MUHAMMAD YOUSAF Versus STATE
SARDAR MUHAMMAD, J. -Appellant Muhammad Yusuf aged 25 years has been convicted under section 302, P. P., C. for having launched murderous assault on P. Ws. Ghazi Khan, Hamid Ullah and Shafi Ullah. Sadda Khan, his co-accused was acquitted vide same order. Sher Ali another person named in the first information report had died during the same occurrence.
2. The occurrence took place at 9-30 a. m. on 19th June, 1977 at the hotel of Muhammad Hanif in the area of Wandhi Pir Shahalam Shah, at a distance of li furlongs from Police Station (Sadar), Mianwali. F. I. R. Exh. P. E. was registered on the same day by Muhammad Siddique, Moharrir Head Constable P. W. 7, on the statement of Ghazi Khan P. W. 2.
3. According to the first information report (Exh. P. E.) Ghazi Khan P. W. 2 who was a Police Constable and posted in Police Lines, Mianwali, was taking tea along with his relatives Hamid Ullah P. W. 3 and given up P. W. Shafi Ullah at the hotel of Hanif at 9-30 a.m. In fact he was going to the Treasury from Police Lines and had sat down to have tea with Hamid Ullah and Shafi Ullah who were already sitting there. At about 9.30 a. m. Muhammad Yusuf appellant armed with mm. rifle and Sher Ali (deceased) armed with a -12 bore gun arrived there. They raised a lalkara from a distance of 3-4 Karams that he should get ready as they will not allow him to go alive. Sher Ali then fired a shot at Hamid Ullah, as a result of which Hamid Ullah P.W. received injury on the bead. The second shot fired by Yusuf appellant at the complainant also did not hit him as he had lied down. Sher Ali then fired a shot at Hamid Ullah P.W., .the pellets of which passed through the Shalwar of Hamid Ullah. Appellant Yusuf then fired at Shafi Ullah, the shot after hitting Shafi Ullah on the left shoulder, injured Sher Ali. Yusuf appellant after having injured his own paternal-cousin, called out to Sadda Khan to take hold of the gun of Sher Ali and ran away. According to F. I. R. the occurrence was also witnessed by Khalid Khan and Muhammad Ayub, P. W s.
It is further stated by the complainant in the F. I. R. that Muhammad Salim P.W. 5 and P. W. Gul Kamand (not produced), on the same day in the morning had seen and heard Sadda Khan conspiring with Sher Ali (deceased) and Muhammad Yusuf appellant, near Police Station (Sadar) t9 murder him.
4. About 20 years prior to the present occurrence, Muhammad Akram brother of the complainant had injured Ata Ullah, first cousin of Sadda Khan accused. On 25th August, 1976 Muhammad Akram and Hamid Ullah P. W. had attacked and injured Muhammad Yusuf appellant and his brother Sher Bahadur. For the last of the previous occurrences between the parties, a case was registered against Muhammad Khan, etc., close relatives of the complainant at the instance of Rehmat Ullah, a paternal-cousin of Sadda Khan. According to the complainant this was the motive for the occurrence.
5. The investigation was conducted by Rana Muhammad Hanif. Sub-Inspector, Sher Ali. D. S. P. and Malik Muhammad Khan, D. S. P. The appellant was arrested by Muhammad Hanif, S. I.
6. At the trial the prosecution in all produced seven witnesses. Muhammad Hanif, Sub-Inspector who had investigated the case, had died before the trial and so the injuries statements Exh. P. C. & P . D. of Shafi Ullah and Hamid Ullah, rLspectively, recovery memos. Exhs. P. F. and P.G. and the site plan Exh. P. H. which had been prepared and signed by him were proved by secondary evidence through the statement of Muhammad Siddiq, a retired Head Constable (P. W. 7) who remained posted with the deceased Sub-Inspector and was conversant with his hand writing and signatures.
7. Dr. Ashiq Ali, P. W. 1 had medically examined Hamid Ullah P.W. 3 and given up P. W. Shafi Ullah. He noted the following injuries on the person of Hamid Ullah: -
(1) A contused wound 1 " x 1/8" x skin deep on top of bead 1" to the left of mid-line 2 " above the hairy margin of forehead. The wound was bleeding slightly.
