1976 P Cr (PLP)

Date of hearing : 10th February 1975. JUDGMFNT The six petitioners, namely (1) Shera, his two sons (2) Najib and (3) Bashir, his uncle (4) Habib, his cousin (5) Anwar and (6) Inayat were, upon their conviction, sentenced to R. I. for 2 years each under section 307/149, to R. I. for one year each sunder section 148 and to R. I. for 2 years each under section 365/149, P. P. C. The sentences were to run concurrently. Mst. Bhagan wife of Shera also tried was acquitted. The petitioners' appeal haling failed, they have filed this revision to challenge their convic tions and the sentences.

2. The prosecution case is that Akbar, complainant was going to his village on 19‑9‑1962 in the evening and as he bad reached about 20 karams from the village, he was caught by Bashir, petitioner, who was armed with a pistol and Anwar petitioner, who was armed with a balam, who took him to the house of Shera, petitioner, where Shera and his wife Mst. Bhagan caught hold of him by the legs while Najib alias Yaru, petitioner gave him beating on the soles of his feet, on his back and the ribs. There after Habib and Inayat, petitioner's, who were sent for, arrived and with their help the complainant was bodily lifted, taken to a storm water channel, which was 25ft. deep, and thrown therein. Thereafter, the six petitioners went over the roof of Allah Ditta's house, which adjoined that of the complainant. Shera and Bashir were armed with guns and Najib with a pistol. The petitioners there threw stones and fired 20/25 shots at Mst. Razia and other inmates of the complainant's house where after they ran away.

2. The motive for the crime had been the fact that some nine months before the occurrence. Ziarat P. W., a distant nephew of the complainant, had abducted Mst. Noor Begum wife of Najib, and though she had been restored to Najib through the intervention of the respectables of the locality, the petitioners had nursed grudge on that account.

3. S. I. Khuda Bakhsh who was on patrol duty in the area, heard the gun‑fire and proceeded to the village. In the way; on hearing the cry of a man he went to him and with the help of his torch saw the complainant lying in the bottom of the ditch. He recorded his statement, which formed the basis of a formal F. I. R. In the course of the investigation he recovered 5 empties from the roof of the house of Allah Ditta and stone pieces from the courtyard of the house of the complainant. He also recovered blood‑stained shirt of Mst. Razia. Upon their arrest on 8‑10‑1962. Najib and Bashir were found to have injuries on their person. The Investigating Officer, therefore, got them medically examined. The Medical officer found 4 injuries on the person of Najib and 2 on that of Bashir. These were healed injuries, caused by gun‑fire within one month and were simple in nature.

4. Akbar, complainant fully supported the prosecution case. His medical examination disclosed the presence of 11 contusion marks on his person, some of which were on the sole of his feet. The injuries had been received by blunt weapon and were all simple, except for injury No. 4, which was grievous, because it had resulted in the fracture of the 5th bone of the left foot. Inayat P. W. 3 and Anwar P. W. 10, who had been returning to their village had seen the complainant being dragged by Bashir and Anwar, petitioners, Bashir being armed with a pistol and Anwar with a balam. They entreated the two petitioners to let go the complainant but they were threatened at which they went away and informed Ziarat P. W. They had half an hour later heard report of gunfire. Hakim P. W. 4 stated that while going to the fields to bring his mare, he had seen the six petitioners bodily taking away the complainant. Najib was armed with a gun (the witness had first described the weapon as a pistol) and Shera with a rifle, Bashir with a pistol and the others with barchhis. The witness asked them not to throw away the complainant but Shera threatened him with the rifle. He saw Zaman P. W. 9 also coming to the village at that time. This latter witness fully supported the account as given by Hakim P. W. Ziarat P. W. 5 besides supporting the story of motive corroborated that he had been informed by Anwar P. W. and another about the petitioners' forcibly taking away the complainant. He thereupon asked Zaman P. W. 12 to persuade the petitioners to release the complainant. He saw the petitioners firing from the roof of the house of Allah Ditta. Ho remained inside his house until the arrival of the Police. Zaman P. W. 12 corroborated him and further stated that he went to the house of Shera where he saw Najib and Bashir and Shera present on the roof of their house. Upon his asking about the complainant, Shera told him that he had not confined the complainant. This witness had also heard the report of gunfire. Noor Dad P. W. 8 had seen Sbera and NaJib petitioners armed with gun, Bashir with revolver and the remaining 3 petitioners with spears going towards the house of Bashir petitioner, and on inquiry saying that they were going to decide the matter for ever. Soon after that, the witness heard report of gunfire coming from the house of the complainant. The story of the firing at the complainant's house was supported by Mst. Razia P. W. 2 the daughter of the complainant. She had been hit on the head by a stone thrown by the petitioners. She stated that she had also received pellet injuries on her little fingers near the nails. In this she was supported by the medical evidence and the recovery of her blood‑stained clothes.

