1977 P Cr (PLP)

Date of hearing: 20th September 1976. Muhammad Rafiq alias Fiqa (22) was convicted under section

326. P. P. C. by Mr. Piroze Bakht Qazi. Magistrate, Sialkot on 6‑1‑1976, and sentenced to five years' R. I. His appeal is before me.

2. Briefly, the facts of the case are that at about 10 a. m., on the day of Eid‑i‑Miladun‑Nabi, i.e. 6.4‑1976, P. W. Jalal Din wearing a new cap was standing on the road side opposite a refugee camp. The appellant appeared there in a gay mood. He removed Jalal Din's cap and put it on his head and started dancing. Jalal Din demanded his cap back, instead of returning it the appellant stabbed him in the abdomen with a dagger and caused another stab wound in his buttocks. Jalal Din fell down and the appellant fled away. The occurrence was witnessed by P. Ws. Nawab Din Asghar Mahmood and Ashiq Hussain. The injured was removed to the Civil Hospital and examined by P. W 9 Dr. Karam Hussain Sheikh, Medical Officer, at 11‑00 a. m. He noticed the following injuries on his person: ‑ (1) Stab wound 1 " x 1" x from all intestines coming out of the wound on left side of abdomen. (2) Incised wound 1" x " x probed up to 2 on left buttock‑bleed ing coming out the wound. On the telephonic information sent by the doctor, P. W. Muhammad Sadiq A. S. I., Police Station, City Sialkot went to the hospital. As Jalal Din was not in a fit state to make a statement, therefore the A. S. I. recorded the statement of P. W. Nawab Din, brother of the injured, on the basis of which formal F. I. R. (Exh. PA) was registered at the police station. During investigation, the appellant got recovered dagger P. 5 from under the ground near the southern wall of Eidgah Chiraghpura. This recovery was witnessed by P. W. 4 Muhammad Rafiq and P. W. 5 Mushtaq. After completion of the investigation, the appellant was prosecuted in due course.

3. At the trial appellant denied guilt and said that since he had stopped Jalal Din (injured) from carrying on with Mst. Sajida, a washerwoman; this offended him. He got enraged and was about to stab him with a knife upon which he picked up a chhuri from nearby Khokha and in self‑defence inflicted blows to Jalal Din. He led no evidence in defence.

4. It was contended that Nawab Din P. W. has mentioned in the F. I. R. that Asghar Mahmood and Ashiq Hussain were the eye‑witnesses of the occurrence. But Ashiq Hussain P. W. 6 did not mention the presence of any eye‑witness. Similarly, Jalal Din (injured) did not mention the presence of any other eye‑witness. It was also contended that Ashiq Hussain P. W. also did not claim to have been the occurrence from the very beginning. According to Ashiq Hussain, he had not seen the actual infliction of injuries to Jalal Din. Moreover, the prosecution story was put differently by Ashiq Hussain P. W. He, thus contradicted the version put forward by Nawab Din P. W. According to Ashiq Hussain, the accused borrowed the cap from Jalal Din and there was altercation between them when Jalal Din demanded back his cap. But according to Nawab Din, the accused took it off without Jalal Din's consent. It was also argued that Nawab Din and Muhammad Din are real brothers of Jalal Din; yet none of them went to make a report with the police, although the police station was at a distance of five furlongs from the place of occurrence. I have considered the matter. The above‑mentioned discrepancies are not material under the circumstances of this case. It is noteworthy that the defence version was suggested to the injured and the informant. They both denied it. The third eye‑witness Ashiq Hussain was, however, not suggested the defence version. He is a disinterested witness although he said that he did not see the actual attack but he saw the accused running away and the injured lay there who was taken to the hospital by the witness and the brothers of the injured. His evidence supports other evidence. There is no evidence in defence to support the defence plea. It may also be mentioned at this stage that there are Khokhas of Khushi Muhammad and Feroze Din as shown in the site plan. The appellant could have produc ed them in defence, but he did not do so, I am satisfied with the guilt of the appellant.

5. Learned counsel for the complainant made an application on behalf of Jalal Din (injured) to the effect that he has compromised with the appellant. It was argued that in view of the compromise the sentence be reduce to already undergone. The offence is not compoundable. However, since the appellant remained in jail after his arrest in this case i.e., since June, 1974, therefore while dismissing this appeal. I reduce the sentence to three years' R. I. Sentence reduced