P L D 1969 Lahore 548 (PLP)

SHAUKAT ALI, J.‑

Muhammad Yaqoob Khan (31), Khan Muhammad (36) and Mian Muhammad (32) were charged under sections 302/307/34, P. P. C., in the Court of Additional Sessions Judge, Mianwali. The learned Additional Sessions Judge, who tried them acquitted Khan Muhammad and Mian Muhammad of the charges. He convicted Muhammad Yaqub Khan under section 302, P. P. C., for the murder of Ghulam Sarwar and sentenced him to suffer death. The prisoner appeals and we have to consider the question of confirmation of the death sentence.

2. The accused are related inter se. Muhammad Yaqub Khan is brother‑in‑law of Khan Muhammad. Khan Muhammad and Mian Muhammad are real brothers.

3. It is to be seen that it is a simple case, the facts of which, as stated at the trial, can be described within a small compass. Ghulam Rasool P. W., carpenter by profession, was employed on payment of annual remuneration with Khan Muhammad accused. A few days before the incident he refused to work for him. On Ist of June 1966, the day of incident, Khan Muhammad stopped Mst. Nasreen P. W., sister of Ghulam Rasool P. W., from cutting fodder from the fields and also abused her. She apprised of it to Ghulam Rasool P. W., who in turn talked the same to Muhammad Hayat, Ataullah and Ghulam Ahmad P. Ws. At digerwela, Muhammad Hayat, Ataullah and Ghulam Ahmad P. Ws. proceeded to the house of Khan Muhammad to reprimand him for insulting Mst. Nasreen P. Ws. When they arrived at the shop of Ghulam Rasool P. W., they found Muhammad Yaqub Khan accused sitting there. They complained to him about the conduct of Khan Muhammad. Muhammad Yaqub Khan, to their surprise, defended the conduct of Khan Muhammad accused. This resulted in altercation between Muhammad Yaqub Khan accused and Muhammad Hayat P. W. Ghulam Ahmad P. W. also abused Khan Muhammad accused.

4. On hearing this altercation Khan Muhammad and Mian Muhammad accused, came out from their houses armed with guns. Khan Muhammad accused fired a shot at Ghulam Ahmad P. W. while Mian Muhammad accused fired at Muhammad Hayat P. W., but no one was hit. Muhammad Yaqub Khan accused left for his house and came armed with a gun at the scene of crime. In the meantime Ghulam Sarwar deceased arrived there and enquired about the cause of firing. When he was near the wall of the courtyard of the house of Khan Muhammad accused, Muhammad Yaqub Khan accused fired at him. The burst hit him and he foil down on the ground. Khan Muhammad and Mian Muhammad accused also fired at him but the shots did not hit him. Thereafter all the accused escaped with their respective weapons. Ghulam Sarwar succumbed to the injuries at the spot. At about sun‑set time the dead body of Ghulam Sarwar was put on a coat and was brought to Police Station Sadar Mianwali, which is at a distance of seven miles from the place of occurrence. Muhammad Hayat P. W. lodged first information report Exh, P. D. at 11 p. m., the same day, which was scribed by Ch. Fateh Din, A. S. I., P. W.

15. The A. S. I. prepared the injury statement and the inquest report and despatched the dead body to the mortuary for post‑mortem examination. He proceeded to the spot. On the way Ghulam Yasin Khan, Sub‑Inspector, P. W, 16, also joint him. They reached the spot at 8 a.m. the next day. The Sub‑Inspector took into possession blood‑stained earth from the spot and made it into a sealed parcel, vide memo. Exh. P. E. Khan Muhammad and Muhammad Yaqub Khan appeared before the Sub‑Inspector on 10th June 1966, and produced guns P. I and P. 2, which were taken into possession, vide memos. Exhs. P. B. and P. C., respectively. Mian Muhammad Was arrested on the 14th of June 1966.

5. Doctor Rashid Ahmad P, W, 1, Medical Officer, con ducted the post‑mortem examination of the dead body of Ghulam Sarwar on 2nd June 1966, at 9 a.m. and found the following injuries thereon:‑ (1) Seven lacerated wounds, two bigger of the size of " x ", and the rest were smaller, " x " on an area of 6" x 3" on the front of left shoulder, and lift side of chest. These were all wounds of entry by gun‑shot. (2) A lacerated wound, " x ", on the lateral side of middle of left upper arm. (3) A lacerated wound, " x ", on the back of left upper arm. (It was exit of injury No, 2). (4) A lacerated wound on the back of the left side, " x ". It was at the level of the inferior angle of scapula, and 1 " from the midline. It was exit of injury No.

