P L D 1957 Lahore 263 (PLP)

ORTCHESON, J.‑

In this case an application has been lodged by Mr. Mushtaq Ahmad, A. A. G., for the production of additional evidence. In order to understand the position it is expedient to set out the facts, which are as under: Four persons, Ghulam Muhammad, aged 35 years, Shamun, aged 28 years, Muhammad, aged 28 years and Ahman, aged 25 years, have been convicted by Mr. Abdus Samad Khan. Additional Sessions Judge, Lahore at Sheikhu pura, under sections 302/34, 324/34 and 323/34, P. P. C. For the first of these offences they have been sentenced to trans portation for life, and for each of the others to six months' rigorous imprisonment each, to run concurrently. The first two accused are Telis by caste and the others c7ats. Ali Muhammad, the victim and his cousin Ismail (P. W. 5) were refugees from the Zira Tehsil of the Ferozepur District. A brother of Ismail was allotted seven killas of land on a temporary basis in Bagga Chak, the land in question having been previously allotted to Kathu Teli, father of Shamun appellant and one Ahmad Ali, and is alleged to have been given to Ismail and Muhammad Ali on the intervention of the deceased, against whom the Teti appellants in consequence harboured a grudge. The Jat appellants were also on inimical terms with the deceased and his family, the prosecution allegation being that Ahman appellant was carrying on an intrigue with Mst. Naziran, a sister of Sadiq Ali (P. W. 10) and niece of Ismail P. W., and was given a beating by Sadiq Ali and the sons of the deceased, who were acquitted at the subsequent trial. Muhammad and Ahman made common cause with the Teti appellants to avenge their grievances. On the 8th of October 1955, at the time of the Asr prayer Ismail, the deceased and one Jan Muhammad, a resident of another village, who was Ismail's guest, set out from a belna, at which they had been working, to return to Bagga Chak. As they were passing through square No. 24 the four appellants emerged from an adjacent cotton field. Ahman being armed with a spear and the others with takwas. Ghulam Muhammad Teli caught hold of the deceased while Muhammad and Shamun gave him takwa blows, the former striking him on the head and the latter on the right leg. Ali Muhammad fell down and Jan Muhammad raised the alarm, and he and I smail tried to rescue the deceased, but were both attacked and injured. On hearing the alarm Muhammad Sharif (P. W. 7). Ahmad Ali (P. W. 8) and Chiragh (P. W. 9) came to the spot. When Ahmad Ali was at a distance of 20 or 25 karams, the four appellants, who had meanwhile ‑ run into the cotton field, emerged, Ghulam Muhammad, Shamun and Muhammad being armed with guns, and fired at him. Ahmad Ali threw himself on the ground and was not hit. On hearing the sound of gun‑fire Sadiq Ali (P. W. 10) also ran towards the spot. After firing at Ahmad Ali the appellants went off in the direction of the village. On seeing them coming Sadiq Ali P. W. ran back into the deceased's house and chained the door from inside. Muhammad and Ahman appellants followed him and Muhammad fired two shots outside the house. When they had gone Sadiq Ali came out and found two empty cartridges and a pair of shoes belonging to Ahman lying on the ground. He took possession of them and subsequently handed them over to the police. By a coincidence Sahibzada Rauf Ali Khan, the then Superintendent of Police, Sheikhupura, (D. W. 1), Mr. Ali Zulqarnain, Magistrate, and the Additional District Magis trate happened to be at Mohlan Rest House, at a short distance from Bagga Chak. The Superintendent of Police states that on hearing the firing he sent Shaukat Ali Head Constable (P. W. 11) to the village to find out what was happening. Twenty or twenty‑five minutes later, Shaukat Ali returned and told him that a fight was going on in Bagga Chak, and the Superintendent of Police sent him to Police Station Mananwala, where he lodged the so‑called first information report Exh. P. D./A at 6‑30 p.m. This docu ment runs‑"Shaukat Ali Shah, Head Constable, Driver Police Line, informed after attending the Police Station at 6‑30 p.m. that he was present in the Dak Bungalow Mohlan in connection with the flood duty with S. P. Ilaqa, Police Station Nankana Sahib, that he heard gunshot fires at about 5‑30 p.m. from the direction of the village Bagga Chak. I have come to inform you and request you to find out what was the matter there". After recording the above report Muhammad Siddiq, Assistant Sub‑Inspector (P. W. 20), went to Mohlan Rest House, where he found that Ali Muhammad and Ismail had been admitted to the canal dispensary. After satisfying himself from Abdus Sattar Dispenser that the deceased was in a fit condition to make a statement he recorded his dying declaration Exh. P. C., in which the deceased gave at‑; account of the enmity between the parties and named the four appellants as his assailants. It is also mentioned in the report that Ismail and Jan Muhammad had received injuries. In the course of the investigation Shamun appellant produced the takwa (Exh. P. 1) and gun (Exh. P. 4) and Gaman the takwa (Exh. P. 2) and gun (Exh. P. 5), while from the house of Muhammad appellant the gun (Exh. P. 3) and five cartridges were recovered. After his dying declaration had been recorded Ali Muhammad was sent along with Ismail to Mananwala Hospital, but died before he reached it. The post‑mortem examination of the body of the deceased was carried out by Dr. Muhammad Sharif (P. W. 2) who found the following injuries on it :‑ (1) An incised wound, 1 " x " x ", in a flappy manner, and another wound, 1 " x " x " , continues with its posterior end, the