KHUSHI MUHAMMAD AND 2 OTHERS Versus THE STATE
The learned Assistant Commissioner/Magistrate 1st Class Chunian vide his judgment dated 2‑5‑1987, convicted the petitioners under section 324/34, P.P.C. and sentenced Aas Muhammad to undergo one year's rigorous imprisonment, while the other petitioners, namely, Khushi Muhammad, Umar Din and Umaid Khan were sentenced to suffer six months' rigorous imprisonment each for having caused simple injury on the person of Suleman complainant (P.W.1) at left elbow and further for inflicting an injury on the right flank of Muhammad Ramzan (P.W.2). The petitioners feeling aggrieved of their conviction and sentence went in appeal which was heard and dismissed by the learned Additional Sessions Judge, Kasur, vide his order dated 18‑7‑1987. It may be noted that co‑accused Umaid Khan, father of the other petitioners, was acquitted by the learned Additional Sessions Judge because the only allegation against him was that he raised a lalkara at the spot. The petitioners have challenged their conviction and sentence by filing the instant revision petition.
2. Briefly stated, the case of the prosecution is that the complainant Suleman (P.W.1) went to the house of the petitioners to lodge a complaint inasmuch as the daughter of the complainant was molested by the accused in an earlier incident. The petitioner Aas Muhammad was alleged to have been armed with a spear. Khushi Muhammad petitioner possessed a revolver and the petitioner Umar Din had a Takwa with him. Umaid Khan, acquitted co‑accused raised a lalkara that the complainant should be taught a lesson for falsely accusing Umar Din petitioner. Upon this Aas Muhammad petitioner gave injuries to Suleman complainant and Muhammad Ramzan (P.W.2) who tried to intervene.
3. The prosecution in order to prove its case against the accused persons produced as many as five witnesses. P.W.1 Suleman is the complainant in the case. He has reiterated his stand he had taken before the investigating officer. He stated in Court that he went to the house of the petitioners with a complaint that his daughter was molested by one Nikku Khan. Upon this, the petitioners who were present and were armed with weapons of offence, opened an attack upon the complainant. The petitioner Aas Muhammad is alleged to have caused a spear blow which landed on the left elbow of the complainant. Similarly, the said petitioner Aas Muhammad caused an injury with his spear on the person of Muhammad Ramzan (P.W.2). In support of this evidence of the complainant, the prosecution has produced Muhammad Ramzan (P.W.2) and Sarwar Shah (P.W.3).
4. Dr. Iftikhar Ahmad (P.W.4) medically examined the injured witness Suleman complainant (P.W.1) on 9‑5‑1982 and found the following injury on his person:‑
An incised wound 1 x 2 cm. x muscle deep on the back of left arm lower end.
The injury was caused by a sharp‑pointed weapon and was simple in nature.
Similarly, the same doctor medically examined Muhammad Ramzan (P.W.2) on 10‑5‑1982 and found the following injury on his person:‑
An incised wound 1 cm. long x skin deep on the inner side of right thigh middle part.
According to the Dr. Iftikhar Ahmad, the injury was caused by a sharp‑pointed weapon and was simple in nature. In cross‑examination, the witness candidly admitted that the injury on the person of Muhammad Ramzan (P.W.2) could not possibly be caused by a pointed weapon. He also admitted that the injury on the person of Suleman complainant (P.W.1) could not be caused by a hatchet. Qutab Din A.S.I. (P.W.5) is the investigating officer. He stated that the recovered a Sota at the pointing out of Aas Muhammad petitioner. C.W.1 Bashir Ahmad appeared as a recovery witness. However, he did not support the recovery. He stated that the petitioner Aas Muhammad was already in police custody and that the investigating officer directed him to witness the recovery of the Sota. He further stated that on the direction of the investigating officer, he placed his thumb‑impression on the recovery memo.
5. The petitioner while making statements under section 342, Cr.P.C. denied the allegations levelled against them and stated that the case has been set up against them on account of enmity and grudge.
