1987 PLP 1650 (MLD)

(1) A contusion alongwith swelling on the back of the route of neck measuring 4" x 1"- and was horizontal in direction. (2) A contusion on the back of lower part of right chest measuring 3" x 1" horizontal in direction. MST. SAMA: A contusion on the outer aspect of right thigh at about its middle. The injury was 3" x 1" in size and was transverse in direction. MST. BAIGAN: A contusion on the front of the left shoulder 2" x 1" in size and oblique in direction. MUMTAZ: (1)A lacerated wound at the lateral end of right eye-bravo which was horizontal in direction and was 11" x 1/8" x 1/8" in size. (2) A lacerated wound about 1i" x I" x I" at the middle of the back of the head direction oblique. (3) A contusion on the back of upper part of left forearm transverse in direction and was of the size of 2" x 2". The forearm was swollen at this level. (4) A contusion on the back of left shoulder 3" x 1" horizontal direction.. (5) An abrasion on the back of terminal phalynx of right thumb " x " in size and oblique in direction.

7. The injuries on the person of Mst. Pans, Mst. Soma and Mst. Baigan were found simple in nature, whereas injuries sustained by Mumtaz, except injury No.3, were found simple in nature arid after the X-ray report, injury No.3 was declared to be grievous.

8. Ghulam P.W.7 who is the complainant and the father-in-law Niaz Ahmad deceased, has narrated the incident as stated above and has convincingly deposed that all the eight accused had caused injuries, to Niaz Ahmad and Mumtaz. Mumtaz P.W.8 has also narrated the incident as stated above and has reiterated that all the accused has given beating to Niaz Ahmad deceased. Similarly,' Mst. Baigan P.W.9 and Mst. Soma P.W.10 have unanimously stated that all the accused gave Sota blows to Niaz Ahmad and others.

9. Nazir Ahmad A.S.I. P.W.11 has conceded that the statement of Mst. Zaiban wife of Niaz Ahmad deceased was not recorded under section 161, Cr.P.C. nor did she appear before him throughout the period of investigation.

10. The appellants when examined under section 342, Cr.P. C. have explained as under: - "Mst. Zaiban, her husband Farid son of Samanda decease: and Akbar son of Sattar were grazing cattle. One of the cattle went into the fields of Niaz deceased upon which Mst, Zaiban wife of Niaz deceased complained and abused the other Mst. Zaiban and also shouted for inmates. Mst. Baigan, Mst. Saman, and Mst. Pana came there. Mst. Zaiban wife accused Farid gave them stick blows. On account of the above, the womanfolk shouted to their men for help. Deceased Niaz and Mumtaz came running and gave dirty abuses to Mst. Zaiban wife of Farid upon which Farid and Akbar gave Dang blows to deceased Niaz and Mumtaz P.Ws. as a result of which Niaz died at the spot. All this occurrence took place in the fields. The witnesses are related to each other and because of the death of Niaz and injuries to Mumtaz, they have implicated whole of the family." In defence, Mst. Zaiban widow of Farid D.W.1 and Akbar D.W.2 have been examined, who have put the blame of injuries of Niaz Ahmad deceased and the other P.Ws. on Farid deceased and Akbar. Both of them have been disbelieved by the learned trial Court.

11. The learned trial Court was influenced by the fact that Mumtaz P.W.8 had deposed that Mst. Zaiban had called her brothers as to what they were looking for and, therefore, the appellant had beaten Niaz Ahmad and others. The record does not show this, because Bashir appellant is not her brother, whereas Zahoor, Ahmad Yar, Muhammad Yar and Ghulam Farid are stated to be the brothers of Mst. Zaiban and in the circumstances the responsibility of injuring Niaz Ahmad and others could not be placed on Zahoor and Bashir alone.

12. The complainant as well as the injured P.Ws. have unanimously stated that all the eight accused had given Dang blows to Niaz Ahmad and to them. Niaz Ahmad sustained only three injuries and the statement of the P.Ws. is belied by this fact that only three persons had caused injuries to Niaz Ahmad. The evidence on the file does not pinpoint the accused who have caused a specific injury. Farid, one of the accused, had died and the others-have been acquitted. The learned trial Court has ignored the principle of consistency by convicting the appellants, who could not be singled out by the appraisal of evidence on the file. Strangely enough, it was adjudicated to be a sudden flare up, but the appellants have been convicted under section 302/34, P.P.C. Mr. Nazir Ahmad Bhatti, Advocate, the learned State counsel, could not point out any evidence on the file to show how the learned trial Court could convict Zahoor and Bashir appellants. They have beer. convicted on the guess and surmise and not on the basis of cogent evidence. The appellants could not be differentiated and the same benefit should have been extended to the appellants, as was given in case of the acquitted accused. I, therefore, accept this appeal, extend benefit of doubt to both the appellants and acquit them of all the charges framed against them. They may be set at liberty forthwith, if not required to be detained in any other case. M. Y. H./Z-15/L Appeal accepted.