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Criminal Revision No. 121 of 1985, decided on 26th May, 1985.

‑‑‑S. 302/325‑‑Grievous hurt‑‑Breaking of tooth‑‑Prosecution witnesses highly and doubly interested witnesses, closely related, inimically disposed against accused‑‑Neither blood‑stained earth nor broken tooth, that had allegedly fallen on ground during attack on injured by accused, recovered from spot‑‑Venue of occurrence found different in first information report from as shown in evidence at trial‑‑Besides other contradictions in oral evidence and time of occurrence, medical evidence also not inspiring confidence‑‑X‑Ray of tooth taken but same not produced at trial‑‑Except suspicious tooth injury rest of injure simple‑‑In presence of enmity; possibility of false implication for simple injuries not ruled out‑‑Evidence available not sufficient to sustain conviction of accused‑‑Conviction and sentence set aside circumstance.

‑‑‑S. 324‑‑Simple injuries‑‑False implication ‑‑Substitution a mire phenomena but in presence of dubious ocular evidence a possibility of false implication of an enemy for simple injuries, held, could a: it reasonably be ruled out.

Ghulam Mujtaba Khan for Petitioner.

Abdul Khaliq Khan for the State.

Date of hearing: 26th May, 1985.

Petitioner was convicted and sentenced to 6 months' R.I. and fine of R:s.500 as well Rs.1,000 compensation under section 325, P.P.C by the Court of S.D.M., Abbottabad which was maintained by the learned Additional Sessions Judge in appeal and hence the revisit petition.

2. Per Mad No. 10, dated 10‑7‑1983 later on converted into F.I.R. 401 of the same date Mst. Chan Bibi recorded a report in Police Station Cantt: Abbottabad at 9‑00 hours that she was present in her house is) the morning talking to Duran Shah P.W. when Hazrat Shah the accused armed with rifle came and after abusing her he beat her with the butt of his rifle when as a result her one tooth had broken. She raised alarm at which Yousaf‑Jan and her daughter Kali were attracted who caused her release. Motive for the offence was that of the murder of Yousaf Shah.

3. At the trial Duran Shah and Kali P.Ws. were not produced arid only the complainant herself and Mst. Yousaf P.Ws. were examined besides the lady doctor and the I.O. The lady doctor (P.W.5) had examined the complainant, at 10‑30 a.m. on 10‑7‑1983 and 'found tree following injuries on her body:‑-

(1) Haematoma on the forehead and frontal region of skull size about 5" in diameter.

(2) Swelling of bridge of nose and bleeding from nose.

(3) Left lower 2nd lateral incisor has fallen, laceration of gun bleeding from gum. Corresponding contusion on lower lip inner surface.

(4) Contusion on left shoulder size about 2" x 2".

(5) Contusion on the left scapula size about 1" x 1 ".

(6) Contusion with abrasion on the middle of left leg size about 1 x 1".

(7) Contusion on the back of left leg size about 2" x 2".

(8) Contusion lower part of the left leg 1" x 1".

She reported that the injuries were caused by blunt weapon within about 4 hours. The injury No.3 was reported grievous and the rest simple. She had not referred the patient to Dental Surgeon in respect of injury No.3 nor that she had advised the X‑Ray therefor. She stated that the injuries were caused with blunt weapon.

4. The complainant was to narrate a different story at the trial that on the day of occurrence at "Chasht Gah Vela" she was talking to her uncle Duran Shah telling him that they were not‑the murderers of his son and that Latif Shah brother of Hazrat Shah accused was the actual murderer. Hazrat Shah's wife present on the Kotha overheard her. She went inside her house and informed her husband the accused who came armed with rifle. He abused her and afterwards beat her with the butt of the rifle, as a result she sustained injuries on different parts of her body and in the quarrel her frontal tooth had also fallen down. People had come to the spot and the accused then decamped. She could not name any one out of the people. After the incident she had come to the police, station for report which she admitted as correct, when read over to her. In spite of inconsistent stories of ‑the occurrence stated at the trial and one reported in the F.I.R. the complainant. on one hand admitted .the, statement in the F.I.R. as correct and still claimed to have stated in the F.I.R. that Hazrat Shah's wife was present who had overheard her and that she had informed her husband who had then come armed with rifle to the spot and that the occurrence had taken place in the back of her house. Apart of the above omissions she had not stated at the trial if Mst. Yousaf Jan P.W. and her daughter Kali were present at the time of occurrence. She has rather not mentioned them at all. On the other hand Mst. Yousaf Jan who was stated by the complainant in the F.I.R. to have come to the spot then she raised the alarm and that she had effected separation was to state at the trial that she had seen from her house that Chan Bibi complainant had fallen on the ground and that Hazrat Shah accused had been beating her with the butt of the rifle. She raised alarm but no one turned up to the complainant's rescue Hazrat Shah accused had at last tired giving beating to the complainant that he left her and went away. Yousaf Jan claimed to have gone to the complainant, picked her up and took her to the house and she found her considerably beaten but there were no blood‑stains. She had witnessed one tooth of the complainant missing. She had not seen the tooth itself. The complainant's husband arrived at house at 12 o'clock and then she went back to her house. Mst. Yousaf Jan's husband has been charged as a co‑accused for the murder of Yousaf Shah. On confrontation with her statement under section 161, Cr.P.C. she was found to have not made her statement as such.

5. Now it is on record that the two P.Ws. are the highly and doubly interested witnesses. They are inter se closely related as well inimically disposed towards the accused. The 'Mad' report was lodged at 0900 hours while per Yousaf Jan P.W. the complainant had all the time remained in her house till the arrival of her husband at 12 o'clock. The complainant had been examined for her injuries on the same day at a 10‑30 a.m. Yousaf Jan P.W. was not to mention the presence of Mst. Kali the daughter of Chan Bibi and Duran Shah P.W. at the time of occurrence. There had not been recovered blood‑stained earth from the spot nor the broken tooth and allegedly fallen on the ground as claimed with which there must have oozed out blood from the mouth of the complainant and spitted on the spot had been recovered. The venue of occurrence has been found different in the F.I.R. from the evidence at the trial. Besides other contradictions in the oral evidence and the time, the medical evidence is also not inspiring confidence as there had been reported no swelling over the cheek or mouth corresponding to the broken/fallen tooth. The tooth has only been reported to have fallen and the gun lacerated. The complainant is 60 years old lady. Her tooth might have otherwise fallen out. Complainant stated the there was taken X‑Ray of her tooth, but the same has not been produced at the trial. Except suspicious tooth injury rest of the injuries are simple. In the presence of enmity the simple injuries might have been otherwise caused. Substitution is a rare phenomena but in presence of dubious ocular evidence a possibility of false implication of all enemy for simple injuries cannot be reasonably ruled out.

6. In view of the above discussion the Courts below have been found wrong to hold the accused /petitioner guilty of the charge beyond reasonable doubt. Such evidence cannot reasonably sustain the conviction of the accused. In the circumstances I shall accept this revision, set aside .the conviction and sentence of the accused‑petitioner and shall order his release forthwith if not wanted in some other case.

M.Y.H. Petition accepted.

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