This is a revision petition filed by Wit Hussain and Asghar Ali alias Acchi petitioners against the judgment of the learned Sessions Judge of Lyallpur (Faisalabad) dated 1st October, 1971 dismissing their appeal but acquitting their co-accused Aslam alias Chhaba. Earlier, a First Class Magistrate of Lyallpur, by his judgment dated 31st December, 1970 had convicted the petitioners and their co- accused under sec--tion 326/34, P. P. C. And sentenced them to one year's R. I. Each and to pay a fine of Rs. 100 each or in default to undergo further R. I. For three months each and ordered that fine, if recovered, would be paid to Umar Din P. W. As compensation.
2. The brief facts of the case are that on 7th January, 1970 at 8-00 p. m. Umar Din P. W. 1 and his son Hanif P. W. 2 were selling siri payas at their shop situate in Bhawana Bazar. At that time, Sadiq (won-over P. W.) and Bashir P. W. 5 were eating siri payas at their shop. All the three accused came there. Asghar accused was armed with a chhuri, Zakir Hussain accused was armed with a hatchet and Muhammad Adam accused was empty-handed. Muhammad Aslam accused raised a lalkara at which Asghar accused gave a chhuri blow on the right hand of Muhammad Hanif complainant P. W. 2 and Zakir Hussain accused gave a hatchet blow on the right thigh of Umar Din P. W.
1. Sadiq and Bashir P. Ws. Intervened and rescued Umar Din P. W.
1. The accused ran away. The injured was taken to the hospital.
3. Dr. Safdar Ali P. W. 6 medically examined Umar Din and found the following two injuries on his person :-
(1) An incised wound 2 ----- x ----- x bone deep on the knee, right side of front, transverse in direction, joint is not opened, wound was bleeding.
(2) An incised wound punctured in type ----- X 1/8"X 1 ----- on the outer side of the right thigh, middle part.
Injury No. 2 was found simple. Injury No. 1 was kept tinder observation and was later on declared grievous.
After securing the medico-legal report, Muhammad Hanif P. W. 2 proceeded to Police Station, Kotwali, Faisalabad where he lodged F. I. R. Exh. P. A. At 10-20 p. m. Which was recorded by Zulfiqar Ali Khan A. S. I. P. W. 4.
4. On 13th January, 1970 all the three accused were arrested by Muhammad Azam, S.-I. P, W.
3. After completing the necessary investi--gation, the challan against the accused was sent up.
5. At the trial, the prosecution produced Umar Din P. W. I and Muhammad Hanif P. W. 2 to prove the motive, the said two witnesses and Muhammad Bashir P. W. 5 in proof of the ocular account and Dr. Safdar Ali P. W. 6 in support of the medical testimony. All the accused denied the allegations levelled against them. In their state--ments under section 342, Cr. P. C. They stated that they have been falsely implicated in the case due to enmity. Akhtar Hussain D. W. 1 was produced in defence, who stated that he lived near the place of occurrence, that no occurrence took place at the spot and that due to enmity the witnesses had falsely implicated the accused.
6. Both the lower Courts relying upon the motive, the ocular tes--timony, the medical evidence and the recovery convicted and sentenced Zakir Hussain and Asghar Ali alias Acchi as stated in para. 1 above.
7. I have heard the arguments of the learned counsel for the petitioners and the State and have also perused the record. The evidence as regards the motive is furnished by Umar Din P. W. 1 and Muhammad Hanif P. W.
2. According to their testimony, five months before the occurrence one Yunus, brother of Muhammad Hanif P. W. 2, injured Zakir Hussain petitioner, as a result of which a case was regis--tered against the said Yunus under section 307, P. P. C. Which is still pending.
Asghar Ali and Zakir Hussain petitioners in their statements under section 342, Cr. P. C. Admitted this occurrence. The motive, therefore, stands proved against these two petitioners. Considering that both these petitioners are brothers, the fact that they wanted to avenge the injury caused to one of them (Zakir Hussain petitioner) by the son of Umar Din P. W. 1, cannot be totally excluded. The motive, therefore, stands adequately proved against both these petitioners.
8. The ocular account in this case is furnished by Umar Din P. W. 1, Muhammad Hanif P. W. 2 and Muhammad Bashir P. W.
5. Muhammad Hanif P. W. 2 and Muhammad Bashir P. W. 5 are the son and brother-in---law respectively of Umar Din P. W. I. Muhammad Bashir P. W. 5 did not support the prosecution case and stated that he had not witnessed the occurrence. Sadiq, an independent witness, was given-up as having been won-over. Both Umar Din P. W. 1 and Muhammad Hanif P. W.
2 in their statements, which are somewhat consistent, stated that on the day and time of occurrence they both were present at their siri payas shop in Bhawana Bazar where Muhammad Bashir P. W. 5 and Sadiq (won-over P. W.) were eating siri payas at that time, the two petitioners and Muhammad Aslam acquitted accused came there. Asghar Ali petitioner was armed with a chhuri, Zakir Hussain petitioner was armed with a kulhari and Muhammad Aslam acquitted accused was empty-handed. Muhammad Aslam accused shouted a lalkara (MAR DO) Asghar Ali petitioner injured Umar Din P. W. 1 on the right knee with his chhuri whereas Zakir Hussain injured him on the right thigh with kulhari. Muhammad Bashir P. W. 5 and Sadiq (won-over P. W.) saved him, whereafter the two petitioners and Muhammad Aslam acquitted accused ran away. In the first instance it cannot be denied that earlier Yunus, son of Umar Din P. W. 1, had made an attempt on the life of Zakir Hussain as some form of retaliation for the earlier incident. In these circumstances, the fact that Umar Din P. W. 1 and Muhammad Hanif P. W. 2 could falsely implicate one or more persons not directly connected with the crime, cannot be totally excluded. In these circumstances, some form of corroboration however slight would be required. However, when one considers the fact that Muhammad Bashir P. W. 5 and Sadiq (won-over P. W.), an independent witness, did not support the prosecution case, one is placed on immediate guard to look for stronger corroboration. But in this case the ocular testimony somehow conflicts gravely with the medical evidence. As regards the punctured wound on the right thigh, this is attributed to Zakir Hussain petitioner, but since this petitioner was attributed to have caused the said injury with a kulhari, it is palpably clear that this injury could not be caused with a kulhari. This injury on the thigh can safely be stated to have been caused with a chhuri. The incised wound on the knee does not unequivocally indicate that it could be caused by a kulhari, as there is no cut to or fracture of the bone underneath the said injury. Considering that Zakir Hussain petitioner was attributed to have caused the punctured wound on thigh of Umar Din P. W. 1 with his kulhari, it is more than clear that the medical evidence seriously conflicts with the ocular testimony. In these circumstances, very strong corroboration is required to the testimony of the eye-witnesses, before conviction can be maintained with any degree of safety. The possibility of false implication in this case cannot be ruled out. May be there was only one assailant, but by adding another and giving him a different weapon, the eye-witnesses not only fell into error by imputing different injuries to the two petitioners, which was far from truth, but also compelled Muhammad Bashir P. W. 5 and Sadiq (won-over P. W.) t desist from supporting their false case. As regards corroboration, there is no confirmatory circumstance available on the record from which it can safely be said that any of the petitioners participated in occurrence. In the absence of corroboration, the conviction of the petitioners cannot be maintained. They are, therefore, entitled to the benefit of doubt.
9. For the foregoing reasons, this petition is accepted and the conviction and sentence of the petitioners is set aside. The petitioners are on bail. Their bail bonds shall stand discharged. The fines, if recovered, shall be refunded to them.