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Criminal Appeal No.641 cf 1969, decided on 24th March, 1987.

---Ss.307 & 326--Ocular account, corroboration of--Prosecution witnesses interested and inimical towards accused--Occurrence in broad daylight yet no independent witness available--Only independent witness, not supporting prosecution version and only corroborative piece of evidence being recovery of knife from accused--Recovery witness highly interested as well as inimical--Other recovery witness not stating as to from which of accused recovery effected--Witness also found interested and inimical--Statements of interested and inimical witnesses without independent corroboration, held, could not be relied upon as matter of abundant caution--Trial Court rightly acquitted accused by giving benefit of doubt in circumstances.

S.M. Zubair, A.A.-G. for the State.

M. Arif Iqbal Hussain Bhatti for Respondent.

Date of hearing: 24th March, 1987.

This is an appeal filed by the State against the judgment of Resident Magistrate, Chunian, whereby he acquitted Munawar All and Muhammad Anwar sons of Nazar Muhammad, for the offences under section 307/326, P.P. C. The State had filed appeal against both the accused. It was admitted only against Munawar Ali. As for Muhammad Anwar is concerned the appeal was dismissed in limine. This judgment will dispose of the appeal filed by the State. The prosecution story is that one Muhammad Shaft was a tenant of Muhammad Din and cultivated some land near Village Bolloki. On 15-6-1966 at about i1-00 a.m. he saw Munawar All accused roaming about in his field where he had grown vegetables and was damaging the same. Muhammad Shaft came over to Munawar Ali and objected to his damaging the crops. Munawar Ali started abusing Muhammad Shaft which led to altercation between them. In the meanwhile, Muhammad Anwar co-accused also came there and caught hold of Muhammad Shaft while Munawar Ali accused pulled out a knife and inflicted injuries on the back of Muhammad Shaft, P.W. On the alarm of Muhammad Shaft, some persons were attracted to the scene of occurrence. F.I.R. Exh.PA was registered with Police Station, Pattoki on 15-6-1966, on the statement of Muhammad Shaft, P.W.1. It was recorded by Muhammad Safdar, A.S.I. at Civil Hospital, Pattoki, where the injured was admitted. It may be noted here that Muhammad Safdar never appeared as prosecution witness.

2. Dr. Muhammad Amin, P.W.3, A.M.O. Civil Dispensary, Pattoki, examined Muhammad Shaft on 15-6-1966 and found the following injuries on his person: -

(1) A stab (penetrating) wound of " x " x " in size situated on the right side of the back close to vertiber column. Surgical emphysema present all around the wound on right back near shoulder blade.

(2) An abrasion of x 1.8" in size situated on left side of the back.

(3) An abrasion of 2 "1/8" in size on the back of left side. (4) An abrasion of 11" x 1/8" in size on back on right side.

In the opinion of the doctor, injury No.l was grievous and was caused with sharp-edged weapon within the duration of 24 hours. The medico-legal report is Exh.P. C. The prosecution in support of its case has examined eight witnesses in all. Muhammad Shafi, complainant in the case stated that Muhammad Din P.W.2 is his real uncle and he is his tenant. It is on record that there. is an established enmity between Muhammad Din PW.2 and Muhammad Anwar co-accused, real brother of the respondent though Muhammad Shafi has denied that there was a contest between Muhammad Anwar accused and Muhammad Din P.W. about the Lambardari of the village yet this fact has been conceded by Muhammad Din P.W. This witness has, however, admitted the fact that Muhammad Din had filed an appeal against the order of Commissioner which was in favour of Muhammad Anwar co-accused. Muhammad Din has appeared as P.W.2. He is not an eye-witness of the occurrence but recovery of knife P.1 was effected in his presence which was made into a sealed parcel, vide memo. Exh.P.B. This witness has accepted long standing enmity between Muhammad Anwar co-accused and himself. At one point of time both the parties were bound down under section 107/151, Cr.P.C. He has also conceded the litigation going on between him and the relatives of Muhammad Anwar accused. He has also stated that Muhammad Shaft is his tenant and cultivates only his land. Amanat Ali, P.W.4 is again a tenant of Muhammad Din P. W.2. According to him, when the occurrence took place he was working at the Dhari of Muhammad Shaft from where he saw the occurrence. He has been confronted at various stages and a perusal of record shows that he is not an eye-witness but has deposed simply because of Muhammad Din who has established enmity with the accused persons. Ismail, P.W.5 also claims himself to be the witness of the occurrence. His statement under section 161, Cr.P.C. was recorded where he has given the motive for the commission of offence but in Court he is completely silent about the same and stated that he came there when he saw Muhammad Anwar accused had caught hold of Muhammad Shaft from his arms and Munawar co-accused was giving him a knife blow. This is clear cut improvement. This witness is also interested and not much reliance can be placed on his statement because in his cross-examination he has accepted having given an application against the co-accused Anwar before the Tehsildar. This clearly shows that there was already bad blood between the accused party and this witness in the other side. Nazir Ahmed, P.W.6, need not be discussed here as he did not support the prosecution case, therefore, he was allowed to be cross-examined by the prosecution. Piran Ditta, P.W.7 claims to be the eye-witness and according to him he saw the occurrence while he was 1 killa away from the place of occurrence. In his cross-examination, he admits that when he reached the spot, knife blow had already been given. He has further stated that he was walking around his sugarcane field when the occurrence took place. In (his view of the matter, also it would be highly doubtful whether he is an eye-witness of the occurrence or not. Neene Khan, P.W.8 is another recovery witness. According to him, Knife P.1 was recovered and taken into possession vide memo, Exh.PD. It is strange to note that nowhere he - has stated that at whose instance the recovery of knife P.1 was effected. He has not named any of the accused person.