(2) A contused wound 1 " x 1/8" x skin deep on the left parietal area 3 " above left pinna 1 " above the hairy margin of forehead. The wound was slightly bleeding.
Both the injuries were declared simple and were opined to have been caused by blunt weapon. It has been positively stated that the injuries were not caused by fire-arm as mentioned by the Police on the injury statement of Hamid Ullah.
Shad Ullah P. W. was found to have suffered the following injuries: -
(1) An abrasion 1/2" x 1/2" on front of left shoulder 1 " below the tip of left shoulder. There were multiple small red spots each of the head of a pin below and medial to the abrasion. They were innumerable and were superficial. The shirt had a vertical linear tear of 2" length l" above the pocket and 5" to the left of mid-line. There was another irregular tear of 21" x 1/2" on the shirt 2f below the lower border of teeras. There was another tear of 1/4" x 1/4" on shoulder-part of front of left sleeve. The shirt was blackened in an area of 6 " x 6 " on front above area in an area of 5" x 3". The lower part of left collar was also blackened in an area of 1 x 1 " both on front and back part. There was also irregular blackening of 2 'x 1 on the abdominal part of left part of shirt. The shirt was slightly blood-stained.
(2) An abrasion 1/4" x 1/4" on the right side of forehead 1" above mid-line of eye-brow.
Both the injuries were declared simple and were opined to have been caused by blunt weapon. In his case also it is specifically stated that the injuries were not the result of the tire-arm, as noted in the injury statement of Shafi Ullah P. W.
Saleem Khan P. W. 5 had deposed that he had seen Sadda Khan (acquitted accused) handing over his -12 bore gun to Sher Ali (deceased) who was then accompanied by Muhammad Yusuf appellant and had heard him telling both of them to finish Ghazi Khan complainant and Hamid Ullah P. W. near the Police Station. His statement regard ing conspiracy has not been believed. Sadda Khan has been acquitted. Since no appeal has been filed by the State against Sadda Khan, the evidence of P. W. 5 is of no consequence for decision of this appeal,
8. Ghazi Khan (P. W. 2), the complainant has repeated the statement made by him before the Police, in his examination-in-chief, which has been noted above. Hamid Ullah P. W. 3 has corroborated him on that count. Both have stated that they were empty-handed at the time of occurrence. They have stated that they went to the Police Station, but before the F. I. R. was recorded, Muhammad Siddiq Moharrir Head Constable received a telephonic message from D. S. P. Sher Ali not to register the case till his arrival. They have stated that thereafter the D. S. P. reached the Police Station and he directed the S.H.O. to register the case of murder against them on the statement of the opposite-party. They have levelled the allegation of corruption and partisanship against Sher Ali, D. S. P. and have stated also that thereafter Dr. Ashiq Ali had colluded with the D. S. P. and they had substituted the bullet with a pellet which had been sent to the Police in a sealed parcel by Dr. Ashiq Ali. Muhammad Siddiq retired Head Constable P. W. 7 has supported these witnesses on the allegation of D. S. P. having directed him to register the murder case first. Both the witnesses have admitted the chain of criminal cases inter se the patties. Ghazi Khan P. W. has also admitted that his brother Akram was convicted twice for having launched attack on the opposite party in two separate occurrences. Both these P.Ws. have also admitted that they along with given up P.W. Shafi Ullah were facing trial in the cross-case for the allegation of having murdered Sher Ali (whom they have named as one of the assailants in this occurrence), and of appellant Yusuf and acquitted accused Sadda Khan being P. Ws.
