MUHAMMAD Versus STATE

Fateh Muhammad (50) son of Sultan, Falak Sher (30) son of Fateh Muhammad, Manzur (5th) son of Karam Ali, Zulfiqar (A) son of Sarang Mashhood (35) son of Kalu, Muhammad (40), son, of Kalu and Mansha (30) son of Hassan, were tried by Ch. Muhammad Siddiq, Magistrate Section 30, Chunian, under sections 148 and 307/149 of the Pakistan Penal Code for having formed themselves into an unlawful assembly with the common object of making assault on Jafar, Mumtaz Hussain and Nawazish P. Ws., and in the prosecution of that common object of the said unlawful assembly to have on 6th September 1971, in the area of village Megha, made murderous assault on the aforesaid' P. Ws. as a result of which Jafer P. W. was injured by a gun shot. By judgment, dated 9th July 1975, he convicted them under sections 148 and 307/149, P. P. C. Under section 148, P. P. C., they were sentenced to No years' R. I. each. Under section 307/149, P. P. C. Fateh Muhammad was sentenced to five year's R. I. and a fine of Rs. 1,000 or in default in the payment thereof to further R. 1. for one year while the remaining accused were sentenced to two years' R. I. and a fine of Rs. 200 each or in default in the payment thereof to R. I. for four months each. Out of the fine, if realised, a sum of Rs. 1,000 was ordered to be paid to Jafar P. W. as compensation. All the sentences were ordered to run concurrently. The convicts have appealed.

2. Tire brief facts of the prosecution case are that about sine anti a half years prior to occurrence a water dispute arose between Mali; Mumtaz Hussain complainant and Manzoor Ahmad appellant. The m atter was decided by the Canal Department in favour of the complainant over which Manzur Ahmad appellant got annoyed. About 3/4 days prior to the occurrence a buffalo‑calf of Manzur Ahmad trespassed into the cotton and paddy fields of the complainant which was seized by his servant Muhammad Ali. He took it to the dera of the complainant but later on it was released. On the same day, the buffalo‑calf again damaged the crop of the complainant who abused the accused party. On the next day the complainant went to Pattoki and on his return to the village in the evening he was informed that Mst. Rani, wife of Manzur appellant, bad abused his women‑folk. He again hurled abuses on the accused party whereupon Manzur appellant sent a massage that he would deal with him. On 6th September 1971 at about evening time Mumtaz complainant was present at his dera. His brother Nawazish, Sher Muhammad and three or four other persons were also sitting at the dera. Rafiq P. W. came there and told him that all the seven appellants were coming to his dera raising lalkaras against him. The complainant and his companions got up and came to the outer gate of the dera. In the meantime, all the appellants came there. Fateh Muhammad appellant was armed wi1r a ‑12 bore gun. Falak Sher with a revolver, Manzur with a dang and the remaining had sticks in their hands, Manzur appellant abused the complainant party. In the meantime, Jafer P. W. had also come to the whereupon Manzur appellant exhorted Fateh Muhammad appellant to fire the gun. Fateh Muhammad appellant aimed his gun at the complainant party where upon they went inside the dera. Fateh Muhammad fired a shot which hit Jafar P. W or his buttock. Mumtaz complainant fired 3/4 shots in the air to scare away the accused persons. The accused also fired some more shots and went away. After the occurrence, Mumtaz complainant started for the police station. On the way, Zakaud Din A. S. I., met him near Hala Canal Bridge and he reported the occurrence to him at 12‑15 a.m. on 7 th September 1971 vide his statement (Exh P.A) on the basis of which formal F.I.R. (Exh. PA/1) was recorded at the police station at 2-30 a.m. on 7th September 1971 vide his statement (Exh. P. A.) on the basis of which formal F. I. R. (Exh. PA/1) was recorded at the police station at 2‑30 a.m.

3. After recording the statement (Exh. P. A.) Zakaud Din A. D. 1. reached the spot. He found Jafar P. W. in injured condition, prepared his injury‑statement (Exh. P. E.) and sent him to th, hospital for medical examination. On 8th September 1971 Malik Mumtaz Hussain produced blood‑stained chadar (Exh. P. 1) of Jafar P. W. before him which he took into possession vide memo Exh. P. B. On 14th September 1971 Fateh Muhammad appellant produced his licensed gun (Exh. P. 2) and licensed revolver (Exh. P. 3) before the A. S. I. who took them into his possession vide memo. Exh. P. G. Falak Slier, Zulfiqar, Muhammad, Mansha and Manzur Ahmad appellants were arrested on 13th September 1971. After the investigation, the appellants were challaned.

