1993 PLP 2257 (PCRLJ)

(1) Incised wound 2 c.m. x 5 c.m. x muscle deep on the right side of head 10 c.m. above right ear. (2) Incised wound 3 c.m. x 1 c.m. x muscle deep on the left side of head, 8 c.m. above the left ear. (3) Oblique incised wound 3.5 c.m. x 1 c.m. x bone deep on the outer side of right forearm lower part. (4) Contusion 6 c.m. x 2 c.m. on the outer side of left forearm middle part. (5) Lacerated wound 1 c.m. x 2 c.m. on the tip of left middle finger. (6) Abrasion 3 c.m. x.5 c.m. on the left side of forehead. (7) Abrasion 2 c.m. x 1 c.m. on the right side of forehead, near the hair margin. (8) Abrasion 4 c.m. x 1 c.m. on the left tamper region. (9) Contused area 12 c.m. x 4 c.m. on the back of left chest lower part. Complained of pain. (10) Contused area 9 c.m. x 4 c.m. on the left chest. Injuries Nos.1, 2 and 3 were caused by sharp-edged weapons, and rest with blunt weapons. Injuries Nos. 1, 2, 3, 4 and 9 were kept under observation. