1981 P Cr (PLP)

7. P. W. 11 Noor Mohammad, who is also a shopkeeper at Sabri Chowk had seen the incident and deposed that he had seen the accused/ appellant injuring the injured/complainant with a churri. In cross-examination, he admitted that his statement had been recorded after 5 or 6 days of the incident. He had also stated that after the incident he had closed his shop and gone to his house. He had corrected himself by saying that he had forgotten as to when the Police had recorded his statement at first. He admitted that lie had not given the name of the accused/appellant in his statement to the Police.

8. P. W. 12 Mohammad Sharif was the mashir of the arrest of the accused /appellant and production of churri by him. He has proved his signature on the mashirnama of arrest Exh. 10 by the same mashirnama. The clothes of the accused/appellant had also been secured from him.

9. The injured Abdul Ghaffar had been examined on 17thOctober, 1978 by one Dr. Shuaib, but Dr. Shuaib could not be examined by Court as he had left the country. P. W. 2 Ali Hassan proved the certificates Exhs. 6 and 7 given by Dr. Shuaib in respect of injured P. W. Abdul Ghaffar and accused Abdul Rashid, Dr. Ali Hassan stated that Dr. Shuaib had gone to Aljazair and nobody knew as to when lie will come back. He stated that be knew the handwriting and signature of Dr. Shuaib and stated that Exhs. 6 and 7 were issued by Dr. Shuaib. Exh. 6 shows that Abdul Ghaffar had three incised wounds 1" x " x left inguinal region, wound 2" x " x left cubital fossa through and through and wound 2 " x " x skin deep left thigh. Exh. 7 shows that Abdul Rashid appellant had an abrasion on left palm and pain on left hip joint. Another document, which would be important to note is Exh. No. 8, which was signed by Dr. Shuaib and proved by Dr. Ali Hassan. This certificate shows that Injury No. 2, which was kept reserved was declared to be grievous in nature ride a report No. 2046/2 of S U II, the case was examined by Surgeon Wazir Sheikh and found to be left radial never palsy, which is partially. recovered. Injury No. 1 was declared to be simple by this Exh. 8 ride a radiological Report. I may mention-here that Dr. Wazir Shaikh whose report about Injury No. 2 was declared as grievous was not examined. Since, Dr. Ali Hassan is not the person, who had examined the injured, therefore, the question of grievous nature of injury will require consideration as no one has proved the report of Surgeon Wazir Shaikh.

10. The accused/appellant m his statement admitted that dispute had taken place between the complainant and the accused/appellant one day earlier but he denied the incident or the recovery of blood-stained shirt and trouser from him. In respect of his injuries he stated that police had beaten him. He further stated that complainant is an influential man and has good relation, with Police, and therefore, he has involved him.

11. The defence examined D. W. 1 Abdul Sattar, who stated that he was purchasing grass from Sabri Chowk when accused got down from an Omni Bus and complainant Abdul Ghaffar and Police persons had caught hold of accused/appellant.

12. Jalaluddin D. W. 2, who is a ration shop dealer at Sabri Chowk had also stated that the accused/appellant was caught by the complainant and a police constable, when the accused/appellant was alighting from the bus.

13. I have seen the depositions of the injured and the eye-witnesses and I do not find that any serious challenge has been made to their depositions in the cross examination directed against them. Defence witnesses do not appear to have stated the truth. Mr. Syed Nasiruddin, the learned counsel for the appellant had submitted that since P. W. Abdul Hakeem was the only person mentioned in the F. I. R., therefore, the rest of the P. Ws. should be disbelieved. Mr. Syed Nasiruddin, the learned counsel for the appellant had submitted that since P. W. Abdul Hakeem was the only person mentioned in the F. I. R., therefore, the rest of the P. Ws. should be disbelieved.

15. I do not agree with this submission. I find that the rest of the P. Ws. are the shopkeepers of the same place, and therefore, there is no reason to disbelieve them. Complainant had named only those persons in the F. I. R. whom he had seen and remembered.

16. Mr. Syed Nasiruddin. Advocate further stated that injured/ complainant and P. W. Abdul Hakeem should have also been disbelieved because they had wrongly given the place of injury as abdomen. Mr. Syed Nasiruddin is right that one place of injury has been wrongly stated by these two P. Ws. but that is no reason to discard their statements and it appears that they have given a wrong place of injury on account of some confusion that they might have bad otherwise their statements are quite consistent with each other and the cross-examination has not been able to weaken their testimony. I have particularly no reason to doubt the testimony of the injured, who had lodged the F. I. R. in the Police Station without any delay as the offence took place at 1700 hours and the report was lodged by 1740 hours and in that report the name of the injured is clearly given. It is a well-known principle of law that substitution is a care occurrence as it is not conceivable that an injured will conceal the name of real culprit and give the name of some one else against whom he has a grouse. The incident has taken place at 5 p. m. in broad day light in a Bazar and the identification could, therefore, be in no doubt, Moreover, the appellant has been caught after chase by the Constable Abdul Aziz and I see no reason at all as to why Abdul Aziz should not he believed. I, therefore, believed the prosecution evidence fully. I am not prepared to discard the evidence of Abdul Aziz merely because he is a constable.

