Muhammad Boots along with his son Muhammad Sarwar and two brothers Mubarak A.I and Muhammad Akbar, was tried for offences under section 302(323134, P. P. C. He alone was found guilty of the offence under section 304, Part I, P. P. C. Convicted and sentenced to suffer three years' rigorous imprisonment and to pay a fine of Rs.
50. Mubarak A.I died during the trial while the other two co-accused were acquitted of the charge. Muhammad Boota bas appealed against his conviction and sentence.
2. The prosecution case, in brief, is that Sardar Muhammad deceased used to keep his goats in the cattle-shed of Nur Muhammad (P. W. 7) and Muhammad Boota appellant also used to keep his cattle in the same enclosure. On the 30th of June 1968 during the day time the deceased brought his goats and placed it in the enclosure of Nur Muhammad (P. W. 7) and went outside the village.
On his return he found that his goats have escaped front the enclosure because somebody bad left the door open and on return home his mother told him that Nur Muhammad (P. W. 7) had rounded up the stray goats and brought and placed them in the cattle-shed of Sardar Muhammad deceased, who suspected the appellant of having left the door of the enclosure open when he took away his own cattle from there, thereby facilitating the escape of his goats.
3. On the 1 of July 1968, at about 10 a.m. Sardar Muhammad deceased was grazing goats in his lands and in the neighbouring field the appellant and his co-accused were also present. The deceased complained to Mubarak A.I (since dead) about the conduct of the appellant in leaving the door of the cattle-shed open and thereby facilitating the escape of the goats.
It is stated that Mubarak A.I (since dead) instead of explaining the conduct of the appellant abused and this exchange of abuse led to an assault by the appellant and. His associates. All the accusedst armed with sticks attacked Sardar Mohammad inflicting injuries on him. Muhammad Yaqub (P. W.
12) advanced to intervene and he was also injured by them and it was on the arrival of Muhammad A.I (P. W. 13) and Allah Ditta (P. W. 16) that they retreated to their houses. The inured Sardar Muhammad was taken from there and brought to Bahawalpur hospital where the first information report was lodged on 2-7-1968 at 9 a.m. Zahur Hussain Shah, Foot Constable (P. W. 15) of Police Post Farid Gate, recorded this report on being contacted by the hospital authorities about the arrival of the injured persons. As the occurrence had taken place within the jurisdiction of Police Station Yazman the report so recorded was forwarded to the Police Station Yazman where a case was registered at 12-30 p.m.
4. Dr. Ihsan ur Rahman Qazi had examined the injured Sardar Muhammad and found the following injuries on his person:-
(1) A lacerated wound 1' x -- ' x skin deep on head, 1-- ' above upper margin of forehead antero posteriorly.
(2) A lacerated wound 1' x -- ' x skin deep 1-- to right of injury No. 1--antro posteriorly.
(3) A swelling 2-- ' x 2--' above and in front of left ear.
(4) A contusion mark 2-- ' x -- ' oblique on upper and left part of back.
(5) A swelling 3' x 3' on outer side of right thigh.
(6) A bruise 3' x 1' on left shoulder direction along the arm.
When Sardar Muhammad died on 4-7-1968 Dr. Saeed ul Haq (P. W. 4) performed his post-mortem examination. Apart from the external injuries already reported he found that there was a big extra- dural haematoma covering the frontal and parietal lobes of the brain, outside membrane. Brain matter was compressed. Membrane were congested. Brain matter was also congested. According to the doctor the cause of death was shock and Internal haemorrhage (cranial) due to compression of brain by extra---dural haematoma caused by injury Nos. 1 and 2.
Muhammad Yaqub (P. W. 12) had the following injuries on his person:-
(1) A lacerated would 2'x -- ' x skin deep 3' above left ear.
(2) A bruise 3' x 2' vertical on outer border of left forearm.
(3) A contusion 3' x -- ' oblique on outer side of right thigh in middle.
(4) An abrasion 1/3' x 1/3' on front of upper part of left leg.
(5) An abrasion 1' x -- ' vertical on middle of right leg in front.
(6) Whole of left ankle swollen.
Muhammad A.I (P. W. 13) was examined on 6-7-1968 and had the following injuries:-
(1) Healed scar mark on the back of left ear 1/6' x 1/8'.
(2) No mark of violence on the left cheek, Of the accused party Mubarak A.I (since dead) and the appellant had injuries and they were examined for it on 2-7-1968 by Dr. Ishtiaq A.I (P. W. 2).
