Muhammad Ramzan aged 40 years and his son-in-law Muhammad Din aged 27 years, were tried and convicted of an offence under section 307/34, Y. P. C. By Ch. Muhammad Saeed Akhtar, Special Corporation Magistrate, Lahore and were sentenced to 5 years' R. I. Each plus a fine of Rs. 1,000 each. (In default of payment of fine they were ordered to undergo further one years R. I.), by his judgment dated 30 June 1971. They have filed an appeal against their conviction and sentences.
2. The occurrence took place in the mosque of village Jia Bagga Police Station Kahna, District Lahore, at morning prayer time on 22-5-1970. The F. I. R. Exh. P. B. Was lodged, by Muhammad Iqbal P. W. 2, by the injured person himself at the Police Station on the same day at 7-15 a.m. It was recorded', by Muhammad Yaseen A. S. I. And proved at the trial by, Muhammad Yar Khan S. I. The prosecution story briefly is as follows:- About 10/12 years ago 'Muhammad kamzan appellant had cut jokes with Mst. Mehran Bibi, the mother of Muhammad Iqbal P. W. She told about it to Muhammad Iqbal. In order to take revenge of the insult, a few days prior to the occurrence Iqbal P. W. Cut jokes with Mst. Naziran, the daughter of Muhammad Ramzan appellant. This resulted in a dispute between the parties but the matter, was got compromised through the intervention of some respectables of the area. On 25-5-1970, Muhammad Iqbal P. W. Went to the mosque for saying his morning prayer with the ama'at. His brother Muhammad Yaqoob and cousin Muhammad Khalil P. Ws, were also standing with him in the row for saying prayer. His other brother Muhammad Abbas P. W. Was performing ablution.
Muhammad Iqbal p. W. Was performing the nimaz and was in the first rikaat when Muhammad Ramzan appellant came up and inflicted a toka blow on the back of his neck. He was going to inflict another toka blow on Muhammad Iqbal but the latter's brother Muhammad Abbas P. W. 3,th turned up and caught hold of Muhammad Ramzan with the help of Muhammad Khalil P. W. 4 and Muhammad Yaqub P. W.
5. In the meanwhile, as a result of the injury received by him, Muhammad Iqbal P. W. Had fallen on the floor of the mosque. This attracted the attention of his cousin and brothers and the appellant took the opportunity to release himself, make good his escape and flee away alongwith his toka. The above-mentioned witnesses had also seen Muhammad Din appellant standing outside the gate of the mosque. He is said to have exhorted Muhammad Ramzan appellant to inflict a second blow on Muhammad lqbal P. W. Muhammad Abbas P. W.
Alongwith others, namely Muhammad Din and Allah Ditta etc. Carried him, on a cot, the Police Station Kahna where he lodged the F. I. R., Exh. P. B. Giving the above-noted story. He also stated therein that a day earlier, when he was sleeping at his khalwara, both the appellants came there, in the middle of the night, in order to assault him but since he woke up, both of them ran away. After the expiry of the F. I. R. He was taken to the hospital for medical examination. H-- statement (Exh. P.
C.) was also got recorded by a Magis--trate in the hospital, apparently to be used as a dying declaration in case of his (Muhammad Iqbal P. W's) death.
3. The case was investigated by Muhammad Yar Khan, S. I. P. W.
6. He went to the spot and arrested Muhammad Ramzan appellant. At the time of the arrest Muhammad Ramzan appellant produced blood-stained toka P. 1 before the S. I. Which was taken into possession vide memo. Exh. P. E. The S. I.
Also took into possession a blood-stained saf (mat) from the place of occurrence in the mosque, vide memo. Exh. P. D. The toka was not sent to the Chemical Examiner or the Serologist and the origin of the blood in it was not got ascertained. As a result it cannot be said to be connected with the offence in question and cannot be used as. a piece of corroborative evidence.
4. Dr. S. M. Dilbar Hasan P. W. 1, Medical Officer, Civil Dispensary, Kahna, examined Muhammad Iqbal at 8-10 a.m. On 22-5-1970 and found a big incised wound measuring 3 -- " x 1/8" (after retraction of muscle, -- "), which was 1" deep on the postro-lateral aspect of the neck, extending from right side towards the back of the neck. There was profuse bleeding due to blood vessel having been cut.
The, doctor also found a small injury on the right side of the neck measuring -- " x 1/8"', about -- " above the lateral end of the main injury.
5. After the completion of the investigation, the two appellants were challaned and sent up for trial.
The result whereof has already been stated above.
