1974 P Cr (PLP)

In order to be believed a witness must come to the Court with clean hands and if he is found to have suppressed the material fact which goes in favour of the accused persons, his evidence must be rejected and if it is doubt ful as to which of them attacked first, the benefit should go to the accused persons. Mian Nazir Akhtar for Petitioner. Aziz Ajmi for A.G. for the State. Dates of bearing: 1st, 2nd and 5th March 1972. Muhammad Aziz, Muhammad Siddique and Muhammad Ayub, brothers inter se were tried under section 326/34, P. P. C. and sentenced to one year's R. I. each by Ch. Amjad Ali, Magistrate Section 30, Pakpattan, vide his order dated 9‑5‑1972. They were also asked to execute a bond in the sum of Rs. 1,000 each for keeping peace in the locality for a period of six months after the expiry of sentence. The petitioners appealed before the Sessions Judge, Sahiwal which was dismissed on 9‑10‑1972. Hence this revision petition.

2. Briefly the prosecution case is that on 26‑5‑1969 at 6 p.m. Muhammad Ayub and Sohan P. Ws. tenants of Gulab Khan P. W. were irrigating the fields when Gulab Klan P. W. was at some distance. The petitioners felt that it was their turn of water and illegally a cut had been made in the watercourse. Muhammad Siddique and Muhammad Aziz petitioners armed with a spade each and Muhammad Ayub armed with a Khunda turned up at the point of Naka and asked Muhammad Ayub P. W. to stop irrigation and also abused him who returned the abuse and refused to comply with their request, as a result of which the three petitioners launched an attack, injuring Muhammad Ayub and Ghulam Rabbani, p. Ws, causing them and 8 injuries respectively. Sohan and Ilyas P. Ws. separated them and bid Gulab Khan. Gulab Khan P. W. took the injured to the hospital at Beli Dilawar and after getting their medico‑legal reports lodged the report (Exh. P. A.) on 27‑5‑1969 at 4‑15 p.m. at Police Station Ahmad Yar, at a distance of two miles from the spot, which was recorded by S. I. Sultan Ahmad Khan (P. W. 7).

3. It is an admitted fact that there was no permanent Warabandi in Chak No. 237/E.B., Tehsil Pakpattan, on the day the present occurrence took place.

4. Having heard the learned counsel for the petitioners and the State counsel I find that the conviction of the petitioners cannot be maintained, because the F. I. R. was lodged after considerable delay and also there is no mention of the injuries suffered by Muhammad Siddique and Muhammad Aziz petitioners who had 10 and 8 injuries respectively on their persons and one of the injuries on the person of Muhammad Aziz petitioner was with a sharp‑edged weapon. It is also admitted that Muhammad Ayub and Sohan P. Ws. are tenants of Gulab Khan informant and are under his influence. Ghulam Rubbani P. W. was bound down under section 107, Cr. P. C. against Muhammad Siddique petitioner and this fact is not denied b; the witness. Therefore, he is also an interested witness. Sohan P. W. in examination‑in -chief had stated that Siddique and Aziz petitioners bad a hatchet each but again stated that they had a spade each. Sohan, Ilyas and Gulab Khan P. Ws. are not injured, so their presence at the spot becomes doubtful and, therefore, I am not going to rely on their testimony. Dr. Muhammad Iqbal and Dr. Muhammad Arshad were mentioned as prosecution witnesses and they had examined the injured petitioners, Muhammad Aziz and Muhammad Siddique, but they were never produced at the trial which had caused prejudice to the petitioners. I also find that Niaz Ali (P. W. 10) was declared hostile by the trial Court at the request of Naib Court. Moreover, injury No. 8 on the person of Muhammad Aziz petitioner was caused by a sharp edged weapon according to the medico‑legal report of Dr. Muhammad Iqbal Hussain which is on the file of cross‑case. Similarly, injuries Nos. 4 and 6 on the person of Muhammad Siddique petitioner were also found grievous on receipt of the X‑ray report. In these circumstances, it is very difficult to say that the petitioners were aggressors as held by the two Courts below.

5. In order to believe a witness must come to the Court with clean hand and if he is found to have suppressed the material fact which goes in favour of the accused persons, his evidence must be rejected and if it is doubtful a to which of them attacked first, the benefit should go to the accused persons.

6. The upshot of the above discussion is that the prosecution case against the petitioners is highly doubtful. I, therefore, accept this revision petition, set aside the conviction and sentences of the petitioners. The petitioners shall be released forthwith provided they are not required in any other case. Petition accepted.