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Criminal Revision No. 391 of 1968, decided on 18^th September 1968.

S. 307‑--Attempt to murder ---Defence version fitting in more with circumstances of case--Reasonable possibility that defence put forward by accused might he true so as to cast doubt upon prosecution case--‑Lodging of F. I. R. also inordinately delayed‑--Accused, held, entitled to benefit of doubt, in circumstances of case, and acquitted.

Sardar Ali v. The Crown P L D 1953.E C 93 and Muhammad Siddique v The Crown P L D 1954 F C 312 ref.

M. B. Zaman for Petitioner.

Major Wabeed‑ud‑Din Virk for the State

Mukhtar Ahmad petitioner was convicted under section 307, P.P.C. and sentenced to three years' R. I. with a line of Rs. 1,000 or in default to further undergo R I. for one year by a section 30 Magistrate, Multan vide his order, dated 31st of January 1968. His appeal was dismissed by the learned Sessions Judge, vide his order, dated 10th April 1968. Aggrieved by that order, the petitioner has preferred this revision.

2. The facts briefly stated are that Haitam P. W. 2, father of Ahmad Yar P. W. 8, the injured person, had a dispute with the petitioner over the demarcation of their land about a few days prior to the occurrence under consideration. On the day of occurrence, i.e., 4th of April 1967, at about Maghrib Wela, when Ahmad Yar P. W. was returning from his land, he met Jabbar D. W. 1, nephew of the petitioner, and they both abused each other. According to Ahmad Yar P. W., he did not cause any injury to Jabbar D. W., but according to the F. I. R., which was lodged by Haitam P. W. after getting the facts from Ahmad Yar P. W. Jabbar D. W. had received a stick blow at the hands of Ahmad Yar P. W., Ahmad Yar P. W. went to the Ihata of his father where Allah Ditta P. W. 3, a tenant of his father, lived. He asked him to carry away his manure back to his square of land. Mukhtar Ahmad petitioner, who resides in the Ihata adjacent to the ihata of Haitam P. W., turned up and abused Ahmad Yar P. W. As to why he had come there. Ahmad Yar P. W. also returned the abuse. After that the petitioner went back to his Ihata and from there brought a gun and after standing on his Tanoor fired a shot, hitting Ahmad Yar P. W. on his right arm, with the result that Ahmad Yar P. W. fell down. Besides, Allah Ditta P. W., the occurrence was also witnessed by Inayat P. W. 4 and Noora P. W. 5. They, at that time, were returning to their village from their land and when they heard a noise in the Ihata of Haitam P. W., they went there and witnessed the occurrence. Thereafter, Ahmad Yar P. W. was taken to Gara more dispensary, reaching there at about 10‑00 or 11‑00 p.m. and on the following morning, he was taken to Nishtar Hospital, Multan, which is about 42 miles from Gara More dispensary. At Nishtar Hospital, Dr. Abdul Wahid P. W. 1 examined Ahmad Yar P. W. at 9‑25 a.m. on 5‑4‑67 and found a lacerated (entrance) wound 1" x 1/2" x 1" on the back of upper right arm. There was also (exit) lacerated wound 3" x 2" on the front sides. The bone underneath was found fractured. In the opinion of the doctor the injury was grievous and had been caused by a gun‑shot. From Nishtar Hospital Haitam P. W. proceeded to Police Station Mitrue. At village Mirtue he met S. I. Khurshid P. W. 6 at about 1 p.m, and made the statement (Exh. P. W. 2/A), which the S. 1, recorded‑at his dictation. The said statement was sent to the Police Station where Naib Moharrir Maqbool Ahmad P. W. 7, at about 1‑30 p.m., drew up formal F. I. R. (Exh. P. W. 7/A) on its basis. The S. I. on the 5th of April 1967, recovered licensed gun (Exh. P. 1) from one Muhammad Ali, uncle of the petitioner, vide memo. Exh. P. W. 6/C. The above recovery was witnessed by Muhammad Akram n W. 10. The S. I. arrested the petitioner on 12‑4‑1967 from the Sessions Court when his application for bail before arrest was rejected.