5. The petitioner's plea was of innocence and false implication due to enmity and party faction. In regard to the injuries found on the person of Bashir and Najib, the former had said nothing, but Najib had come out with the following explanation: ‑ Ziarat Beg and many others fired at me and my brother Bashir co- accused for which I have lodged a complaint. They had come to our house and fired there at w. We saved our life after hiding ourselves in the kotha. Anyhow, we both were injured on the firing of Ziarat Beg and others. I and Bashir were medically examined. They had examined the Medical Officer as D. W. 1 who supported that he had examined Najib and Bashir petitioners on 8‑10‑1962 and had found healed injuries, as already described earlier, on their person.

6. Even a casual reading of the prosecution evidence discloses a curious behaviour marked with utter inactivity on the part of the witnesses. Inayat and Akbar P. Ws. had seen the complainant being dragged by Anwar and Bashir petitioners, who were both armed with deadly weapons, yet they did nothing except to inform Ziarat P. W. Similarly Hakim and Zaman P. W. 9 had seen the petitioners taking away the complainant and throwing him in the ditch, yet they had done nothing to rescue him nor bad they gone to his help even after the departure of the petitioners. Ziarat himself did nothing else than to send Zaman P. W. 12 to intercede with the petitioners and although he heard reports of gunfire, he did nothing more than to remain in his house. He neither went to the Police nor asked any one else to do so. The question of motive was an old story and, even if true, had little to do with the complainant. If the petitioners bad really a grudge on that account, they could have dealt with Ziarat himself, who was present in the village. There is nothing to show that the petitioners were on the look‑out for him. The story of the petitioners having climbed on the roof of the house of Allah Ditta and from there shooting and throwing stones at the inmates of the complainant's house is equally ridiculous. With their number and the weapons which they are stated to have carried, they could have raided the house of the complainant itself without going on top of an adjoining house for the purpose. Then, we have the injuries found on the person of two of the petitioners. It is true that Bashir himself did not speak about the same. Najib, however, made an explanation for his injuries as well as of Bashir. These injuries had been caused by gun‑fire. The duration of these injuries as given by the Medical Officer could connect them with the occurrence. We are also aware of the tendency prevalent in these areas to rope in as many persons of the accused party as possible and the fact that the complainant bad also accused Mst. Bhagan in respect of whom the trial Court had found no evidence to corroborate the version of Akbar P. W. 1" and had acquitted her, puts the Court under an obligation to very closely scrutinize the prosecution story. On top of all this, we find that the prosecution witnesses are all inter‑related. Mst. Razia P. N. 2 is the daughter of the complainant, Inayat P.W.3 is a nephew of Akbar s wife, Hakim P.W.4 is married to the step-sister of Akbar, Ziarat s grandmother was the paternal aunt of Akbar, Noor Dad P. W.'s mother and wife of Ziarat P. W. are sisters, Zaman P. W. 9 is a son‑in‑law of Hakim, Anwar P. W. 10 is a grandson of Akbar s paternal aunt, while Zaman P. W. 12 is a relation of Hakim P. W. It is obvious that their indifference to the plight of Akbar who is related to them calls for an explanation which is absent. Akbar had stated "I was beaten in the house of Sher accused for about one and half hours time." During all this time and until the arrival of the police, these so‑called eye‑witness who in spite of their being closely related to Akbar, practically did nothing. It appears that the relations between some of the witnesses with the accused party had not been cordial. Hakim, P. W. admitted, "Bashir, Inayat.1 Sher, Habib and Anwar accused were bound down for keeping the peace against my party." In these circumstances the prosecution witnesses cannot be held worthy of unstinted reliance without independent corrobo ration. No such independent corroboration is available. The recovery of the empties is of no help as they have not been connected with the petitioners Moreover, the complainant party had tried to involve more persons in the case than necessary. There is thus reason to believe that the occurrence had taken place in a manner other than that given by the prosecution witnesses. Although both the lower Courts had given a concurrent finding in regard to the guilt of the petitioners but this Court is not debarred from examining that finding. In this I am supported by their Lordships' dictum in Mrs. C. .M. Samuel v. Mr. C. Samuel etc. (P L D 1967 S C 334).

7. In the result, the prosecution case as made out by its witnesses is at the best a doubtful one, the benefit of which ought to be given to the petitioners. I, therefore, give them the benefit of doubt, set aside their convictions and the sentences on all the counts and acquit them. The petitioners, who are on bail granted by this Court, are discharged from their bonds. Revision accepted.