' Haji Irshad Hussain, petitioner, and his son Nasir Hussain were tried under section 307 read with section 34 of the P.P.C. For murderous assault upon Arshad All P.W. By his judgment dated 7-6-1976, the learned trial Magistrate acquitted Nasir Hussain but convicted Haji Irshad Hussain, petitioner and sentenced him to suffer R.I. For three years. On appeal, the petitioner's conviction and sentence were maintained.
2. The incident in which Arshad Ali P.W. Suffered a fire shot on his left leg below the knee, occurred at about noon time near the house of the petitioner on 19-10-1967. Two reports of the incident were made at the Police Station; the first by Haji Irshad Hussain, petitioner, at 1-00 p.m. And the other by Arshad All P.W. At 8-10 p.m. On the same day. In the petitioner's report, it was said that three persons, namely, Arshad Ali, Khalid Rauf and Qamar-uz-Zaman, who had appeared as eye- wtinesses in this case, had attacked the petitioner and it was in self-defence that he fired a shot hitting Arshad All P.W. As regards the second F.I.R., Iftikhar Ahmad S.I. (P.W.6) had himself reached the Mayo Hospital, where Arshad Ali P.W. Lay admitted and it was there that Arshad Ali's statement, which was later treated as F.I.R., was recorded. It is noteworthy that the F.I.R. By Haji Irshad Hussain, petitioner, against Arshad Ali, Khalid Rauf and Qamar-uzZaman P.Ws., was cancelled.
3. The prosecution case, as it emerged from the evidence of Arshad Ali, Qamar-uz-Zaman and Khalid Rauf P.Ws. Was as follows. Some six or seven years earlier, Qamar-uz-Zaman P.W. Had lent a sum of Rs,3,000 to the petitioner and the latter had executed a promissory note in his favour. The petitioner had failed to repay the money. When asked for repayment, the petitioner put him off a number of times. On 11-10-1967, he alongwith Khalid Rauf and Arshad All P.Ws. Met the petitioner and they went together to the house of one Budhha Gujjar. There, the petitioner promised that he would pay the money on 19-10-1967. Accordingly, Qamar-uz-Zaman, Arshad All and Khalid Rauf P.Ws. Went to the house of the petitioner on 19-10-1%7 to get the money. The petitioner met them at a distance of 20 or 25 yards from his house. When they demanded the money, the petitioner, instead of paying it told them to run for their lives. Nasir Hussain came out of his house with a pistol in hand. Haji Irshad Hussain, petitioner, took out a revolver from his Dubb. According to Arshad All P.W. He fired 'aiming we three and we fled from that place'. According to Qamar-uz-Zaman P.W., he fired `aiming Arshad who was standing in front of him which hit him on his left leg' and according to Khalid Rauf P.W., when the petitioner' took out revolver from his Dubb, we fled from that place for saving ourselves when he brought out revolver from his Dubb and Haji Irshad accused fired on us'.
The petitioner and his co-accused Nasir Hussain denied the allegations and called Iqbal Ahmad, Abdul Latif Khan and Malik Zulfiqar in their defence. They gave evidence that three or four persons had attacked the petitioner in his house; that they had weapons with them that the petitioner had fired in his self-defence and that his shot had hit one of the assailants on his leg. According to them, if he had not fired, the assailants would have killed him. Strangely enough, none of them was put any question by way of cross-examination, the inference being that the prosecution did not challenge their veracity or the truth of what they deposed to. Now it is obvious that not only was the fact that the petitioner owed a sum of Rs,3,000 to Qamaruz-Zaman P.W. Was necessary to be proved as motive, but also to establish that it was for getting that money from the petitioner that the P.Ws. Had gone to the house of the petitioner. For otherwise, the petitioner had no reason to go to his house and if they had no reason to go there, then there was no occasion for such an incident taking place. There was a written document, namely, a promissory note in favour of Qamar-uz- Zaman P.W.; neither that document was produced nor was Budhha Gujjar, at whose house the petitioner had allegedly agreed to repay the money on 19-10-1%7, was examined at the trial. There is then the very significant fact that the incident was not reported to the police till 8-10 p.m., even then it was not at the police station. As stated above, Iftikhar Ahmad S.I. Had reached the Mayo Hospital himself and recorded the statement of Arshad Ali P.W. There is no explanation why Khalid Rauf and Qamar-uz-Zaman had not gone to the police Station to report the incident. The knowledge of Iftikhar Ahmad S.I. About the incident was obviously derived from the F.I.R. Which the petitioner himself had lodged as promptly as 1-00 p.m. The inference, which the failure of Khalid Rauf and Qamar-uz-Zaman P.Ws. To report the incident before 8-10 p.m. Inevitably gives rise to, is that the truth was not on their side. It is also of some importance to note that the doctor, who had examined Arshad Ali P.W. For his injuries, was not examined at the trial nor was any proper basis for secondary evidence led.
4. Last but not the least was the fact that the petitioner examined three independent and disinterested persons in his defence and they were not cross-examined at all. All these circumstances taken in conjunction of the seat of the injury, namely, the lower part of leg of Arshad Ali P.W. Lent considerable strength B to the defence plea that the petitioner had acted in the exercise of his right of self-defence. I may add that the order cancelling the case against Arshad Ali, Khalid Rauf, Qamar-uz-Zaman P.Ws. Did not preclude the petitioner to show that he had acted in the exercise of his right of self-defence. The order cancelling the F.I.R. Was at best an administrative order and did not operate as res judicata.
5. For these reasons, I accept the revision petition, set aside the conviction and sentence and acquit the petitioner. He shall stand discharged of his bail bond.I' 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.