1. The appellants were tried by the 1st Additional Sessions Judge, Khairpur, who by his judgment, dated 26-3-1988 convicted the appellants under section 304(1) read with section 149, P.P.C. And sentenced them to suffer R.I. For five years and fine of Rs.1,000 or in default of payment of fine to undergo R.I. For six months more. They were also convicted under section 325 read with section 149, P.P.C. And were sentenced to suffer R.I. For three years and fine of Rs.500 each and in default of payment of fine to undergo R.I. For five months more. The appellants have challenged the said conviction and sentence by this appeal.
2. The case of the prosecution is that complainant Muhammad Ibrahim lodged report at Police Station Pir-Jo-Goth stating that his uncle A.I Bux was owning Rs.50 from accused Manzoor. On the day of incident the complainant accompanied his uncle for getting back Rs.50 from accused Manzoor. For this reason the complainant, his brother Zamir, cousin Hakim A.I and uncle A.I Bux went to Kot Mir Muhammad to approach Mir Shaman for getting the money from accused Manzoor. At about noon time the complainant party passed in front of the shop of accused Manzoor Hussain who abused them. On the advice of one Rahimdino the complainant party went away. While they were proceeding to their village, accused Manzoor followed them and near the houses of Mangi Community, accused Manzoor Hussain called his associates who came there armed with Lathis and hatchets. Accused Gulsher gave hatchet blow on the left hand of complainant. Khadim gave hatchet blow to A.I Bux, Dilmurad gave hatchet blow to Zamir while accused Darya Khan and one another person gave Lathi blow to Hakim A.I. Thereafter the complainant party were going towards their houses but after some time on the way Zamir Hussain fell down and expired. Thereafter Muhammad Ibrahim went and lodged report at Police Station Pir-Jo-Goth.
3. The report was recorded by A.S.I. Muhammad Daud who after completing the usual investigation submitted the challan. The trial against the accused commenced and during the course of trial the prosecution examined P.W.3, Ibrahim, P.W.4, Hakim and P.W.5, A.I Bux as eye-witnesses. P.W.10 Dr. Imdad A.I and P.W.11 Dr. Abdul Latif, P.W.2 Allah Bachayo with P.W.7 Lal Bux and P.W.9 Muhammad Bux are the three Mashirs. P.W.8 is the Investigating Officer A.S.I. Muhammad Daud. After examining the prosecution witnesses, statements of the appellants were recorded as Exh.23 to Exh:27. They all denied the prosecution allegation and claimed to have been falsely implicated. They further stated that the present case has been lodged in order to save themselves from the counter-case Cr.
4. No.27/83. After the conclusion of the trial, the appellants were convicted and sentenced as earlier mentioned hereinabove.
5. I have heard Mr. A.R. Faruq Pirzada learned counsel -for the appellants and Mr. Abdul Sattar Chohan, Advocate appearing for AA.-G.
6. It was submitted by the learned counsel for the appellants that in respect of the same incident a counter-case was lodged by appellant Manzoor which was registered at the same police station and three persons on the side of the appellants were injured. They are Manzoor, Dil Murad and Darya Khan and the three eye-witnesses namely Muhammad Ibrahim, Hakim and A.I Bux are accused in the counter-case and therefore this case should not have been decided in isolation. He further points out that material circumstances were not taken into consideration by the trial Court and instead of giving benefit of doubt to the appellants, that benefit has been given to the prosecution.
7. I have gone through the evidence available on record and it is an admitted position that in respect of the same incident the appellant Manzoor had lodged counter version being Crime No.28/83. The complainant Muhammad Ibrahim admitted in his cross-examination that he alongwith A.I Bux and others are accused in the counter-case. The complainant has further admitted that accused Manzoor, Dil Murad and Khadim had also received injuries at the time of incident but he cannot say by what weapon such injuries were caused. The important circumstance in the case is that the place of Wardat is near the shop of the appellant Manzoor. Furthermore it is the complainant party who had gone to the shop of the accused. Since the factum of injuries on the person of appellant has been suppressed, nevertheless it does establish the fact that the complainant party was armed with weapon. If the complainant party had gone only for the purpose of getting back the amount of Rs.50 from accused Manzoor, in that event they would not have made preparation by arming themselves with weapons. It appears that the complainant party was not only armed with the weapons, but they had every intention of using the same if necessary. Apart from Manzoor three other persons have received injuries as admitted by the complainant. Moreover the version given by the complainant is also in conflict with the medical evidence. According to the complainant, he states that accused Manzoor has caused him a hatchet blow with sharp side but in the medical evidence no incised wound had been detected. The evidence of the eye-witnesses is also intra---contradictory inasmuch as, different parts are being assigned by different witnesses. In the circumstances when the complainant party appears to have caused the injuries to the appellants, in that event the appellants would be justified in retaliating. Obviously the accused have acted in their right of private defence. However, material prejudice has been caused to the accused in this case as prosecution has totally failed to bring on record the medical evidence in respect of the injuries on the person of the appellants. Obviously this incident was not a one-sided affair and by suppressing the medical evidence/certificate of the injured appellants, the benefit will go to the accused. Clearly on account of the short-coming in the prosecution case, the benefit of doubt is given to the appellants who are thus entitled for an acquittal.