Ali (P. W. 10). After the death of Muhammad, the land was mutated in the name of Chera and his two sisters. Mst. Thari, who was produced at the trial as P. W.
8, has permanently settled in village Syed Wala in District Sheikhupura and does not appear to be very much inters, in the heritage of her father. Mst. Bhari died after some tame, leaving behind her husband Baqir, Mst. Daulan and Mst. Khatoon her two daughters as heirs. The land which stood in the name of Mst. Bhari was mutated in the names of her heirs although it appears from Exh. P. E.
Which is a copy of the khatuni that only Mst. Daulan who is the widow of afore--mentioned Shahadat and her father Baqir were mentioned as the two heirs of Mst. Bhari. The specific piece of land in dispute in this case is Khasra No. 14/2 of Square No. 72. The record is not very clear on this point but it appears that during the consolidation of holdings in the Chak, this specific Khasra number along with some others fell to the share of Mst. Daulan and her father Baqir. It appears from the report of Girdawer Exh. D. 1 that the Assistant Consolidation Officer issued orders that the possession of this Khasra number along with another be transferred to Baqir. While the possession of Khasra No. 15/2 was transferred to Baqir the possession of Khasra No. 14/2 could not be transfer- -red as Chera who had raised cotton crop in this land had dis--appeared. Orders were solicited by the Girdawer as to the future course of action. It would appear from Exh. D. 2 the report of the Patwari dated 27th of October 1963, that the Assistant Consolidation Officer with the powers of Assistant Collector, Class II again ordered that the possession of Khasra No, 14/2 of Square No. 72 should also be handed over to Baqir. The Patwari went to the spot but Chera again made himself scarce and the possession was then delivered to Baqir by nishandahi, as cotton crop was standing in the land but no compensation was paid to the previous occupant, namely, Chera as he had disappeared. After these proceedings Chera filed a declaratory suit in the Court of Malik Khizar Hayat Khan, Civil Judge, Lyallpur, and also asked for an interim injunction on the ground that he was being forcibly dispossessed. The learned Judge passed an order (copy Exh. F. U.) on 25th of March 1964, ordering the maintenance of stains quo and issued notice for 28th of April 1964. We do not know whether this order was confirmed or vacated on 28th of April 1964; or on a subsequent date.
4. On 20th of July 1964, at about 8 a. m. Chera (deceased) along with Amir Ali (P. W. 10) and Allah Ditta (P. W. 11) his tenant, was ploughing Khasra No. 14/2 in Square No. 72 when Sarang appellant and Shahadat, the two brothers, came there along with Ali Muhammad, the acquitted accused.
Zulfiqar (P. W. 12) who was passing-by and had stopped to have a chat with Chera and others, was already there. Sarang appellant and Shahadat were armed with spears while Ali Muhammad was armed with a pistol. Sarang raised a lalkcua and asked Ali Muhammad to finish Chera. Ali Muhammad fired at Amir Ali who ducked and thus avoided the shot. Sarang appellant, thereupon, struck Chera with his spear in the chest who fell down. Amir Ali then got up to intercede when Shahadat deceased struck a spear blow in his chest. Ali Muhammad then fired two more shots in the air. Amir Ali carried a small lath! In his hand and tried to use it but he was not definite if he had succeeded in hitting anybody.
5. After the accused had left, Chera was found dead at the spot. Amir Ali went to the village and informed Ata Muhammad Lambardar (P. W. 14). H e then proceeded on a mare to the police station which is at a distance of six miles from the place of occurrence. When he passed by the tubewell of one Murad, which is at a distance of one mile from the police station, he was informed that the Sub-Inspector was at the tubewell. He then went to the tubewell and lodged his report Exh. P. B on the basis of which the, formal F. I. R. Exh. P. B./1 was drawn.