4. On 7th September 1971 Dr. Muhammad Ashraf, Medical Officer Chunian, examined Jafar P. W. and found the following injury on his person:‑--

"An oval wound 1/3' diameter x '1' deep on probing on the right gluteal region directed laterally and downward."

The injury was simple caused by a firearm within the duration of 24 hours.

5. To support its case the prosecution examined eight witnesses in all its main stay being the ocular testimony of Malik Mumtaz Hussain complainant, Jafar (P. W. 1) and Rafiq (P. W. 3). The prosecution also relied on the motive and the recovery of gun and revolver from Fateh .Muhammad appellant.

6. The appellants pleaded not guilty to the charge and dented the prosecution allegations against them. However, Pateh Muhammad appellant admitted that be had produced his licensed gun (Exh: P 1) and licensed revolver before the police but contended that those were not the weapons of offence. He stated that he had been falsely implicated due to enmity. Falak Sher appellant stated that there was enmity between his fairer Fateh Muhammad and the complainant party, therefore, he was falsely implicated. Zulfiqar stated that Fateh Muhammad appellant was his maternal uncle, Therefore, he was falsely involved in this case. Mansha appellant contended that his sister was married to Manzur appellant, therefore, he has falsely involved. Muhammad appellant stated that he was a tenant of Fateh Muhammad who had enmity with the complainant party, therefore, he was falsely implicated. Falak Sher, Fateh Muhammad, Manzur and Mashhood examined Abbas (D. W. 1) in there defence who stated that the parties were known to him and that 7/8 years before, one Nazra who was a friend of Fateh Muhammad appellant, had abducted the sister of the complainant over which the complainant was annoyed with Fateh Muhammad appellant and had alleged that it was due to his prompting that Nazra had abducted his sister". He further stated that the step‑daughter of Manzur appellant was married to Sheikh Ahmad but five or six year back she was abducted by Fateh Muhammad appellant and for that reason Manzur appellant etc were on inimical terms with Fateh Muhammad appellant. He further stated that no fight ever took place in front of the dera of Malik Mumtaz.

7. The trial Magistrate believed the prosecution evidence and found all of them guilty under sections 148 and 307/149 of the Pakistan in Penal code.

8. The learned counsel for the appellants vehemently argued that the author of this case, namely, Malik Mumtaz Hussain complainant, being the biggest landlord of the area, wielded influence over the police and he had brought this false case against the appellants in order to victimize them. He elaborated that Jafar P. W. had only one pellet injury on his person which in all probability was not the result of a fire by an enemy hand and seven persons were implicated. He further argued that the evidence and circumstances of the case clearly indicate that the occurrence had not taken place in the manner alleged by the prosecution.

9. After hearing the learned counsel for the parties and going through the evidence, I am of the view that the conviction and sentence of the appellants is unsustainable. From the evidence it appears that Malik Mumtaz who was a hot‑headed person, had enmity with Fateh Muhammad and Manzur appellants. He admitted that he had a water dispute with Manzur Ahmad appellant. He also admitted that a buffalo‑calf of Manzur had trespassed into his fields whereupon he abused, the accused party. He further admitted that on the next day when he returned from Pattoki he was informed that the wife of Manzur had abused his women‑folk whereupon be again abused the accused party. He also admitted that his father was murdered in the year 1953 and Nur was one of the accused persona in that case and Jalal, father‑in‑law of Fateh Muhammad, was the uncle of aforesaid Nur. The Investigating Officer admitted that Malik Mumtaz complainant was the biggest landlord of his village and injured P. W. Jafar was his tenant. It is also in evidence that during the days of occurrence Rafiq (P. W. 3) was a tenant of Rafiq Bhatti (not produced) who is a collateral of the complainant. Thus, Jafar (P. W. 2) and Rafiq (P. W. 3) seem to be under the influence of Malik Mumtaz Husain complainant who is the biggest landlord of the village: The complainant had direct enmity with the accused party and in view of this background, the evidence of the eye‑witnesses would require a careful scrutiny. Enmity is a double‑edged weapon it may constitute motive for the attack and at the same time it may motivate a person to falsely implicate his enemies. One thing is clear from the record that Malik Mumtaz Hussain complainant is a hot‑headed person having no regard for propriety and fairplay. According to his own showing, he abused the accused party, firstly when the buffalo‑calf of Manzur appellant damaged his crop and again when he was informed that the wife of Manzur had abused his women‑folk. He did not feel the necessity of ascertaining the correctness of his information and straightaway hurled abuses on the accused party.

