1976 P Cr (PLP)

(2) Contusion 1 x in the left side of head. (3) Superficial cut 3/4" x 1/5" on front side of left hand upper part. (4) Stab wound x x 1/3" in front of chest on left side with abrasion 3 x 1/5' towards outerside." The injuries were simple. Injuries Nos. 1 and 3 had been caused by sharp weapon, injury No. 2 by a blunt weapon arid injury No. 4 by a pointed weapon.

8. The medical examination of Ghulam Miran P. W. held at .5‑30 p. m. the same day disclosed the presence of the following injuries: ‑‑ "(1) Contusion 1" x " on left check. (2) He was complaining of left shoulder joint." Both the injuries were simple and had been caused by blunt weapon.

9. The medical examination of Mst. Sardaran held the same day at 5‑45 p. m. disclosed the presence, of two contused wounds on her left cheek and left front chest, respectively. The injuries were simple and caused by blunt weapon.

10. The .medical Officer had also examined, the same day at 4‑45 p. m.. Manzur Hussain co‑accused and had found ten injuries on his person consisting of three incised wounds, five contused wounds and two abrasions. The contused wound noted as injury No. 3. was declared after X‑Ray Examination to be grievous. The other injuries were simple. The incised wounds had been caused by sharp‑edged weapon and the rest by blunt weapon.

11. On the next day, i. e., 8th April 1972, at 10.45 a. m. the Medical Officer examined the appellant and found nine injuries on his person, of which one was contused wound and the remaining abrasions. All the injuries were simple in nature and had‑ been caused by blunt weapon.

12. The case of the prosecution during the trial rested on ocular testimony and the circumstantial evidence relating to the recovery of knife (Exh. P.5). The ocular testimony came from Safdar (P. W. 5) Mst. Irshad Bibi (P. W. 9), Ghulam Miran (P. W. 11), Mat. Nasim Akhtar (P. W. 12), Mst. Sardaran (P.W.13), Muhammad Tufail (P. W. 14) and Bashir Ahmad the complainant (P. W. 15). Safdar and Mst. Irshad Bibi P. Ws also deposed as to the abduction of the latter from Toba Tek Singh Railway Station. The recovery of the knife was proved through Muhammad Yousaf (P. W. 10) and Abdul Aziz S. I. (P. W. 16). The appellant admitted his relationship with the complainant party. He also admitted the occurrence, but he gave his own version in the following words: ‑‑ The fact is that Mst. Irshad was first engaged to me but was subsequently married to Safdar Hussain P. W. After her marriage with Safdar Hussain, she used to come to me but I told her that she should feel content and should not try to disgrace us. About 15 days before the present occurrence Mst. Irshad came to my house and said that she would file a suit for dissolution of marriage and would not go back to her husband. She took me to Toba Tek Singh where she filed a suit for dissolution of marriage against Safdar Hussain. We then returned to our house. On the day of occurrence the complainant party came and attacked me and my brother Manzoor. At that time we two, my brother and Mst. Irshad were present. The complainant were about 18 and 19 persons and surrounded the house. As first Bashir and Nazar Hussain entered the house from the main gate. The others entered the house from the other side where there was a broken wall of the compound. At that time Safdar Hussain P. W. had a knife, Bashir P. W. had a kulhari, Nazar deceased had a dung. The others were also holding small sotas. They shouted lalkara. We also got up. Safdar gave a knife blow to Manzoor to start with. Just then Bashir P. W. gave a hatchet blow to him. Safdar came towards me and tried to give knife blows to me, which caused the few scratches to me. I then snatched the knife from him. At that time Nazar Hussain deceased was standing near me on my right side. As I snatched the knife from Safdar Hussain P. W., the knife hit Nazar Hussain on account of the jerk of my hand, Two or three of them gave sots blows to me after Nazar Hussain was injured. I then ran away from there. I concealed myself in a nearby crop. This is how I was injured. He further stated that he himself had gone to the police station along with co‑accused Manzur Hussain and had informed the police officer of the happening, but the police officer had told him that he will register the case after a visit to the spot. He had also stated: ‑‑ "Even prior to the occurrence Panchayat had come to my house for the restoration of Mst. Irshad Bibi. I told them that if Irshad Bibi was willing to go she could be taken away, but she refused." The learned Sessions Judge disbelieved the story of the abduction as given by the prosecution. He also found that the complicity of co‑accused Maqbul Hussain had not been established beyond a reasonable doubt and accordingly acquitted him of all the charges. He, however, convicted and sentenced the appellant and Manzur Hussain as already mentioned.