Muhammad Boota appellant had:
(1) A lacerated wound on the back of skull nearly 5' above the left ear on left side 1' x 1/8' x scalp deep.
(2) A lacerated wound on the back of skull nearly 5f above the left ear near the first injury 1-- ' x 1/8' x scalp deep.
(3) Swelling present around the left thumb.
(4) A lacerated wound on the left thumb medially -- 'x -- '.
(5) A alight swelling present around the right thumb.
Mubarak All (since dead) had:
(1) A swelling was present on the left side of chest.
(2) Multiple lacerations on the left side of back at the level of 4 and 5 lumber vertebrae.
(3) A contusion mark on the right third finger on first phalanx.th th
5. The appellant, when examined in the trial Court, stated that Sardar Muhammad deceased used to keep his goats to the cattle-shed of Nur Muhammad but he himself never kept his cattle there and instead used to keep them with Nazra Baloch since about one and a half years before the occurrence. He denied the occurrence having taken place in the manner in which the prosecution alleged. He explained it m the following words:- "On the day of occurrence at about 10 or 11 a.m. Mubarak A.I (deceased) was lying on the ground near his cattle-shed and I was at that time sitting at a distance of 2 or 3 acres from him, On hearing the alarm of Mubarak A.I I rushed towards him and saw that he was being attacked by Sardar deceased, Muhammad A.I and Muhammad Yaqub P. Ws, and Allah Bakhsh, who were armed with sticks. When I intervened in order to save my brother Mubarak A.I, the deceased and his companions also attacked me. At that tune no other person was present at the spot. I was unarmed. Thereafter I and Mubarak A.I came to the village and contacted Abdul Rehman Lambardar and informed him about the occurrence. The Lambardar told us that he would ask about this occurrence from Sardar deceased and his father and then went towards their house.
After a short while the Lambar--dar came back and told us that he had verified the facts about the occurrence which show that we were innocent. The Lambardar then proceeded to P. S. Yazman.
When I and Mubarak A.I reached the P. S. We found the Lambardar already present there. At the police station I lodged the report."
The appellant also stated that:- "The brotherhood of the deceased is predominant in the village and we have been implicated on account of party faction. There is only one house of Rajput in the village, which is our."
6. The trial Court disbelieved the motive put forward by the prosecu--petition but from the admission of Muhammad Boota concluded that the real cause of occurrence was that "the deceased and Mubarak A.I (since dead) exchanged abuses over same matter which concerned with the goats having gone astray" and conclude d that it was a case of sudden fight. The presence of Muhammad Akbar and Muhammad Sarwar, the two associates of the appellant, was considered not free from doubt because they had no injuries on their person. This fact combined with considerable delay in lodging the report eliminated these acquitted accused. It appears that before the learned trial Court the appellant pleaded that the complainant patty were the aggressor and support for this fact was drawn from the fact that the com--plainant had at no stage though of lodging the report about the occurrence but did so only when compelled to do it.
This plea was rejected on the ground that it was a case of sudden fight and there could be no question of private defence of person. On these findings the conviction of the appellant was ordered under section 304, Part 1, P. P. C. And he was sentenced to three years' rigorous imprisonment.
7. A fact which has been very conspicuously brought out from the statement of Muhammad Yaqub (P. W. 12) is that the entire Chak No. 39 where the occurrence took place is dominated by Arains and there were only three houses of the Rajputs to which group the appellant belonged, The motive for the occurrence as rightly held by the trial Court, remains unestablished because no responsibility could be laid at the door of the appellant or his relatives for the deceased's goats going astray. The version put forward by the prosecution receives no support whatsoever from the statement of Nur Muhammad (P. W. 7). The plea of the appellant had throughout remained the same that is they had been subjected to an aggression for which in no measure they were responsible. In the circumstances, the prosecution evidence itself should have been scrutinised before taking up bits from the statement of the appellant or his associates for determining whether it was a sudden fight and the chance of one side aggression was altogether excluded, A remarkable feature of the case of the prosecution which is consistent with the plea of the appellant is that while the appellant, forthwith went to the Lambardar and then to the police station for lodging the report and did lodge it the complainant party with all the time and with all the facility available did not of their own ever think of lodging a report. This conduct of the complainant is definitely of one who is not ready to expose his own conduct for scrutiny inspite of the fact that apparently its party man received a serious injury. The gravity of his lapse on the part of the pro-- secution can be gathered from the statement of Muhammad Yaqub (P W. 12) who admitted that they boarded the bits from near the spot at 12 noon, reached Bahawalpur at 4 p.m., reached the hospital at 3 p.m. And during the interval appear to have also obtained the assistance of the police but no report was lodged till the doctor himself informed the police station and the police machinery was put into motion. The explanation offered by Zahoor Hussain Shah (P. W. 1 5) at different stages is not only contradictory but inconsistent with the established facts and untrue Zahur Hussain (P. W. 15) claims to have received a telephonic call from the hospital in the morning the next day and to have obtained from the doctor a certificate about the fitness of Muhammad Yaqub (P. W. 12) to make a statement and then to have recorded it. He denied that before going to the hospital the injured had been brought to the police-post but was confronted with his statement before the police (Exh. D. C.) where he stated that Ghulam Rasool Head Constable had got the injured admitted its the hospital. The injured and his associates had all the time and a number of persons were with them would attend to various matters. Muhammad A.I (P. W. 13) also claims to have travelled with the injured and the inconsistency in the state--ment of Muhammad A.I (P. W.