10. Injured P. W. War who is the star witness of the prosecution, stated that on the day of occurrence he was going with a Kassi in hi, hand to avail his turn of water when he saw all the appellants coming behind him variously armed abusing Malik Mumtaz Hussain. He reached the dera of Malik Mumtaz Hussain and informed him that the appellants were coming towards his dera. According to him, Malik Mumtaz, Rafiq P. W., Nawazish and Sher were standing outside the outer gate of the dera when he reached there and the appellants also came near the dera about one minute later and stood at a distance of 17/18 karams from the gate. On the other hand, Rafiq r. W. deposed that he was going to the dera of Malik Mumtaz for taking a bath and he saw the appellants coming from the western side variously armed "raising lalkaras to kill the Maliks. He stated that he gathered speed and on reaching the dera of Malik Mumtaz he informed him that the accused were coming. He further stated that as sort as he informed the complainant he and his companions came to the outer gate of the dera and by that time ill the accused had come there and stopped at a distance of 213 kanals from the dera According to him by that time afar P. W. had also toed, the dera. He did not state that Jafar P. W. had also informed the complainant that the accused were coming to his dera. His statement rather shows that the appellants had come to the dera and stood at a distance 2/3 kanals from it before the arrival of Jafar P. W. It appears that while fitting the statements Rafiq and Jafar wanted to outdo each other so far as their fidelity towards the complainant was concerned. At the trial, Jafar P.W. asserted that he had told the police that he had apprised Malik 4pmtaz that the accused were coming, that the accused stopped at a distance d 17/18 karms, that Manzur accused had exhorted Fatah Muhammad to le and, that Fateh Muhammad accused had aimed at the P. Ws. who entered the Haveli. He was confronted with his statement before the police (spy Exh. D. A.) where these facts were not mentioned. In examination‑in-chief Jafar P. W. stated that the accused also fired some more shots. He was confronted with his statement before the police where it was not so recorded. According to the 'doctor, a pellet was recovered from the buttock of Jahr P. W. and was handed over to the police but strangely enough, Jafar P.W. stated "It is for the doctor to say whether some pellets were prod in my injured place or not." It was suggested to him that he so a servant of malik Mumtaz and the complainant party had injured 10 from a close range to involve the accused persons in a false case but ho denied the suggestion as incorrect. War P. W. further stated that he remained in the hospital for 15/20 days but this statement does not ring W because in the medico‑legal report the columns for dates of admission sad discharge are blank his Injury was simple and the pellet had been recovered from his body on 7th September 1971 when he was examined. Jafar P.W. admitted that he went to the hospital in the company of Malik Mumtaz Russain and one constable. This shows the interest of Malik Mumraz Russain. As already stated above, all the eye‑witnesses were unanimous that the appellants fired more shots. Malik Mumtaz Husain complainant further stated that when Fatah Muhammad appellant fired a shot the accused were at a distance of 20/25 Karam, from him and his companions and injured P. W. Jafar was standing by his side at that time. According to Jafarr P. W the accused fired from a distance of 17/18 Karams and according to Rafiq P. W. Prom distance of two Kanals. The Investigating Officer stated that he did not fund any pellet marks on the door or walls of the dera of Mumtaz complainant. If the accused persons had fired from that much distance, the diameter of the spread must have been sufficiently wide and in that case Mumtaz complainant who was standing by the side of Jafar P. W., would not have escaped unhurt and some pellet marks must have been found on the door and walls of the dera. This circumstance belies the prosecution version.

In this case one person was Injured and seven persons have been involved. The injured person had only one simple injury on his person. No overt act is attributed to the appellants other than Fatah Muhammad appellant. In view of the background of enmity between the parties, the possibility of alt or any of the appellants having Den falsely implicated cannot be excluded in this case. The trial Magistrates completely Ignored this aspect of the case.

11. For all the foregoing reasons, I accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge against them. They shall be set it liberty forthwith if not required to detained in any other case.

Appeal allowed.