The appellants, Allah Bakhsh and his son Abdus Sattar, were tried the murder of Lai Din and for causing injuries to Bashir Muhammad (P.W.6) Muhammad Aslam (PW.7), Nizam Din (PW.B), Jamal Din (PW.9) and Bashir son of Lakhha by the learned Additional Sessions Judge, Faisalabad, and by judgment dated 7-8-1976, Abdus Sattar, appellant, was convicted under section 304, P.P.C. And sentenced to R. I. For two years; fine of Rs. 2000 and in default for one year and Allah Bakhsh, appellant, was convicted under section 325, P. P.C. And sentenced to R.I. For three years, fine of Rs.
1,000 and in default R.I. Forsix months.
2. With the appellants were tried 17 other accused persons but they were all acquitted.
3. This will also dispose of Criminal Revision No.133 of 1977 by Bashir Muhammad, complainant; by it, he prays that the sentences of the appellant should be enhanced and the acquittal of the remaining accused persons be set aside.
4. The incident occurred at 7.00 a.m.- on 16-6-1973 near the house of All- h Bakhsh accused and Bashir Muhammad (P.W.6) in the area of Chak No. 279/R. And was reported to the police by Bashir Muhammad (PW.6) at 10.00 a.m on 17-6-1973.
5. Of the accused persons, twelve were closely related to Allah Bakhsh appellant; Ghulam Nabi, Khuda Bakhsh and Sharif were his brothers; Abdus Sattar, appellant, Ghaffar and Qadir were his sons, Asghar and Gulzar were his nephews and Jamal, Fazai Din and Razal Gin were his sister's son.
It should also be mentioned here that Jamal Din PW was a brother of Lai Gin, decease, Muhammad Aslam PW. Was not related to Bashir Muhammad, complainant; the latter was a nephew of Jamal Din PW and Lai Din, deceased.
6. The incident occurred over a plot of land situate in front of the house. Allah Bakhsh, appellant; that: plot, as also the house of Allah Bakhsh, appellant and the dera of Bashir Muhammad, complainant, were part of Killa Nos. 9 and 10 of Square No.18, which were State land. It was the prosecution case that all the --construction on these killas were unauthorised construction.
7. The prosecution case was as follows. The place where Allah Bakhsh, appellant, was residing, had been in his unauthorised possession. Allah Bakhsh appellant, had no place to live in and on his request, Bashir Muhammad P.A' gave that area to him for storing firewood. 'The place of Allah Bakhsh, appellant. Was situate at a distance of 41) to 50 karams from the residential house of Bashir Muhammad P.W. Allah Bakhsh, appellant, constructed the house but on the application of one Nawab that the area over which Allah Bakhsh, appellant, hair raised construction, was part of the land obtained by him from the Government the construction of Allah Bakhsh, appellant, was demolished. However, ten or twelve days before the occurrence, Allah Bakhsh, appellant obtained permission from the Tehsildar and reconstructed the house, with one door opening toward the plot in the occupation of Bashir Muhammad P.W. According to Muhammad Afzal Patwari (P.W.4), that plot was 20 to 24 feet in length and 20 to 22 in width. According to Bashir Muhammad PW, Allah Bakhsh appellant, had opened a door towards that plot to occupy it. On 15-6-1973, Bashir Muhammad asked Allah Bakhsh, appellant, to close the door which he had opened towards his plot and he had promised to close it the next day. On 16-6-1973, at 7.00 a.m., Bashir Muhammad P.W. Repeated the request; at that time, Lal Din, deceased, and Nizam Din P.W. Were also present.
They told Allah Bakhsh, appellant, that it was improper of him to have opened the door. In the meantime, Babu Barkat A.I accused reached and exhorting his co-accused shouting that Allah Bakhsh, appellant, and his companions should not be allowed to go alive. On this, all the accused persons reached. Abdus Sattar, Oadir, Sharif and Rafiq accused had takwas, Gulzar, Jamal and Rashid accused had knives; Kaka accused had a pistol, Allah Bakhsh accused had khalwar, Sahaba, Jumma, Asghar, Khuda Bakhsh, Ghulam Nabi, Fazal, Razal Din, Ghaffar and Baba Mahi accused had lathis. Ghaffar accused caught hold of Lai Din, deceased, and Qadir accused caught hold of Nizam Din P.W. And Kaka accused caught hold of Bashir Muhammad P.W. Sattar accused gave, a takwa blow on the head of Lai Din, deceased, Sharif accused hit Bashir Muhammad P.W.
