P L D 1957 (W (PLP)

A. R. CHANGEZ, J.‑Younis and his brothers, Yusuf and Hussain and his uncle Salabati, and Sheru son of Salabati, have been convicted by Sahibzada Sayyed Masood Ahmad, section 30 Magistrate, of Lyallpur, under sections 307/149 and

148. P. P. C. and have been sentenced to five years' rigorous imprisonment under section 307/149, P. P. C. and one years' rigorous imprisonment under section 148, P. P. C. each. The sentences have been ordered to run concurrently. The convicts have appealed. Dost Muhammad P. W., the injured man in this case, has also filed a revision petition for enhance ment of sentence imposed on the accused, and notices have been served upon the convicts. to show cause against enhance ment of their sentences. This order will dispose of both the appeal arid the revision petition. The facts of the case are that on the 23rd of March, 1956, at about sunset, Dost Muhammad (P. W. 11) was returning from the house of Bhata (P. W. 6), and when lie readied near the house of one Ismail, Younis accused emerged from the dhari of Ismail. He was armed wit h a pistol. He fired at Dost Muhammad and the bullet hit him on his back and he fell down. The remaining four accused also came out from the same dhari. They were armed with kulharis and they gave kulhari blows to Dost Muhammad. The latter raised an alarm, on hearing which Muhammad Hussain (P. W. 2), Akbar (P. W. 3), Muhammad (P. W. 4) and Abdul, Ghafur (P. W. 5) came to the spot and witnessed the occurrence. On the arrival of the witnesses the accused made good their escape. Dost Muhammad was then taken to Chak Jhumra Dispensary where Dr. Muhammad Ismail (P. W. 8) rendered first aid to him and sent ruqqa (Exh. P. N.) to the police station. Mir Muhammad, Assistant Sub‑Inspector (P. W. 9) on the receipt of the ruqqa (Exh. P. N.) from the doctor, went to the hospital and recorded the statement of Dost Muhammad Exh. P. O. at 1‑15 a.m. He sent Exh. P. O. to the police station for the registration of the case. As Dost Muhammad was very seriously injured, Dr. Muhammad Ismail took him to Lyallpur. The Assistant Sub‑Inspector after recording the report went to the spot and took into possession bloodstained earth from the place of occurrence .end made into a sealed parcel. He also took into possession tell pieces. of broken teeth (Exhs. P. 1 to P. 10) from the spot. He also prepared the rough site plan Exh. P. Q. S. I, Chaudhari Muhammad Husain (P. W. 10) recorded the formal firs; information report Exh. P. O./1. He also reached the spot and took over the investigation from the Assistant Sub -Inspector. He arrested all the accused on the 24th of March 1956. Sheru accused produced hatchet Exh: P. 14 ; Salabati accused produced hatchet Exh. P. 15 ; Husaina accused pro duced hatchet Exh. P. 16 ; and Yusuf accused produced hatchet Exh: P. 17 before the Sub‑Inspector who took them into possession. As they were not bloodstained they were not made into sealed parcel. On the same day, Yunis accused produced the unlicensed revolver Exh. P. 18, two empty cartridges (Exhs. P. 19 and P. 20) and two cartridges (Exhs. P. 21 and P, 22). These were taken into possession vide memo. Exh. P. K. This accused had no licence for keeping the revolver Exh. P.

