1968 P Cr (PLP)

Disinterestedness of witness‑Relevant considera tion in process of weighing his testimony--‑Probabilities of case not fitting in with oral testimony of witness‑--Conviction cannot be based on evidence of such witness appearing seemingly to be dis - interested. Mian Hamid‑ud‑Din for Petitioners. Sardar Sami Hayat for A. G. for the State. Dates of hearing: 29th February and 15th April 1968. Three petitioners in this case were convicted by Ch. Nazeer Ahmad, Magistrate section 30, Kasur, under section 307/324/34, P. P. C. by his order dated 26-4‑67 and were sentenced to three years' R. I. each on the first count and one year's R. I. each on the second count. The sentences were ordered to run con secutively. An appeal was taken to the learned Additional Sessions Judge, Lahore, which was dismissed by order dated 3 1‑7‑67.

2. The occurrence took place on 3‑8‑65 at about 6‑30 in the evening in village Dhuttey, in the jurisdiction of Police Station Kanganpur. The report was lodged by Muhammad Niwaz P. W. 2 on the same day at 11‑30 p.m. The police station is at a distance of 7 miles from the place of the occurrence. It is alleged by the prosecution that there was party faction in the village due to the last elections of the Basic Democracies held in the village. Muhammad Niwaz P. W. 2 had lost the election as against Rehmat who is one of the petitioners before me. After the elections, there were security proceedings against the two parties, but the matter was compromised. On 27‑7‑65, Murad petitioner was arrested at the instance of Faqir Muhammad, Lambardar, under sections 107, 151 of the Criminal Procedure Code on the allegation that he had abused the Lambardar when the latter had gone to demand the payment of land revenue front him. This Faqir Muhammad who is alleged to be a partisan of Muhammad Niwaz is the first informant in this case, and is alleged that Murad and Rehmat petitioners suspected that all these proceedings had taken place at the instance of Muhammad Niwaz P. W.

2. The petitioners, it is alleged, met Muhammad Nawaz near the shop of one Muhammad Shafi in village Gurjke, where the former had gone to purchase ghee. Rehmat was armed with a pistol while Murad and Hakim Ali the other two petitioners were armed with spears. As soon as Murad saw Muhammad Niwaz he started abusing him, Muhammad Niwaz ran back to his house. He was pursued by the three petitioners. There is a mosque near the house of Muhammad Niwaz P. W. where Boora and Khushi Muhammad P. Ws. were standing Rehmat had in the meanwhile fired four shots. When Khushi tried to intervene Rehmat fired at him with the result that the was injured on his left thigh. It is alleged in the F. I. R. that both Murad and Hakim Ali had injured Boora with the spear, which they were holding. In the evidence, this accusation crystallized against Hakim Ali only. It was not alleged at the trial by any of the prosecution witnesses that Murad petitioner inflicted any injury to Boora. Actually there is only one injury on the left forearm of Boora and the story of the prosecution as narrated at the trial is consistently of one injury only on the person of Boora. Muhammad Yaqub Ismail and Muhammad Bashir were cited as eye‑witnesses of the occurrence in the F. I. R. At the trial, Muhammad Yaqub only was produced as a prosecution witness and the names of Ismail and Muhammad Bashir were not mentioned even in the calendar of the witnesses. The learned Magistrate, however, summoned these two persons as Court‑witnesses.

3. During the investigation, the police found that the 'three petitioners were not at all concerned with the commission of this offence and that two other persons, namely, Wali Muhammad and Khushi Muhammad had taken part in the commission of the alleged offence. The names of the three petitioners were placed in column No. 2 of the challan, but the learned Magistrate summoned them during the trial. The trial was conducted jointly against the two sets of the accused and the witnesses Nos. s, 6 and 7 appeared to depose against Khushi Muhammad and Wali Muhammad found by (lie police to he the real culprits. The learned Magistrate however discharged these two persons and convicted the three petitioners as described above.

4. Mian Hamid‑ud‑Din, the learned counsel for the petitioners addressed arguments on 29‑2‑68, but later on tie asked for re hearing of the case. I have heard detailed arguments in this case. The learned counsel has raised the following points (i) That the joint trial of the two sets of tile accused is prohibited by section 239 of the Criminal Procedure Code, and that this being an illegality, the whole, proceedings are vitiated; (ii) that the learned Magistrate who had summoned the three petitioners during the trial had no jurisdiction to hear the case of which he had taken cognizance under clause (c) of section 190 as he had not apprised the accused under section 191 of the above Code of their right to have the case tried by another Court; (iii) that the prosecution story is supported by interested witnesses and runs counter to the medical evidence.

