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Criminal Revision No. 449 of 1975, decided on 3rd May 1976.

---S. 439‑Conviction, propriety of‑Evidence, appreciation of Mother of accused petitioner getting her aim broken during occur rence at the hands of complainant party yet fact suppressed by com plainant party‑Defence version that complainant party coming to place of occurrence, engaged in demolishing disputed wall, giving beating and a lathi blow to accused's mother, resulting in fracture of her arm and accused retaliating by firing a gunshot at complainant party appearing more plausible‑Prosecution, held, failed to prove its case beyond shadow of doubt‑Conviction and sentence set aside, in circumstances.‑[Evidence].

Zafar Pasha Chaudhry for Appellant.

Malik Muhammad Khan for the State.

Date of hearing : 13th April 1976.

This revision arises from the order dated 7.5‑75 of the learned Additional Sessions Judge, Sialkot who dismissed the appeal of the petitioner arising from a case under section 307, P. P. C. in which he was convicted under the said section and sentenced to 4 years' R. I.

2. The facts of the case are that a drain runs in front of the house of the petitioner, which he wanted to fill in. A day before the occurrence, he was stopped from filling the drain by the complainant party, upon which an altercation took place and abuses were exchanged. On the day of occurrence, when the petitioner was found again filling the drain, the complainant party went there and attacked him to desist him from doing so. The petitioner ran into the house, brought a gun and fired at the complainant party, causing injuries to the complainant, out of which one was grievous.

3. Mst. Barkat Bibi, mother of the petitioner was also injured and her arm was broken. The complainant party however, did not explain the injury on her person. According to the prosecution story, the complainant party could have a motive to attack the petitioner and not the petitioner to attack them. The grievance of the complainant party was that the petitioner according to them, without any right wanted to fill in a drain and to bring it under his possession. A day before the occurrence the petitioner was found filling the drain, but no serious incident took place, obviously for the reason that the complainant party was not prepared for fight. The complainant party had come to know that the petitioner had intention to bring the drain under his possession, so on the day of occurrence, they went there duly armed and attacked the mother of the petitioner. If the complainant party had not been armed then Mst. Barkat Bibi could not have received any injury, on her person. Since the petitioners has no injury on his person, it is evident that when the trouble arose he was not present at the scene of occurrence and he came after his mother received injury. Naturally he in order to save him and his mother brought the gun and fired at the complainant party. According to the prosecution story, the petitioner throw the gun thereafter, which was picked up by the complainant party and pro duced before the police.

4. Learned counsel for the State has admitted that no live cartridge was recovered either from the place of occurrence or from the petitioner. It is thus, evident that the petitioner fired the gun up to the time, he had ammunition and thereafter for the want of ammunition when the gun became useless, he threw it and ran away to save his life. Somewhat similar facts appeared in the statement of Barkat Bibi, who appeared as D. W. 9. The plea taken by her was that the complainant party demolished the wall of her house and caused injuries to her. Muhammad Boota was a prosecution witness but was given up and he appeared as D. W 5. He stated that when he reached the place of occurrence, attracted by the alarm, he found the complainant party consisting of 10 to 11 persons, demolishing the wall and that Lal Din and Ramzan gave 'lathi' blow to Mst. Barkat Bibi, who fell down. He also stated that Mazhar, petitioner came out with a gun, which was snatched by Lal and others and it was Lai Din who opened fire, as a result of which he and Ibrahim were injured. Muhammad Sharif D. W. 6 supported D. W. 5 materially. The story given by the defence witnesses is more plausible. Since the prosecution concealed material facts, it is apparent that they did not come forward with clean bands. The petitioner no doubt did not state that in order to save him and his mother, he had fired the gun, but he had clearly taken up the plea that Lal and Ramzan had given beating to her mother and broken her left arm. It is clear that to avoid the respon sibility he had stated that he had not attacked the complainant party. It is quite clear that when he saw his mother being given beatings be fired the gun. 'In cases where prosecution and defence versions both are plausible the one given by the defence should be accepted, but in the present case prosecution version is not plausible, whereas the one pleaded by the defence is plausible. If Mst. Barkat Bibi, mother of the petitioner had not beers injured, it could he said that there was no cause for the petitioner to fire at the complainant party. This is idle to say that Mst. Barkat Bibi was injured at the hands of the petitioner who could not have even bought of it nor have any reason to cause injury to her mother. So definitely she received 4 injuries at the hands of the complainant party and since the said party knew that they were the aggressors, they safely concealed the fact that Mst. Barkat Bibi was injured at their hands during the occurrence. The petitioner might have been injured, if he had not been armed with a gun or if he had stayed at the place of occurrence after he had exhausted the ammunision.

4. In view of the observations made above, I come to the conclusion that the prosecution has failed to prove the case beyond any shadow o doubt and the Courts below were not justified in basing conviction on such a doubtful material. I accordingly accept the revision petition, set aside ‑the conviction and sentence of the petitioner and acquit him. Present counsel for the petitioner.

Revision allowed.

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