9. Muhammad Yusuf appellant during his statement under sec tion 342, Cr. P. C. has admitted the incident of Muhammad Akram having injured him and his brother Sher Bahadur, and of the accused of that occurrence having been sentenced to 3J years' R. I. each, and of Rehmat Ullah maternal-uncle of Sher Ali (deceased) having been injured by Ramzan etc. nephews of Ghazi Khan P.W. He has denied the allegation of this occurrence and in answer to question, 'why this case against you', has given his own version. He has stated
"The occurrence had actually taken place in the following manner
Mumtaz had fired at Muzaffar Khan and in connection with that case Sadda Khan accused was in Police Station Sadar. Sher Ali deceased and had come to see him in the evening before the day of occur rence. Sadda Khan had told us that his licensed gun was demanded by the Police and it be brought in the morning. The Thanedar also came out and asked me to bring my rifle. So in the morning of the day of occurrence Sher Ali deceased carrying the licenced gun of Sadda Khan accused and 1, my licensed 7 MM rifle started for the Police Station. When we were coming on Mianwali-Musa Khel Road and reached near the Hotel of Hanif, Ghazi Khan, Shafi Ullah and Hamid Ullah were already present there. The former raised a lalkara to us to teach lesson for litigation and fired his -12 bore pistol, hitting Sher Ali deceased near the right shoulder. The shot only grazed and he ran to the house of Peers towards the south-west and Shafi Ullah accused ran after him and took him in a Japha. Ghazi Khan P. W. came from the back of the hotel and again fired at the deceased hitting him on the shoulder. He fell down. Hamid Ullah fired at me and I also fired my rifle in the air in self-defence. In the struggle the gun carried by the deceased was broken at the spot and it had even gone off before he was hit by the fatal shot. The broken gun was recovered by the police from the spot. Ata Ullah and Muhammad Amir were coming behind us and I asked them to stay at the spot. The above mentioned three P. Ws. went away towards the- west and I left for the Police Station."
10. As a matter of precedent and rule when an accused comes out with his own version and sets up a plea, the same has to be examined in juxtaposition with the prosecution version: However, the basic principle of law in criminal cases is that the prosecution has to prove its own case and cannot take the benefit of any 'weakness of the defence, as such we would like to examine the prosecution--version on its own merits firstly, and if we fee convinced that prosecution has some case, we will then examine the appellant's version in juxtaposition with the prosecution case so as to come to a conclusion as to which of the two versions is correct.
11. It is the case of both the parties that they were pitched against each other in criminal matters for the last twenty years. There was no love-lost, whenever some party found an opportunity they attacked the other. Brother of the complainant in this case, had also been convicted B twice for having injured Sher Bahadur, brother of Muhammad Yusuf appellant, and other relatives. Even at the time of this occurrence a criminal case between the parties was pending. Both the eye-witnesses are closely related inter se and rather inimical to the appellant. In such a case where the enmity of the witnesses against the appellant and the relationship inter se, is admitted, corroboration for the statement of the eye-witnesses has to be looked for, from some reliable and worthy corroboratory evidence.
12. The ocular evidence is contradicted by the medical evidence, According to Dr. Ashiq Ali injuries on both Hamid Ullah and Shat Ullah were of blunt weapon. He has categorically stated that the injuries were not of fire-arm. Apart from the Expert opinion of the doctor, injury No. 1 which was found on the top of head of Hamid Ullah P.W., obviously could not have been suffered by him as a result of a shot fired from in front of him or for that matter from any side, unless the same had been fired from some higher place, which is not the allegation in this case, The contradiction is so wide that no amount of arguments can bridge the gulf between the two. In this view of the matter, the ocular evidence suffers from such a disability, which shakes the confidence. The allegations made by the witnesses during the trial against the Doctor and the Police have not advanced the case in any manner. So far as Police is concerned, they admittedly had challaned both the parties, and if there could have been any sweet corner, it could have been for the complainant of this case who was serving in the Police Department. Moreover, the main investigation was not conducted by Sher Ali D. S. P. The investigation bad been conducted by two other Deputy Superintendents of Police also, one of whom was entrusted with the investigation on an application by the complainant party. Nothing has been brought on record to disprove the opinion of the doctor Ashiq Ali regarding the weapon used. As noted above, the injuries as they are described, on examination, by themselves do not give any indication of the possibility of the same having been inflicted by a firearm weapon. The other injured P. W. Shafi Ullah has not been produced.
For the reasons enumerated above, the statements of the two eye-witnesses in this case do not inspire confidence, and the story put forth by the prosecution is full of doubts.
As the prosecution has failed to prove its case beyond reasonable shadow of doubt, we do not consider it necessary to examine the version put forth by the appellant.
In the circumstances, the appeal is allowed, and the appellant is acquitted. He is on bail. He shall be discharged of the bail bonds.
M. Y. H. Appeal allowed.