18. On the 24th of March 1956, at 3‑30 a.m., Dr S. M. Moonis (P. W. 1) Medical Officer, Civil Hospital, Lyallpur, examined Dost Muhammad P. W. and found the following injuries on his person :‑ (1) Horizontal incised wound, 5 x x ", over the face cutting through the upper lip lower end of nose going down‑ward and to the right cutting the mandible on the right side and upper four incisor teeth as well. (2) Incised wound, 2 " x " x 1", going downward up to the left on the left side of face starting over the left nostril about the mid length of nose cutting the upper jaw. (3) Incised wound, 2 " x 1 x 2", outer and back left forearm at the junction of middle arid lower thirds cutting through both bones obliquely. (4) Incised wound, 1" x 1/8" x 1/8", horizontal upper third outer aspect left forearm. (5) Incised wound, " x 1/8" x skin deep back right hand vertical at the root of right little finger. (6) Gunshot wound back right chest, 2" below right shoulder blade and 1" to the right of spine " x " going into the internal organ. Both the lower limbs were paralysed. Injuries Nos. 1 to 5 were caused by sharp heavy edged weapon and injury No. 6 was caused by high speed projectile fired from close range. Injuries Nos. 1, 2 and 3 were grievous and injury No. 6 was dangerous. The injured person was admitted in the hospital on the same day, and when the doctor appeared in Court on the 19th of April 1956, the .patient was still confined to bed and his lower limbs were paralysed. He was not in a position to sit properly or walk about. In the opinion of the doctor, Dost Muhammad had been fired at from a distance of five feet or less. Eleven witnesses were examined at the trial to substantiate the prosecution case. The accused denied having committed the offences and pleaded that they had been falsely implicated on account of enmity. They did not call any witness in their defence. The learned counsel for the appellants has very vehemently argued that the prosecution evidence is interested inasmuch as all the prosecution witnesses are closely inter‑related and that the prosecution has failed to establish the motive. As regards the motive for the assault, Dust Muhammad P. W. alleged that his father Murad had murdered the grand father of Yunis accused about 30 or 40 years before the occurrence. He admitted in cross‑examination that he could not say whether the murder was committed before he was born. He stated that he, had heard that his father had been challaned for that murder and was acquitted. He also admitted that during this long interval none of the accused had ever tried to belabour him. No documentary evidence was produced, whether in fact Murad, father of Dust Muhammad, had been challaned for the murder of the grand father of Yunis accused. It also does not stand to reason that the accused would have taken revenge 30 or 40 years after the murder. But motive is a fact which is only within the knowledge of the person doing the act and it is sometime very difficult even for the victim to guess the motive correctly. Therefore, the failure to discover the motive for an offence does not signify its non‑existence. It may be that the accused had some other motive for the crime which is not ascertain able. If direct evidence of the offence is available it is im material that no motive has been proved. The prosecution case, rests on the statements of the eye‑witnesses. All the witnesses are admittedly near relations of Dust Muhammad. A sister of Dost Muhammad is married to the brother of Muhammad Husain (P. W. 2). Another sister of his is married to Akbar (P. W. 3) who is also his first cousin. A third sister of his is married to Muhammad (P. W. 4;. The father of Abdul Ghafur P. W. and the mother‑in‑law of Dust Muhammad P. W. are first cousins. It is also in evidence that about ten years before the occur rence one Dust Muhammad had been murdered and Muhammad Husain, Akbar, Muhammad and Dost Muhammad P. Ws. and Hayat Pathan and others were challaned. Salabati accused and his brother, Siddique, had appeared as witnesses against them, It does not appear from the record, however, whether the accused in that case were convicted or acquitted. It is not even claimed by the accused, that that Dost Muhammad, who had been murdered was in any way con nected with them. It is also in evidence that three and a half years before the occurrence Dosa, brother of Salabati accused, and Ahmad Husain, brother of Yunis accused, were challaned under section 307 of the Pakistan Penal Code at the instance of Hayat Pathan who was one of the co‑accused with Dust Muhammad and other P. Ws. in the murder case. Muhammad P, W. appeared as a witness for the prosecution in that case and Salabati accused appeared as a witness for defence, and the accused were acquitted. There is no other enmity established between the parties and it appears that they had never come into conflict with each other directly. Under the circumstances, if on the one hand, the accused had no motive to assault Dust Muhammad, it is equally clear that he had no motive to falsely implicate the accused. The assault is alleged to have taken place at about sunset and Dost Muhammad reached the Civil Hospital at about 12‑45 a.m. Chak Jhumra is at a distance of fourteen miles from the place of occurrence. There does not appear to be any delay in the lodging of the report. In Exh. P. O. all the accused were named as well as the witnesses. The specific parts were also attributed to the accused. Dust Muhammad had been brutally attacked and seriously injured. Fortunately, he lived to tell his woeful tale in Court. ‑He was cross‑examined at length, and nothing was brought out in his cross‑examination to suggest that he could have falsely implicated the accused. He was almost dying, when he made the statement Exh. P. O. His lower limbs had been completely paralysed and he had received three grievous injuries with sharp‑edged weapons on his body. Could he have shielded the real culprits? It was suggested by the learned counsel for the appellants that the occurrence had taken place after darkness had set in, and Dust Muhammad had not been able to identify his assailants, but had