Find a Lawyer

Criminal Appeal No. 327 of 1962, decided on 28th September 1962.

Prosecution witnesses closely related to complainant but having no relationship with accused‑Non‑examination of witnesses give strong presumption against prosecution.

Muhammad Hayat Junejo for Appellants.

Obaidur Rehman for Respondent.

Date of hearing : 28th September 1962.

The appellants Ghulam Muhammad and Duro have been convicted under sections 326, 324 and 323 read with section 34, P. P. C. and sentenced to suffer rigorous imprisonment for five years, two years and six months each respectively. The sentences have been ordered to run concurrently. Allahdino and Hamir alias Amir Bakhsh had also been tried along with the present two appellants but they have been acquitted. The, appellants have filed an appeal.

2. The facts of the prosecution case briefly are that the complainant as well as the accused party got their water from a common water‑course. It is common ground that both the parties got their turn of water by rotation privately fixed by them. On 30th January 1961, the prosecution party had let water flow into Survey No. 142 which was cultivated by them with wheat. The appellants contended that it was their turn of water and as such approached Karam and others. They asked them as to why they had let the water flow into their land. Karam and others persisted in refusing the turn of water to the appellants. The accused party, however, closed the flow of the water in the land of the complainant's party and allowed the water to flow in their land. The complainant's party on this is said to have again gone up to the water‑course and removed the barrier closing the water from flowing into their land. On this the parties are said to have exchanged abuses and people from both sides came running on the commotion created and caused injuries to one another. From the side of the prosecution, Dhamali, Baqa Muhammad, Karam, Faiz Muhammad, Allah Bakhsh and Gulo were injured. Out of these injured persons Dhamali subsequently died. From the party of the accused, the present two appellants received injuries. After the quarrel was averted by the people who came from the village Karam, P. W. 3, went to the outpost at Boobak and lodged his report, Exh. 9, at 3 p.m., the incident having occurred at 8 a. m.

3. The police during the course of investigation recorded the statements of the witnesses and also secured certain weapons which are of no consequence in that no blood has been found on them. The appellant Ghulam Muhammad also had gone to the police station at Sehwan and lodged his counter‑first informa tion report, Exh. 17, on the same day at 3‑30 p.m. In the first information report lodged by Karam he had mentioned 10 persons as the accused who had participated in the commission of the offence. Apart from the four persons who were put on trial the other six persons mentioned in the first information report were Allah Warayo, Ismail, Aghan, Ali, Umer and Kassim. After the usual investigation was completed, the two appellants with the two acquitted accused were challaned.

4. The appellants, when questioned, denied the allegations made against them and stated that the prosecution party had no right to take water on that particular day. They also con tended that it were they who were assaulted and given injuries on objecting to the prosecution party taking turn of water on that day. They have, however, examined no witness in defence. 5. The question whether Dhamah, Baqa Muhammad, Karam, Faiz Muhammad, Allah Bakhsh and Gullo received injuries and out of these injured persons Dhamali succumbed to them is not disputed. The evidence of Dr. Muhammad Sadiq, Exh. 45, and the evidence of the witnesses examined in the case has established this issue beyond any reasonable doubt.

6. The only question that needs to be decided in this appeal is whether the appellants were some of the persons who had caused injuries to the prosecution party in furtherance of the common intention of all as alleged by the prosecution. The prosecution, in order to prove their case, have mainly relied upon the evidence of Karam, P. W. 3, and Baqa Muhammad, P. W. 4. Both these witnesses consistently state that they were assaulted by the two appellants and eight others with hatchets. Their evidence also shows that no less than about six persons on their side had been injured, each one of them having received one injury. The evidence of Karam also shows that the dispute started on the question of turn of water from the water‑course on that day. In the first information report no mention was made of the fact as to who was entitled to the turn of water on that day. All that was said in the first information report was that he had allowed water to flow in his land. In his evidence, his case was that the turn of water on that very day was of Ali Bakhsh and that he and others had sought his permission to use his turn of water for their land although they had taken their turn of water only two days before the incident. Ali Bakhsh has not been examined. Admittedly each of the Khatedar was to have his turn of water once a week. The evidence of Baqa Muhammad, P. W. 4, discloses that in the lower Court he had made a clear statement that the turn of water on that day was of the accused and not of the complainant's party. These are the only two witnesses examined on behalf of the prosecution. Faiz Muhammad, Gullo and Allah Bakhsh were other three injured persons who had received injuries at the time of the incident. They were cited as prosecution witnesses in the challan. Faiz Muhammad is the uncle of the deceased and the brother of complainant Karam. Gullo is his brother and Allah Bakhsh is the brother‑in‑law of the complainant. With these witnesses being very close relations of the complainant, it is not possible to believe the statement of the Public Prosecutor that the witnesses have been won over by the side of the accused. They have no relation ship with the accused at all. Non‑examination of these witnesses would, therefore, give rise to a strong presumption against the prosecution and the only inference that can be drawn is that these witnesses, if they had been examined, would not have supported the case of the prosecution. With the prevaricating, statements that witnesses Karam and Baqa Muhammad have given in respect of the turn of water and with the non‑examina tion of the three close relations of the complainant it will be unsafe to hold that the version given by the two witnesses, Karam and Baqa Muhammad, is worthy of reliance. If the version given by these witnesses cannot be implicitly relied upon then the circumstance of there being injuries on the persons of the appellants will not help the prosecution in coming to the conclusion that the appellants are guilty of the offences with which they have been charged.

7. The other evidence on which the prosecution have relied is dying declaration, Exh. 41, made by deceased Dhamali and recorded by Samandar Khan P. W. 12, S. H. O. The learned Judge has not relied upon this dying declaration in that it was originally recorded as 161‑Statement and that according to the learned Judge this dying declaration was a fabricated document created with a view to save six persons from being sent up to Court. I do not accept the argument advanced by the learned Judge. This dying declaration was recorded on 31st January 1961, and the deceased died some 10 days after it was recorded. It is impossible to believe that at the time when this dying declaration was recorded the Sub‑Inspector knew that the deceased would succumb to the injuries so that he could use that statement for the purpose of saving six persons. If the Sub‑Inspector was capable of creating the statement of this kind in respect of the deceased, I see no reason why he should not have created such statements recorded under section 161 of other witnesses too. Even if it be assumed that the Sub‑Inspector had created this statement then this assumption would lead to only one consequence that the investigation done by the police officer was not above board. If the investigation done by the police‑officer can be doubted then, he can be on the evidence, safely said to have made alignment with one or the other party. In that case no reliance on such investiga tion can be placed. If the dying declaration were believed than it does not talk of the participation by 10 persons. On the contrary, the dying declaration ascribes part of intervention to Ismail, Aghan, Ali and Allah Warayo and according to the dying declaration it was on account of these people that further quarrel was averted. Whichever view that can be taken of the dying declaration the fact remains that the prosecution does not receive any support from it.

8. Under the circumstances when the evidence of the witnesses cannot be implicitly relied upon no conviction can be founded upon it. The evidence, therefore, according to me, which has been brought on record is not free from doubt. Giving therefore the benefit of doubt to the appellants in this case, I accept their appeal and acquit them. They are in jail and shall be released forthwith if not required in any other case.

K. B. A.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.