ATTA MUHAMMAD Versus ABDULLAH KHAN
This Criminal Revision by Atta Muhammad petitioner is directed against judgment dated 30‑10‑1971 passed by Magistrate Section 30,' Bhakkar, acquitting the respondents of the charge under section 308/34 of the P.P.C.
The brief facts of the prosecution case are that on 1‑9‑1969 at about 'Peshiwela, Hayat Khan complainant and his son Atta Muhammad were present in their house, situate in Fateh Khan Wala, when Abdullah and Dost Muhammad respondents (sons of Hayat Khan and real brother of Atta Muhammad) and Saifullah son of aforesaid Abdullah, armed with sticks, came there. Saifullah and Dost Muhammad abused Atta Muhammad. Saifullah also stood naked before him. Then all the three gave one dang blow each on the head of Atta Muhammad, as a result of which he fell down. The accused person continued giving blows to him when he was lying down. The occurrence was witnessed by Hayat Khan and Habibullah, another brother of Atta Muhammad injured. The accused persons then dragged Atta Muhammad to Gawara field and threw him there.
The motive alleged by the presecution was that' the accused persons had been persuading their father Hayat Khan to transfer his land to them in his life time but he did not agree. They were labouring under the feeling that Hayat Khan would transfer his entire land to aforesaid Atta Muhammad injured.
3. The medical examination of Atta Muhammad injured revealed five blunt weapon injuries on his person: four on the' head and one on the left foot. One of the head injuries was declared grievous.
4. At the trial, Atta Muhammad injured, Hayat Khan and Habibullah P.Ws. supported the prosecution version.
5. The respondents pleaded not guilty to the charge and denied the prosecution allegations against them. Their case was that on the day of occurrence Atta Muhammad P.W. had a fall from a she‑donkey and a false case was registered against them three days later after due deliberations. They examined as many as six witnesses in their defence.
6. The reasons that weighed with the learned trial Magistrate for recording a finding of acquittal were:
(i) That a delay of more than 52 hours in lodging the F.I.R. was indicative of the fact that a story was fabricated after due deliberations and the injuries sustained by the fall from she‑camel were utilized for implicating the accused persons; and
(ii) that Atta Muhammad injured and Hayat Khan P.Ws. were unreliable while Habibullah PW had not seen the occurrence.
7. Learned counsel for the petitioner contends that Atta Muhammad injured is the real brother of Abdullah and Saifullah while Hayat Khan P.W. is their father, therefore, it is unbelievable that both of them would concoct a story to implicate their own kith and kins. He states that the prosecution version finds full support from the medical evidence. It is further submitted that the defence version is absolutely absurd and the finding of the learned trial Magistrate that Atta Muhammad P.W. had suffered a fall from a she‑camel is just conjectural.
Learned counsel for the respondents, on the other hand, submits that the presence of Habibullah PW at the spot is not all established while Atta Muhammad and Hayat Khan P.Ws. were inimical towards the accused persons and they had denied certain patent faots, therefore, their evidence had been rightly rejected by the learned trial Court:
8. I have considered the submissions made at the bar and gone through the entire evidence with the help of the learned counsel for the petitioner. Habibullah P.W. has admitted in cross‑examination that 4/5 years prior to his appearance in Court Dost Muhammad respondent got a case of attempted murder registered against Atta Muhammad. but that case was false. It would, therefore, appear that the parties had strained relations with each other since long. Strangely enough, Atta Muhammad and Hayat Khan, obviously in order to show that the relations between the parties were not strained, suppressed the fact of registration of the aforesaid case. Both of them stated that they had no knowledge if any case was registered against Atta Muhammad at the instance of Dost Muhammad respondent.
Habibullah P.W. stated that when he reached the spot .the accused persons were causing injuries to Atta Muhammad and when Hayat Khan came to rescue him they also attacked and injured him . This is not the case of the prosecution that Hayat Khan was also injured during the occurrence. His presence at the spot, therefore, 113 seems to be quite doubtful. The defence version that Atta Muhammad P.W. suffered injuries due to a fall from a she‑camel may not be true, but it will not absolve the prosecution of its fundamental duty to prove its case beyond all doubt. All the eye‑witnesses are consistent that after beating Atta Muhammad P. W. the accused persons dragged him up to fifteen Karams and threw him in a Gawara field. The medical evidence does not support this version because no dragging marks were found on the person of Atta Muhammad P.W: He had five injuries on his person for which three persons were implicated. These injuries could also be caused by one or two persons. In view of the background of strained relations between the parties and long delay in lodging the F.I.R., the possibility of one or the other accused having been falsely implicated, cannot be ruled out. However, in the present case it is not possible to distinguish the innocent from the guilty. In the circumstances, I do not feel persuaded to interfere with the order of acquittal.
The petition is, therefore, dismissed.
S.A./A‑227/L Revision dismissed.