17. Mr. Syed Nasiruddin contended that the medical certificate Exh. 6 had not been properly proved as according to him it was not proved that Dr. Shuaib could be procured or that he was out of Pakistan. I do not agree with him. P. W. 2 Ali Hassan has made a clear statement that Dr. Shuaib had gone to Aljazair and it was not known as to when he was to come back. In view of this statement the absence from Pakistan of Dr. Shuaib was fully proved and it would have been a futile attempt on the part of the Court to issue a process and try to get it served on a person, who was not present in Pakistan, I am quite certain that Dr. Ali Hassan had no business to make a false statement in respect of the absence of Dr. Shuaib. I am, therefore, of the view, that Exh. 6 has been rightly proved through the evidence of Dr. Ali Hassan.

18. Mr. Syed Nasiruddin, however, made a stronger point in respect of Exh. 8, which shows that Injury No. 2 was declared as grievous Mr. Syed Nasiruddin rightly stated that Dr. Shuaib had not given the opinion himself that the said Injury was grievous and his certificate Exh. 8 had merely quoted the report of Dr. Wazir Shaikh as the basis of grievous nature of injury. It is correct that Dr. Wazir Shaikh has not been examined, and therefore, his report has not been proved by any one and in fact that report is not even on the record, therefore, I cannot bold that Injury No. 2 was grievous in nature on the basis of the said report. Other two injuries are admittedly simple.

19. Mr. Raja Qureshi, Advocate appearing for the State conceded that this lacuna does appear in the prosecution case.

20. That however, does not conclude the matter and I find that the complainant had stated that he remained in the hospital for 33 days Mr. Syed Nasiruddin, however, stated that the case is not covered by section 320, P: P. C. as the first seven items in respect of grievous hurt do not cover the present case. That submission is quite right. In respect of the eighth item of section 320, P. P. C. Mr. Syed Nasiruddin states that no one has stated that injury No. 2, had endangered the life of the injured or that it had caused him 20 days in 6546severe bodily pain or unable to follow his ordinary pursuits. Mr. Syed Nasiruddin argued that the statement of the complainant that he remained in the Hospital as indoor patient for 33 days has not been corroborated by any certificate or evidence from the doctor, and therefore, this part of the complainant's deposition should not be believed as a gospel truth in view of the fact that there was a dispute between him and the accused/appellant before the present incident. This submission appears to be justified. In any case, the complainant had not proved that he had remained in severe bodily pain for 20 days or that he was not in a position to follow his ordinary pursuits. Merely remaining in the Hospital for 33 days does not mean automatically that a man is unable to follow his ordinary pursuits unless a statement to that effect is made by the complainant or the injured and. he is supported in that respect by the doctor.

21. In view of the above discussions. I have no option, but to conclude that the grievous nature of Injury No. 2 has not been proved and that Injuries Nos. 1 and 3 were declared by the doctor as simple, and therefore, the case is not covered by the definition of grievous hurt.

22. Mr. Syed Nasiruddin has further argued that the injuries being on the arm, thigh and another thigh are not such injuries which could be regarded as fatal or on account of which it can be alleged that causing of those injuries was with the intention or knowledge that death could be caused as they were found to be simple injuries and the places of injury were not vital parts of the body.

23. The submission appears to be justified, and therefore, I do not find any justification for convicting the accused under section 307, P. P. C. Furthermore since no grievous injury has been proved to be inflicted upon the injured, therefore, the appellant could be convicted only for causing hurt by dangerous weapon under section 324, P. P. C. which prescribed a punishment of three years or with fine or with both, I, therefore, set aside the conviction under section 30 7, P. P. C. and convict the appellant under section 324, P. P. C. and sentence him to one year R. I. plus a fine of Rs. 1,000 or in default to suffer six months' R. I. but I also direct that the time spent by the appellant in confinement, from the day of his arrest viz. 17th October, 1978 till 7th January, 1980 when he was bailed out, should be treated as the period of sentence having been undergone by him. I further direct the appellant to pay a sum of Rs. 2,000 (Rupees two thousand) in Court as compensation for the injured and in default of payment of this compensation the appellant shall suffer imprisonment for a period of six months. I also direct that the fine of Rs. 1,000 if recovered from the appellant shall also be paid to the injured under section 545, Cr. P. C.

24. With this modification in the conviction and sentence the appeal is disposed of. Order accordingly