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Criminal Revision No. 983 of 1965, decided on 16th April 1976.

‑‑‑‑ S. 139‑Witnes,‑Evidence, divisibility of‑ Lower appellate; Court maintaining conviction of petitioners, relying on testimony of injures prosecution witnesses qua petitioners while rejecting same in case of acquitted co‑accused‑Such witnesses although belied by other. eye‑witnesses of occurrence yet implicating in extenso all accused persons including co‑accused, found innocent and acquitted by Court of appeal‑Convictions and sentences set aside, in circumstance [Witness‑Evidence].

Safdar Ali v. Crown P L D 1953 F C 93 ref.

Safdar Ali v. Crown P L D 1953 F C 93 rel.

F. M. Anwari for Petitioner.

S. Muhammad Safi Ahmad for the State.

Date of hearing : 16th April 1976.

Asghar Ali, his two brothers Wali Muhammad and Muhammad Shafi, their mother Mst. Zainab Bibi and Mst. Hashmat Bibi wife of Wali Muhammad were convicted and sentenced to three years' R. I. each under section 307/149, P. P. C. and one year's R. I. each under section 148, P. P. C. vide judgment of Raja Muhammad Ayub Khan, Magistrate First Class with section 30 Powers, Lyallpur dated 30‑10‑1965. All the sentences were ordered to run concurrently. On appeal Khan Muhammad Ayub Khan, the learned Sessions Judge vide his judgment dated 18‑I1‑1965 found the case against Wali Muhammad, Mst. Zainab Bibi and Mst. Hashmat Bibi as doubtful and acquitted them of all the charges. He however upheld the conviction of Asghar Ali and Muhammad Shafi under section 307/34, P. P. C. but reduced their sentence from three years' R. I. to one year's R. I. each.

2. Hence this revision petition.

3. The brief facts of the case are that on 14‑8‑1964 in a fight relating to the drainage of foul water the parties first exchanged abuses and later on came to grips which resulted into injuries to five persons on the side of the complainant while three on the side of the accused. The details are given in the statement of Dr. Abdul Aziz P. W. 8 who examined all the injured persons in this case.

4. The prosecution produced in support of this case Mst. Sardaran P. W. 1, Muhammad Sharif P. W. 2, Muhammad Siddiq P. W. 3, Abdul Majeed, P. W. 4, Nazir Ahmad P. W. 5 and Rashid P. W.6 besides two formal witnesses Muhammad Ramzan, A. S. I. and Ali Muhammad, A. S. I.

5. The case of the defence was, that they were innocent and have been falsely implicated in this case. However, during the cross‑examination it .was made out that actually two of them had acted in the right of their private defence but initially they were attacked by the complainant party.

6. I have heard the learned counsel for the petitioners as well as for the State. It has been submitted on behalf of the petitioners that with the exception of Mst. Sardaran, all the other witnesses have in a way conceded the case of the defence and contradicted themselves with the positive version as given in the F. I. R. by Mst. Sardaran herself. It has been further sub mitted that the learned Sessions Judge has disbelieved even Mst. Sardaran qua the three acquitted accused, although she fully implicated and assigned positive parts to them in this attack. According to the learned counsel although the Courts in this country are required to sift the grain from the chaff, yet the divisibility of witnesses' evidence is paramount and cannot be merged into this principle at the cost of the accused. It was pleaded that the possibility of the defence version being true, does not stand excluded, parti cularly Mien it has been brought on the record through the medical evidence that three of the accused in this case suffered sixteen injuries, sin their persons in all. Reliance was placed on Safdar Alvi. Crown (P L D 1953 F C 93)

7. On the other hand the learned counsel for the State has submitted that the case of the prosecution is fully made out by the testimony of Mst. Sardaran P. W. who being an injured witness herself, has fully supported the case of the prosecution in all details and there could possibly be no reason to falsely implicate the petitioners. Similarly she stands corroborated by Muhammad Sharif P. W. who has stated that Asghar Ali petitioner inflicted injury on the right thigh of Majeed P. W. According to the learned counsel for the State, two concurrent findings of act, are not to be disturbed in revision unless and until there are some strong reasons to do so.

8. I have given my anxious thought to all these contentions raised by both the learned counsel and have perused the record in this case carefully with their assistance. To my mind, the approach of the learned Sessions Judge can hardly be called a correct approach in this case while arriving at the conviction of these two petitioners. If he has to believe Mst. Sardaran P. W. whom he in fact has believed qua the petitioners there was no choice left for him but to convict the petitioners along with their co‑accused in appeal, as done so by the trial Court. I feel that the learned Sessions Judge while dealing with the case in appeal was sceptic in his mind about the veracity of the prosecution version. He was conscious that sixteen injuries on the person of the accused party spoke volume about the possibility of the defence version being true. He hesitated to act upon the principle of private defence as laid down in Safdar Ali v. Crown. His judgment is replete with: he instances which he has given about the prevarication of tile witnesses and the concession which they have made so willingly and graciously in favour of the defence. I have myself looked into the evidence of Muhammad Sharif P. W. which has been relied upon by the, Learned counsel for the State as corroborative piece of evidence to the statement of Mst. Sardaran P. W. and find that she stands belied by Majeed P. W. himself, who has categorically stated "When I went there all these accused mentioned were empty‑handed.

"When I rescued there Mst. Hashmat Bibi brought Bang. I received knife blow but I do not know who inflicted blows to me because it was dark. Ono of the accused inflicted blows to one of the P. Ws. in my pretence and I did not see any of the P. Ws. injured there." This statement was made by this witness in examination‑in‑chief and the learned Public Prosecutor, for the reasons best known to himself, chose to accept it as it was. In this situation the only possible inference which can be drawn would be that the statement of this witness was accepted as truth and no reason was found by the prosecution to challenge it. Similarly Muhammad Siddiq, Muhammad Sharif P. Ws. have done no service to the case of the prosecution and no reliance can be placed on their evidence in this matter. It would be hardly safe to rely on the solitary statement of Mst. Sardaran P. W. when I find that no male member of her family, has stood by her. The other reason which did not persuade me to accept her testimony is that she has implicated in extenso all the accused who have been acquitted by the Court of appeal. This state of affairs would not allow me to agree with the contention of the learned counsel for State that in this case there are two concurrent findings of fact whereas what I find is that in fact even the two Courts have differed with each other.

The result is that I do not consider it safe to maintain the conviction of the petitioners on the strength of evidence of the type produced in this case. Accordingly, I accept the revision petition, set aside the conviction and] sentence of the petitioners and acquit them. Since, the petitioners are on bail, they are discharged of their bail bonds.

Petition allowed.

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