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Criminal Appeal No. 10 of 1965, decided on 18th December 1967.

(a) Witness‑Interested and inimical witnesses‑‑Testimony of such witnesses cannot be relied upon unless corroborated by other evidence on record.

(b) Witness‑Credibility of witness‑‑‑Cannot be treated as divisible and accepted against one accused and rejected against the other.

Mohammad Fiaz Bakhsh v. The Queen P L D 1959 P C 24, Abdur Raziq v. The State P L D 1964 Pesh. 67 and Ahmad Khan and another v. The State P L D 1962 Lah. 390 ref.

S. 3.25‑Eye‑witnesses interested and inimical, suppressing truth and falsely implicating one of accus ed‑No confession or circumstantial evidence to prove beyond reasonable doubt implication of accused in crime‑Accused acquitted on benefit of doubt.

Appellant through Jail.

Fayyaz Hussain Qadri for the State.

Nazir Appellant was convicted under section 325, P. P. C. and sentenced to seven years' rigorous imprisonment by the learned Additional Sessions Judge, Gujrat. The co‑accused Ghulam Ali, who is his cousin, was, however, acquitted. The appellant, against his conviction and sentence, has preferred this appeal through jail.

2. The appellant and the acquitted accused are residents of village Haria, District Gujrat. On the 5th of October 1963, at about digerwela, Rafique (P. W. 7) also resident of village Haria, went to his field; which is at a distance of about one mile from the village and saw three goats belonging to Ghulam Ali, acquitted accused, grazing in his bajra crop. He drove the goats to the dera of Ghulam Ali, which was close by and found him as well as Nazir appellant present there. He complained to them that their goats had damaged his crop, but they abused him. After that the appellant and the acquitted accused got up and gave him fist blows. Ghulam Ali, acquitted accused, shouted to Nazir appellant to catch hold of something and gave a beating with it to Rafique P. W. Nazir appellant then picked up a brick and gave a blow with it near the left eye of Rafique P. W., who as a result thereof fell down. He raised a hue and cry, which attracted Muhammad Siddique deceased, a brother of Rafique P. W., to the spot. At that time Muhammad Siddique deceased was graz ing his cattle at a distance of about one killa from the scene of offence. The deceased was followed by Sardar Khan (P. W. 8) and Muhammad Hayat (P. W. 9). On seeing the deceased arriv ing there Ghulam Ali, acquitted accused, exhorted Nazir appellant, to give him (the deceased) a beating. Nazir appellant then picked up a brick and threw it at the deceased from a distance of about 11/2 karams, hitting him on his head. The deceased after receiving the injury fell down and became unconscious. Sardara and Hayat P.Ws. then gave a shout and the appellant and the acquitted accus ed ran away. According to Sardara P. W. he and Muhammad Hayat P. W. at the time of the occurrence, were sitting in his behk and on hearing the alarm had gone to the scene of offence, but according to Muhammad Hayat P. W. he was present in the behk of Rafique P. W., where he had gone in order to get bullocks from him, and on hearing the alarm bad come out and rushed to the scene of offence and witnessed the occurrence. Rafique P. W. brought the deceased on a mare to the village, where they reached at about sunset time. Sardara P. W. also accompanied them on foot. On the following morning, i.e. the 6th of October 19.63, Rafique P. W. sent a barber, Saeed by name, to inform his maternal‑uncle residing at Wara Alam Shah about the occurrence. The uncle came and at about sunrise they put the deceased on a charpai and carried him in the direction of the Civil Hospital, but in the way near old bridge known as Dadewala, the deceased died. After that the dead body of the deceased was taken to Police Station Malakwl where Rafique P. W. lodged first information report Exh. P.M/1 which was recorded at his dictation by Sub. Inspector Ghulam Ahmad (P. W. 10). Exh. p.m. is the true copy of the said first information report, which is on this file. The distance between the place of occurrence and Police Station Malakwal would be only six miles. The S.1. prepared injury statement Exh. P. G. of Rafique P. W. and sent him for medical examination. The S. I. also prepared injury statement Exh. P. E. and inquest report Exh. P. F. of the dead body of the deceased and sent it to the mortuary for post‑mortem examination. After that the S. I. went to the scene of offence and took into his possession brick Exh. P: 1 vide Memo. Exh. P. 1. he also took into his possession a clod Exh. P. 2 from the scene of offence vide memo. Exh. p. K., The S. I. also took into his possession bricks Exhs. P. 3 to P. 5 vide memo. Exh. P. J. He did not find any blood at the scene of offence. He arrested the appellant and his companion and challaned them.

3. Doctor Muhammad Khan (P. W..2) on the 6th of October 1963, , at 10‑35 a.m., examined Muhammad Rafique P. W. and found the following injuries on his ‑person :‑

(1) A bruise 1 x ", on the left cheek (below the left eye).

(2) A bruise 1 x1 on the left nostril. Both the injuries were simple and had been caused by a blunt weapon.