margins of this portion were ragged. The flap was 2" x ". Bone appeared intact. This was situated on the left side of top of scalp in the middle area in a lunar shape. (2) Compound fracture with a lacerated wound, 1 " X ", on the middle of right leg, both bones were fractured. (3) A contusion mark, 3" x 1", on the middle of front of right thigh just to the outer side. (4) An incised wound, " X 1/6" x 1/10", on the palm of the right index finger near the base. (5) Contusion mark, 3" x 1", on the back of left hand. The hand was swollen. (6) Contusion mark, 3"x 1", on the outer side of the left shoulder. (7) Contusion mark, 3" x 1 ", on the outer side of right arm, middle area. (8) Contusion mark, 8" x 1 ", on the right side of back of chest, at the lower part. (9) A contusion mark. 3" x 1", on the left side of back, upper part. The 7th, 8th and 9th right ribs were fractured under injury No. 8 while the right lung was lacerated. Death was due to shock following the fracture of the ribs, which had also caused intra‑thoracic haemorrhage. The same doctor examined Ismail P. W. and found five contused wounds, a contusion mark, and what is described as "a contused area". All the injuries were simple. Jan Muhammad P. W. was medically examined on the 9th of October by Dr. A. R. Ghauri (P. W.1) who found a contused wound, " x 1/8" x 3/8", on the back of the right forearm. Although Jan Muhammad P. W. claimed to know all the four appellants previously, the latter did not accept his statement and asked for an identification parade, which was carried out on the 14th of November by Mr. S. M. Khalid, Magistrate 1st Class, Sheikhupura, (P.W.19). Jan Muhammad correctly identified Shamun and Muhammad, but instead of the remaining two appellants he picked out two other persons. The appellants pleaded not guilty and produced the Superintendent of Police in defence. The application for the summoning of additional evidence filed by Mr. Mushtaq Ahmad is based on the fact that although the two guns produced by Shamun and Gaman appellants, and the one recovered from the house of Muhammad, were sent, together with the two empty cartridges picked up by Sadiq Ali from in front of the deceased's house, to the Ballistics Expert, who is said to have submitted a report that one of the empties had been fired from one of the guns, the Public Prosecutor stated at the trial: "I give up Mr. Abdul Majid Qureshi. Ballistics Expert, as an unnecessary witness. His evidence is not material in respect of the charge under trial. He is also not available before 6th June 1956, according to my information drawn from his office". In Ali v. Crown (P L D 1952 F C 71) the principles governing such cases as the present have been discussed, and the following observation of Cornelius, J. goes to the root of the matter :‑ "A brief survey of reported cases discloses that, despite the wide terms in which the power is expressed, it has only been exercised where the additional evidence was either not available at the trial, or the party concerned' was prevented from producing it either by circumstances beyond its control, or by reason of misunderstanding or, mistake", In the present case it cannot be said that the conditions laid down above have been fulfilled. There was, for example, no question of any misunderstanding or mistake, since the prosecution had the report of Mr. Abdul Majid before it and knew what the expert's finding was. No doubt it was stated by the Public Prosecutor that Mr. Abdul Majid would not be available before the 6th of June, but apart from the fact that the non‑availability of a witness is not synonymous with the non‑availability of evidence, by which we mean that although Mr. Abdul Majid may not have been available, his report was, the plea that evidence was not available at the trial cannot be taken by a party who had the opportunity of producing the evidence in question, and in the present case the learned Public Prosecutor made an unequivocal statement that Mr. Abdul Majid was an unnecessary witness whose evidence was not material in respect of the charge under trial. Taking the above circumstances into consideration we do not consider this a fit case for allowing the production of the additional evidence sought to be relied upon by the prosecution. Doctor Tassaduque Husain for the defence also lodged an application for the examination of Mr. Ghulam Abbas, Additional District Magistrate, Sheikhupura, Mr. Zulqarnain, Magistrate, and Mr. Ismat Ullah, S. D. O., Mohlan, who are stated to have been present when the gun‑fire was heard and when the Superintendent of Police sent Shaukat Ali, Head Constable, either to the Police Station or to the village. Again, however, it cannot be said that the evidence now sought to be produced by the defence was not available at the trial. No attempt was apparently made to summon the witnesses in question, nor was any request made to the Court for an adjournment to produce them. Both the applications are accordingly rejected. (Disposal of appeal on facts) Dr. Tassadaque Husain and Sheikh Zahur Ahmad, Advocates for Appellants (Ghulam Muhammad etc.) Mian Mushtaq Ahmad, A. A. G. for Respondent (State). JUDGMENT ORTCHESON, J.‑The facts of this case are given in our order dated the 17th January 1957, which should be read as part of the present order. On the evidence led in the case, we are of the opinion that it would be entirely unsafe to maintain the convictions of the appellants. The first point calling for attention in this connection is the glaring discrepancy between the statement of the Superintendent of Police as D. W. 1 and that of Shaukat Ali Head Constable as P. W.