5. It is a matter of regret that the learned Magistrate who was dealing with this case did not try the matter according to the provisions of Criminal Procedure Code. The trial of two sets of the accused who are alternately charged for the commission of the same offence cannot be held together. It was so held in Ali and others v. The State (P L D 1954 Lah. 183).

6. It is true that due to an amendment in the Criminals Procedure Code by West Pakistan Amendment Act XVII of 1964, an error, or omission in the conduct of the trial will be curable tinder section 537 of the Criminal Procedure Code where no failure of justice has been occasioned. This amendment, however, does not mean that a trial can be conducted in utter disregard of the provisions of that Code. The learned counsel argued with tome justification that the three prosecution witnesses exonerated the three petitioners and the petitioners were misled in their defence as they were under the impression that the prosecution itself was examining witnesses who exonerated them and that they need not produce any defence on that account. The procedure) adopted by the learned Magistrate, in my view, was not only against the imperative provisions of the Code, but has actually resulted in causing prejudice to the accused.

7. The next contention of the learned counsel also prevails. It was held by the Federal Court in Abdus Sallar Molla v. The crown (P L D 1953 F C 145), that where the cognizance of an offence was taken by a Magistrate against a person, who had not been challaned by the police but was named in the F. I. R., the case would fall in clause (c) of section 190 of the Criminal Procedure Code and if no warning was given to the accused under section 191 of the Code, the proceedings were vitiated. This Court in Muhammad Ashraf v. Zafar Mahmood (P L D 1967 Lah. 1045) held similarly.

8. The third contention of the learned counsel may now be examined. It has been stated by Boora P. W. that Khushi the injured P. W. was standing in front of Rehmat when he was fired at. The distance, according to this witness, was 45 karams which would roughly come to 15 to 20 feet. The learned counsel has referred to the statement of Dr. Ashfaq Ahmad P. W. 1 who found a gun‑shot wound 1/8" in diameter on the inner side of the left thigh. The doctor observed that the wound had a black tattooing mark around it. The learned counsel has referred to the Modis' Medical Jurisprudence, 1959 Edition, page 229, where the learned Author has said that no blackening or tattooing can be found if the shot was fired from a distance of more than 4/5 feet. The learned counsel also argues that this was a self‑suffered fresh injury. The injured person was examined at 1'o clock in the night and according to the, doctor blood was oozing out of the wound. The learned counsel argues that it is not believable that the blood was oozing out after six or seven hours of the infliction of this small injury. It is also pointed out that the pistol recovered from Rehmat is Webley's revolver in which bullet is used. It is stated that the wound on the person of Khushi Muhammad is not a wound by bullet but has been caused by a pellet. The learned counsel also points out that even if a cartridge was used, the discharge made, from a distance of 4 feet would have resulted in larger number of pellets being embedded in the body of the injured person. It is also pointed out that the injury on the person of Boora is an incised wound 1" x " x " on the posterior surface of the left forearm. The learned counsel argues that if this was a spear wound, it should have been more serious and would have been in the nature of a stab wound and not just an incised wound. So far as she third petitioner, Murad is concerned, it is submitted that no injury has been ascribed to him.

9. I have considered the evidence in this case and find that the Courts below did not at all advert to the nature of the injuries in this case. A contention to this effect was raised before the learned Additional Sessions Judge, but he repelled the same without considering it in detail. Admittedly there was enmity between the two factions and the evidence of the prosecution witnesses had to be subjected to scrutiny before it could be believed. The oral testimony of the witnesses runs counter to the medical evidence on the record and this was a strong circumstance in favour of the accused. The two Courts below have believed the testimony of Bashir and Ismail C. W. 1 and C. W. 2 on the ground that they appeared to be disinterested witnesses. The disinterestedness of a witness is a relevant consideration in the process of weighing his testimony, but when the: probabilities of 31, case do not fit in with such oral testimony the Court will not he persuaded to base the conviction oft the evidence of the witnesses who may appear seemingly to be disinterested.

10. In view of the above, I would accept this revision petition and direct that the petitioners be released forthwith, if they arc not lawfully required to be detained in connection with sonic other matter.