4. Doctor Raja Sultan Mahmood (P. W. 1) on the 7th of October 1963, at 7 a.m., performed post‑mortem examination of the dead body of Muhammad Siddique deceased and found a con tusion, 2 x 2" with a swelling in an area of 3 x 3" around it. It was 5 " behind and middle of left eyebrow. Under injury No. I the scalp was found congested, and left fronto parietal suture was found opened and the lateral wall and base of left mid dle cranial fossa fractured. The middle cerebral artery was injury and a clot weighing 3 ounces was found pressing upon the brain. In the opinion of the doctor the death of the deceased was due o shock and compression of the brain as a result of the afore mentioned injury, which was sufficient in the ordinary course of nature to cause death.

5. The appellant denied his guilt and declined to produce any defence.

6. The prosecution case against the appellant rests solely on the testimony of the eye‑witnesses, namely, Rafique, Sardara and Muhammad Hayat. The learned Additional Sessions Judge con victed the appellant by relying on the evidence of Rafique and Muhammad Hayat P. Ws. He did not place any reliance on the testimony of Sardara P. W. for various reasons given out in his judgment. The view taken by him regarding his evidence has not been disputed by the learned counsel for State. I see no reason to disagree from the learned Additional Sessions Judge as regards his appreciation of his evidence.

7. Rafique P. W. admitted that he was at one time married to one Mst. Rasulan, a sister of Nazir appellant, whom he bad divorced. He also admitted that for 5 or 6 days the cattle and goats of Ghulam Ali, acquitted accused, had been damaging his crop. Muhammad Hayat P. W. admitted that Ghulam Muhammad, father of Nazir appellant, had obtained from his mother on loan of her gold ganni, which he did not return in spite of the fact, that they were demanding it back and, therefore, on account of that he (this witness) was on bad terms with Nazir appellant. He further admitted that one Roshan' son of Ahman was murdered and Nazir and Shana his first cousins, were challaned and in that case Nazir appellant appeared as a witness against them. From the above it is clear .that both these witnesses are inimical towards the appellant. It is well established rule of cau tion that no reliance should be placed on interested and inimical witnesses unless their testimony is corroborated by some other evi dence on the record, which in the present case is lacking. I also find some material discrepancies in the statements , of Rafique and Muhammad Hayat P. Ws. Muhammad Hayat P. W. in his cross examination admitted that it was Siddique deceased, who first gave 2 or 3 dang blows to Ghulam Ali, acquitted accused, who raised cries for help and it was after that Muhammad Siddique re ceived injury at the hands of Nazir appellant. From the above it is clear that the eye‑witnesses have suppressed the truth and the occurrence, therefore, did not take place in the manner as alleged by them.

8. Further there has been an inordinate delay in the lodging of the first information report. The occurrence took place at about digerwela on the 5th of October 1963, but the first information report was lodged on the following day at 9‑15 a.m, in spite of the fact, that the police station was only six miles away from the place of occurrence. Rafique P. W. gave no reason as to why the first information report was lodged on the following day. In case he was required at home he could have easily sent one of the eye‑witnesses to the police station shortly after the occurrence. He admitted that he did not ask any one of them to go and make a report to the police. He also admitted that he did not ask his neighbour or lambardar or the chowkidar during the night to go and make a report. He further admitted that he sent one Sain Barber living close by, to go and inform his maternal uncle about the occurrence. This shows that Sain Barber was available and that he could have easily sent him to the police station on the previous evening.

9. Lastly I find that these eye‑witnesses have falsely implicat ed Ghulam Ali, who was acquitted by the learned Additional Sessions Judge. It is well established principle that the credibility of witnesses cannot be treated as divisible and accepted against one and rejected against the other. I am fortified in this view by the cases Muhammad Fiaz Bakhsh v. The Queen (P L D 1959 P C 24), Abdur Raziq v. The State (P L D 1964 Pesh.67) and Ahmad Khan and another v. The State (P L D 1962 Lah.390). In case Rehmat v. The State (P L D 1959 S C 109) it was observed :‑

"Where the entire case rests on ocular evidence, which is subject to such general doubts, it is obviously not consistent with the safe administration of justice to select for conviction those persons upon whom the eye‑witnesses fix specific parts in the accomplishment of the crime. The case fails against each of the accused persons unless there be evidence aliunde e.g. a confession or circumstantial evidence, which by itself may suffice to show, beyond reasonable doubt, his implication in the crime. No cir cumstantial evidence or admission of this nature appears against any of the accused persons in the present case. In our opinion, each of them was entitled to acquittal on the ground that the case had not been proved against all or any of them beyond reason able doubt by the prosecution evidence."

In the present case too there is no confession or circumstan tial evidence which could prove beyond reasonable doubt the im plication of Nazir in the crime. In view of the above, giving be nefit of doubt to the appellant, I accept his appeal, set aside hi conviction and sentence and acquit him. He should be released forthwith; if not wanted in any other case.

Appeal accepted.

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