11. As already pointed out, the Superintendent of Police alleges that on hearing the firing he sent Shaukat Ali to find out what was happening and that 20 or 25 minutes later Shaukat Ali returned and informed him that a fight was going on in Bagga Chak. Shaukat Ali on the other hand, is definite that he was not sent to make enquiries but was, on the contrary, directed by the Superintendent of Police to proceed to Police Station Manawala. It is difficult to tell which of the two witnesses is telling the truth on this point, but unless the Superintendent of Police has grossly perjured himself, the position is that Shaukat Ali, on returning to the Superintendent of Police was unable to name the assailants. This in turn raises the presumption that at that time the names were not known. Another amazing feature of the case is that although, according to the evidence on the record, the injured persons were taken after the occurrence to Mohlan Dispensary, at a very short distance from the Rest House, and although the most senior Police Officer of the district, the, Magistrate in charge of the judiciary, and another Magistrate were staying at the Rest House, no statements of the victims were recorded. It would be interesting to know the reason for what appears on the surface to be a grave dereliction of duty. We may add that we are totally unable to understand the indifference displayed by the Superintendent of Police. Although he heard the sound of firing, he neither went to the spot nor took any part in the investigation. We are further unable by any stretch of imagination to comprehend how the Public Prosecutor could have described Mr. Abdul Majid Qureshi, Ballistics Expert, as an unnecessary witness. If hip report had been proved, it would have established that one of the empty cartridges found outside the house of the deceased had been fired from a gun recovered from the possession of one of the accused. It is, therefore, completely incorrect to state, as the learned Public Pro secutor did, that Mr. Abdul Majid Qureshi's evidence was "not material in respect of the charge under trial". Although the circumstances referred to above are sufficient to throw grave doubt on the whole investigation, we may add that the statements of the alleged eye‑witnesses themselves do not inspire confidence. If they had seen the occurrence, there should not have been any discrepancy in their statements as to their movements in the evening in question, but such discrepancies exist. For example, although at the trial Ismail alleged that the attack took place while he, the deceased and Jan Muhammad were proceeding from the belna to the village, to the police his version was that they were going from Ali Muhammad's square, in which the belna is admittedly not situated. Similarly Jan Muhammad stated at the trial in cross‑examination: "I did not state that it was evening time that I, Ali Muhammad and Ismail started from the sugar‑cane press I state that we started after Asar prayer. (Confronted with identification parade where it is so recorded). I did not state before the Magistrate holding the parade that we started from the square of Ali Muhammad a little before the sunset. (Confronted with Exh. P. X where it is so recorded)". It is also noteworthy that although Jan Muhammad purported to know all the four, accused (vide his statement to Mr. Khalid P. W. 19 at the time of the parade) he was able to identify only two of them at the parade. Muhammad Sharif (P. W. 7). Ahmad Ali (P. W. 8) and Chiragh (P. W. 9) also gave discrepant account of their movements, while Chiragh is also admittedly on inimical terms with the appellants. Many other weaknesses in the prosecution case could be pointed out, but what has already been stated is sufficient to show that no reliance can be placed on the prosecution story. We have accordingly no option but to accept the appeal, set aside the convictions and sentences of the appellants and acquit them. They should be released forthwith if not required to be detained for any other cause. K.B.A./ A. H. Appeal accepted,