1976 P Cr (PLP)

(5) An abrasion 1 x " on the front of left upper arm. (6) Swelling 1 x on the back of loft chest. All the injuries were found simple.

6. On 28th January 1972, Dr. Allah Nawaz (P. W. 2) examined Wali Muhammad P. W. and found the following injuries vide Exh. P. J./1:‑-- (1) Contused wound 2 x ' x granulation tissue present on the right top of head 3' from the right ear. (2) An abrasion " x " with swelling 2" x 1" on the top of head. (3) Scaled abrasion ' x " on the middle back of left forearm. (4) Complained of pain in both sides of the chest, but there was no mark of injury. All the injuries were simple and had been caused by blunt weapon. On 29th January, 1972, the same doctor examined Ibrahim P. W. and found the following injuries on his person vide Exh. P. K.‑- (1) Swelling 2 x 1" with abrasion crust x " on the front of bead. (2) An incised wound 1 x with granulation tissue present at the lower end and the wound was through and through 1/6" x 1/6" on the left side of the cheek near the lip. (3) Swelling 1 x 1" on the palm of the left hand. (4) Scaled abrasion 2 ' x 2" on the front upper part of the chest. (5) Abrasion " x ' on the back of right thumb. (6) An abrasion " x " on the back of right finger. All the injuries were simple.

8. Dr. Razia Sultana Latifi (P. W. 3) examined Mst. Zulekhan P. W. on 29th January 1972 at 4‑15 p. m. and found the following injuries on her person vide Exh. P. H. - (1) An incised wound 1 x x scalp deep into right side of the head in parietal region. The wound had started healing. (2) The injured complained pain in the chest. (3) The injured complained R. S. L pain in the right lumber region and there was a bruise 4 ' x 4" and was tender. The colour of tae injury was black. Injury No. I was kept under observation while the rest were simple.

9. In addition to the above‑detailed medical evidence and that of the recoveries the prosecution had relied for its case on the testimony of Wali Muhammad (P. W. 7), Mst. Zulekhan (P. W. 8), Ibrahim (P. W. 9), Bashir (P. W. 10) and Isa (P. W. 11) for the ocular account of the occurrence and expressed for Wali Muhammad, the complainant, the remaining witnesses had not learnt whole‑hearted support to the above version of the occurrence.

10. The three acquitted accused and the appellants except Jamal Din appellant none had admitted its correctness and had even denied their presence at the time of the occurrence. Jamal Din appellant had given his version as under:‑ "On the day of occurrence, Wali Muhammad complainant came to realize Rs.9 from me which I had earlier borrowed from him. I gave him a fifty‑rupees note and asked him to return Rs.

41. He said that he had no change and so I went to the shop of Muhammad Hussain, some distance away, to get change of my fifty‑rupee note. During my absence Wali Muhammad picked up my huqqa and began to smoke, on which nay wife protested but was abused by Wali Muhammad axed slapped by him. She raised un outcry and I ran towards my house. I remonstrated with Wali Muhammad, who began to fight with me and also raised noise which attracted the other Cads, They began to beat me and I retaliated. None of the other accused was present at the spot." I

1. The learned trial Judge, however rejected this defence out right and accepting partly the prosecution case gave the above finding which has been assailed before me as unsustainable to view of the inordinate delay in lodging the report and some of the admitted circumstances of this occurrence which were initially suppressed by the prosecution.

12. On being taken through the record and the judgment of the learned Judge I am persuaded to agree with this contention of the learned defence counsel.

13. There was no satisfactory explanation for not informing the police till the third day although the infant had died on the very day of the occurrence, which indicated a guilty conscience as it was held to be a free and sudden fight between the complainant party (the Oads) and the appel lants, who ate Sheikhs by caste and it was difficult to find which of the two parties had set the ball rolling and was so betrayed by Ibrahim (P. W. 9 the uncle of the complainant, in his cross‑examination. He had, frankly conceded that when he went to the spot he saw two or three Oads. Wali, Isa and Bashir P.W's. on one side and Jamala (appellant) on the other fighting with each other * * * that the fixing of injuries and blows was done later on after consultations when Wali Muhammad went to the police station for the Deport (i. e., on the third day) and till then no one know how the baby had received the injuries nor the blows given to the other P. Ws. This admission of a close relation of the complainant himself had practically demolished the prosecution case.

14. Bashir (P. W. 10) who picked up the baby from the spot had likewise admitted that he did not know if anything hit the baby and did not see Gilloo appellant throwing any clod whx9 h bit the baby. Ibrahim (P. W. 9) had in fact attributed the throwing of the fatal clod on this baby to Imam Din (acquitted accused). Even Mst. Zulekhan (P. W. 8) had herself shelved the prosecution case by stating that on hearing the noise she reached the spot and saw six persons beating Wali Muhammad and only named two of them Abid Hussain and Gilloo appellants adding that all the Cad P. Ws. were exchang ing lathi blows and throwing clods at each other, one of which hit her baby, that there were five or six Sheikhs on one side and five or six Cads on the other, who were fighting with each other.

15. This being the state of affairs as disclosed by the injured witnesses themselves the responsibility for initiating the dispute could not be pinned down safely on either side especially in view of the extremely belated report which was admittedly the creation of prolonged deliberations between the complainant and his witness, who are no less than his own kith and kin. To cross all they had initially suppressed the injuries suffered by Jamal Din appellant and one Nanu which can safely be made a basis for the leg presumption that they, the complainant, might have opened the attack on Jamal Din appellant and other Sheikh accused came to rescue him from the Cads (the P. Ws.) due to which they were hesitating to go to the police station for a report lest they might be rubbed in for an assault on the Sheikhs. It appears that due to the death of the infant they were spared of this agony by the police.

16. The concession made by the medical witnesses was another factor which had rendered their case extremely doubtful resulting in acquittal of three of them, who were attributed quite a serious role in this occurrence, the benefit of all these doubts could not be denied to the appellants. I have, therefore, to accept this appeal and setting aside their conviction and sentence; acquit them of the charges. Jamal Din and Abid Hussain appellants are on bail, so their bonds shall stand discharged and Din Muhammad alias Gilloo appellant shall be set at liberty forthwith, if no required in any other case by the police. Appal allowed.