1976 P Cr (PLP)

The same Doctor also examined Yaqoob Ali Shah, accused, on 3 ‑t‑19,1, and found the following injuries on his person: ‑ (1) Abrasion 1/4" x 1/10" on the left side of the forehead 1/2" above the eye‑brow. The scab formation had started. (2) Lacerated injury 1" x 1/10" on the front left side of the scalp. (3) Abrasion 1/2" x 1/8" on the left cheek, 1/2" below the left eye.???????? (4) Abrasion 1/4"x 1/4" on the upper portion of the nose. (5) Abrasion 4 ? "x 1/16" on the middle outer surface of left arm. (6) Abrasion 1? "x 1/16" on the middle outer surface of the left arm, 2" from injury No. 5. (7) Abrasion 4? " x 1/16" on the front middle of right thigh. (8) Abrasion 4" x 1/16" on the front middle of right thigh 2" from injury No. 7. (9) Incised wound 4" x 2/16" x 1/16" on the front middle of right thigh. The wound was bleeding on cleaning. (10) Incised wound 3" x 1/4" x 1/16" on the outer middle surface of the left arm. The wound was bleeding on cleaning. The Doctor considered injuries 9 and 10 being suspicious and therefore he referred the case to M. S. Gujrat for opinion and advised X‑ Ray of the skull and nozal bone. The M. S. Gujrat, reported that the injuries could be caused by friendly hands.

4. Since Rafaqat Hussain was injured rather seriously, he was sent to the Civil Hospital Gujrat, from where he was referred to the Mayo Hospital, Lahore. There he was treated by Dr. Naseer Ahmad Registrar North Surgical Ward. Mayo Hospital, Lahore. Rafaqat Hussain remained in the Mayo Hospital from 4‑1‑1971 to 30‑1‑1971 under the treatment of Dr. Naseer Ahmad. This Doctor was called by the learned Trial Magistrate as a court‑witness alongwith the record relating to Rafaqat Hussain. He gave the following statement :‑ "Patient Rafaqat Hussain, aged about 20 years, was admitted in North Surgical Ward, Mayo Hospital, Lahore, on 4‑1‑1971. He was referred from Civil Hospital, Gujrat with history of multiple stabs, haematuris and temperature. On examination (1) Stab loft loin (2) Left lowerchest and skull. Haematuris plus dysuria plus temperature 101 F. Diagnosis injury left kidney. Multiple blood transfusion given in the ward. He was put for operation, left nephractomy on 12‑1‑1971 but postponed. He was treated conservatively. His X‑Ray chest showed loss of translucensy left base. Pleurisy."

5. All the five accused were sent up for trial but since Yaqub Shah was very ill and could not attend the Court his case was separated from those of the other four accused who were tried by the learned trial Magistrate. The prosecution produced 8 witnesses in support of its case. The prosecution evidence falls under the following categories: ‑ (a) Ocular evidence, (b) Evidence of recovery of dagger, P. 4, from Babar Shah appel?lant, and (c) Medical evidence. Nazar Hussain Shah, P. W. 1, Rafaqat Hussain Shah, P. W. 2, Safdar Ali Shah, P. W. 3 and Abbas Ali Shah P. W. 5, are the eye‑witnesses and supported the prosecution case. The first mentioned three eye‑witnesses also supported the prosecution version with regard to the motive of occurrence. Dr. Nisar Ahmad P. W. 4, who had examined the injured witnesses us well as Yaqoob Shah accused, appeared as P. W.

4. Malik Sikandar Hayat Khan, Sub‑Inspector, P. W. 6 deposed that he bad recorded the F. I. R., Akbar Shah P. W. 7 is a witness to the recovery of dagger, P. 4, from Babar Shah appellant. Ahmad Din, Sub‑Inspector (P. W. 8) is the investigating officer of the case who also attested the memo of recovery of dagger, P. 4.

6. All the appellants pleaded not guilty and stated that they had been involved in the case due to enmity. Yaqoob Shah accused explained injuries on his person by saying that he had sustained the same while separating Arshad and Nazar Hussain, who were fighting with each other.

7. I have heard the learned counsel for the parties and have also gone through the evidence on the record as well as the impugned judgment.

8. Learned counsel for the appellants submitted that it was a case of self‑defence. In support of his contention he pointed to the injuries sustained by Yaqoob Shah on his person and argued that since the prosecution witnesses had failed to explain the causes of injuries on his person, his (counsel's) plea that Yaqoob Shah (who has since then died his natural death) had sustained six injuries when he was attacked by some members of the complainant party whereupon Yaqoob's friends caused injuries to the P. Ws. with a view to save him. He argued further that the statement of Dr. Nisar Ahmad was doubtful because he gave his note on the medical report pertaining to Rafaqat Hussain P. W. that injuries Nos. I and 5 on his person, were dangerous, had in fact, been inserted? by him on the said medical report subsequently, at the instance of the police. The learned counsel pointed out that even the learned trial Magistrate did not believe the correctness of this note recorded by Dr. Nisar Ahmad. The learned counsel submitted that this was clear from the following observation of the learned trial Magistrate at the end of paragraph 7 of his judgment, i.e. "I maintain that the (injuries on the person of Rafaqat if not dangerous were at least grievous alright." The learned counsel argued further that there was nothing an the record to show that the injuries were grievous; that the learned trial Magistrate has, therefore erred in convicting the appellants under sec?tion 326/149, P. P. C.; that the offence falls at the most under section 32a/ 1 49, P. P. C.