3. The petitioner denied his guilt by stating that Jabbar was beaten by Ahmad Yar and then Jabbar had fired at him. In his defence, he examined Jabbar and Rang Ali. D. W. 1 Jabbar stated that when he was returning from his land at Maghrib time, he found Ahmad Yar P. W. hiding in a wheat field about 7/8 karams from his house, that Ahmad Yar P. W. on seeing him gave him a sota blow and he raised an alarm which attracted his women‑folk to the spot, that the women‑folk managed to snatch away the sota from Ahmad Yar P. W. while he (Jabbar) ran towards his house, that Ahmad Yar P. W., who was pursuing, over took him when he reached his house and gave him knife blow on his ear, that thereafter, Ahmad Yar P. W. was caught hold of by the women, while he (Jabbar) managed to get inside his house and picked up a gun left by one Fazil, that Ahmad Yar managed to get himself free from the women and again advanced forward to attack him, and. that he in the exercise of his right of private defence fired a shot with the gun, which hit Ahmad Yar P. W. Rang Ali D. W. 2 supported him by stating that he had seen Jabbar firing at Ahmad Yar, who was carrying a knife.

4. The prosecution suppressed the evidence of the doctor, who had examined Jabbar P. W., on 5‑4‑1967. This Court, on 16‑7‑1968, ordered the learned Sessions Judge to bring on record the additional evidence of the doctor, who had examined Jabbar D. W.

5. Dr. Hassan Murtaza Naqvi, D. W, 3, stated that on 5‑4‑67 at 4 p.m., he examined Jabbar D. W. and found the following injuries on his person:‑‑

(1) A sharp‑edged wound " x " on the middle of right ear vertical in direction cutting the cartilage throughout on the upper " of the ear. " x 1/5" of the part of ear (back portion) had been cut sharply. There was coagulated blood"' around the car and clothes.

(2) Right elbow joint was painfully swollen.

In the opinion of the doctor, injury No. 1, which had been caused with a sharp‑edged weapon, was grievous while injury No. 2; which was caused by a blunt weapon, was found to be simple. The doctor was also of the opinion that these injuries could not be self‑inflicted.

6. The prosecution case against the petitioner rests solely on the testimony of Allah Ditta, Inayat, Noora and Ahmad Yar n Ws. The recovery of gun (P. 1) has no corroborative value because there is nothing on the record to show that this gun was actually used in the commission of the offence.

7. All the aforementioned witnesses have suppressed the injuries having been caused to Jabbar D. W. In the F. I. R , Haitam P. W. had stated that Ahmad Yar P. W. had told him that prior to the occurrence, he had given a stick blow to Jabbar D. W., but Ahmad Yar P. W. denied having caused any injury to labbar D. W. The other alleged eye‑witnesses also did not mention the presence of Jabbar P. W. at the scene of the offence or any injuries having been caused to him. The defence version, on the other hand, fits in more with the circumstances of the case and, therefore, there is a reasonable possibility that the defence put forward by the petitioner might be true. In Sardar Ali v. The Crown (P L D 1953 F C 93) it was observed:‑

"In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the d.‑fence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond a reasonable doubt,"

8. In Muhammad Siddique v. The Crown (P L D 1954 F C 312) it was observed:‑

"The duty of a Court in cases of this kind is to review the entire evidence and circumstances at the close, before arriving at a conclusion regarding the truth or falsity of the defence plea. All the factors favouring plea in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence, and the total effect should be estimated in relation to all questions, viz.:‑

(i) is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case

(ii) If the answer to question (i) be in the negative, is there yet a reasonable possibility that his explanation might be true, so as to cast a reasonable doubt upon the prosecution case

In the present case, Jabbar D. W. had received a grievous injury on a vital part of his body; which the prosecution has tried to suppress. There is nothing on the record to discredit Jabbar's testimony and, therefore, there is a reasonable possibility that what he has stated might be true so as to cast a reasonable doubt upon the prosecution case."

9. I also find that there has been inordinate delay in the lodging of the F. I. R. Police Station Mitrue is only ten miles from the place of occurrence. The occurrence in this case took place at about Maglirab Wela on 4‑4‑1967, but the F. I. R. was lodged on 5 4‑1967 at I p.m. One of the P. Ws., especially Allah Ditta. who is a tenant of Haitam P. W. could have early gone straight to the Police Station after leaving Ahmad Yar P. W. at Gara More dispensary. There is no explanation forth coming on the record to explain this delay. Taking all the afore‑mentioned circumstances into consideration, I find that the petitioner is entitled to the benefit of doubt. I, accordingly, accept the revision, set aside the conviction and sentence of Mukhtar Ahmad petitioner and acquit him. He should be released forthwith, if not wanted in any other case.

Petition accepted.

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