FAYYAZ HUSSAIN Versus THE STATE
The petitioners in this criminal revision, namely Mumtaz (aged 24 years), Sultan (aged 24 years), Fateh Muhammad (aged 28 years) and Masoo (aged 30 years), were convicted of an offence under section 307, read with section 34 of the Pakistan Penal Code by Mr. Mohsin Shirazi who was exercising enhanced powers under section 30 of the Code of Criminal Procedure at Sargodha, and were sentenced to suffer rigorous imprisonment for a period of 3 years and to pay fines of Rs.1,000 each. In default of payment of the fines they were to suffer further rigorous imprisonment for a period of four months each. They referred an appeal before the Additional Sessions Judge, Sargodha, which was dismissed on 20‑4‑1982. They have now come in revision to this Court.
2. According to the prosecution, in October, 1980, Dost Muhammad (P.W.5), working as clerk with an Advocate at Sargodha, had gone to his village to spend the Eid holidays. On the morning of 22‑10‑1980, at 5‑30 a.m., he was returning to Sargodha to resume his duties. When he reached near the Moga on the Main Branch of the Kirana Canal within the limits of Chak No. 22/S.B., he was set upon by the petitioners who were carrying Sotas. He was given a good beating and left at the spot. The occurrence was witnessed by his brother, Ahmed (P.W.11), and brother‑in‑law, Allah Ditta (P.W.4). These witnesses took him to the Civil Hospital at Sargodha.
3. The motive for the occurrence was stated to be an incident which had taken place a year and a half earlier. During the said incident the petitioners, barring Masoo, had allegedly attacked and caused grievous injury to Inayat (P.W.1), brother of Dost Muhammad (P.W.5). The said petitioners were prosecuted and convicted. They had filed an appeal in the Court of Session. The appeal was to come up for hearing on the day of the present occurrence.
4. Dr. Altaf Hussain (P.W.8) who was posted as Medical Officer in the Civil Hospital, examined Dost Muhammad (P.W.5) immediately upon the latter's arrival in the hospital, that is, at 5‑30 a.m. The doctor found as many as seventeen injuries on his body. Three of the injuries were grievous and had led to the fracture of both legs and the right hand.
5. S.I. Abid Hussain (P.W.9) of Police Station Bhagtanwala was already present in the hospital in connection with some case. He recorded the statement of Dost Muhammad (P.W.5) at 2‑30 p.m. On the basis of this statement a case was registered at Police Station Bhagtanwala at 3‑30 p.m.
6. The petitioners pleaded not guilty to the charge against them. They denied that they had attacked Dost Muhammad (P.W.5) and inflicted any injuries on him. They produced two witnesses in defence. These witnesses stated that Dost Muhammad (P.W.5) was attacked by some unknown persons at night.
7. At the trial, the prosecution relied mainly upon the testimony of three eye‑witnesses, namely, Dost Muhammad (P.W.5), Allah Ditta (P.W.4) and Ahmed (P.W.11). Dost Muhammad (P.W.5) was of course the victim of the attack. Ahmed (P.W.11) was his real brother while Allah Ditta (P.W.4) was married to his sister. Both Allah Ditta (P.W.4) and Ahmed (P.W.11) claimed that they were present at the spot at the time of occurrence and had seen the petitioners giving Soti blows to Dost Muhammad (P.W.5). The Courts below have not relied upon the testimony of Ahmed (P.W.11) and I would also exclude his statement from consideration.
8. This leaves me with the depositions of Allah Ditta (P.W.4) and Dost Muhammad (P.W.5). It is to be noticed that the occurrence took place at a deserted place and at a time when hardly any one would be present there. In this regard Allah Ditta (P.W.4) himself admitted:‑‑
The explanation which Allah Ditta offered for his presence at the spot was that he had gone there to find out if there was any water running in the canal. This explanation cannot be regarded as satisfactory. The occurrence took place on the morning of Wednesday. He admitted in his cross‑examination:‑‑
Now, if this witness's turn of water was to come on Tuesday, he would not have walked all the way to the Mogha on the canal on Wednesday morning to find if there was any water in the canal. Apart from that, it was entirely unnecessary for him to go to the canal for this purpose. The running of water in the Khal was itself an indication that the canal was not dry. It is also to be noticed that Allah Ditta was an eye‑witness in the other case too which had been registered against the petitioners for causing grievous hurt to Inayat (P.W.1). I have already mentioned above that Allah Ditta is married to a sister of Dost Muhammad (P.W.5). No doubt he claimed that he was related to the petitioners also but quite clearly his relations with the complainant party are comparatively much more close. Taking the above circumstances into consideration, I am not satisfied if Allah Ditta (P.W.4) was also present at the time of occurrence. I am, therefore, reluctant to rely upon his testimony.
9. There can be no doubt about the presence of Dost Muhammad (P.W.5) at the spot for as already mentioned, he was the victim of the attack. Considering the nature of the injuries found by the doctor on his person it does appear that he was attacked by more than one person. He has specifically named the four petitioners as his assailants. The question is whether I can rely upon his testimony implicitly with regard to the number of persons who had beaten him. After giving careful thought to the matter, I think I cannot. Though the parties are related, yet admittedly, disputes over arrangements of marriage had embittered their inter se relations. There had already been a criminal case in which the parties were arrayed on opposite side: That being the setting in which, the occurrence took place, the possibility of one or even two false additions cannot be precluded, Accordingly. I think it will be unsafe to accept uncorroborated testimony of Dost Muhammad (P.W.5) to convict the petitioners of a charge of attempt to murder. No confirmatory evidence is available in the case. Even the p F.I.R. was lodged about nine hours after the occurrence. In the circumstances, I give the benefit of doubt, though reluctantly, to the petitioners and hold that the charge framed against them does not stand proved with that measure of certainty as is required for the safe dispensation of justice. Consequently, I set aside the conviction and sentences of the petitioners and acquit them of the charge against, them. They are already on bail. Their bail bonds shall stand discharged.
M. A. K. Petition accepted.