1985 P Cr (PLP)

Col. (Retd.) Muhammad Rashid for the State. Malik Muhammad Ashhab for Respondent. Date of hearing: 11th March, 1985. This appeal under section 417, Cr. P. C. is directed against the order, dated 18‑5‑1973 passed by Malik Ghulam Mustafa, Magistrate Section 30, Kasur whereby he acquitted Hassan Muhammad respondent from the charge under section 307/326, P.P.C.

2. Briefly stated the prosecution case is that Mst. Hanifan, the injured P.W. was married to the respondent. After some time their relations became strained because the respondent suspected her to be maintaining illicit relations with one Boots. On 30‑1‑1971 the respondent took the injured P.W. alongwith him on the pretext of taking her to the house of her parents. When they reached near a graveyard he attacked her with a Toka and cut her left arm. The occurrence was witnessed by Hakim Ali. Mst. Hanifan went to her house and informed her sister Mst. Daran who reported the matter to the police by lodging F.I.R. Exh. P.A./1.

3. Mst. Hanifan was got medically examined and following injuries were found on her person:‑ (1) A cut wound on the left forearm 4" below elbow joint. Whole of the forearm was completely cut, with its bones radius and ulna including muscles and tendon, left hand and lower part of forearm were absent. (2) Three superficial cut marks on the medial side of the left forearm. Proximal to the first injuries about 1/4", size of each cut mark was 3". (3) Abrasion on the medial side of the right arm at its lower end size was 1/2" x 1/10". Injury No.1 was grievous while injuries Nos. 2 and 3 were simple. Injuries Nos. 1 and 4 were with sharp‑edged weapon while injury No.3 was with blunt weapon. Exh. P.B. is the medico‑legal report prepared by Lady Doctor Miss Shamim Begum, P.W.5.

4. Sana Ullah Khan, S.I. arrested the respondent on 30‑1‑1971 and at his pointation recovered blood‑stained Toka P.1 from his house. He had also secured blood‑stained earth from the spot.

5. The respondents pleaded not guilty to the charge and denied the prosecution allegations. He stated that the father of Mst. Hanifan P.W.1 promised to give her hand to one Muhammad Shafi and used to get the entire income of Muhammad Shafi. Later on he married Mst. Hanifan P.W. to him. They wanted to get the divorce of Mst. Hanifan to which he was not agreeable. The arm of Mst. Hanifan was cut by some unidentified culprit and due to the above grudge he had been falsely involved so as to pressurize him to divorce Mst. Hanifan. He examined Ahmad Din, D.W.1, Muhammad Sharif, D.W.2, Hakim Ali, D.W.3 and Habib, D.W.4 in his defence. Ahmad Din, D.W.1 stated that Mst. Hanifan had told him that when she went to ease herself two persons with muffled faces had cut her arm. Muhammad Sharif, D.W.2 stated that the father of Mst. Hanifan wanted the divorce of his daughter. Hakim Ali, D.W.3 stated that he rushed to the spot on hearing the alarm and enquired from Mst. Hanifan about the assailant upon which she told him that three persons had cut her arm whom she could not identify. Habib, D.W.4 stated that no such occurrence had taken place near the graveyard. The prosecution examined 9 witnesses to prove its case. Mst. Daran, P.W.1 is sister of Mst. Hanifan. She stated that her sister had informed her about the occurrence upon which she reported the matter to the police through F.I.R. Exh. P.A./1. Jan Muhammad, P.W.2 and Ismail, P.W.3 were the attesting witnesses of the recovery of Toka P.1 at the instance of the respondent. They did not support the prosecution and were declared hostile. Mst. Hanifan appeared as P.W.4. She deposed about the occurrence and the manner in which she received the injuries at the hands of the respondent. Lady Doctor Miss Shamim Begum, P.W.5 had medically examined Mst. Hanifan (20). Muhammad Sharif, P.W.7 who was to depose about the recovery of Toka P.1 at the instance of the respondent did not support the prosecution. Sanaullah Khan, S.I., P.W.9 had investigated the case. He recovered Toka P.1 at the instance of the respondent.

5. The learned trial Magistrate acquitted the respondent as in his opinion the solitary statement of Ms. Hanifan on the point of occurrence and of Sanaullah Khan, S.I. on the point of recovery of Toka P.1 were not sufficient to bring home the charge to the respondent. The State has filed this appeal. According to the learned counsel for the State the deposition of Mst. Hanifan, the injured P.W. had not been properly appreciated by the learned trial Court. Being a day time occurrence there was no chance of any mistaken identity. The medical evidence fully corroborates Mst. Hanifan and the recovery of blood‑stained Toka P.1 at the instance of the respondent stands fully proved notwithstanding the fact that the public recovery witnesses were won over.

6. I have heard the learned counsel for the parties. So far as the occurrence is concerned, Mst. Hanifan has given a consistent account of the same. She stands corroborated by the medical evidence. The respondent is her husband and as such she would not have falsely implicated him nor could she substitute him for the actual assailant. The mere fact that Hakim Ali, D.W.3 had not supported her was not sufficient to discard her testimony. She was subjected to lengthy cross‑examination but she stood the test and her testimony could not be shattered. The matter was immediately reported to the police with all the necessary details. The recovery of blood‑stained earth from the spot lends corroboration to her testimony. Even if the recovery of Toka P.1 at the instance of the respondent does not stand proved, the sole evidence of the injured P.W. was sufficient to bring home the g charge to the respondent. There appears to be no reason as to why Mst. Hanifan would falsely implicate her husband. The defence plea that the case was concocted against the respondent to pressurize him to divorce Mst. Hanifan does not appeal to reason. There is nothing on the record to support the plea of the respondent that his father‑in‑law wanted to give her in marriage to Muhammad Shafi and that he had been utilizing his entire earnings. The defence evidence does not inspire C confidence. The version put forwarded by the D.Ws. that they were told by Mst. Hanifan that she had been injured by 2 or 3 unidentified persons is an afterthought. Had it been so Mst. Hanifan being the wife of respondent would not have falsely involved him. It is a well‑established principle of criminal justice that there can be addition of the accused but not substitution of the actual culprit.

7. Having considered all the pros and cons of the case, I think that the prosecution case stands fully established against the respondent and there was no justification for his acquittal and that his acquittal has resulted in grave miscarriage of justice. Accordingly, I accept the appeal, set aside the order of the learned Magistrate and convict the respondent under section 326, P.P.C. and sentence him to three years' R.I. and a fine of Rs. 10,000 or in default to undergo six months' R.I. The fine, if recovered, shall be paid to Mst. Hanifan P.W. as, compensation. In view of the heinousness of the offence, the respondent is not considered entitled to the benefit of section 382‑B, Cr. P. C. v . District Magistrate, Kasur shall cause the arrest of the respondent for undergoing the sentence. H.A.K. Appeal against acquittal accepted.