The accused when examined denied their guilt and stated that they had been falsely involved due to enmity. They produced four witnesses in their defence, whose evidence shall be discussed later,
6. I have gone through the evidence on the record and have also heard the leaned counsel for the appellants. It may be mentioned, at that the entire prosecution case rests on ocular the statements of the complainant himself and three other eye-witnesses. The recovery of toka as already mentioned, cannot be used as a piece corroborative evidence, as blood on it was not got analysed to determine its origin. On going through the testimony of the four eye-witnesses I am impressed by the same and am inclined to rely on them even without any corroboration. Muhammad Iqbal complainant P. W. 2, is the person who received the injuries. He has narrated the story mentioned above. The other witnesses have supported him and have given more or less the same version. It was morning prayer time and at is in evidence that electric lights were also 'burning' in the room where the prayer was being offered. There cannot therefore, be any question of a mistake as to the identity of the assailants. Muhammad Abbas P. W. 3 was coming towards the spot after the other witnesses had started the nimaz and could therefore easily have seen the assailant attacking Muhammad Iqbal complainant, and even if it be said that the other witnesses namely Muhammad Yaqoob and Muhammad Khalil P. Ws. Could not have seen the infliction of the first blow on the appellant as they were standing in the same row with him and their prayers, they were definitely in a position to see the assailant immediately thereafter. It is in evidence that they actually caught hold of him but probably loosened their hold on him, in order to pay attention to Muhammad Iqbal complainant who was bleeding profusely due to neck injury, thus enabling Muhammad Ramzan appellant to escape. The learned counsel for the appellants argued that all the three eye- witnesses are close relatives of Muhammad Iqbal complainant, and should not therefore be believed. It is true that Muhammad Abbas and Muhammad Yaqoob P. Ws. Are the real brothers of the complainant, while Muhammad Khalil P. W. 4 is his cousin, but it is now well established that mere relationship is not a ground for holding the P. Ws. To be 'interested witnesses'. The defence did note even suggest to Muhammad Abbas and Muhammad Yaqub P. Ws. That they had any previous enmity with Muhammad Ramzan appellant. The only suggestion put to them, by way of defence, was that they were not present at the spot; that they had not seen the incident and they had deposed against the appellants merely to support their brother Muhammad Iqbal P. W. A suggestion was however, put to Muhammad Khalil P. W. 4 at the end of his cross-examination that he had not seen the incident and had deposed due to his previous enmity with Muhammad Ramzan appellant. The witnesses, however, categorically denied that suggestion. Moreover, it is note worthy that no indication was given by the defence as to the nature the previous enmity' said to have existed between Muhammad Khalil and the appellant. I am convinced that this suggestion was nothing more than a mere formality and had no foundation whatsoever.
7. The learned counsel contended next that the eye-witnesses are contradicted by the medical evidence inasmuch as the eye-witnesses had alleged that Muhammad Ramzan appellant had inflicted only one injury on the neck of the complainant but the doctor had found two injuries on the latter's neck.
One glance on the description of the injuries would show that the second injury is a mere scratch measuring -- " x 1/8" and the depth of this injury had not been given. Considering that it was only -- " away from the main injury (i.e. Injury No. 1) it is apparent that this was caused during the infliction first blow itself
8. It may also be mentioned that the D. Ws. Produced by the defence supported the prosecution version rather than helping the defence. Muhammad Ahmad D. W. 1 had stated that he was not present in the mosque at the prayer time on the day of occurrence. Hasan Din D. W. 3, did not say anything in favour of the defence. In fact all that he stated was that he had not even made statement before the police. Ghulam Qadir D. W. 2 stated that a panchayat had been arranged and the matter was got compromised between Muhammad lqbal P. W. And Muhammad Ramzan appellant. This supports the prosecution version mentioned above. Inayat D. W. 4 stated that he was present at the time of occurrence and had joined the jama'at and was sitting by the side of Muhammad Iqbal P. W. In the same row. The first rika`at was completed and the nimazis were standing for the second rikaat when some one inflicted a toka blow to Muhammad Iqbal P. W. On receiving which the latter fell on him (i.e. Inayat D. W. 4). He stated further that when the assailant wanted to inflict another blow, he was caught by Imam. Masjid. He also stated that the assailant was Muhammad Ramzan appellant.
9. From the above discussion it is apparent that the case against Muhammad Ramzan appellant stands proved beyond reasonable doubt through the prosecution as well as the defence witnesses. The case of Muhammad Din appellant is however, distinguishable. Although he was A mentioned by the eye-witnesses as having been present at the gate of the mosque and some of the witnesses had even said that he had shouted and exhorted Muhammad Ramzan appellant to inflict another blow on Muhammad lqbal P. W. (which was of course never inflicted) but it appears to be simply an exaggeration. In any case no injury has been attributed to him. In the circumstances of this case I am of the View that Muhammad Din appellant deserves to be given the benefit of doubt. The case against him is not proved beyond reasonable doubt and as such I set aside his conviction. Accordingly his appeal is accepted and he is acquitted of the charge.
Since he is already on bail, his bail bonds should be discharged.
The appeal of Muhammad Ramzan appellant is, however, dismissed for the reasons given above and his conviction is maintained. Keeping in view the location of injury as well as the place where he assaulted Muhammad Iqbal P. W. (i.e. In the sacred precincts of a mosque where Muhammad lqbal was saying prayer), I am of the view that -Muhammad Ramzan appellant is not entitled to any leniency. I therefore, maintain his conviction as well as sentence. This disposes of the matter.