' Gada Hussain, aged 33, armed with Lathi and Farid aged 31 armed with Lathi, both brothers being sons of Maula Bakhsh, have been convicted arid sentenced as follows vide judgment, dated 8th November, 1965 of the Additional Sessions Judge, Lyallpur Division, at Jhang: Gada Hussain was convicted under section 325, P.P.C. For causing grievous injury to Talib Hussain deceased and was sentenced to five years rigorous imprisonment plus fine of Rs,500 or in default to undergo one year rigorous imprisonment further with the direction that if the fine was realized from him, it should be paid as compensation to the heirs of Talib Hussain deceased. Farid was convicted under section 323, P.P.C. For causing ;imple injuries to Yusuf (P.W.5) and was sentenced only to fine of s.200 or in default to undergo three months' rigorous imprisonment. Our of the co-accused, namely, Irshad Husain and Habib, sons of Jan Muhammad, Husain son of Ali Muhammad and Kanda, son of Ahmad, all ,tated to be armed with Lathis, were given the benefit of doubt and acquitted. Gada Husain and Farid convicts have filed this appeal which is being disposed of by this judgment. Gada Hussain appellant is on bail due to suspension of his sentence vide order of this Court dated 12th January, 1966. Farid appellant had also sustained one injury in the course of the occurrence.
2. The occurrence took place at sunrise time on 8th December, 1964 in a lane of village Thatha Muhammad Shah at a distance of 7 miles from Police Station Bhowana, District Jhang. F.I.R. (Exh.
P.B.) was lodged by Yusuf (P.W.5) brother of the deceased at 4-30 p.m. On the same day and it was recorded by Gulzar Hussain A.S.I. (P.W.11). Initially a case was registered under section 307/148/149, P.P.C. Against the accused party but on the death of Talib Husain deceased on the same day after a few hours of his arrival in the hospital section 307, P.P.C. Was altered to section 302, P.P.C.
3. The motive for crime as stated in the F.I.R. Is that one year before the present occurrence Gada Husain and Farid appellants had purchased a buffalo from Mami (P.W.3) maternal-cousin of the deceased and Ham Zulf of Nazar Muhammad (P.W.13) another brother of the deceased, and a sum of Rs,5 of the price of the buffalo was still outstanding. A day before the occurrence, Mst. Fatima (P.W.4), wife of Mami P.W. Went to the house of the appellants and demanded the payment of Rs,5.
On this Mst. Rakhi, mother of the appellants and Mst.Fatima P.W. Had an altercation and exchange of abuses. The appellants are stated to have sided with their mother and manhandled Mst. Fatima P.W. On that occasion. Mst. Fatima P.W. Returned to her house and narrated the incident to the members of her family. Consequently, on the day of the occurrence in the morning Bakhsha (P.W.16) uncle of Mst. Fatima P.W. Went to the house of the appellants in order to complain about the incident. But on this there was again exchange of abuses between the appellants and Bakhsha P.W. In the meantime Nazar Muhammad (P.W. 13), Maddah Husain (P.W. 6) first-cousin of Mami P.W., Yusuf (P.W. 5) as well as the deceased came out of their house and in retaliation also started abusing the other side. Then all the members of the accused party, namely, the appellants as well as the acquitted co-accused armed with Lathis launched an attack on the complainant party.
4. In the F.I.R. The occurrence is reported to have taken place in the following manner: Gada Husain appellant and lrshad Husain, acquitted co-accused, gave one Lathi blow each to Talib Hussain deceased which fell on his head and as a result he fell down on the ground. Thereafter, Farid appellant gave Lathi blows which fell on left temple and the back of left hand of Yusuf (P.W.5), Nazar Muhammad (P.W.13) was given Lathi blows by Husain and Kanda, acquitted co-accused.
Habib acquitted co-accused gave one Lathi blow on the head of Maddah Hussain (P.W. 6) and the other which fell on his left leg. The occurrence was also witnessed by Sikandar (P.W. 14) and Sooba (P.W.15) who rescued the complaina side from the clutches of the accused party. Talib Husain had becom unconscious after having received the injuries in the course of the occurrence. Therefore, he was taken to Civil Hospital Jhang and Yusuf P.W. Proceeded to the police station to lodge the report.
5. The prosecution had produced as eye-witnesses Yusuf P.W.5 (injured), brother of the deceased, Nazar Muhammad P.W. 13 (injured), another brother of the deceased and Maddah Hussain P.W.6 (injured) Sala of Nazar Muhammad P.W. All these three eye-witnesses have received two injuries each caused with blunt weapon and simple in nature in the instant case. Sikandar (P.W.14) and Sooba (R.W.15) were also produced as eye-witnesses but they are stated to be unconnected.
However, the trial Court has not relied upon them.
6. The appellants and the acquitted co-accused all of them were arrested on 11th December, 1964 by Muhammad Nawaz S.I. (P.W.17). From Farid and Gada Husain appellants were recovered Lathis (Exhs. P.1 and P.2) but not blood-stained which were taken into possession vide Memos. Exhs. P.C.
And P.D., dated 11th December, 1964. The attesting witnesses are Said Muhammad Shah (P.W. 10), Muhammad Nawaz S.I. (P.W.17) and Nazar Muhammad (P.W.13). At the instance of Irshad Hussain acquitted co-accused .Was recovered Lathi (Exh. P.3) which was also taken into possession vide Memo. Exh. P.E. Dated 11th December, 1964. The attesting witnesses are the same. No 'recovery was effected from the other members of the accused party. Since the Lathis recovered in the instant case, namely Exhs. P.1, P.2 and P.3 were not stained with blood, they had not been sent for chemical examination or to the Serologist. In any case, these recoveries are of no corroborative value.