With the handle of his takwa on his head; Lai Din fell down and Ghaffar accused gave Lathi blows to him. Allah Bakhsh appellant, gave blows on the arms of Nizam Din with his Khalwar. Sahib Din accused gave a dang blow on the head of Nizam Din; Gulzar tried to give a blow to Nizam Din but Nizam Din was not hit. Abdur Rehman, Nazir, Rehmat, Bashir son of Lakha, Aslam and Jamal P.Ws.
Reached and they were also given injuries by the accused persons. According to Bashir Muhammad P.W., Aslam P.W. Had snatched the lathi ,of Khuda Bakhsh accused and Jamal P.W.
Had snatched the takwa of Rafiq and had in self-defence caused injuries to Allah Bakhsh, Sattar and Ghaffar accused persons.
8. Dr.Bashir Hussain Kahloon (PW.11) had performed the autopsy on the dead body of Lai Din, deceased, and had examined Muhammad Aslam, Nizam Din, Jamal, Bashir Muhammad P.Ws. And Bashir son of Lakhha for their injuries. Lai Din was found to have suffered three injuries, two abrasions and one incised wound on the head. Death was the result of the incised wound on the head which, as has been seen, was caused by Sattar, appellant, with his takwa. Muhammad Aslam P.W. Had suffered a simple lacerated wound on the head; Nizam Din P.W. Had suffered nine injuries; three being lacerated wounds, two abrasions, two contused wounds and one swelling on the forearm. Of them, injuries Nos. 2 and 3 were grievous, namely a lacerated wound 3" x 1" x bone deep on the right forearm and a swelling 2" x 2" on the left fore-arm. Both had fractured ulna bones.
Bashir Muhammad P.W. Was found to have four simple blunt weapon injuries and Jamal Din P.W.
Was found to have two simple blunt weapon injures.
9. As many as eight accused persons were injured during the course of the incident. Sattar, appellant, had suffered an incised wound 1- -- " x -- " x bone deep on the right side of head; he also complained of pain on the left side of the chest. Ghaffar accused had suffered four injuries, an incised wound 2" x -- " x bone deep on the right forehead, a lacerated wound 1- -- " x -- " on the top of left thumb, a contused swelling on left finger and two abrasions; Allah Bakhsh, appellant, had suffered an incised wound, 3- -- " x -- " bone deep on the back of the left side of head; Ghulam Nabi accused had suffered an incised wound on the right hand and this had fractured the shaft of fifth mata-carpal of right hand: Qadir Bakhsh accused had suffered two simple blunt weapon injuries; Asghar A.I accused had suffered four injuries, one of them being an incised wound 3" x -- " bone deep on the right side of head. He had also a contused swelling 1" x -- " on index finger and that was declared grievous; Muhammad Sharif accused had suffered four injuries and Fazal Din accused had suffered one injury. In this connection, reference may be made to Ex. DD., which was a certified copy of the statement of Dr. Bashir Hussain Kahlon in the cross-case under sections 307.
32S etc. Of the PPC against the complainant party.
10. In acquitting the accused persons, other than the appellants, the learned trial Judge held and in my view for good reasons that the accused persons had not launched the attack and they could not be said to have formed an unlawful assembly with a common object. In this connection, the learned trial Judge noticed that the accused persons had no enmity with Lai Din, deceased, or any of the P.Ws; that Bashir Muhammad P.W. Had objected to Allah Bakhsh, appellant, opening a door towards the plot in dispute a day before the occurrence and, therefore, the accused persons did not know that he would be again going to Allah Bakhsh, appellant, on the morning of the day of occurrence and asking him to close the door. Referring to the lalkara of Barkat A.I accused, the learned trial Judge observed that Barkat A.I and Sahib Din accused persons were close relatives of Allah Bakhsh, appellant, and the possibility was that when Bashir Muhammad P.W. And Allah Bakhsh, appellant, were having an altercation in the presence of Nizam Din P.W. And Lai Din, deceased, the accused persons had gathered and in the ensuing fight, caused injuries to the P.Ws.
