Full Judgment Text & Judicial Ruling

1968 P Cr

1968 P Cr. L J 1380

[Lahore]

Before Sher Bahadur Khan and Muhammad Siddiq, JJ

ANAR KHAN AND 2 OTHERS‑‑Convict‑Appellants

Versus

THE STATE‑Respondent

Criminal 'Appeal No. 736 of 1967, decided on 5th April 1968.

(a) Penal Code (XLV of 1860)----S. 302‑Murder‑Evidence Gun‑shot injury‑Tatooing and charring cannot result unless injury is caused from a distance of‑ less than four feet.

Medical Jurisprudence by Modi, 14th Edn., p. 233 ref.

(b) Witness‑‑Credibility of a witness‑Not divisible‑Testi mony rejected with regard to some accused, should not be accepted with regard to other accused without adequate corroboration.

Khurdo v. The State P L D 1963 Kar.'92; Wasiullah v. Mirza Ali P L D 1963 S C 25; Thoba v. The State P L D 1963 S C 40; Muhammad Faiz Bakhsh v. The Queen P L D 1959 P C 24 and Ahmad Khan v. The State P L D 1962 Lah. 390 ref.

Ch. Nazir Ahmad and Ch. Eitzaz Hussain far Appellants.

Malik Nemat Khan for the State.

JUDGMENT

MUHAMMAD SIDDIQ, J.‑----Shah Jehan (26 years), his brother, Dauran Khan (21 years) and their cousin, Anar Khan (30 years) were‑tried in the .Court of .the Sessions Judge, Mianwali, along with their near relatives, Ahmad Khan,. Gul Khan, Rustam Khan, ‑Zar Khan and Arsala Khan,

for the murder of Dost Muhammad deceased and for the attempt on the life of his father, Ali Khan (P. W. 13). Shah Jehan Khan and Dauran Khan, appellants, were convicted under section 302/34, P. P. C. and sentenced to transportation for life. Anar Khan appellant was convicted under section 307, P. P. C. and sentenced to undergo rigorous imprisonment for seven years. Their co‑accused were acquitted. The aforementioned convict prisoners have come in appeal.

2. According to the prosecution story as disclosed in the first information report (Exh. P. B) it had rained in the early hours of the 24th of August 1965. The lands belonging to the complainant party and the accused party were barani and used to get irrigation from hill‑torents. Since it was expected that the hill‑torents would be in full supply on account of the rains, the parties had gone out to the a fields to arrange for irrigation. The appellants and the acquitted accused who were all close relatives were present to arrange for the irrigation of their fields, when the dam in the channel gave way and water from the channel started irrigating the land of Ali Khan, complainant (P. W. 13). Shah Jeban Khan appellant and his co‑accused tried to make a cut in the complainant dam, so that the water that had flowed on to the complainant's land may go to his lands. The complainant did not permit this to be done and the appellants and their co‑accused took out guns lying in the fields close by and insisted on cutting the dam. Ali Khan complainant and his son Dost Muhammad advanced towards them to dissuade them from making a cut in the dam. The accused party shouted and threatened to kill any body who interfered with them. The complainant, his son, Dost Muhammad deceased, Faizullah Khan and Bostan Khan P. Ws. tried to dissuade the appellants and their co‑accused from making a cut in the dam on which Shah Jehan Khan and Dauran Khan, appellants, fired one shot each at Dost Muhammad which hit him on the back. Anar Khan appellant fired another shot which hit Ali Khan complainant on the upper part of his right arm Dost Muhammad fell on the ground. The acquitted accused also started firing on the complainant and Dost Muhammad ‑deceased. The eye‑witnesses raised a hue and cry at which there accused party made good their escape after continuing to fire. All Khan and Dost Muhammad were taken to the police station and Dost Muhammad died on the way.

3. The first information report (Exh. P. B) was lodged on the same day at 3‑00 p.m. at Police Station Musakhel, District Mianwali, at the instance of ,All Khan (P. W. 13) which was recorded by M. H. C. Ali Khan. (P. W. 6). Sub‑Inspector Abdur Rehman (P. W. 16) proceeded to the spot immediately and prepared the injury statement .(Exh. P. J) and inquest report (Exh. P. K) in respect of the dead body of Dost Muhammad and sent, the dead body to the mortuary at Mianwall. He also took into possession from .the place of occurrence the blood stained earth vide Memo. Exh. P. F. which according to the reports. of the Chemical Examiner and the Serologist was found stained with human blood.

