MUHAMMAD DILNAWAZ Versus THE STATE
The four petitioners stand convicted under section 307 read with section 34, P. P. L., and sentenced to four years' R. I. and a fine of Rs. 200 each. Their appeal to the Sessions Court having failed, they have approached this Court for the revision of their conviction and sentence.
Munawar Khan petitioner is the father and the remaining three, namely, Muhammad Dil Nawaz. Muhammad Aslam and Muhammad Fazil are the sons of the brother of Munawar khan petitioner.
2. The incident in question is alleged to have arisen out of an altercation between Sardar Bahadur P. W. Ss (not related to the parties) Muhammad Aslam petitioner. Sher Muhammad P. W. gave guarantee of transaction to of the said Sardar Bahadur. He acted as an intermediary between Sardar Bahadur P. W. and Muhammad Aslam petitioner when the former purchased a buffalo from the latter.
According to the prosecution version, Sher Muhammad P. W. guaranteed that the buffalo was of a high quality. On the surety given by him the transaction of sale was finalized. But subsequently Sardar Bahadur P. W. sought to return the buffalo and wanted his money back as he wag not quite satisfied with the deal. Sher Muhammad P. W. having stood surety forced Muhammad Aslam petitioner to take the buffalo back and reimburse the purchaser. Under the pressure of Sher Muhammad P. W., it is alleged, Muhammad Aslam petitioner had to yield. But them he warned a grudge against Sher Muhammad P. W. so, according to the prosecution, on the 2nd of July 1972, at degerwela, Muhammad Aslam petitioner alongwith his father and two others attacked Shr Muhammad P. W. and his brother Muhammad Fazil when they were working at the well of Kh. Muhammad Khan P. W. Munawar Khan and Dil Nawaa petitioners were allegedly armed with knives while Muhammad Aslam and Muhammad Nawaz petitioner with Tangs. Muhammad Fazil P. W. is said to have used his sickle in self-defence and Sher Muhammad P. W. tried to defend himself by throwing stones at the assailants. Consequently, Munawar Khan, Dil Nawaz and Muhammad Aslam petitioners were also injured though not Muhammad Nawaz. However, on the entreaties of the persons who reached the spot at the tune of the occurrence, the petitioners left without actually killing their victims.
The injured from both sides were taken to the hospital and the first information report was taken by the police from Sher Muhammad P. W. but not until 7-00 p.m. However, no case appears to have been registered at the instance of the opposite party.
3. The defence version is that the sale of the buffalo was unconditional but when Sardar Bahadur P. W. returned the buffalo to Muhammad Aalam petitioner, the latter deducted Rs. 100 from the sale price and refunded the balance. It was this deduction that enraged Sher Muhammad P. W, through whose efforts the bargain had been struck. So, Sher Muhammad and Muhammad Fazil P. Ws. alongwith two others waylaid and attacked Munawar Khan, Muhammad Aslam and Dil Nawaz petitioners while they k were passing by the well of Khawaja Muhammad Khan P. W.
According to the petitioners, neither Muhammad Nawaz petitioner was present at the scene of occurrence nor the persons examined by the prosecution as eyewitnesses. However, no evidence was led in defence.
4. Besides the two injured witnesses, the prosecution examined Sardar Khan (P. W. 5), Muhammad Afzal (P. W. 6) and Nawab Khan (P. W, 7) as eye-witnesses. Out of these, Sardar Khan and Nawab Khan P. Ws. not having been mentioned in the F. I. R. were disbelieved by the learned appellate Court. But Muhammad Afzal P. W. was considered reliable and his testimony was taken as sufficient corroboration of the account given by the injured witnesses.
5. Perusal of the medical testimony on record will show that Muhammad Fazil P.W. sustained 12 injuries, some with sharp-edged weapons and some with blunt weapons and one of them was adjudged grievous. Sher Muhammad P. W. was found to have received 7 injuries of both kinds and one of them again grievous. On the other side Munawar Khan petitioner sustained 8 injuries gill caused with sharp-edged weapon except two abrasions. All the injuries, however were found to be simple. Muhammad Aslam petitioner received 5 injuries all simple, and caused with blunt weapon. Dil Nawaz petitioner sustained only one injury which was in the nature of a stab wound on the right side of the abdomen,
From the prosecution and the defence versions it is clear that the incident itself is not in dispute though either party has tried to throw the blame on the others. Therefore, the question for determination in this case is whether it was the petitioners who were the aggressors.
6. According to the prosecution Sher Muhammad and Muhammad Fazil P. Ws. were surprised when the four petitioners attacked them. Two, out of them were armed with knives and the other two with dangs. In such a situation, it is difficult to imagine how the two brothers, namely, Sher Muhammad and Muhammad Fazil P. W. who bad been caught unawares, could cause as many as 14 injuries in all to their assailants even if one of them had a sickle is his hand and the other had access to stones lying about Munawar Khan petitioner, an old man of about 65 was stabbed four times. In addition to the four stab wounds he also received two incised injuries and two abrasions. In my opinion if all the three sons of his were present with knives and dangs they would not allow Sher Muhammad and Muhammad Fazil P. Ws. to cause so many injuries to Munawar Khan petitioner. They could have easily disabled the opponents even if they did not intend actually to kill them.
In view of this circumstance I am not convinced, unlike the Courts below, that the prosecution has satisfactorily explained the injuries sustained by the three out of the four petitioners. In fact the possibility of the injured P. Ws. having attacked the petitioners with the help of some others, as alleged in defence, and the petitioners having acted in self-defence, cannot be ruled out. From the number of injuries on either side it appear that the parties were equally balanced. And Muhammad Nawaz not having sustained any injury whatsoever appears to have been implicated solely because of his relationship with the other petitioners,
7. Further, Sardar Bahadur P. W. who is a disinterested witness admitted that Muhammad Aslam petitioner had deducted Rs. 5u from the sale price when the sale transaction was cancelled. It is thus clear that even if he did not take the buffalo back willingly and reimbursed the sale consideration with a heavy heart, he compensated himself very well by retaining at least Rs. 50 if not Rs. 100 out of the sale price. Therefore, it cannot be said that he had any further cause of grievance against Sher Muhammad P. W. But Sher Muhammad P. W. could have had a grudge against Muhammad Aslam petitioner on account of the deduction made by the latter unilaterally. Therefore, with regard to the motive also I am of the view that it was possibly on the part of the complainant.
Under these circumstances I hold that the case against the petitioners is not completely free from doubt and the benefit of this doubt should have been given to the petitioners who were the accused persons before the trial Court. The learned Appellate Court was also in error in placing complete reliance on the testimony of Muhammad Afzal P. W. without giving due consideration to the attending circumstances.
8. I accordingly accept the revision petition, set aside the conviction of the petitioners and the sentences awarded to them and acquit them.
Petition accepted.