And Lai Din, deceased. It followed, therefore, so held the learned trial Judge, that each accused was liable individually for his own act. The evidence was, so observed the learned trial Judge, that it was Sattar, appellant, who had given a takwa blow on the head F of Lai Din, deceased; the learned trial Judge also believed the evidence that Nizam Din P.W. Received the grievous injuries with khalwar of Allah Bakhsh, appellant. He was, however, not prepared to believe the prosecution evidence that the remaining injuries on the person of Nizam Din P.W. Were proved to have been caused by Sahib Din or Sharif accused persons. In so holding, the learned trial Judge noticed that according to Bashir Muhammad, Muhammad Aslam and Jamal P.Ws., the injuries were given by Sahib Din, but according to Nizam Din himself, those injuries were given by Sharif. Ghaffar accused was said to have given two blows to Lai Din, accused, when the latter had fallen on the ground but those injuries, according to the medico-legal report (Ex. P.C.) were mere abrasions and it was in the opinion of the learned trial Judge doubtful that they were the result of lathi blows. Bashir Muhammad and Muhammad Aslam P.W. Had stated that Sharif accused had hit them with Takwas. In their statements before the police, however, they had said that Sharif accused had hit them with dangs. Now Takwa is a sharp-edged weapon, but there was no sharp-edged weapon injury on the person of Bashir Muhammad and Muhammad Aslam P.Ws. And this coupled with the abovementioned discrepancy between their statements in Court and their statements before the police, to my view, rightly led the trial Judge to give the benefit of doubt to Sharif accused, as regards the injuries of Muhammad Aslam and Bashir Muhammad P.Ws. Baba Mahi accused was said to have given a dang blow to Jamal P.W., but Muhammad Aslam P.W. Had in his statement before the police said that he had a kulhari with him. This as was rightly held by the learned trial Judge, also made the case against Baba Mahi doubtful. Barkat All accused had merely shouted lalkara and he too was entitled to the benefit of doubt; no reason was shown why he had exhorted his co-accused to commit the offences. Nizam Din P.W. Had himself not named Sahib Din accused as his assailant.
11. In dealing with the plea of self-defence, raised by the appellants, the learned trial Judge believed the testimony of Bashir Muhammad, Muhammad Aslam etc. P.Ws., namely, that the plot in dispute was in physical possession of Bashir Muhammad P.W. This finding, in my view, is difficult to sustain.
In recording that finding, the learned trial Judge based himself entirely upon the oral evidence of Bashir Muhammad, Muhammad Aslam etc. And if I may say so, overlooked the evidence of Muhammad Afral Patwari (PW.4). The latter stated that the disputed plot was part of killas Nos.9 and 10 of Square No.18 which was State land and the entire construction, including the one raised by Allah Bakhsh, appellant, and Bashir Muhammad P.W. Was unauthorised construction. As this was State land, there must be the record of possession. In fact, Muhammad Afzal Patwari (P.W.4) stated with reference to the khasra girdawrt for the year 1973 that Bashir Muhammad was not shown in possession of any area of square No.18. The failure of the prosecution to prove Bashir Muhammad P.W.'s possession of the land under the house of Allah Bakhsh, appellant, and the plot in dispute, by the best available evidence, namely, the khasra girdawri, must inevitably affect the entire prosecution case, for, the defence case, as seen above, was that Allah Bakhsh, appellant, was reconstructing his dera and for that purpose had obtained permission of the concerned authorities; that the vacant plot in front of his dera had been in his possession and that it was in order to take forcible possession of the land in his possession that the complainant party attacked them. The appellants were, in my view, entitled to claim that the prosecution's failure to lead the best evidence on the fact of possession should give rise to an inference that the possession of the disputed plot was with the appellants. It is, in my view, in this light, that the very significant omission of Bashir Muhammad P.W. To mention the injuries of the accused persons should have been viewed. Bashir Muhammad P.W. Did give an explanation of those injuries at the trial but that seems to be highly implausible; it was that two of the P.Ws., Aslam and Jamal, had snatched the weapon of Khuda Bakhsh and Rafiq accused persons and that they caused injuries to three of the accused persons Allah Bakhsh, Sattar and Ghaffar. 1n truth, as many as eight accused persons had been injured; as seen above, Ghulam Nabi and Asghar A.I accused persons had suffered grievous injuries but their injuries were not mentioned by the P.Ws. In their evidence at all. There was then the important inconsistencies admitted by Bashir Muhammad P.W. Between the FIR and the prosecution case at the trial, namely, that according to FIR, Allah Bakhsh, appellant was armed with a talwar, in fact he had a khalwar, which is a piece of wood and not a sharp-edged weapon as a sword is; and that in the FIR, the name of Aslam accused did not occur at all.
12. It should be mentioned here that Allah Bakhsh, appellant, had remained in jail for three years and two months during the trial and for one year and eight months after his conviction; and that Sattar, appellant, had remained in jail during the trial for three years and two months and after his conviction for two years and three months.
13. For the above reasons, I am of the view that the defence version of the case deserved to be accepted. I would, therefore, accept the appeal, set aside the conviction and sentence of the appellants and acquit them. They shall stand discharged of their bail bonds.
14. For these reasons, the revision petition of Bashir Muhammad, complainant, is rejected.
S.A./A-499/LAcquitted. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.