3. At the conclusion of the prosecution case the Court examined two Court witnesses, namely, Dr. Syed Imtiaz Hussain Bokhari and Dr. Naeem Iqbal. Their statements are only to the effect that they examined the injured and also examined X-Ray film of his lungs. The accused examined under section 342, Cr.P.C. wherein he has denied all the allegations of the prosecution including the recovery of Knife P.1. He has also given an explanation that the case against him has been registered due to the enmity with the witnesses. The Court also examined two defence witnesses, Malik Muhammad Nazir, DW.1, who has proved the enmity of Muhammad Anwar accused with Muhammad Safdar, A.S.I., the Investigating Officer. This statement has not been seriously challenged by the prosecution Inayat Beg, D.W.2 claims to be the eye-witness and has given a version about the occurrence. According to him, Munawar accused and Muhammad Shafi were grappling each other and Munawar accused was trying to snatch knife from the hand of Muhammad Shafi P.W. in order to save himself. He twisted the arm of Muhammad Shafi P.W. and gave him a push due to which he fell down and a small injury with his own knife was caused on his back. The prosecution has tried to prove its case on the basis of the eye-witnesses account, corroboration and the recovery effected at the instance of Munawar Ali accused. A careful examination of the prosecution witnesses certainly reveals that all of them were interested and inimical towards the accused persons who are real brother. Muhammad Din, P.W.2 has played an important role in the new prosecution' case who established enmity with accused persons. The other P.Ws. are under his influence so much so that the injured witness also lives in his house. The occurrence has taken place in the broad daylight at 11-00 a.m. yet no independent person was available to the prosecution. P.W.6, Nazir Ahmed could be called an independent witness but he did not support the prosecution version. As and abundant caution statements of inimical and interested witnesses cannot be relied upon unless corroborated on material aspect of the case. The only corroboration which could be made available was the recovery of knife P.1 at the instance of Munawar Ali accused. Muhammad; Din, P.W.2 and Neene Khan, P.W.8 respectively are the witnesses recovery of knife P.1. As has already been held that Muhammad Din, P.W.2 is highly interested witness as well as inimical. His statement regarding the recovery of knife P.1 cannot be used as corroborative piece of evidence. Similarly, Neene Khan, P.W.8 is also an interested witness and there was a contest over Lambardari between Muhammad Anwar co-accused and this witness. Even otherwise this witness does not say anything at whose instance knife P.1 was recovered. Since this witness does not indicate which of the accused led to the recovery of knife P.1, therefore, his statement is also ruled out of consideration.

4. The upshot of the above discussion is that all the eye-witnesses are interested and inimical and there is no evidence to corroborate the statements of these witnesses. For the reasons discussed above, I am of the view that the learned trial Court had rightly given the benefit of doubt by acquitting both the accused. The result of the discussion is that the appeal filed by the State fails, which is hereby dismissed. His bail bond is cancelled and the surety is discharged.

S.A./S-70/L Acquittal upheld.

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