1970 P Cr (PLP)

On deep dissection, it was found that the third rib of left side was cut through and through and there was through and through stab wound in the middle lobe of left lung 4" long, with an entrance wound 1 " x 3 /8" on the inner side and exit wound " x ". Left side of chest cavity was full of blood, while the weapon was entering the lung, it injured the pulmonary vessels of left lung in the base. In the opinion of the doctor, the death was due to shock and haemorrhage from the left lung and left pulmonary vessels which was the result of stab wound of chest. The injury was sufficient to cause death in the ordinary course of nature, and had been caused with a sharp‑edged long blade weapon. The probable time that elapsed between injury and death was a few minutes and between death and post‑mortem about one day.

9. Doctor Munawar Hussain (P. W. 2) examined Amir Ali (P. W. 10) and found the following injury on his person:‑ (1) A penetrated wound 3/5" x 3/10" x 1/5" little above the right clavicle sternal joint. The injury was found to be simple in nature.

10. At the trial, the prosecution case was supported by Amir Ali (P. W. 10), Allah Ditta (P. W. 11) and Zulfiqar (P. W. 12). It has come in evidence that there were security proceedings with regard to the land in dispute in which Shahadat (the dead accused) was arrayed on one side and the deceased and the three witnesses on the other. Questions were put to the witnesses in cross‑examination to show that Zulfiqar was a collateral of Chera deceased but nothing definite could be brought out. It is, however, on the record that the second wife of Zulfiqar is the daughter of the uncle of Sultan, a son‑in‑law of Chera deceased. Zulfiqar has incidentally two wives, one of whom is the sister of the wife of Ata Muhammad Lambardar (P. W. 14) who is a witness of recovery. No relationship has been established on record with Allah Ditta. As stated above, Allah Ditta (P. W. 11) is a tenant as also a person who was very much involved in the security proceedings.

11. The appellant, at the trial, took the position that he knew nothing of the occurrence and stated that Shahadat and Baqir were ploughing the land in dispute on the day of occurrence when Chera and Amir Ali attempted to dispossess them by force. Shahadat and Baqir received injuries but their case was not registered by the police. The appellant attributed his involvement in the case to the enmity of prosecution witnesses. The appellant denied the recovery of spear. Ghulam Rasul Patwari was produced as D. W. 1 to prove that possession of the disputed land had been delivered to Baqir. Ali Muhammad the acquitted accused, took the stand that he had been involved on account of enmity with Ata Muham mad Lambardar (P. W. 14). It was his case that Ata Muhammad had indecent intention towards his wife and when he asked Ata Muhammad not to visit the locality; there was a quarrel during which Ata Muhammad was given a beating by Ali Muham mad.

12. The learned counsel for the appellant urged the following points :‑ (i) that the F. I. R. in this case was drawn up at the spot and not at the tubewell of Murad as was alleged by the prosecution. It was submitted that the whole investigation stood vitiated on account of this fact ; (ii) that the witnesses in this case were partisan and the fact that Ali Muhammad had been falsely involved further casts a grave doubt on their veracity ; (iii) that notwithstanding the fact that it appears from the record that possession of the land in dispute was given to Baqir by nishandahi, it should be held in the circumstances of the case that actual physical possession had passed to Baqir and his daughter Mst. Daulan ; and (iv) that the recoveries in the case are fake.

13. There are indications on the record which support the contention of the learned counsel that the F. I. R. was not recorded at the tubewell of Murad. Perhaps it was recorded at the spot as is alleged by the defence. The story given to us by Amir Ali P. W. is that after the incident he went to inform Ata Muhammad Lambardar, who strangely enough did not accompany this witness to the police station. Amir Ali claims to have gone on horse‑back up to five miles when he met the Assistant Sub‑Inspector at a distance of one mile from the police station. He was in an injured condition and his shirt, we are told, was blood‑stained and holes in it. The first thing that the Assistant Sub‑Inspector should have done in the ordinary course of events was to have sent Amir Ali to the hospital which was at a distance of one mile. This was not done. On the other hand Amir Ali was again taken back to the spot where investigation was started and it was from there that he was sent for medical examination. A reference to the note of the A. S. I. below Exh. P. B. shows that he had prepared the injury statement of Amir Ali after taking down the report but in his statement in Court he stated that he had prepared the injury statement of Amir Ali at the spot. This probably lets the cat out of the bag and amounts to an unconscious admission that the report was written at the spot. It would have been furthermore in keeping with the rule of prudence if the A. S. I. had travelled a distance of one mile to the police station and recorded the F. I. R. there. The failure of Ata Muhammad Lambardar to accompany the first informant in spite of the fact that he had been informed of the incident, also supports the contention of the defence in this regard. Amir Ali admitted during his cross‑examination that he had affixed his thumb‑impression on his statement at the tubewell of Murad but then stated that he had affixed two or three thumb‑impressions at the spot. He is not a witness of recoveries nor is he a witness of the preparation of the inquest report. His shirt was taken possession of at the spot, and, therefore, two or three thumb‑impressions that he stated to have affixed on various papers may include his thumb‑impression on Exh. P. B. We, therefore, hold that the F. I. R. in this case should be ruled out of consideration, as according to our view i1B was drawn up at the spot.