4. Doctor Ijaz Ahmed Qureshi (P. W. 1) medically examined Ali Khan (P. W. 13), on the 24th of August 1965 at 5.15 p.m. and found the ‑following injuries on his person:‑

(1) A wound of entrance 2 '' x 1 '' situate on the inner side slightly front of the upper one‑third of the right upper arm 1 '' below the arm pit, tearing the tissue which came in the way and passing backward making an exit just I" backward to this wound which was 3'' x 2'' situate on the inner side of the right upper arm slightly back ward 1 '' below the arm pit. There was a tatooing mark on the edges of the wound of entrance and charring of the tissue. Both the wounds were inter‑connected and freely intercommunicating. Only 1'' area of the skin was left between the two wounds.

5. Doctor Munawar Husain Bhutta (P. W. 2) conducted the post‑mortem examination on the dead body of Dost Muhammad on the 25th of August 1965 at 9‑30 a,m. and found the following injuries:‑

(1) a gun‑shot wound of entry 4" x 4" on outer aspect of left upper arm 3 " below the tip of the shoulder, and which was directed towards chest. There was fracture of the third rib.

(2) Gun‑shot wound of exit " x 1/3" on the back of right shoulder blade which was fractured. The injury was 6 " from mid‑line.

In the opinion of the doctor the deceased had died of shock and haemorrhage due to injury No. 1 which was sufficient to cause death in the ordinary course of nature. The doctor further opined that injury No. 1 was wound of entry and injury No. 2 was the wound of exit and that both the injuries were the result of one fire. In his opinion injury No. I could not be caused if the victim was shot at from behind.

6. In addition to the medical and formal police evidence etc. the prosecution relied on the eye‑witnesses testimony of Faizullah (P. W. 9), his wife Mst. Shakiran (P. W. 11) and the two cousins of Faizullah P. W., Bostan Khan (P. W. 14) and All Khan (P. W. 13). Ali Khan had also received a gun‑shot wound and is the father of Dost Muhammad deceased.

7. The appellants and the acquitted accused generally denied the prosecution allegations in their statements before the Committing Magistrate and at the trial. They further stated that they had been charged due to long‑standing enmity and did not produce any evidence in defence.

8. The learned Sessions Judge did not accept the pro secution story with regard to Faizullah (P. W. 9) and his wife Mst. Shakiran (P. W. 11) having witnessed the occurrence The learned trial Judge also rejected the prosecution evidence with regard to the participation in the occurrence of the five acquitted accused. The learned Sessions Judge also did not accept the evidence of motive put forth by the prosecution against the acquitted accused: The learned Sessions Judge, who had the advantage of seeing the witnesses, condemned Faizullah and his wife Mst. Shakiran as false witnesses and considered their evidence as perjured. Reliance was placed for the conviction of the present appellants on the testimony of Ali Khan (V. W. 13), who had also received a gun‑shot injury and of Bostan Khan (P. W. 14) whose land was close to the place of the occurrence. The mere fact that Bostan Khan owned some land near the place of occurrence gives no assurance that he was a witness of the occur rence especially when his testimony with regard to the presence of Faizullah Khan and Mst. Shakiran P. Ws. and with regard to the participation of the acquitted accused has not been accepted. This leaves Ali Khan P. W. who was himself injured at the time of the occurrence and is the father of Dost Muhammad deceased. He could certainly be accepted as a witness of the occurrence but it is difficult to accept him as a witness of the truth. His testimony with regard to the motive against the acquitted accused and with regard to their participation in the occurrence has not been accepted by the learned Sessions Judge. The fact that the Government has not come in appeal against the acquittal of the five co‑accused indicates that the prosecution has also accepted the assessment of this case as made by the trial Court. The learned State counsel has also not been able to challenge the observations made by the learned Sessions Judge with regard to Faizullah and Mst. Shakiran P. Ws. Having witnessed the occurrence or stated the truth. This means that the testimony of Ali Khan P. W. has not been accepted with regard to the participation in the occurrence of the five acquitted accused and with regard to the occurrence having been witnessed by Faizullah Khan and Mst. Shakiran P. Ws. He as well as Bostan Khan P. W. did not appear at the trial of the case as they were absconders in a case registered against them under section 307, P. P. C. for a murderous assault on the brother of Shah Jehan appellant. The testimony of Ali Khan P. W. is also inconsistent and is in fact contradicted by the medical evidence. He has stated that Shah Jehan Khan and Dauran Khan, appellants had fired one shot each at his son Dost Muhammad and that each of the fires had found its target on the back of the deceased. According to the post‑mortem report, however, the deceased bad received only one injury and that was on the outer aspect of the left upper arm The injury on the back of the right shoulder was the wound of exit. Doctor Munawar Hussain (P. W. 2) had _opined in the last sentence of his statement:‑‑‑

Injury No. 1 could not be caused if the victim was shot at from behind.

