1986 P Cr (PLP)

Date of hearing: 2nd December, 1985. Raja and his sons Zaffar Iqbal and Mansha were tried by the Judicial Magistrate, Chiniot, under section 307/34, P.P.C. for attempt on the life of Aslam P.W. The Magistrate acquitted Raja and Zaffar Iqbal, but convicted Mansha under section 307/34, P.P.C. and sentenced him to seven years rigorous imprisonment with a fine of Rs.10,000 or in default thereof to undergo further rigorous imprisonment for one year. Out of fine, if recovered 3/4th was ordered to be paid to Aslam, injured P.W. The appeal of Mansha, convict, is now before me for disposal.

2. The brief facts of the prosecution case are that on 10‑6‑1982 Nijabat Khan complainant P.W.2 lodged F.I.R. at Police Station, Bhowana alleging therein that he was a resident of Chak No.211/J.B. and an agriculturist by profession. He had purchased Ihata No.27 in Jadeed Abadi since long. . A year prior to the present occurrence; he had partitioned his ancestral land with his brother Raja, accused. As Ihata No.27 was purchased by him with his own money, therefore, he did not give any share of it to his brother Raja, accused. Raja, accused, started demanding the share of the Ihata from him, but he refused bluntly. On the day of occurrence, Raja and Mansha, accused, both armed with guns, came to the said Ihata. Zafar Iqbal, accused, also came with a plough at the spot and they wanted to plough the Ihata. Knowing about the arrival of the accused at the spot, Muhammad Aslam P.W.4, his son, aged 18/19 years, rushed to the spot. As soon as he entered the Ihata, Zaffar, accused, who was ploughing the Ihata, raised a Lalkara to Raja and Mansha, accused, who were hiding themselves a bit away from that place. Raja and Mansha, accused, fired at Muhammad Aslam P.W.4. The pellets hit various parts of the body of his son. One pellet, which was fired by Mansha, accused, his the neck of the injured. Muhammad Aslam, injured fell down on the ground. Hearing the noise, the complainant, Ahmad Khan and Manak Sher P.W.1 rushed to the spot. Ahmad son of Shahu P.W.3 had reached the spot earlier. The P.Ws. witnessed the occurrence with their own eyes. Zafar, accused, gave three Sots blows to Muhammad Aslam P.W.4 while he was lying on the ground. The Sots blows hit the right hand and back of Muhammad Aslam injured. On the request made by Ahmad P.W.3, the accused stopped firing. When the complainant saw his son lying on the ground, he made two/three fires with his licensed revolver. All the three accuses went towards their house taking along their plough; saying that they would teach a lesson to the complainant party. The complainant further stated in his F.I.R. that it was timely intervention of Ahmad which saved the life of his son. The motive for the occurrence was that the accused party demanded share in the said Ihata. Due to this grievance, the accused had made a murderous assault on the life of Muhammad Aslam.

3. At the trial, the accused denied the allegations that were levelled against them. They stated that the Ihata in question was owned by Samand, the father of Najabat complainant P.W.2 and Raja, accused, as they were real brothers, and that by virtue of a family settlement the said Ihata fell to the share of Raja, accused, and the same was always in his possession. They further stated that Manak Sher P.W.1. Nijabat P.W.2, Muhammad Aslam P.W.4, Ahmad son of Masson (given up P.W.), Nur son of Walia and one Anwar had tried to forcibly taken the possession of the Ihata and resorted to firing, injuring Zaffar Iqbal, accused. The accused examined Mumtaz P.W.1, Dr. Jamshed Alam D.W.2 and. Sati Muhammad D.W.3 in their defence.

4. In view of the opinion and clear admission of the incident by the accused though in different circumstances, the learned trial Judge, after placing in juxtaposition the two cases, found that the evidence on the record clearly proved the case of the prosecution to the hilt only against Mansha, appellant, and he convicted and sentenced him, as stated above.

5. I have heard the arguments of the learned counsel for the appellant and the State and have perused the record. The occurrence is admitted. The version of the prosecution is that as given in para. 2 above and that of the appellant is that as given in para. 3 above. They need not be repeated, as they would only drag a greater length of chain. The main question that arises is as to who was in possession of Ihata No.27. The prosecution has also to show that the same was purchased by Nijabat Khan, P.W.2, but did not lead any documentary evidence to show that the prosecution was with him also, Najabat Khan P.W.2 admits that on the day of occurrence, fourteen Marlas of the said Ihata were in his possession in which harnoli had been grown. He also admits that the total area of the Ihata was thirty‑five Marlas. Manak Sher P.W.1 admits that all lands of Shahamand were cultivated by Raja, acquitted accused, and that a family settlement had taken place between Raja, acquitted accused, and Nijabat Khan P.W.2 relating to Shahamand deceased's land. The prosecution has not cared to file any Khasra Girdawari with regard to Ihata No.27. It was the duty of the prosecution to show who was in actual possession. In these A circumstances, it cannot be safely inferred that possession of the Ihata was with the complainant party on the day of incident. In this view of the matter, the defence of the appellant that the Ihata was in possession of his father and that the complainant party by force attempted to take possession thereof, in which process Nur son of Walia, who attempted to fire at them, accidentally hit his companion Aslam P.W.4 and Zaffar Iqbal, acquitted accused, appears to be reasonable and probable. 5‑A. It appears that the accused party in the present case filed a private complaint against the members of the complainant party and that when the preliminary evidence was being recorded therein, the parties compromised and agreed to withdraw their respective criminal B cases against each other, in pursuance of which Manak Sher P.W.1, Nijabat P.W.2 and Muhammad Aslam P.W.4 swore affidavits Exhs. D.A., D. B. and D.C. respectively stating either that they had, not witnesses, the occurrence or had not identified the assailants who had fired at them, which were delivered to the accused party, which they used in support of their bail petitions. It appears that pursuant to this compromise, the accused party did not pursue their private complaint, but when it came to the turn of the complainant party to withdraw from theirs, they did not do so. Manak Sher P.W.1 admits in cross examination that Raja son of Sattar and Ahmad son of Walia were appointed arbitrators by the parties relating to their dispute and that he had sworn affidavit Exh.D.A. which he had signed. He pretended ignorance as to whether the accused party had filed a cross‑case against them. Nijabat P.W.2 admitted that he had executed the affidavit Exh.D.B. in respect of the bail application filed by the accused. Muhammad Aslam P.W.4 admitted in cross‑examination that he had heard that the accused had filed a cross case against them. He also admitted having executed affidavit Exh.D.C. in the accused's favour. Unfortunately the compromise deed was not got proved through proper defence witnesses. However, the evidence on the record does lead to the inference that some compromise was arrived at between the parties, whereby they had agreed to foregive and withdraw the cases against each other.

6. The upshot of the above discussion is that the ocular account does not fully support to prosecution case. The appellant, therefore, is entitled to the benefit of doubt.

7. For the foregoing reasons, this appeal is accepted and the conviction and sentence of Mansha, appellant, is set aside. He shall be released forthwith, if not required in any other case. The fine, if recovered, shall be refunded to him. S.A. Appeal accepted.