6. The Sub-Inspector came to the spot and prepared the injury statement and inquest report of Chera. He took into possession blood-stained earth from the place of occurrence and made it into a sealed parcel. He also recovered two empty cartridges Exh. P. 6/1-2 lying at the spot and sealed them into a parcel vide memo. Exh. P. J. He also took into possession three ploughs and three yokes vide memo. Exh. P. H. He also took into possession six bullocks vide memo. Exh. P. K. He then prepared the injury statement of Amir Ali (P. W. 101 and also took. Posses--sion of the blood-stained shirt of Amir Ali which had three holes. Amir Ali was then sent for medical examination to the doctor.
7. Ali Muhammad was arrested on the morning of 21st of July 1964, from the dhari of Sarang appellant. Sarang and Shahadat were not there. On his personal search a country-made pistol was found from the fold of his loin cloth. There were two live cartridges also in the same fold.
Recovery memo. Exh. P. M. Was prepared with regard to the possession of these articles. When the A. S. I reached the Chak after arresting Ali Muhammad, the other two accused, namely, Sarang and Shahadat were produced before him by Nur Ahmad Lambardar and Amir Ali a B. D. Member of Chak No. 545. They were arrested and inter--rogated. Sarang offered to produce a spear and led the police to Killa No. 25 of Square No. 73 wherefrom he took out a spear Exh. P. 8 from the reeds: This spear was taken into possession vide memo, Exh. P. N. Shahadat also offered to produce a spear. He led the police to his dhari and took out the spear from a thatched roof of the room at the back of his dhari. This spear is Exh. P.
9. The spear Exh. 8, recovered at the instance of Sarang, was found blood-stained while the spear Exh. P. 9 recover--ed at the instance of Shahadat was not blood-stained. The blood--stained earth recovered from the spot and spear Exh. P. 8 were sent for chemical examination. The Serologist found that both of them were stained with human blood.
The empty cartridges and the pistol recovered from Ali Muhammad were sent to the Forensic Expert who was of the opinion that one of the empties marked C/1 had been fired from the pistol alleged to have been recovered from Ali Muhammad. He was not able to give a definite opinion as to the crime empty marked C/2.
8. The doctor who performed the autopsy on the dead body of Chera deceased, found the following injury thereon :-
(1) A stab wound 1--" x --" x chest cavity deep on the front of right side of chest just outer to the middle line and I" below the inner end of right end of clavicle, oblique in direction with a corresponding cut on the shirt.
On deep dissection, it was found that the third rib of left side was cut through and through and there was through and through stab wound in the middle lobe of left lung 4" long, with an entrance wound 1-- " x 3 /8" on the inner side and exit wound --" x --". Left side of chest cavity was full of blood, while the weapon was entering the lung, it injured the pulmonary vessels of left lung in the base.
In the opinion of the doctor, the death was due to shock and haemorrhage from the left lung and left pulmonary vessels which was the result of stab wound of chest. The injury was sufficient to cause death in the ordinary course of nature, and had been caused with a sharp-edged long blade weapon. The probable time that elapsed between injury and death was a few minutes and between death and post-mortem about one day.
9. Doctor Munawar Hussain (P. W. 2) examined Amir Ali (P. W. 10) and found the following injury on his person:-
(1) A penetrated wound 3/5" x 3/10" x 1/5" little above the right clavicle sternal joint.
The injury was found to be simple in nature.
10. At the trial, the prosecution case was supported by Amir Ali (P. W. 10), Allah Ditta (P. W. 11) and Zulfiqar (P. W. 12). It has come in evidence that there were security proceedings with regard to the land in dispute in which Shahadat (the dead accused) was arrayed on one side and the deceased and the three witnesses on the other. Questions were put to the witnesses in cross-examination to show that Zulfiqar was a collateral of Chera deceased but nothing definite could be brought out. It is, however, on the record that the second wife of Zulfiqar is the daughter of the uncle of Sultan, a son-in-law of Chera deceased. Zulfiqar has incidentally two wives, one of whom is the sister of the wife of Ata Muhammad Lambardar (P. W. 14) who is a witness of recovery. No relationship has been established on record with Allah Ditta. As stated above, Allah Ditta (P. W. 11) is a tenant as also a person who was very much involved in the security proceedings.