7. The appellants in their statements before the trial Court denied having participated in the occurrence. They disowned the recoveries and had stated that they had been falsely implicated.
Gada Husain appellant had stated that Farid appellant alongwith Murid and others had caused injuries to the deceased and members of the complainant party in self-defence. The acquitted co- accused stated that they had been falsely implicated due to the mechanism of Said Muhammad Shah (P.W.10) who was their enemy. All of them pleaded innocence but did not produce any defence.
8. Dr. Muhammad Ashgar (P.W.1) conducted the post-mortem examination on the dead body of the deceased on 9th December, 1964 at 2-30 p.m. And found on his person a diffused swelling on the right side of head temple with contusion mark over head, a contusion mark on the front middle of the forehead and right eye was ecchymosed and an abrasion on the right deltoid region outer side. In his opinion the cause of death was shock and haemorrhage due to the two head injuries which were dangerous to life. The injuries were caused with blunt weapon. The probable time between injuries and death was 36 hours and between death and post-mortem examination 24 hours.
' On the same day at 1-00 p.m. He medically examined Yusuf P.W. And found on his person two injuries caused with blunt weapon on the head and left hand. These were simple injuriec ' On the same day at 1-15 p.m. He medically examined Maddah Husain P.W. And found on his person two simple injuries caused with blunt weapon on the head and left leg.
' Dr. Muhammad lqbal (not produced) medically examined Nazar Muhammad P.W. On 9th December, 1964 at 7-30 p.m. And found on his person two simple injuries caused with blunt weapon on right forearm and head.
' He also examined Farid appellant on 11th December, 1964 at 4 p.m. And found on his person a swelling on outer half of the left palm. The injury was caused with blunt weapon and was simple in nature.
9. I have heard learned counsel for the State and carefully perusedthe record. Since this is an old matter of 1966 and no one has appeared on behalf of the appellants out of whom the sentence of Gada Husain appellant is suspended and he is on bail. I treat this appeal as Jail Appeal and I had directed learned counsel for the State to argue it also from the defence side. It may be pointed out at this stage that the acquitted co-accused are in no way related to or connected with the appellants. Their plea before the trial Court was that they had been falsely implicated in this case due to the mechanism of Said Muhammad Shah P.W. As there were two factions of Sayyads in the village. It is also clear from a perusal of the motive version that the acquitted co-accused could have possibly no motive to attack the complainant side as they do not figure at all in the motive version. The next point, which is to kept in mind, is that the recovery evidence, in the instant case, of no corroborative value at all and, therefore, it has to be complete', discarded. If this be the position, then is left in the field only the account of five eye-witnesses produced by the prosecution in the instant case. Out of these five eye-witnesses two, namely, Sikandar (P.W.14) and Sooba (P.W.15) were stated to be unconnected and the trial Court has not relied upon them for the reason that they were definitely chance witnesses and could have possibly been procured by Said Muhammad Shah P.W. So far as the remaining three eye-witnesses are concerned, they are all injured and it is established that they were present on the spot. But they appear to be highly interested witnesses being closely related to the deceased. Yusuf (P.W. 5) is brother of the deceased. Similarly , Nazar Muhammad (P.W. 13) is brother of the deceased and Maddah Husain (P.W. 6) is Sala of Nazar Muhammad P.W. All these three eye-witnesses have also implicated the four acquitted co- accused in the commission of crime, although no motive had been advanced by the prosecution as to why the four- acquitted co-accused would attack the complainant side. Similarly, nothing is brought on the record to show as to why the four acquitted co-accused were present at the Dera of the appellants or came with them to attack the complainant side. Despite these unanswered questions and despite the improbability of the four acquitted co-accused being participants in the commission of crime three eye-witnesses who are closely related to the deceased namely Yusuf, Nazar Muhammad and Maddah Hussain P.W., implicate the four acquitted co-accused in the commission of crime like the appellants and not only that but they consistently allege that lrshad Husain acquitted co-accused, also gave a Lathi blow which fell on the head of the deceased like the Lathi blow of Gada Husain appellant which also fell on the head of the deceased. Both the injuries are on the head of the deceased and it is not certain as to who was the author of the fatai injury in the instant case. Anyway, through the interested ocular testimony the head injuries are attributed to Irshad Husain, acquitted co-accused and Gada Husain appellant. The point which requires determination is that if Irshad Husain acquitted co-accused was given the benefit of doubt and acquitted, then why the case of Gada Husain appellant should not be considered at par with him for, if the eye-witnesses could falsely implicate lrshad Husain, acquitted co-accused, what certainty was there in the Asence at any corroborative evidence that they were rightly or correctly attributing the other injury on the head of the deceased to Gada Husain appellant. So, the main point is that the three interested eye-witnesses, in the instant case, are falsely implicating the four acquitted co-accused and if that is so, in the absence of any corroborative evidence as to whether or not it would be safe to base conviction and sentence of the appellants on this kind of uncorroborated interested testimony. If Irshad Husain acquitted co-accused, was given the benefit of doubt and acquitted then following the same principle and not relying on the uncorroborated interested ocular account of the eye-witnesses the appellants should have also been given the benefit of doubt and acquitted. In the light of the above discussion in my view the prosecution has not succeeded in establishing its case as against the appellants beyond any shadow of doubt.
Their convictions and sentences in the circumstances were not proper and they should have been given the benefit of doubt which I hereby given to them. The result is that their convictions and sentences awarded to them are hereby set aside and they are acquitted. The appeal is accepted.
Gada Husain appellant is already on bail. His bail bonds shall stand discharged. If Farid appellant has already paid Rs, 200 as fine, it may be refunded to him .