14. The witnesses in this case are decidedly interested. Zulfiqar is clearly a chance witness. He was so close to the deceased that he was one of the four persons who were bound down in relation to the proceedings which arose between the parties with regard to the disputed land. Amir Ali stated that Zulfiqar was passing by and had asked them as to what crop they intended to sow in the land that they were ploughing. Zulfiqar and Allah Ditta P. Ws. do not specifically mention the subject‑matter of the talk between Zulfiqar and Chera deceased. Amir Ali is a nephew of the deceased and was bound down along with Allah Ditta as against Shahadat in connection with the disputed land. All of them, therefore, are interested witnes ses and no conviction can be based in this case on their testimony unless corroboration with regard to the participation of Saran appellant is forthcoming.

15. We are clearly of the opinion that the learned Additional Sessions Judge was quite right in acquitting Ali Muhammad. He has, apparently, no connection with Sarang appellant although it was vaguely asserted by Amir Ali that he lived with the other two accused. He is said to have fired at Amir Ali ineffectively and then fired two more shots at the spot in the air. His plea is that he was involved by Ata Muhammad Lambardar. There is no positive evidence to support this plea but there are certain indica tions on the record which show that Ali Muhammad had nothing to do with this affair. According to the evidence, of Niaz Muhammad foot constable (P. W. 5) he received the sealed parcel containing the pistol from the police station on 27th of July 1964, and after obtaining the necessary docket, took it away to Lahore. The sealed parcel containing the empty cartridges were handed over to Nur Muhammad Foot Constable (P. W. 7) on 21st of July 1964, for onward transmission to the Ballistic Expert. According to the statement of this witness he received the docket from the police office and sent this parcel by registered post to the‑ Ballistic Expert. The evidence of the Ballistic Expert, however, contradicts the statements of both these witnesses. We find from Exh. P. X. which is the report of the Ballistic Expert that both the parcels containing the pistol and the crime empties were received on 6th of August 1964, in the Central Forensic Science Laboratory at one and the same time through Niaz Muhammad Foot Constable No.

680. The evidence of the prosecution led at the trial to show that these articles were sent to the Forensic Science Laboratory on different dates is, therefore, not correct. Since these two articles were received on the one and the same day and the evidence led at the trial to the effect that they were sent on different dates having not been found to be correct, the whole circumstantial evidence against Ali D Muhammad becomes doubtful. In view of what has been said in this para. we are of the opinion that the eye‑witnesses in this case were not only partial and interested but were also responsible for the false inculpation of Ali Muhammad. Their statements against the appellant have, therefore, to be taken with great caution.

16. As to the question of possession, we may say that Chera deceased was ejected by the orders of the Assistant Consolidation Officer as the land had fallen to the share of Baqir and Mst. Daulan wife of Shahadat as a result of consolidation proceedings. Chera deceased was party to these proceedings and was bound by the order passed by the Assistant Consolidation Officer. He intentionally absented himself. The possession, in law, therefore, completely passed on to Baqir and the possession of Chera was terminated in spite of the fact that the possession to Baqir had been given by nishandahi. Under section 16 of the West Pakistan Consolidation of Holdings Ordinance, 1961, the land‑owner or a tenant shall have the same rights in the holding or in the land allotted to him in pursuance of a scheme of consolidation as he had in his original holding or tenancy, as the case may be. Under section 18 of the Ordinance, the land‑owners, tenants and other persons affected by the scheme of consolidation are entitled to the possession of holding and tenements allotted to them under the scheme and have to be put in possession thereof after the final confirmation of the scheme from a date to be fixed by the Consolidation Officer. Under section 18‑A of the Ordinance any person occupying, or in possession of any holding or tenement can be summarily ejected after he has been given reasonable opportunity of showing cause. The provisions of the Ordinance are imperative and from the time the possession was delivered to Baqir, he and Mst. Daulan became the undisputed owners and occupants of the property in dispute. The law is established that when a person bound by a decree or an order is ejected and the person to whose advantage the decree or order has been passed, gets possession even by nishandahi, the possession of the previous occupant is terminated. Reference in this connection may be made to rules 35 and 36 of Order XXI of the Code of Civil Procedure, as well as to Adyanath Ghatak v. Krishna Prasad Singh and another. (53 C W N 883), Thakur Sri Sri Radha Krishna Chanderji v. Ram Bahadur and others (431 C 268) and Ranjit Singh and others v. Bunwari Lai Sahu and others (I L R 10 Cal. 993).