13) and Muhammad Yaqub (P. W. 12) in explaining the interval after the injury and before lodging of the report clearly shows that they have no anxiety to tell the truth and that the story as made out in the first information report was a made up affair. The first informa--petition report lodged so late for no good reason and under such compulsive circumstances definitely leads to the conclusion that the complainant party was not inclined to lodge a reports 1t tried to avoid at, and when lodging the report it had all the time that it could possibly need for snaking out a consistent case against the persons whom they wanted to implicate. This is also borne out by the fact that the trial Court came to the conclusion which conclusion is also supported from the record that Sarwar and Akbar had been roped in.
8. The most material evidence apart from the conduct of the com--plainant themselves is the inspection report of the spot and the site plan. There was no trace of blood at the spot, therefore, the place of occurrence could not be identified with that much of certainty. Rashidullah (P. W. 20), the investigating officer, eras the first to inspect the spot. He had drawn up alt inspection note (Exh.
D. F.). According to this inspection note there were sand dunes where there were struggle marks visible on the ground and this he had noticed when he visited the spot on 2-7-1968 in connection with the investigation of the case registered under section 307, P. P. C. At the instance of Muhammad Yaqub (P. W. 12). The result of a spot inspection does slot change whether the spot is inspected at the report of the co-accused or of the complainant party. The site plan (Exh. P. N.) was prepared by the Patwari Muhammad Bashir Arshad on 23-7-1968 Lt. More than 20 days after the occurrence and it does not show the sand dunes. Muhammad Yaqub (P. W. 12) admitted that there was a small sand dune in the land of the appellant, and that the occurrence had taken place in the Gowara field which belonged to them. The investigating officer saw no Gowara field and according to him the field where the occurrence took place had been freshly ploughed and found marks of struggle on the sand dune. Reading the statement of Rashidullah (P. W. 20) on the result of the spot inspection and the statement of Muhammad Yaqub (P. W. 12) one comes clearly to the conclusion that the fight took place on the sand dune in the land of the appellant, that the Gowara field if at all had been the scene of occurrence could not have been ploughed so soon after the occurrence without waiting for the local inspection. The learned counsel for the State has considered Muhammad Bashir Arshad Patwari to be an independent witness and according to the site plan prepared by this witness the occurrence must have taken place in the land belonging to the complainant. The statement of Muhammad Bashir Arshad Patwari cannot be placed on a higher footing than the statement of the eye-witnesses at whose instance he prepared the site plan because independently of the witnesses there was no visible, tangible mark existing at the spot either in the nature of blood stain or a stand--ing tree which could identify the spot with the occurrence. The state of oral evidence is such that it cannot be safely concluded that the occurrence had not taken place in the land of the appellant.
9. On a review of the prosecution evidence I find that the motive stated is not established, that the location of the occurrence is not shown to be on the land .Of the complainant, that the complainant party did not think of lodging the first information report till they were forced to do so and that was quite long after the occurrence, that there was Material suppression in explaining the injuries of the appellant and that with the evidence on the record the plea of the appellant that the complainant party was the aggressor cannot be excluded. It is somewhat unfortunate that in spite of the admission of the appellant the report lodged by him with the police was not exhibited at the trial even though it related to this very occurrence, had been lodged such earlier and the investigation agency had acted on it. I find that the conviction and the sentence of the appellant cannot be sustained. Therefore accepting the appeal I set it aside. The appellant shall be released forthwith unless his detention is required in some other case.
10. There is also a petition by the complainant for the retrial of the case for various reasons. I have heard Mr. M. M. Bhatti. In view of the fate of the appeal of Muhammad Boota appellant this revision fails in motion and is dismissed as such.