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Criminal Appeal No. 420 of 1972, decided on 19th October 1973.
‑‑‑ S. 307‑Attempted murder‑Evidence, appreciation of‑‑Benefit of doubt‑Eye‑witnesses of occurrence, employees of complainant related inter se and interested in deposing against accused persons‑Evidence of such witnesses not confidence inspiring while two material prosecution witnesses, not produced at trial ---Accused given benefit of doubt and acquitted, in circumstances. [Evidence‑Benefit of doubt].
Muhammad Latif Khan Khosa for Appellants.
Rana Maqbool Ahmad for A: G. for the State.
Date of hearing: 19th October 1973,
Haider, Siddique and Allah Bakhsh appellants were convicted under section 307/34, P. P. C. and sentenced to rigorous imprisonment for five years with a fine of Rs. 200 each or in default further rigorous imprisonment for three months by the learned Additional Deputy Commissioner (G), Dora Ghazi Khan, vide his judgment dated 30th may 1972 which forms the subject matter of this appeal.
2. The prosecution case in brief was that Umar P. W. was suspected of having illicit relations with Mst. Pathani, the wife of Haider appellant. He, his brother Siddique and their brother‑in‑law Allah Bakhsh were on a look out for a chance to teach him a lesson for bringing this infamy to their family which offered itself on the evening of 21st May 1971 when he was returning from his lands alongwith Allah Bakhsh P. W. with two camel loads of Bhusa followed by Ahmad P. W. and Khan Muhammad, the owner of these camels. The three appellants are alleged to have laid in ambush for them in furtherance of their common intention in the low lying area of village Bachhara and as they passed by them they came out of the bushes. Haider and Siddique had hatchets and Allah Bakhsh appellant carried a knife and attacked Umar and Allah Bakhsh P. W. with their respective weapons causing serious injuries to them in an attempt to take their lives. Ahmad (P. W. 4) and Khan Muhammad, the owner of the two camels (not produced) who were following them at some distance witnessed this occurrence and raised alarm, which also attracted one Sultan from the neighbourhood (not produced). On seeing them arrive the three appellants made good their escape.
3. Ahmad P. W. and Khan Muhammad leaving the two fodder loads at the spot put the two injured persons on the camels and rushed them to the hospital at Taunsa during the same night where Dr. Sher Muhammad Kaleem (P. W. 6) examined them at 2‑30 a.m. Thereafter Ahmad P. W. went to the police station alongwith the copies of their medico-legal reports (Exhs. P. J. and P. J/1) and lodged his report Exh. P. F. there at 5‑15 a.m. on the same night.
4. Sub‑Inspector Muhammad Usman (P. W. 5) after the formal regis tration of this case went to the hospital and took into possession the blood stained clothes of the two injured persons from the doctor vide Exh. P. A. He then went to the spot and during its inspection took into possession some blood‑stained earth from there vide Exh. P. B.
5. He arrested the three appellants on 26th May 1971 from the dera of Sahibzada Abbas Shah of Taunsa Sharif with their respective weapons (P. 5 to P. 7) vide Exh. P. C., P. D. and P. E. and submitted the challan in Court against them with a rough site plan Exh. P. G.
6. On 22nd May 1971 at 2‑30 a.m. Dr. Sher Muhammad Kaleem exa mined Allah Bakhsh P. W. and found the following injuries on his person:‑
(1) An incised wound 1' x ' x bone deep on the right side of forehead half inch above the eye‑brow.
(2) An incised wound x x 1/6' on the left side of face ' below the outer end of left eye
(3) An incised wound' x 1/8' x 1/8' on the upper eye‑lid of left eye just above the inner angle of eye with oedema of the lid.
(4) An incised wound 5" x through and through cutting the distal phalanx of left thumb of hand left above the metacarpophalyngial joints. Second third and fourth matacarpol bones cut and matacarpol bone of little finger intact.
(5) A cut x 1/6' into skin deep on the inner side of middle of left leg.
(6) An incised wound 3' x x on the dorsum of left big toe and foot. Injury No. 4 was grievous while the rest were simple.
On the same night the same doctor examined Umar P. W. and found the following injuries on his person:‑
(1) An incised wound 5' x 3' x 2 cutting outer end of left clavicle shoulder joint and the head of humerus.
(2) An incised wound 4' x 1/2' x 1/2' in injury No. 1 along with cut akin of injury No. 1 cutting the soft tissues.
Injury No. 1 was grievous while the other was simple.
7. In addition to the above detailed medical evidence and that of the recoveries the prosecution had relied for its case on the testimony of Umar (P. W. 1), Allah Bakhsh (P. Lip. 2), the two injured persons and Ahmad (P. W. 3) (the informant) about the ocular account of the occurrence. Learned trial Magistrate disbelieved the recoverise, but accepted the evidence of the above named witnesses as true and held them guilty of the above charges.
8. This finding has been assailed before me as erroneous being based on tainted and incredible evidence to the wilful exclusion of the two independent witnesses Khan Muhammad, the owner of the two camels and sultan, a resident of the vicinity of the alleged crime.
9. On being taken through the evidence I am inclined to agree with this contention as Umar P. W, had admitted his interest against the appellants in the following concluding words of his statement at the trial: ‑
"They were my enemies and they had been bound down against each other under section 107, Cr. P. C."
10. Ahmad (P. W. 3) is his cousin, who had employed him as his personal servant alongwith Allah Bakhsh P. W. The former had no occasion to be there. He had, however, admitted that he was at a distance of 40 karams behind them when the outcries of Umar and his companion attracted his attention and on reaching the spot he witnessed this occurrence. He wants me to believe that the three appellants waited for his arrival on the spot so that he could witness the entire occurrence as he has given the detail in sequence from the first blow to the last of both the injured persons, which was impossible, he, therefore, contended at the trial that on his arrival the appellants made good their escape after threatening him to dire consequences. He had made no mention of any such threats in his report (Exh. P. F.) with which he was duly confronted about it.
He however, did not interfere and his assertion that he had left the loads of bhusa at the spot so as to put the injured persons on camels for carrying them to the hospital, but the Sub‑Inspector had not taken into possession any such bhusa loads from the spot. He had also deposed about the arrest of the appellants with their respective weapons from the sera of Pir Abbas Shah of Taunsa Sharif, but as the latter had belied this statement learned trial Magistrate had disbelieved him in respect of these recoveries. Ahmad P. W. was also convicted in a hurt case lodged at the instance of Hasan, are uncle of Haider appellant. He also admitted that he was a "kardar" of Ghulam Book, who according to the Sub‑inspector, had joined in the investigation of this case. A case of abduction appears to have been instituted against this Ghulam Beek and three others, namely, Kamal, Jamal and Mahmud as admitted by him in cross‑examination. Ahmad P. W. was thus interested in deposing against the appellants who are related to each other; while Umar P. W. was his nephew and employee like Allah Bakhsh P. W. Their evidence, therefore, did not inspire confidence especially when Khan Muhammad, the owner of the two camels and Sultan, a witness from the locality were not put in the witness‑box. There would be a strong legal presumption against the prosecution on that account lending grave doubts to the case, the benefit of which cannot be denied to the appellants. I have, therefore, to accept this appeal and setting aside their conviction direct that they shall be set at liberty forthwith, if not required in any other case.
Appeal allowed.
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