P (PLP)

Abdul Hamid, for Respondent. ORDER.‑--The accused respondent Pehlwan Khan is the resi dent of village Kalas in Bagh tehsil of Poonch district and is Dhund by caste. On 9th June, 1949 at 4 p. m. a report was made at the Police Station Dhirkot which is 3 or 4 miles away from the village Kalas by one Mohammad Yousaf that he had been wounded on the left shoulder by a shot fired by Pehlwan Khan accused from a rifle, at the instance of his cousin Ali Sher Khan and the incident had been witnessed by his fellow villagers Kala Khan and Mohammad Yaqub. Mohammad Yousaf further stated that Ali Sher Khan had sown `maki'‑in a plot of land jointly owned by him and Ali Sher Khan without his knowledge and when he prevented Ali Sher Khan from doing so, Ali Sher Khan called out Pehlwan Khan who was sitting in the house of Ali She Khan near by and when Pehlwan Khan came out, armed rifle, Ali Sher Khan incited Pehlwan Khan to shoot at him. The police reached the spot 2 or 3 hours after recording the report. At that time Pehlwan Khan was not present in the village. After investigation and medical examination of the complainant Pehlwan Khan was challaned under section 307 A. P. C. For some time Pehlwan Khan did not appear in Court. The result was that the Magistrate took proceedings against him tinder section 88 of the Criminal Procedure Code. Ultimately when Pehlwan Khan appeared, he stated that he was at Karachi on the date of occurr ence in the service of Mr. S. N. Baqar, Deputy Secretary, Home Division, Ministry of the interior Pakistan Government. To prove the case against Pehlwan Khan the prosecution examined 9 witnesses including Dr. M. A. Choudry who was examined through a Commissioner Mohammad Yousaf complainant gave the prosecution version of the incident in detail. He was supported by Mohammad Yaqub and Kala Khan who claimed to be the eye witnesses of the occurrence. Of the remaining witnesses Mohammad Ismail nd Jhawar Khan stated that they learnt soon after the incident from‑Mohammad Yusaf, that he had been fired at by Pehlwan Khan. Hidayat Ullah a co‑sharer of Ali Sher Khan stated that he had sold his share of the land to Muhammad Yousaf and the latter had taken possession of it Wore the incident. The remaining evidence was more or less of a formal character. In defence Pehlwan Khan examined Mr. S. N. Baqar on commission at Karachi.. This witness stated that Pehlwan Khan bad been in his service from 7th June 1949 to 19th September 1949 at Karachi and that during this period he did not take any leave. This witness further stated that he had given a certificate Exhibit P. C. to Pehlwan Khan which was to the same effect. This witness also produced a photograph exhibit R. 1 of Pehlwan Khan. The learned Magistrate considered the evidence given by Mr. S. N. Baqar as more reliable than the evidence of the prosecution witnesses and acquitted Pehlwan Khan. The Government has filed an appeal against the acquittal of Pehlwan Khan. The two objections taken in the memorandum of appeal are :‑

(1) that Commission could not be issued for examination of Mr. S. N. Baqar who was; residing at a place outside the Azad Kashmir Territory. (2) that the evidence given by Mr. S. N. Baqar as compared with the direct and circumstantial evidence in the case could not carry any weight. The first objection in my opinion does trot hold good, because Mr. S. N. Baqar was examined on Commission under the order's passed by Late Justice Abdur Rashid. It is true that the state ment of Mr. S. N. Baqar was recorded by an official appointed by the High Court, Sind to whom the Commission was issued and not by a Magistrate as required by section 503 Criminal Procedure Code. But this fact is not material because it cannot be conceived that Mr. S. N. Baqar would have made a different statement if he had been examined by a Magistrate. The second objection how ever, in my opinion does carry weight. Mr. S. N. Baqar based his evidence as to Pehlwan Khan being in his service from 7th June, 1949 on the record prepared by his wife who was not examined. It is therefore difficult to say whether the record on which Mr. S. N. Baqar based his information as to the date when Pehlwan Khan was engaged was or was not correct. The trial Magistrate was therefore absolutely wrong in ruling out the direct and circumstantial evidence produced by the prosecution without giving strong reasons for doing so, simply on the strength of the evidence given by Mr. S. N. Baqar which in my opinion was not better then heresay. The complainant was supported by two eye witnesses of the occurrence and also by certain persons who met him soon after the incident. The complainant as well as the alleged eye witnesses of the occurrence stated that the shot which hit the complainant had been fired by Pehlwan Khan. The witnesses who met the complainant after the incident stated that the com plainant named Pehlwan Khan as his assailant. The name of Pehlwan Khan as an assailant of the complainant was mentioned in the F. I. R. which was made as speedily as it could be done. All these facts have to be explained before exonerating Pehlwan Khan from criminal liability. The learned trial Magistrate did not discuss the evidence of these witnesses in the judgment and the con clusion is that he did not apply his mind to the facts of the case as he was required to do. False additions are usually made but the substitution of an innocent person in place of the guilty is a rare phenomena and much more cogent and convincing evidence is required to establish that factor than that produced in the present case by the defence. I am therefore of view that in this case the trial Magistrate obviously blundered through incompetence and conducted himself in such a manner as to produce miscarriage of Justice. It is therefore, necessary to reverse the order of acquittal of Pehlwan Khan and send the case back to the successor of the trial Magistrate to take any other evidence which Pehlwan Khan might desire to produce in defence and then give fresh judgment on the evidence already recorded and the further evidence to be pro duced by Pehlwan Khan. Pehlwan Khan will remain on bad throughout the trial and is directed to appear before the Sub‑Judge Bagh on the 15th November 1951. K. M. A. Case remanded.