6. I have heard learned counsel for the parties. It is contended by the learned counsel for the petitioners that the prosecution has wholly failed to prove its case against the petitioners beyond reasonable doubt. It is forcefully submitted that the medical evidence has completely belied the ocular account provided by the prosecution witnesses in the case. He stated that enmity between the parties is established on record and therefore, possibility cannot be ruled out that the petitioners have been involved in the case to put pressure upon them so that they may give up their rights accruing to them in the civil litigation. Learned counsel stated that the Investigating Officer has admitted in his cross‑examination that there is a civil litigation pertaining to piece of land between the parties before the civil Court. Learned counsel for the petitioners urged that the prosecution has miserably failed to prove the vicarious liability against the petitioners Khushi Muhammad and Umar Din inasmuch as there is no evidence forthcoming to show that the provisions of section 34, P.P.C. are attracted to the facts and circumstances of the case. He maintained that admittedly the petitioners were sitting in their own drawing room when the complainant went there with a complaint. The learned counsel, therefore, stated that under these circumstances, there is no question of the attraction of section 34, P.P.C. The learned State counsel has submitted that the petitioners have been named in the F.I.R. and that the witnesses are independent. He has supported the conviction and sentence awarded to the petitioners by the Courts below.
7. After hearing the learned counsel for to parties and perusing the record very minutely, I am of the view that the prosecution has not been able to prove its case against the petitioners beyond reasonable doubt. To begin with, the medical evidence has not at all supported the prosecution version. The prosecution case is that Aas Muhammad petitioner was armed with a `spear. However, the above referred doctor has specifically stated in the cross‑examination that the injuries on the persons of Suleman complainant (P.W.1) and Muhammad Ramzan (P.W.2) could not be caused with a pointed weapon as well as with a hatchet. Thus, the ocular account of Suleman (P.W.1) Muhammad Ramzan (P.W.2) and Sarwar Shah (P.W.3) is hit by the medical evidence on the point. Aas Muhammad petitioner is stated to be armed with a spear but there is no spear injury on the person of the complainant Suleman (P.W.1) and on the person of Muhammad Ramzan (P.W.2). The admitted position in the case is that except Aas Muhammad petitioner, there is no allegation against the other two petitioner that they caused injuries to the complainant Suleman or Muhammad Ramzan P.W. Moreover, the alleged injuries on the persons of Suleman and Muhammad Ramzan P.Ws. are on their non‑vital parts of body. The ocular account given by P.Ws. 1 to 3 has not at all been supported by some other circumstantial evidence inasmuch as there is no recovery of spear from the petitioner Aas. Muhammad but instead a Sota was recovered from his possession. Additionally, the recovery of Sota too has not been established beyond doubt by the prosecution. C.W.1 Bashir Ahmad has not supported the recovery of the stick from the petitioner Aas Muhammad. He has clearly stated that he placed his thumb‑impression on the recovery memo. on the direction of the Investigating Officer. Thus, there is not an iota of evidence by the prosecution to prove the recovery of Sota at the pointing out of the petitioner Aas Muhammad. The facts and circumstances of the case have persuaded me not to believe the eye‑witnesses Suleman complainant (P.W.1), Muhammad Ramzan (P.W.2) and Sarwar (P.W.3). I am of the view that the case in hand appears to be wholly concocted one inasmuch as there is ample evidence on record to show that there was civil litigation going on between the complainant Suleman P.W. and the accused persons. This fact has been admitted by the Investigating Officer Qutab Din A.S.I. (P.W.5) that there was a litigation going on between the petitioners and the complainant party in respect of a piece of land. Again, the most important witness in the case was Mst. Chandan, daughter of the complainant, who has been withheld by the prosecution for the reasons best known to the complainant party. Thus, the motive part of the prosecution story also goes alongwith the main story of the prosecution.
8. The upshot of the above discussion is that there is absolutely no evidence produced by the prosecution to justify the conviction and sentence of the petitioner. Resultantly, I proceed to accept the revision petition, set aside the conviction and sentence of the petitioners and acquit them. The petitioners are already on bail and they are discharged from their respective bail bonds.
S . A . / K‑59/ L Revision accepted.