11. The appellant, at the trial, took the position that he knew nothing of the occurrence and stated that Shahadat and Baqir were ploughing the land in dispute on the day of occurrence when Chera and Amir Ali attempted to dispossess them by force. Shahadat and Baqir received injuries but their case was not registered by the police. The appellant attributed his involvement in the case to the enmity of prosecution witnesses. The appellant denied the recovery of spear. Ghulam Rasul Patwari was produced as D. W. 1 to prove that possession of the disputed land had been delivered to Baqir.
Ali Muhammad the acquitted accused, took the stand that he had been involved on account of enmity with Ata Muham--mad Lambardar (P. W. 14). It was his case that Ata Muhammad had indecent intention towards his wife and when he asked Ata Muhammad not to visit the locality; there was a quarrel during which Ata Muhammad was given a beating by Ali Muham--mad.
12. The learned counsel for the appellant urged the following points :-
(i) that the F. I. R. In this case was drawn up at the spot and not at the tubewell of Murad as was alleged by the prosecution. It was submitted that the whole investigation stood vitiated on account of this fact ;
(ii) that the witnesses in this case were partisan and the fact that Ali Muhammad had been falsely involved further casts a grave doubt on their veracity ;
(iii) that notwithstanding the fact that it appears from the record that possession of the land in dispute was given to Baqir by nishandahi, it should be held in the circumstances of the case that actual physical possession had passed to Baqir and his daughter Mst. Daulan ; and
(iv) that the recoveries in the case are fake.
13. There are indications on the record which support the contention of the learned counsel that the F. I. R. Was not recorded at the tubewell of Murad. Perhaps it was recorded at the spot as is alleged by the defence.
The story given to us by Amir Ali P. W. Is that after the incident he went to inform Ata Muhammad Lambardar, who strangely enough did not accompany this witness to the police station. Amir Ali claims to have gone on horse-back up to five miles when he met the Assistant Sub-Inspector at a distance of one mile from the police station. He was in an injured condition and his shirt, we are told, was blood-stained and holes in it. The first thing that the Assistant Sub-Inspector should have done in the ordinary course of events was to have sent Amir Ali to the hospital which was at a distance of one mile. This was not done. On the other hand Amir Ali was again taken back to the spot where investigation was started and it was from there that he was sent for medical examination. A reference to the note of the A. S. I. Below Exh. P. B. Shows that he had prepared the injury statement of Amir Ali after taking down the report but in his statement in Court he stated that he had prepared the injury statement of Amir Ali at the spot. This probably lets the cat out of the bag and amounts to an unconscious admission that the report was written at the spot. It would have been furthermore in keeping with the rule of prudence if the A. S. I. Had travelled a distance of one mile to the police station and recorded the F. I. R. There. The failure of Ata Muhammad Lambardar to accompany the first informant in spite of the fact that he had been informed of the incident, also supports the contention of the defence in this regard. Amir Ali admitted during his cross-examination that he had affixed his thumb-impression on his statement at the tubewell of Murad but then stated that he had affixed two or three thumb-impressions at the spot. He is not a witness of recoveries nor is he a witness of the preparation of the inquest report. His shirt was taken possession of at the spot, and, therefore, two or three thumb-impressions that he stated to have affixed on various papers may include his thumb-impression on Exh. P. B. We, therefore, hold that the F. I. R. In this case should be ruled out of consideration, as according to our view i1B was drawn up at the spot.
14. The witnesses in this case are decidedly interested. Zulfiqar is clearly a chance witness. He was so close to the deceased that he was one of the four persons who were bound down in relation to the proceedings which arose between the parties with regard to the disputed land. Amir Ali stated that Zulfiqar was passing by and had asked them as to what crop they intended to sow in the land that they were ploughing. Zulfiqar and Allah Ditta P. Ws. Do not specifically mention the subject- matter of the talk between Zulfiqar and Chera deceased. Amir Ali is a nephew of the deceased and was bound down along with Allah Ditta as against Shahadat in connection with the disputed land.
All of them, therefore, are interested witness--ses and no conviction can be based in this case on their testimony unless corroboration with regard to the participation of Saran appellant is forthcoming.