subsequently falsely named the accused as the culprits. Dust Muhammad has definitely stated that he was attacked at about sunset. It is clear from the medical evidence that he had been fired at from a close range and as such it would not have been difficult for Dust Muhammad to identify the person who had fired at hire. All the remaining injuries on his person show that he must have been facing towards his assailants and as such he could have easily identified them. He does not say and there is no indication on the record that he had lost consciousness. Bhata (P. W. 6) has stated that Dost Muhammad had come to his house in the evening to ask him to assist him in sowing of the sugarcane on the following morning, and a short while after he had returned, he had heard the sound of a gun‑fire and when he arrived at the spot he found Dust Muhammad lying injured there. I have, therefore, no reason to hold that the occurrence did not take place at about sunset. But even if it had occurred a little later, Dust Muhammad would have even then identified his assailants because he had been attacked by persons who must have been standing very close to him. Abdul Ghafur P. W., although related to Dust Muhammad, has his shop in the neighbour hood, and there is nothing improbable in his statement that he had been the accused causing injuries to Dust Muhammad. His statement was, however, recorded on the third day, but he has explained that he had gone to Lyallpur on the following morning to see Dust Muhammad and the doctor had given him the medical certificate, as regards the examination of Dust Muhammad, and his clothes which he had produced before the police on his return from Lyallpur vide memo. Exh. P. E. and he was examined by the police on that very day. This satisfactorily explains the delay in recording his statement. He is the only person who was not involved in the two cases referred to above and appears to be a natural witness. He bears no ill‑will against any of the accused. His name was also mentioned in the first information report. As such, I hold that his evidence is reliable and trustworthy. The remaining witnesses, however, who are also near relations of Dost Muhammad, are merely chance witnesses of the occurrence. Muhammad Husain (P. W. 2) claimed that he was following Dost Muhammad at his asking, and Akbar and Muhammad have stated that they had gone to another village to purchase a bullock and while they were returning they had seen the occurrence. All these witnesses were also involved in the murder case along with Dost Muhammad P. W. It will, therefore, not be safe to place reliance on their testimony. The evidence of Dost Muhammad P. W. finds consider able support from the medical evidence and is further corroborated by the evidence of Abdul Ghafur P. W. The recovery of an unlicensed revolver and some cartridges from the possession of Yunis accused is a circumstance which cannot be overlooked. It is no doubt true that no other neighbour has come forward to support the prosecution case, but it is a matter of common experience that in villages people do not readily come forward to depose against the culprits for fear of being involved in future litigation and party faction. However, in cases, where there is no independent evidence it is the duty of the Court to scrutinise the evidence very carefully. Accordingly, 1 have examined the evidence on the record with great care and whereas : for the reasons stated above, I am not prepared to place any reliance on the testimony of P. Ws. 2, 3 and 4, I have not been able to discover any valid reason to reject the evidence of Dost Muhammad (P. W. 11) and Abdul Ghafur (P. W. 5). The medical evidence is quite consistent with their testimony and there is nothing improbable in it, that besides the pistol‑man three others had attacked Dost Muhammad with hatchets. I am, therefore, convinced that Yunis and his brothers, Yusuf and Husaina, and Sheru son of Salabati accused did take part in the murderous assault on Dust Muhammad P. W. But as regards Salabati accused, I have not that satisfaction of his guilt, which is required in a criminal case. He is aged 50 years and is lame. He had once appeared as a witness against Dost Muhammad P. W. and the other eye‑witnesses in a murder case. His son and three nephews could have accomplished the task without his assistance. Although I do not doubt the testimony of Dost Muhammad and Abdul Ghafur P. Ws, ‑yet in the circum stances of the case, I am inclined to give the benefit of doubt to this accused. In view of this, the convictions of the remaining, accused under sections 307/349 and 148, P. P. C, cannot be maintained but they had certainly attacked Dost Muhammad with the intention of murdering him and all of them had caused injuries to him in furtherance of their common intention. I accordingly set aside their convictions under sections 307/149 and 148, P. P. C. and convict them under section 307 read with section 34, P. P. C. As regards the question of enhancement of their sentences, the learned counsel for the appellants contended, that where substantial imprisonment has been awarded to the accused, it is not a fit case for enhancement of sentence. In this connection, he cited a number of authorities, but I need not refer to them as the principle is well -established that it is only when the sentence awarded is grossly and manifestly inadequate that the question of enhance ment of sentence can be considered, and even then such a power should be sparingly exercised unless it has resulted in miscarriage of justice. During the course of the hearing of the revision petition, learned counsel for Dost Muhammad petitioner placed before me a certificate of Dr. Muhammad Hussain who had examined Dost Muhammad on the 18th of December 1956, which showed that lie was suffering from paraplegia due to bullet injury in the spine, and in order to satisfy myself as to what was the condition of Dost Muhammad, I got him examined by Dr. Ghulam Bheek, Civil Surgeon, One Unit Hospital. Lahore. Before I recorded his statement, learned counsel for the accused strenuously urged that his statement should not be recorded. He relied on