1976 P Cr (PLP)

(4) One round swelling at the right side of the head 2' x 2' without any local fracture. (5) One transverse bruise mark at the front of right thigh 3' x 1'. (6) Three oblique and transversely situated bluish red bruises at the back and left shoulder varying from 5' x 1' to 3' x 1'. (7) The left hip was swollen and there was a bruise 2' x 1'. On the receipt of X‑ray report injury No. 1 was declared dangerous. Injuries Nos. 1 and 2 were caused by fire‑arm and the rest with a blunt weapon. Other injuries were declared as simple. On the person of Ghulam Nabi P. W. the following injuries were found :‑‑ (1) Lacerated wound at the left side of the head x ' x skin deep. (2) One longitudinal contusion mark at the external aspect of left fore arm 5' x '. Both the injuries were declared as simple and caused with a blunt weapon.

9. The four appellants were also examined by the said doctor. On the person of Sultan following injuries were found :‑ (1) One lacerated transverse wound at the head 2 ' x ' x scalp deep. (2) Nothing as injury was seen as against No. 2 mentioned in the police injury statement. (3) Only the lower portion of the right eye was bluish and swollen. The eye ball was saved. (4) One long oblique reddish bruise mark at the back starting from left shoulder blade to the right side 11' x 1'. On the person of Pira appellant following injuries were found :‑ (1) The left eye had one oblique lacerated wound at the upper eyelid 1' x ' x upper lid torn. The eyeball had also been badly hit and he had lost his vision on this side. The case was referred for special treatment. (2) One oblique bruise mark at the back of left hand 3'x 1' without any evident fracture sign. (3) Both the knees swollen and the movement was restricted at both the joints due to swelling. Muhammad Yar appellant had one injury which was oblique at the right side of the head near to the right prominence of the head 2' x x scalp deep. The injury was simple. Own the person of Habib appellant following injuries were found :‑ (1) One longitudinal lacerated at the front of left leg 1' x ` x skin deep, (2) One oblique bruise mark at the right thigh 5 x 1'. (3) Two oblique blue bruise mark at the left back 5' x 1' and 4' x 1'. (4) The right eye is scohymosed and the eyeball was totally saved. (5) There was one oblique bruise mark at the back of left forearm 3'x 1'. (6) There were multiple bruises which were at the right fore‑arm varying from 3' x 1' to 5' x 1'. All the injuries were declared as simple caused with blunt weapon. On the question of the Public Prosecutor the doctor stated that he had handed over the wads to the police after the post‑mortem examination, of Bakhat Ali deceased. He also said that such wads are definitely the cartridges and not the rifle bullets in cross‑examination he said that the wads were not the card‑boards but were pieces of woollen blanket. He also said that it was possible that some relatives of Bakhat Ali deceased might have placed these woollen pieces on his wounds to stop flow of blood.

10. The report of the fire‑arm expert was in the negative. The fire arm expert, however, was examined as Court‑witness.

11. The truthfulness or falsehood of the prosecution case rests upon the report of the fire‑arm expert. The appellants were not known to the eye witnesses before the occurrence because they were strangers. Since the crime empties found at the place of occurrence were not fired from the pistols recovered from Sultan and Ghulam Muhammad the story that the appellants were apprehended at the spot falls to the ground. If the appel lants had not been captured on the spot and had been arrested by the police sufficient time after the occurrence and at the instance of Sultan and Ghulam Muhammad appellants Pistols P. I and P. 2 had been recovered, it could be said that both the appellants destroyed or concealed the pistols which were actually user by them at the time of occurrence and in order to deceive the police produced other pistols which had not been used at the time of occurrence but since the appellants are alleged to have been appre hended in the spot this possibility stands excluded. The only inference, therefore, is that they were not apprehended at the spot, when the prosecu tion came forward with the story that the appellants were apprehended on the spot is that since that they not known to them previously they were not in a position to identify teem. It appears that the real assailants ran away after the occurrence and the appellants were apprehended by the police afterwards. (Since no identification parade was held before the inquiry made by the Committing Magistrate, the identification of the appellants by the eye‑witnesses at the inquiry and the trial stage is not helpful to the prosecution). (The presumption would be that the assailants were some other persons and not the appellants and that is why the fire‑arms recovered from their possession were not found to have been used at the time of occurrence). Even otherwise the story that the appellants were apprehended at the spot is highly improbable and thus unbelievable, when still the appellants had eleven live cartridges with them no body could go near to apprehend them. If the witnesses and their helpers who are alleged to have apprehended the appellants had been armed with fire‑arm and had used them it could be said that since the assailants were disabled they were apprehended. The story is that the witnesses and their helpers picked up the sticks‑A person armed with a fire‑arm would not allow a person armed with a stick to come near him, and would fire at him if such a person takes the courage of making an attempt to apprehend him. But on the contrary the prosecution story is that no fire was made outside the house of the complainant when the eye‑witnesses and their helpers armed with sticks successfully apprehended the appellants.

12. Admittedly the appellants were strangers. This is very strange that they came to know that they would find some valuables in the Sahl of the complainant. The persons living in Sahls usually are not very wealthy. There is no evidence that to reality cash or ornaments were lying in the Sahl. None of the witnesses stated so. It is, therefore, not clear that the appellants did enter the Sahl and attacked the inmates in order to commit theft or robbery. (The appellants explained the presence of injuries on their persons by saying that they were belaboured by the police. This explanation is believable). As the identification of the appellants is doubtful the conviction of Sultan under section 307, P. P. C. is also not maintainable. For the same reasons it is also doubtful if lurking house trespass by night was committed by the appellants. Habib appellant has been convicted and sentenced under section 323, P. P. C. for causing simple injuries to Ghulam Nabi with sots P. 3 which is said to be stained with human blood. As the story of apprehending Habib and his companions has been found to be false the evidence of snatching of soti from him at the place of occurrence also fails to the ground arid it cannot be said that it was he who had given simple injuries to Ghulam Nabi, P. W.

13. In view of the discussion made we come to the conclusion that the prosecution failed to make out any case beyond any shadow of doubt Therefore, we accept the appeals, and giving the benefit of doubt acquit all, the four appellants from all the charges. Death sentences awarded to Sultan and Muhammad Yar are not confirmed. Appeal allowed.