13. In his Memorandum of Appeal file) through the Jail authorities the appellant has stated that Mst. Irshad Bibi, with whom he had been engaged prior to bar marriage with Safdar, wanted to live with the appellant and had come to him of her own accord and had also filed a suit for dissolu tion of marriage, that about eighteen persons bad raided his house in order to forcibly remove Mst. Irshad Bibi and a fight had ensued in the course of which Nazar Hussain died. This is in line with the stand taken by him during the trial.

14. The appellant's admission under section 342, Cr. P. C. that Mst. Irshad Bibi had been present at his house at the time of the occurrence, that even prior to the occurrence Panchayat had come to his house for her restoration, and that he was assisting her in filing a suit for dissolution of her marriage with Safdar Hussain P. W. fits in the prosecution case. But it is difficult to believe his assertion that the complainant party had come in strength of 18/19 persons, had surrounded his house and had started giving blows to him and Manzur co‑accused. For, if that was the intention the complainant party would not have included the two women, namely; Mst. Sardaran and her daughter Mst. Nasim Akhtar P. Ws. The appellant and his brothers were related to Muhammad Tufail P. W. There is nothing to suggest the existence of any previous enmity between the parties to justify a view that the complainant party had gone for a purpose other than the restoration of Mst. Irshad Bibi. It is obvious that the appellant who had been engaged to Mst. Irshad Bibi before her marriage with Safdar Hussain P. W. and who was interested in getting her marriage dissolved had resisted the complainant party's attempt for her restoration. In the circumstance, it is not believable nor & the facts give rise to any such inference, that it was the complainant party which had begun the assault straightaway.

15. On the other hand, the story advanced by the prosecution also requires to be examined carefully on account of suppression of facts, which is glaring. The abduction story is too naive and far fetched. That Safdar P. W. had agreed at" the request of the appellant to miss a train only to take tea, that within his seeking, his wife had been pulled out of the train in the middle of the day at the Railway Station, and that he could do nothing about it, not to jump down from the train pr pull the chain, .nor even to raise‑an alarm, and that he did not report the matter to the police but kept on searching her for clearly a week, can hardly convince any‑one. It is apparent that Mst. Irshad Bibi had been a willing party. In these circumstances, her evidence and that of Safdar. P. W. had been rightly rejected by the trial Court on the question of her abduction. The witnesses, at least to this extent, have not come out with the whole truth.

16. The witnesses have also failed to account for the multiple injuries inflicted upon the appellant and his brother Manzur Hussain The F. I. R. is absolutely silent on this point. In their evidence‑mostly during their cross‑examination, however some of the eye‑witnesses admitted only to the extent that Bashir P. W. had snatched sota from Maqbul Hussain co- accused with which be had given beating to the accused persons. But this does not explain the presence of the three incised wounds on the person of Manzur Hussain which according to the Medical Officer, had been caused by sharp‑edged weapon. The prosecution witnesses therefore cannot be taken at their words.

17. The only way one can construct the story is that the complainant party had come to the house of the appellant primarily for restoration of Mst. Irshad Bibi, that this had been resisted by the appellant and a fight had ensued in which both sides inflicted injuries to each other with sharp edged as well as blunt weapons, in the course of which the fatal blow had been received by the deceased. Since the prosecution had not explained the presence of the incised wounds on Manzur Husain anti since the story of snatching sofa by Bashir P. W. with which the injuries or the appellant and his brother Manzur Husain are said to have been inflicted had been introduced subsequently, the possibility that the complainant party had come armed with sharp‑edged and blunt weapons cannot be! riled out. The conduct of Mst. Irshad Bibi is capable of only one inference that is she had gone to and was living in the house of the appellant of her own accord. That being so, the attempt by the complainant party to secure her restoration from the appellant's house by force, amounts to provocation. Then in the fight, which ensued when the complainant party tried to force its way, both sides suffered injuries. In such a fight, particularly when the number of the assailants was large, it would not be possible for the appellant to locate his blows only on the non‑vital parts of the bodies of his assailants. No unfair advantage or cruelty can be attributed to him because both he and his brother had sustained a number of injuries themselves, because the complainant party was itself armed, and because the injury inflicted upon the deceased was only one. The facts of the case are therefore capable of an inference that the appellant had acted in the exercise of right of private defence. The presence of a grievous incised injury on the person of Manzur Husain co‑accused shows that the appellant had reasons to apprehend that death or grievous hurt would otherwise, he the consequence of the assault. He therefore,; cannot be held guilty of any of the offences with which he was charged and convicted.

18. I, therefore, accept the appeal of Muhammad Anwar appellant set aside his conviction and the sentences and acquit him. He shall be released forthwith, if not wasted is any other case.