1. Death, in the opinion of the doctor, was due to shock and haemorrhage due to injury No. 1, which was sufficient in the ordinary course of nature to cause death. The duration between death and post‑mortem examination was approximately 24 hours and the minimum could be fixed as 19 hours. Five wounds in injury No. 1 were the result of pellet shots while two were bullet wounds.

6. The appellant disclaimed responsibility for the crime. No evidence was called in defence.

7. On behalf of the prosecution Muhammad Hayat P. W. 11, Ataullah P. W. 12, Ghulam Rasul P. W. 13, and Ghulam Ahmad P. W. 14, have been produced as eye -witnesses of the occurrence. Muhammad Hayat P. W. is the father of the deceased while Attaullah and Ghulam Ahmad P. Ws. are also his close relations. Ghulam Rasul P. W. is a moeen of the village. The presence of the near relations of the deceased and that of Ghulam Rasul P. W., was natural at the scene. The mere fact that three of the eye‑witnesses are the relations of the deceased and one is a moeen of the village, is obviously no good reason for disbelieving their evidence. We have, however, to examine their statements to see if they are the witnesses of truth.

8. To begin with, we may, say that the ocular account is falsified by the medical expert. It is in evidence that only one shot hit the deceased while the medical evidence on the record shows that two fire‑arms were used, an injury No. 1 contained pellet and bullet shots. According to the post‑mortem report the occurrence could have taken place at any time between 9 to 11.00 a.m., .on 1st of June 1966. Faced with this difficulty, the prosecution witnesses endeavoured to change the time of the occurrence at the trial to reconcile with the medical opinion. Muhammad Hayat P. W. stated that the time of the occurrence was earl, digarwela or late digarwela and he denied having stated in the first .information report Exh. P. D. that the occurrence ‑took place at sun‑set time. The sun‑set time on that day was 7‑05 p.m. Ataullah and Ghulam Ahmad, P. Ws, stated that the occurrence took place at digarwela. Ghulam Rasul P. W. stated in the examination‑in‑chief that the occurrence took place, at digarwela while in cross‑examination he stated that the sun was about to set when the occurrence took place. In face of this evidence, it can also be said that the first information report is a belated one and the prosecution version of the incident was lodged after consultation in order to cover the delay. Apart from this, the venue of incident has not been conclusively established by the prosecution. We found from the site plan Exh. P. A. 1 that the shot was fired by the appellant from point No. 7 and the place of incident is south‑west of the Khola of Ghulam Rasul P. W., while the blood, according to Ch. Fateh Din, A. S. I., P. W. 15, has been collected from the north which is shown as a jungle.

9. On examining the police file, we found that the defence gave a counter version of the incident. The prosecution or the defence did not bring this version on the record. It is the duty of the prosecution to place all the evidence before a Court to enable it to arrive at a correct decision. In a case where there is a counter‑version of the incident, it is often of greatest importance for an accused to be able to show that his own version was put forward at the earliest possible opportunity and Courts of law should not deprive an accused his right to make use of such! a statement, if he chooses to do so.

10. We accordingly by our order dated the 8th of November 1968, sent for the investigating officer and examined him. The investigating officer, Ghulam Yasin Khan, P. W. 16, stated that Muhammad Yaqub Khan and Khan Muhammad accused gave a counter‑version. Following the decisions in cases Hasil v. Emperor (A I R 1942 Lah. 37) and Ghulam Abbas v. The State, (P L D 1968 Lah. 101.) we allowed the counsel for the appellant to go through the statement made by the accused and permitted him to place on record the counter‑version given by Muhammad Yaqoob Khan and Khan Muhammad accused.

11. We would like to make it clear that under section 25 of the Evidence Act, confession is not to be received or treated as evidence against the person making it, if it criminates him, but if the accused himself wishes to rely on his statement which exculpates him he cannot be deprived of the right to make use of such a statement. We are also of the opinion that this section does not prevent a co‑accused to make use of confession of other person, if it exculpates him. In this view of the matter, the appellant can make use of the statement of Khan Muhammad which exculpates him.

12. The upshot of the whole discussion is [hat material has come on record which indicate that the case against the appellant is doubtful. Accordingly, we allow the appeal, set aside the conviction and the sentence of the appellant and acquit him. A. E. Appeal accepted