15. We are clearly of the opinion that the learned Additional Sessions Judge was quite right in acquitting Ali Muhammad. He has, apparently, no connection with Sarang appellant although it was vaguely asserted by Amir Ali that he lived with the other two accused. He is said to have fired at Amir Ali ineffectively and then fired two more shots at the spot in the air. His plea is that he was involved by Ata Muhammad Lambardar. There is no positive evidence to support this plea but there are certain indica--tions on the record which show that Ali Muhammad had nothing to do with this affair. According to the evidence, of Niaz Muhammad foot constable (P. W. 5) he received the sealed parcel containing the pistol from the police station on 27th of July 1964, and after obtaining the necessary docket, took it away to Lahore. The sealed parcel containing the empty cartridges were handed over to Nur Muhammad Foot Constable (P. W. 7) on 21st of July 1964, for onward transmission to the Ballistic Expert. According to the statement of this witness he received the docket from the police office and sent this parcel by registered post to the- Ballistic Expert. The evidence of the Ballistic Expert, however, contradicts the statements of both these witnesses. We find from Exh. P. X. Which is the report of the Ballistic Expert that both the parcels containing the pistol and the crime empties were received on 6th of August 1964, in the Central Forensic Science Laboratory at one and the same time through Niaz Muhammad Foot Constable No. 680. The evidence of the prosecution led at the trial to show that these articles were sent to the Forensic Science Laboratory on different dates is, therefore, not correct. Since these two articles were received on the one and the same day and the evidence led at the trial to the effect that they were sent on different dates having not been found to be correct, the whole circumstantial evidence against Ali D Muhammad becomes doubtful. In view of what has been said in this para. We are of the opinion that the eye-witnesses in this case were not only partial and interested but were also responsible for the false inculpation of Ali Muhammad. Their statements against the appellant have, therefore, to be taken with great caution.
16. As to the question of possession, we may say that Chera deceased was ejected by the orders of the Assistant Consolidation Officer as the land had fallen to the share of Baqir and Mst. Daulan wife of Shahadat as a result of consolidation proceedings. Chera deceased was party to these proceedings and was bound by the order passed by the Assistant Consolidation Officer. He intentionally absented himself. The possession, in law, therefore, completely passed on to Baqir and the possession of Chera was terminated in spite of the fact that the possession to Baqir had been given by nishandahi. Under section 16 of the West Pakistan Consolidation of Holdings Ordinance, 1961, the land-owner or a tenant shall have the same rights in the holding or in the land allotted to him in pursuance of a scheme of consolidation as he had in his original holding or tenancy, as the case may be. Under section 18 of the Ordinance, the land-owners, tenants and other persons affected by the scheme of consolidation are entitled to the possession of holding and tenements allotted to them under the scheme and have to be put in possession thereof after the final confirmation of the scheme from a date to be fixed by the Consolidation Officer. Under section 18-A of the Ordinance any person occupying, or in possession of any holding or tenement can be summarily ejected after he has been given reasonable opportunity of showing cause. The provisions of the Ordinance are imperative and from the time the possession was delivered to Baqir, he and Mst. Daulan became the undisputed owners and occupants of the property in dispute. The law is established that when a person bound by a decree or an order is ejected and the person to whose advantage the decree or order has been passed, gets possession even by nishandahi, the possession of the previous occupant is terminated. Reference in this connection may be made to rules 35 and 36 of Order XXI of the Code of Civil Procedure, as well as to Adyanath Ghatak v. Krishna Prasad Singh and another. (53 C W N 883), Thakur Sri Sri Radha Krishna Chanderji v. Ram Bahadur and others (431 C 268) and Ranjit Singh and others v. Bunwari Lal Sahu and others (I L R 10 Cal. 993).
17. It is not the case of the prosecution that Chera after his dispossession had again entered into possession of the land concerned, and that Baqir and Shahadat had acquiesced in it. The stand of the prosecution is that notwithstanding this delivery of possession to Baqir, Chera deceased remained in actual physi--cal possession of the land. We have seen that this physical possession was legally interrupted by proceedings, report whereof is contained in Exh. D.
