Appellant Muhammad Islam alongwith his father Muhammad Anwar was tried for the murder of Muhammad lkram (deceased), the brother of Mehraj Din complainant (P.W.8) by learned Additional Sessions Judge, Sialkot. He, vide his judgment, dated 22-2-1986 acquitted Anwar but convicted the appellant under section 304, Part 1, P.P.C. And sentenced him to ten years' R.I. He had appealed while the complainant has filed a revision petition for enhancement.
2. The occurrence, according to the F.I.R. Took place at 9-00 p.m. On 4-5-1985 near the house of one Allah Rakha in a street of Sialkot City. According to the F.I.R. Mehraj Din received message at his house that a dispute was going on between his brother lkram (deceased) and the appellant whereupon he started for the place of dispute. When he reached the spot of the main occurrence, he found the deceased returning. Just on the corner of the street appellant with a Chhuri and his father empty-handed reached. On the Lalkara of Anwar accused, the appellant gave two Chhuri blows in the left thigh of the deceased who fell down and the appellant and his co-accused ran away.
3. At the close of the trial Muhammad Islam appellant pleaded that about 2-1/2 years before the occurrence he was residing alongwith his wife and minor child aged two years in a rented house.
One month before the occurrence when he reached the house in the evening after his daily work, he found the deceased sitting with his wife in the house. He abused his wife as to why the deceased, a bad character had visited her. She was eventually shunted out and left for her pa3rents' house. The deceased being of a desperate character and influential, he could not dare to come in conflict with him. His further version was that on the day of occurrence he came to see his parents in Mohallah Noorpura and at about 9-00 p.m. Was standing near the shop of one Abdul Ghani where the deceased also turned up and taunted as to why he was not bringing back his wife. There was exchange of abuses between them whereupon the deceased took out a Chhuri from the sweet-meat shop and ran after him. He started running and near his own house Ikram tried to give him a blow but he warded it off by stepping aside. When the deceased did not desist, he grappled with him, snatched the Chhuri and when his throat was being pressed by the deceased by felling him to the ground, he gave a single Chhuri blow in the left thigh.
4. None has appeared for the appellant. The record has been gone through with the help of the learned counsel for the State. Contention had been raised in the learn-ed lower Court that the three eye-witnesses had not seen the occurrence, they were chance witnesses and the defence plea was believable. After having gone through the record and heard the learned counsel for the State there seems to be much force in the contention. It is clear from the statements of Mehraj Din complainant, Muhammad Salim and Muhammad Siddiq (P.Ws.8, 9 and 10) that they were chance witnesses and their houses were suf6ciiently away from the spot. Not only this but they are contradicted by the medical evidence. According to the former two, two blows had been given by the deceased with Chhuri while according to Muhammad Siddiq (P.W.10) not less than four blows were caused but it is clear from the statement Dr. Arshad Ali Bajwa (P.W.6) that there were only injuries Nos.1 and 2 in the thigh which were communicating and these were the result of one blow.
Manzar Shah, D.S.P. (P.W.11) who had investigated the case admitted in cross-examination that the appellant at the time of his arrest had pleaded that one month before the occurrence the deceased was seen sitting with his wife in his house whereupon he had reprimanded his wife and turned her out and she went to her parents house. He also admitted that the appellant further pleaded to him that the deceased- had followed him while armed with a Chhuri, both of them grappled and he had acted in self-defence. Thus the observations of the learned trial Judge that the plea of self-defence was raised in the first instance in his statement at the close of the trial is not correct. The eye-witnesses being chance witnesses, their trestimony being contradictory to the medical evidence, they could not be believed. We are only left with the statement of the accused/appellant which- must be accepted in toto.
5. The upshot is that the appeal is accepted, the conviction of the appellant is set aside extending him the right of self-defence and the benefit of A doubt, he stands acquitted. He is on bail and stands discharged of the bail bonds. The revision petition fails and is dismissed.