MURAL ALI Versus STATE
Murad Ali (60) son of Muhammad Khan, Jewna (32) son of Shera, Zafara (35) son of Mehra and Allah Bakhsh alias Basoo (25), all Muslim Sheikh by caste, residents of Mitha Tiwana, were tried by Magistrate Section 30, Jauharabad, under section 307/34, P.P.C. for making murderous assault on Muhammad Yusuf P.W. By judgment dated 22nd September, 1980, Allah Bakhsh alias Basu was acquitted while Murad Ali, Zafara and Jewna were conviction the said charge and sentenced to rigorous imprisonment for seven years and a fine of Rs.500 each or in default in the payment thereof to undergo further R.I. for six months each. The convicts have appealed.
2. The brief facts of the prosecution case are that on 27th March, 1974 at 6 a.m. Muhammad Yusuf P.W was going towards the fields in order to ease himself. When he reached near a wheat field, the appellants and acquitted accused Allah Bakhsh alias Basu suddenly emerged from that field and challenged him that they had come to take revenge. Murad Ali appellant was armed with a knife, acquitted accused Allah Bakhsh alias Basu with a Lathi while Zafara and Jewna were empty-handed. Zafara and Jewna caught hold of Muhammad Yusuf P.W. Murad Ali gave him blows hitting his face and hand and acquitted accused Allah Bakhsh alias Basu gave him a Lathi blow on the chin. On hearing the alarm, Muhammad Sher complainant (P.W.2), Gul Muhammad son of Khuda Yar and Gul Muhammad son of Hayat (both not produced) got attracted. On seeing them, the accused persons fled away from the spot.
A quarrel between the children and women folk of the parties which took place four or five days prior to the occurrence, is stated to be the motive for the offence.
After the occurrence, Muhammad Yusuf injured was taken to Civil Hospit.f, Jauharabad, where he was medically examined. After obtaining his medico-legal report, Muhammad Sher complainant went to Police Station Mitha Tiwana and reported the occurrence to Asghar Ali, Muharrir Head Constable, at 4.55 p.m. vide F.I.R. Exh.P.A. The case was investigated by Muhammad Ashraf S.H.O., Police Station Mitha Tiwana. After the investigation, the accused persons were challenged.
3. On 27th March, 1974 Dr. Abdul Qayyum, Medical Officer, Civil Hospital, Jauhrabad; examined Muhammad Yusuf P.W. and found the following injuries on the person:
"(1) An incised wound 1 " x 1/8" x 3/4" deep below the left eye. Eye-ball is clearly felt and weapon has gone from below and behind the eye-ball. It is " below the left eye.
(2) An incised wound 3/4" x 1/8" bone deep upto 3/4" (bone of the root of nose is clearly felt) just medical to the inner end of left eye.
(3) An incised wound vertically situated of size 3/8" x 1 /16" on the centre of cornea and was deep upto the posterial part of eye-ball. Whole of the cornea was rolled in a flap which was corrected but was quite likely lost away. Whole of the conjunctive was swollen and bleeding from the wound. The upper eye lid was swollen, colour was bluish red.
(4) An incised wound " x " on the centre of upper lip.
(5) Contused wound " x " on the inner side of lower lip and similar wound was on the inner side of upper lip."
Injury No.3 was grievous and rest were simple in nature. Injury No. 5 was caused by blunt weapon and the other injuries with sharp-edged weapon.
4. The accused persons pleaded not guilty to the charge. They denied the prosecution allegations and stated that in fact the complainant party had attacked them in their house causing injuries to their womenfolk but the police did not register any case against them and instead falsely implicated them in this case. The defence version suggested to the eye witnesses was that they trespassed into the house of the accused party and caused injuries to Murad, Shera, Mst. Jatti and Bhag Bhari and aforesaid Sher injured them in defence of his own person and that of his companions. Muhammad Ali was examined as a defence witness who stated that Muhammad Yousuf injured and Muhammad Sher P.W. had attacked Murad Ali, Shera, Mst. Jatti and Mst. Bhag Bhari in their house and that the accused persons were falsely implicated. The accused persons also produced medico-legal reports Exhs. D.A. and D.B. of Mst. Jatti and Mst. Bhag Bhari.
5. In support of its case the prosecution examined Muhammad Yusuf injured and his brother Muhammad Sher P.Ws. Gul Muhammad son of Khuda Yar and Gul Muhammad son of Hayat Muhammad, named as eye witnesses in the F.I.R. were not produced at the trial.
6. The learned trial Magistrate accepted the prosecution evidence against the appellants and convicted and sentenced them as mentioned above. He, however, acquitted Allah Bakhsh alias Basu by giving him the benefit of doubt.
7. The learned counsel for the appellants contends that the facts and circumstances of the case indicate that the accused party had acted in exercise of the right of self-defence when Muhammad Yusuf injured and his brother Muhammad Sher trespassed into their house and caused injuries to their women folk. He submits that the defence version is definitely more possible than the prosecution story and the appellants are entitled to acquittal.
8. There are two versions of the same occurrence, one narrated by the prosecution and the other by the defence. Both the versions have been detailed above and need not be recapitulated here. It is the case of the prosecution that the occurrence took place outside the village near the wheat crop when Muhammad Yusuf injured was going out to ease himself. Muhammad Sher P.W. and his brother Muhammad Yusuf injured are unanimous that much blood had oozed out of the wounds of the latter. Muhammad Yusuf further stated that blood had also fallen or the ground. No blood-stained earth was taken into possession in this case and the Investigating Officer, namely, Muhammad Sharif S.H.O. (C.W.1) who reached the spot and prepared the site plan, categorically stated that there was no blood found at the spot. In the circumstances, it cannot be said with any degree of certainty that the occurrence had taken place near the wheat crop, as alleged by the prosecution. It is prosecution's own case that parties had strained relations due to quarrel between the children and womenfolk. The evidence of Muhammad Yusuf and Muhammad Sher who are real brothers inter se, therefore, requires corroboration which is not forthcoming. The absence of the blood-stained earth from the alleged place of occurrence rather creates a doubt as to the genuineness of the prosecution version.
On the other hand, absence of blood-stained earth at the alleged place of occurrence and medico-legal reports of Mst. Jatti, wife of Jewna, and Mst. Bhag Bhari, wife of Allah Bakhsh, lend support to the defence version. Both these women were examined on 28th March, 1974 by the Medical Officer, T.H.Q. Hospital, Khushab, and duration of their injuries B corresponds with the time of occurrence. One of the injuries on the person of Mst. Jatti was grievous in nature. There is nothing on the record to suggest that the accused had fabricated these injuries to create the plea of self-defence. I am, therefore, of the view that there is a reasonable possibility of the defence version being true.
9. For the foregoing reasons I allow this appeal, set aside the convic tion and sentence of the appellants and acquit them of the charge. They shall be set at liberty forthwith if not required to be detained in any other case.
M. Y. H. Appeal allowed.