Ali and another' v. Crown (PLD 1952 FC 71) where it was held by their Lordships of the Federal Court of Pakistan that additional evidence at a belated stage should not be ordered to cure infirmities in a prosecution case. In the present case, Doctor S. M. Moonis had been examined at the trial within a month of his examination of Dost Muhammad, and at that stage he had stated that Dost Muhammad was confined to bed and his lower limbs had been paralysed, and when Dost Muhammad was examined as a witness on the 12th of July 1956, it appears that his condition was the same and he was even then confined in the hospital. It was represented before me that although more than a year had elapsed the condition of Dost Muhammad had not improved, and I felt that in the interest of justice it was necessary to get him examined by an independent doctor. Accordingly, I 'directed that he should be examined by the Civil Surgeon, Lahore, and, thereafter, I recorded his state ment in the presence of the accused and their counsel. They were given opportunity of cross‑examining him, but no questions were put. They also did riot choose to produce any evidence in rebuttal of the evidence of the Civil Surgeon. It was not with the intention of curing any infirmity in the prosecution case that I recorded his statement. His statement was recorded in the revision petition and not in the appeal. It is specifically laid down in section 439 of the Code of Criminal Procedure that the High Court may in its discretion exercise any of the powers conferred on a Court of Appeal, by sections 423, 426, 427 and

428. It will thus be seen that the High Court has a wide discretion, which will be exercised in each case according to the view which the Court may take of the requirements of justice. No hard and fast rules can be laid down to define or limit the exercise of such a dis cretion. With a view to find out if it was a fit case for enhancement of sentence or not; I considered it expedient in the interests of justice to record the statement of the Civil Surgeon, and I accordingly overruled the objection and recorded the statement of the Civil Surgeon in the presence of the parties and their counsel. A perusal of the statement of the Civil Surgeon shows that both the lower limbs of Dost Muhammad were paralysed and the paralysis was due to the damage caused to the spinal cord by the bullet in the region of lower dorsal spine. The bullet was still lodged there. He expressed the opinion that even if the bullet is removed the condition of Dost Muhammad would not improve and the paralysis of his lower limbs would continue for the remainder of his life. In the opinion of the doctor, Dost Muhammad would not be able to walk about and he can only sit provided he is supported by someone else, It is, therefore, clear that Dost Muhammad has no chance of recovery. He is no better than dead. He is a living carcass and shall have to pass the remainder of his life in agony aid suspense. The learned Magistrate did not take into considera tion this aspect of the case while imposing the sentence. This was one of the worst cases of attempted murder. The accused had left him thinking him to be dead and very serious consequences had resulted from their act. Learned counsel for the accused argued that in the matter of punishment under section 307 of the Pakistan Penal Code, the consequences of the act should not be taken into con sideration. I do not agree. The section itself makes a distinction as regards the measure of punishment, when no hurt is caused and when hurt is caused. Of course, it does not lay down what punishment should be awarded in a case when simple hurt is caused and when grievous hurt is caused or when the victim is crippled for life. Again, no measure of punishment is provided, when a tooth is knocked out, or the skull is fractured. These are matters which for obvious reasons have been left to the discretion of the Court. The Court, while awarding punishment is, therefore, expected to take into consideration the consequences of the act. I wonder what graver consequences could have ensued, than those which are to be found in the present case. And if in such a case the maximum sentence provided by law is not to be awarded then I am at a loss to think of any other case in which the maximum sentence would be a suitable sentence. Having regard to the deadly weapons used, the nature of the injuries caused and the grave consequences which have resulted, I am of the opinion that the sentences awarded to the accused by the Magistrate are manifestly and grossly in adequate, and the imposition of such lenient sentences has resulted in miscarriage of justice. For the aforesaid reasons, I consider it to be a fit case for enhancement of sentence. Although in view of subsection (3) of section 439 of the Code of Criminal Procedure it is open to this Court to enhance the sentence to the maximum limit prescribed for the offence, yet, in the circumstances of the case, I do not think it desir able to inflict greater punishment than the trial Magistrate could have awarded. I accordingly enhance the sentences of Yunis, Sheru, Yusuf and Husaina accused to seven year's rigorous imprisonment each. They should also pay a fine of Rs. 500 each, or in default of payment of fine they should undergo rigorous imprisonment for a further period of one and a half years each. I also regard it a fit case for awarding compensation under section 454 of the Code of Criminal Procedure to Dost Muhammad P. W. on account of the serious injuries suffered by him, and I direct that the fine, if and when realised, shall be paid to him. The result is that I set aside the conviction and sentence of Salabati accused and acquit him. He shall be set at liberty forthwith. The remaining four accused, Yunis, Sheru, Yusuf and Hussaina, are convicted under section 307/34 of the Pakistan Penal Code and they shall have to undergo rigorous imprisonment for a period of seven years each and shall have also to pay a fine of Rs. 500 each or in default of payment of the fine shall have to suffer rigorous imprisonment for a further period of one and a half years each. A. H. Sentences enhanced.