This means that the testimony of Ali Khan P. W. that the deceased had been hit on the back by gun‑fire is incorrect and what is more is that he cannot be believed when he tries to implicate two persons for the murderous assault on his son. The deceased bad received only one injury. The accusation against one of the two appellants, namely, Shah Jehan Khan and Bostan Khan, is therefore false. Again, he states as P. W. that Anar Khan, appellant, had fired at him from a distance of seven karams. This part of his testimony is falsified by the medical evidence as Dr. Ijaz Ahmad (P.W.1) has stated that there was a tatooing mark on the edges of the wound of entry and charring of the tissue. This tatooing and charring cannot result unless the injury had been caused from a distance of less than four feet (ride Medical Jurisprudence by Moth, 14th Edition, at page 233). His evidence is also unnatural when he claims that he and his son Dast Muhammad lead advanced towards the accused party to pursuade them not to make a cut in the dam, after they had armed themselves with guns etc, He says as P. W. 13 that Dauran Khan, appellant had a 12./bore gun while Shah Jehan Khan appellant was armed with a rifle. B star: Khan (P. W. 14) contradicts him by saying that Shah Jehan Khan had a 12/bore gun and Dauran Khan appellant had a rifle. Both these witnesses also contradicted by the medical evidence, because if these two appellants had fired at the deceased from the distance of 29/30 karams as claimed by Ali Khan P. W. the injury marks noticed on the dead body of Dost Muhammad would have been different. The witness has also stated that the appellants and the acquitted accused had been firing at the spot and had continued to fire when they were making good these escape. No empties were recovered from the place of occurrence and no weapons of offence has been recovered. The result, therefore, is that it cannot be said for certain that Bostan khan P.W. had witnessed the occurrence anal with regard to Ali Khan W. it cannot be said that he has come out with truth, the whole truth and nothing but truth. His testimony wits, reward to the occurrence having been witnessed by Faizullah and Mst. Shakiran P. Ws. has rejected by the trial Court and quite properly. His testimony with regard to the participation of the five acquitted accused seas also rejected by the learned Sessions Judge. His testimony as materially contradicted by the medical evidence in the case. He has trot been supported by the possible corroborative evidence in the shape of recovery of the empties from the scene of occurrence and of the weapons of offence at the instance of the accused.

9. The law on the point is clear that the credibility of a witness is rant divisible and if his testimony has been rejected with regard to some of the accused, the same should not be accepted with regard to the other accused without adequate corroboration. It wax laid down in Khardo v. The State (P L D 1963 Kar. 92) that the inference should be drawn against the witness if his statement is contradicted by the medical report and if his story does not fit in with the injuries found on the person of the deceased. In Wasiullah v. Mirza Ali (P L D 1963 S C 25) it was laid down drat where the eye‑witnesses were interested and inimical exceptionally therein corroboration was necessary which should be itself almost sufficient to establish the guilt. Again in Thoba v. The State (PLD1963SC 40) the Rule of Caution was emphasized that where ocular evidence was of interested and partisan witnesses, the evidence on capital charge must come from unimpeachable source or be supported by strong circumstances that might remove inherent doubt attaching to the evidence of interested and partisan witnesses. Muhammad Faiz Bakhsh v. The Queen (PLD1959PC24) is an authority for the proposition that the credibility of a witness would not be treated as divisible and accepted against one and rejected against the other." To the same effect is Ahmad Khan v. The State. (P L D 1962 Lah. 390)

10. In our opinion, therefore, there is not enough evidence to warrant the conviction of any of the appellants. We, there fore, accept this appeal and set aside the convictions of the three appellants and the sentences awarded to each of them. They are in jail and shall be set at liberty at once unless required in some other case.

Appeal accepted.

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