2. The prosecution relied on centuries of Khasra Girdawri Exh. P. F. Which show that Killa No. 14/2 was owned by Mst.
Daulan and her father Baqir but was cultivated by Chera son of Muhammad as a tenant-at-will on batai. The original of this entry is at page 59 of register of khasra Girdawri which was produced in Court during the cross-examination of Muhammad Sadiq Patwari (P. W. 15) and which we have marked as "A" for convenience of reference. The copy Exh. P. F. Does not reflect the correct state of affairs. We find in entry "A" that whereas Chera was shown as a "ghair dakhilkar" with regard to Khasra No. 14/2, there is a note below this entry to the follow--ing effect :- This latter entry does not find mention in the copy Exh. P. F. When questioned, the Patwari stated at the trial that he had made this entry earlier at the instance of Sarang appellant but when told by some other persons that it was not in accordance with facts, he made an entry to the effect that Chera was a tenant of the land concerned. We are afraid this is not the true explana--tion of the actual state of affairs. The words are at the bottom of the entry and the only inference drawn from this writing is that Chera was shown as a tenant so far as Kharif 1963 was concerned, but on 24th of March 1964, when the Girdawri was made with regard to the Rabi crop, theentry in favour of Mst.
Daulan and her father Baqir was made. The explanation of the Patwari to the effect that he had first madeentry and then scored it off and wrote the name of Chera as tenant, does not appear to be correct. The suggestion of the defence was that the wordshad been scored off at the instance of the police after the incident. This suggestion, was denied by the Patwari. Our entry, however, is mere consistent with the reading of this story of the defence that after the eviction of Chera on 27th of October 1963, Mst. Daulan and Baqir had physically occupied the land in dispute. The entry in the original register clearly supports their stand and whatever the explanation of the Patwari may be, we have to interpret this entry in favour of the defence in conformity with the firm rule laid down by the Superior Courts that where there are two possible interpretations the one favouring the accused has to be followed.
18. 'Now we come to the recoveries. We have already observed that Ali Muhammad does not appear to have any connection with the accused and it is not knows. As to under what circumstances he was found at the dhari of Sarang at the time of his alleged arrest. The recovery by Sarang is also net convinc--ing. He is said to have taken out the spear from the sorkanda bushes from Killa No. 25 which does not belong to him. It is not the case of the prosecution that he dug it out from a parti--cular place. We cannot, therefore, fix Sarang with the exclusive knowledge of the presence of this spear is Killa No. 25. According to- Sardar Khan A. S. I. (P. W. 16) Sarang and Shahadat ware I produced before him by Nur Ahmad and Amir All. These two persons were not made the witnesses to recovery. Nor were they produced at the trial. It appears that they had just come to produce the two accused and then mechanically went back. We are not convinced with the correctness of the version of the prosecution with regard to the arrest of these two persons.
19. We have observed above that Ali Muhammad was falsely implicated in this case. This is another factor which cautions us to scrutinize the testimony of the witnesses with great care. There are only two injuries on the side of the prosecution . . . One on the person of the deceased and the other on Amir Ali (P. W. 10). . . . These two injuries could well be inflicted by one person. Since we have observed that one of the accused, namely, Ali F Muhammad was falsely involved in the case, we cannot be sure that both Sarang or Shahadat participated in the incident. Shahadat was the person who had a direct motive to take part in the fight. It is, therefore, more probable that Shahadat was the assailant and Sarang being his brother may have been involved by the prosecution.
20. Since the prosecution story becomes doubtful and we find that the defence story is more probable, the complexion of the whole case is changed. In view of what was said by their Lordship of the Federal Court in Safdar Ali v. Crown (PLD 1953 FC 93), we give the benefit of doubt to Sarang appellant and set aside his convic--tion and sentence. He is acquitted. He shall be , released forthwith if not required to be lawfully detained in some other case.
21. As a result of this finding Revision Petition No. 492 of 1966 is dismissed.