Noor Khan appellant alongwith Rabnawaz acquitted accused was tried by the learned Sessions Judge, Mianwali, for committing the murder of Khan D.1 Khan in furtherance of common intention and on the conclusion of trial where Noor Khan appellant was convicted under section 307, P.P.C.
And sentenced to seven years' R.I. And a fine of Rs.2,000 or in default to undergo three months' S.I.
His co-'accused Rabnawaz was acquitted on benefit of doubt. Muhammad Riaz co---accused did not join the trial on account of his absconsion.
2. The prosecution case was that on 23-6-1984, at 6-00 p.m. When Khan D.1 Khan (deceased) was bringing back his she-donkey to his house and happened to pass from near the house of Noor Khan appellant at village Pia Khel, the latter suddenly came out of the house armed with a Sota and gave a Sota blow on his head, hurling abuses on him at the same time. Khan D.1 Khan (deceased), who was also wielding Sota, paid him in the same coin. Noor Khan appellant raised Lalkara calling his sons for help. In response to his call Muhammad Riaz absconding accused, armed with a gun and Rabnawaz, acquitted co-accused, armed with a pistol, came out of the house, raising a Lalkara. Muhammad Riaz, absconding co-accused, fired at the deceased hitting him on his legs as a result of which he fell down. The alarm raised by the deceased attracted Amir Khan and Nawab Khan to the spot, who also saw the occurrence. Seeing them come, the assailants ran away.
3. The motive for the crime was the suspicion of Noor Khan against Khan D.1 Khan (deceased) for having illicit relations with his daughter Mst. Perveen.
4. Khan D.1 Khan injured was removed to D.H.Q. Hospital. Mianwali, where he was medically examined but later died at 11-00 p.m. The matter was reported to the police by Eesab Khan, complainant, and a case was registered against the appellant and his two sons under section 302/34, P.P.C. On the completion of investigation, Noor Khan appellant and Rabnawaz, acquitter accused, were sent up for trial to the Court of Session as Muhammad Riaz accused could not be arrested being an absconder.
5. On the commencement of trial, the prosecution produced as many as 12 witnesses. On the completion of its evidence, the appellant and his acquitted co---accused were examined under section 342, Cr.P.C. Rabnawaz, acquitted accused, denied his presence and alleged his false implication. Noor Khan appellant stated that Khan D.1 Khan (deceased) alongwith others wanted to forcibly abduct his daughter Mst. Perveen and he fired at him in order to rescue her, as a result of which he was injured. According to him, he lodged a complaint and this case was a counterblast thereto. They produced no defence except that Noor Khan appellant brought on the record the certified copy of his statement (Exh. P.C.) and certified copy of medico-legal report (Exh. D.C.) On the conclusion of trial, the appellant was convicted in the manner aforesaid.
6. It is argued on behalf of the appellant that there were two versions of the occurrence, one given by the prosecution and the other by the defence, but the latter was more plausible because it took place in front of his house and his daughter Mst. Perveen also sustained injuries which is a proof presumptive of the fact that she was being forcibly abducted by the deceased and his companions and on her raising alarm, she was rescued by the appellant and his son Muhammad Riaz, absconding accused. During scuffle, according to the learned counsel, Noor Khan appellant gave a Sota blow on the head of the deceased, while the deceased m retaliation gave a Sota blow on his arm causing its fracture. The appellant also suffered a fire-arm injury on his back but it is not clear how did he suffer it. He submits that in the rescuing process, Muhammad Riaz, absconding accused suddenly came out of his house armed with a gun and fired at the deceased on his leg as a result of which he was injured and later died in the hospital. He argues that the appellant also filed a complaint in the Court of Session embodying a counter-version but it was erroneously dismissed by the learned Sessions Judge, The learned counsel. Appearing on behalf of the complainant contends that the. Appellant, who had given a Sota blow on the head of the deceased, was rightly convicted and sentenced for his attempted murder.
7. It is an admitted position that the occurrence took place in the vicinity of appellant's house and during the occurrence he also sustained four injuries, two of them being grievous. There is no explanation on the record as how did he suffer a grievous injury with a fire-arm on his back, but obviously it was the complainant party which could possibly cause it. If he gave a Sota blow to the deceased on his forehead causing simple injury, the latter also gave him a Sota blow, causing grievous injury on his arm. Though the appellant also took upon himself the liability of causing fatal fire-arm injury to the deceased yet, according to the prosecution, it was caused by Muhammad Riaz absconding accused and the appellant accepted its liability in order to save his son. How he could wield a Sota and cause an injury with it on the forehead of the deceased and at the same time fire a gun, causing injuries to him on his legs. The fatal shot was apparently fired at the deceased by Muhammad Riaz absconding accused either to rescue his father or on his exhortation to deal with their common enemy effectively in the background of family honour. In any case, the appellant, in the absence of any clear picture of his having started the occurrence by intercepting the way of the deceased and his suffering two grievous injuries at the hands of his opponents, the role of causing simple injury to the deceased does not render him liable for launching murdeorus assault on him (deceased). His appeal, is therefore, accepted, his conviction and sentence are set aside and he is acquitted. He is already on bail.
8. A copy of this judgment should be sent to District Magistrate, Mianwali, who should be asked to let this Court know on or before 1-6-1991 through Deputy Registrar (Judicial) of this Court as to why Muhammad Riaz absconding co-accused, who was a police official has not so far been arrested by the police who is said to be conniving act.