17. It is not the case of the prosecution that Chera after his dispossession had again entered into possession of the land concerned, and that Baqir and Shahadat had acquiesced in it. The stand of the prosecution is that notwithstanding this delivery of possession to Baqir, Chera deceased remained in actual physi cal possession of the land. We have seen that this physical possession was legally interrupted by proceedings, report whereof is contained in Exh. D.

2. The prosecution relied on centuries of Khasra Girdawri Exh. P. F. which show that Killa No. 14/2 was owned by Mst. Daulan and her father Baqir but was cultivated by Chera son of Muhammad as a tenant‑at‑will on batai. The original of this entry is at page 59 of register of khasra Girdawri which was produced in Court during the cross‑examination of Muhammad Sadiq Patwari (P. W. 15) and which we have marked as "A" for convenience of reference. The copy Exh. P. F. does not reflect the correct state of affairs. We find in entry "A" that whereas Chera was shown as a "ghair dakhilkar" with regard to Khasra No. 14/2, there is a note below this entry to the follow ing effect :‑ This latter entry does not find mention in the copy Exh. P. F. When questioned, the Patwari stated at the trial that he had made this entry earlier at the instance of Sarang appellant but when told by some other persons that it was not in accordance with facts, he made an entry to the effect that Chera was a tenant of the land concerned. We are afraid this is not the true explana tion of the actual state of affairs. The words are at the bottom of the entry and the only inference drawn from this writing is that Chera was shown as a tenant so far as Kharif 1963 was concerned, but on 24th of March 1964, when the Girdawri was made with regard to the Rabi crop, the entry in favour of Mst. Daulan and her father Baqir was made. The explanation of the Patwari to the effect that he had first made entry and then scored it off and wrote the name of Chera as tenant, does not appear to be correct. The suggestion of the defence was that the words had been scored off at the instance of the police after the incident. This suggestion, was denied by the Patwari. Our entry, however, is mere consistent with the reading of this story of the defence that after the eviction of Chera on 27th of October 1963, Mst. Daulan and Baqir had physically occupied the land in dispute. The entry in the original register clearly supports their stand and whatever the explanation of the Patwari may be, we have to interpret this entry in favour of the defence in conformity with the firm rule laid down by the Superior Courts that where there are two possible interpretations the one favouring the accused has to be followed. 18. 'Now we come to the recoveries. We have already observed that Ali Muhammad does not appear to have any connection with the accused and it is not knows. as to under what circumstances he was found at the dhari of Sarang at the time of his alleged arrest. The recovery by Sarang is also net convinc ing. He is said to have taken out the spear from the sorkanda bushes from Killa No. 25 which does not belong to him. It is not the case of the prosecution that he dug it out from a parti cular place. We cannot, therefore, fix Sarang with the exclusive knowledge of the presence of this spear is Killa No.

25. According to‑ Sardar Khan A. S. I. (P. W. 16) Sarang and Shahadat ware I produced before him by Nur Ahmad and Amir All. These two persons were not made the witnesses to recovery. Nor were they produced at the trial. It appears that they had just come to produce the two accused and then mechanically went back. We are not convinced with the correctness of the version of the prosecution with regard to the arrest of these two persons.

19. We have observed above that Ali Muhammad was falsely implicated in this case. This is another factor which cautions us to scrutinize the testimony of the witnesses with great care. There are only two injuries on the side of the prosecution . . . one on the person of the deceased and the other on Amir Ali (P. W. 10). . . . These two injuries could well be inflicted by one person. Since we have observed that one of the accused, namely, Ali F Muhammad was falsely involved in the case, we cannot be sure that both Sarang or Shahadat participated in the incident. Shahadat was the person who had a direct motive to take part in the fight. It is, therefore, more probable that Shahadat was the assailant and Sarang being his brother may have been involved by the prosecution.

20. Since the prosecution story becomes doubtful and we find that the defence story is more probable, the complexion of the whole case is changed. In view of what was said by their Lordship of the Federal Court in Safdar Ali v. Crown (P L D 1953 F C 93), we give the benefit of doubt to Sarang appellant and set aside his convic tion and sentence. He is acquitted. He shall be , released forthwith if not required to be lawfully detained in some other case.

21. As a result of this finding Revision Petition No. 492 of 1966 is dismissed. Appeal allowed.