9. I have carefully considered the contentions. I have also gone through the portions of the record to which the learned counsel for tile appellants drew my attention and 1 am not persuaded to agree with the same the learned counsel for the appellants had not, in anyway, cast any aspersion on the testimony of the eye‑witnesses namely, Nazar Hussain Shah P. W. 1, Rafaqat Hussain Shah, P. W. Z, Safdar Ali Shah, P. W. 3, and Abbas All, P. W. S. He did not even read out their statements while arguing the appeal. From this it is evident that he does not challenge their veracity. Two of them namely Nazar Hussain Shah and Rafaqat Hussain Shah P. Ws. sustained injuries during the incident. Therefore, their presence at the spot at the time of occurrence can not be denied. The main contention of the learned counsel for the appellants is based on the argument that in the absence of any evidence that the injuries on the person of Rafaqat Hussain Shah and Nazar Hussain Shah P. W. wars grievous, the appellants cannot be convicted under section 326, P. P. C. for having caused "grievous injury by deadly weapons". This contention of the learned counsel for the appellants is based mainly on his criticism of the testimony of Dr. Nisar Ahmad, P. W. 4, and the observations of the leaned trial Magistrate in paragraph 7 of his judgment. I have considered this contention and have carefully gone through the description of the injuries on the person of Rafaqat Hussain Shah, P. W. 1 as given by Dr. Nisar Ahmad., P. W. 4. 1 have also perused the testimony of Dr. Nasser Ahmad (C. W. 1) (who treated Rafaqat Hussain Shah, P. W. 2, at the Mayo Hospital, Lahore,) with regard to the location of the injuries sustained by Rafaqat Hussain Shah, P. S. Even if the testimony of Dr. Nisar Ahmad, P. W. with regard to the nature of the injuries on Rafaqat Hussain Shah, P. W., is ignored the testimony of Dr. Nisar Ahmad, C. W. 1 about the same is more than sufficient to show that the appellants had inflicted very serious injuries on him. It would be recalled that Babar Shah appellant had given a dagger blow on the left flank of Rafaqat Hussain Shah P. W. According to Dr. Naseer Ahmad, C. W. 1, under whose treatment Rafaqat Hussain Shah remained in the Mayo Hospital, one of the knife (or dagger) blows given by the assailants was so deep that even the left kidney was injured and the patient (i.e. Rafaqat Hussain (P. W. 2) had to be given blood transfusion in order to save his life. He was prepared for operation but the same was subsequently avoided by clinical treatment. This Doctor stated further that Rafaqat Hussain Shah P. W. 2, remained under his treatment from 4‑1‑1971 to 30‑1‑1971, i.e., more than 21 days. This fact itself renders these injuries to be grievous, falling within the ambit of clause eight of section 302, P. P. C. As a result I feel that the learned trial Magistrate was justified in convicting the accused (appellants) for an offence under section 326/149, P. P. C. As a matter of fact, in my view the appellants should have been convicted under section 307/149, P. P. C. because if Rafaqat Hussain Shah had died as a result of the injuries inflicted on him by the appellants then considering the motive for attack, nature of the weapons used, nature and location of injuries and other circumstances, the offence would have fallen under section 302, P. P. C.

10. As to the plea of self‑defence, it may be mentioned that none of the appellants had taken up this plea before the learned trial Magistrate Since Yaqoob Shah accused had been injured he thought it necessary to give some explanation. As already mentioned the only explanation he gave was that he sustained injuries while separating Arshad Hussain Shah appellant and Nazar Hussain Shah, P. W. who were fighting with eac4 other. He did not assert that he had been attacked by any one and did not plead self‑defence before the learned trial Magistrate. As held by our Supreme Court in State v. Mushtaq Ahmad (P L D 1973 S C 418) where the accused neither specifically raised the plea of self‑defence nor produced any evidence in defence in support of such a plea. The observations in Safdar Ali's case (P L D 1153 P C 93) were not applicable to his case. Moreover, the last two injuries (i.e. injuries 9 and 10 on the person of Yaqoob Shah were opined by the doctor to have been inflicted by a friendly hand. On observing the dimensions and the location of the remaining injuries, which are merely abrasions, I am inclined to feel that even those could be self‑inflicted or caused by a friendly hand. I therefore, feel that the plea of self‑defence raised by the learned counsel for the appellants has no basis. Yaqoob Shah appellant did not take this plea before the learned trial Magistrate and since he has died he could not have possibly given such an instruction to the learned counsel to raise this plea at appeal stage.

11. In view of the above discussion I see no merit is this appeal and the same is accordingly dismissed. Since the appellants (except Yaqub Shah, who has died), are on bail, their bail bonds are discharged and they be taken into judicial custody forthwith. Appeal dismissed.