Nazir, Nazeer, Sardar alias Dara, sons of Ali Muhammad, Mukhtar Ahmad, and Sadiq sons of Ghulam Muhammad, Jats of Chak No. 37/G. B., Police Station Satiana, District Lyallpur were tried by Khan Muhammad Masud Khan, Section 30 Magistrate, Jaranwala, under sections 148 and 307 read with section 149 of the Pakistan Penal Code. They were convicted on 3rd April 1971 and sentenced to one year's rigorous imprisonment each, under section 148, P. P. C. They were also convicted under section 307 read with section 149, P. P. C. And awarded five years' rigorous -imprisonment each and a fine of Rs. 500 each. In default of the payment of fine, they were directed to undergo further rigorous. Imprisonment for a period of six months each. Both the sentences were ordered to run concurrently. The convicts have come up in appeal.
2. The prosecution story, briefly, is that Mst. Balqis Begum, stated to be a cousin of Muhammad Sharif P. W., was given in marriage to Nazir accused at the instance of Bashir Ahmad P. W. The couple lived happily for about a year, whereafter, their relation became strained and Mst. Balqis Begum went back to the --house of her parents. However, through the efforts of, Bashir Ahmad P.
W. She was returned, to her husband. In fact, Bashir Ahmad and Muhammad Rashid P. W. Took her back to the house --of her husband.
3. After the return of his wile, to his house, Nazir refused to allow her to meet her parents and as a result on 4th January 197 1, her unmarried sister Mst. Bashiran, accompanied by Sharif P. W. Went to Bashir Ahmad P. W. And requested him to arrange for a visit of Mst. Balqis Begum to her parents.
Nazir accused was summoned to the house of Muhammad Rashid P. W. The former however, refused to send back Mst. Balqis Begum and remarked that Sharif and Mst. Bashiran, or any other person from Chak No. 84/G. B. Should not visit their Chak, otherwise they would be taken to task.
4. On the following day, Sharif and Muhammad Rashid I, Ws. Had gone to the village mosque, for taking bath and were returning therefrom at about 8-00 a. m. As they reached in front of the house of Nazir accused, the five accused persons came out variously armed. Nazeer carried a hatchet, Nazir had a drant, Sardar had a spear while Sadiq and Mukhtar had dangs. They neat up both of them causing a number of injuries.
5. The injured persons were carried to Satiana Hospital, Which is about three miles from the place of occurrence and were examined by Dr. Aziz-ur-Rehman on 5th January 1971. The doctor noticed 12 injuries on the person of Muhammad Rashid, gout of which seven were caused with sharp- edged weapon and the rest with blunt weapon. Injuries Nos. 4 and 10 were kept under observation and after X-ray examination, were declared grievous.
6. Muhammad Sharif was examined by the same doctor on the same day and ten injuries were seen on his person. Injuries Nos. 1 and 8 were declared grievous while the rest were simple. Injury No. 8 was caused with sharp-edged weapon and the others with blunt weapon.
7. Report of the occurrence was lodged by Muhammad Siddique P. W. At Satiana Police Station at 12-45 p. m. On 5th January 1971. The case was investigated by S. I. Ch. Fazal Muhammad P. W.
8. The prosecution examined Muhammad Siddique P. W. 3, Muhammad Rashid P. W. 4, Muhammad Sharif P. W. 5 and Resham, P. W. 6 as eye-witness. One Ghulam Muhammad was also cited as eye- witness, but he did not appear in spite of the fact that many times non-bailable warrants were issued for his attendance. The prosecution case was thus closed without examining him.
9. The defence version is that Muhammad *Sharif and Muhammad Rashid P. Ws. Trespassed into the house of Nazir accused and attempted to forcibly take away his wife Mst. Balqis-- Begum. They were dragging her, when Nazir accused arrived, carrying a drant. He, in an attempt to rescue his wife from forci--ble abduction, injured the aforesaid prosecution witnesses. His wife joined him in his assault upon them. The remaining accused. According to the defence, are innocent. They were not present at the time of the occurrence and have been falsely involved. Mst. Balqis Begum, Hanif and Muhammad Din were examined in support of the defence version.
10. The learned trial Magistrate disbelieved the defence version. Believing the prosecution story, he convicted and sentenced the accused as indicated above.
11. The story of the prosecution is full of improbabilities. Mst. Balqis Begum, who according to the prosecution, had strained relations with her husband, was never cited as prosecution witness. She appeared in defence. She stated that Muhammad Sharif was not related to her. He had wrongly claimed that he was her cousin. She added that he had bad intentions towards her and therefore, was never allowed to visit their house. She went on to say that 20 days prior to the occurrence, she made a report against him to the police and the police officer visited their village. Whether this portion of the statement is correct or not, is not material. Suffice it to say, that neither she nor ten sisters Mst. Bashiran, who is said to have accompanied Sharif P. W., appeared as prosecution witnesses. They were the most important witnesses.
12. The prosecution version that Muhammad Rashid and Sharif P. Ws. Were returning from the mosque, when they were assaulted, appears to be improbable, for the reasons that Muhammad Sharif, admitted to cross-examination that :- "It is incorrect that the house of Nazir accused, falls on the way from the mosque to the house of Rashid P. W."
'The prosecution story itself is that the fight took place in front of the house of Nazir accused. It is significant however, that it is not supported by any neighbour, although it is said to have gone .On for about 15 minutes. The witnesses, who appeared for the prosecution, are either related inter se or are otherwise interested. Muhammad Sharif is a friend of Muhammad Rashid and Bashir it was admitted by Muhammad Siddique P. W. That :- The houses of Ilam Din, Latif and Sharif are near the place of occurrence. The houses of Bashir son of Abdul, Khurshid, Ghani and Walia Rajput, Sardara Jat, Ranja and Shero were also near the place of occurrence. I had raised alarm at the time of occurrence. The residents of the neighbouring houses had not arrived at the time of occurrence. The occurrence might have lasted 15/ 1 6 minutes."
13. In view of the fact that the neighbourers did not come forward to support the prosecution version ; Mst. Bashiran did not appear as prosecution witness ; and Mst. Balqis Begum has supported the defence version ; and the house of Nazir accused, according to Muhammad Sharif P.
W., does not fall on the way from the mosque to the house of Muhammad Rashid P. W. 1 have serious doubts that the prosecution story, as put in Court, is correct. The appraisal of the evidence by the Magistrate is therefore. Wholly wrong.
14. From the very start, the position of Nazi r accused h been, that Sharif and Muhammad Rashid P.
Ws. Tried to trespass into his house and tried to forcibly lift his wife, when he, in order to rescue her save them beating. He is supported by no less a person than Mst. Balqis Begum, who should have been against him, if the prosecution story was correct. I thus hold that Nazir accused alone took part in the whole affair and he, and his wife, caused injuries to Muhammad Rashid and Sharif P. Ws.
I, there--fore, hold that be acted in the right of private defence of the person of his wife and thus could not be convicted as he had not exceeded that right. The participation of the remaining accused in the fight, is doubtful. In the result, therefore, I allow the appeal and set aside the conviction and sentences of the appellants. They shall be set at liberty, provided they are not required to detained in any other case.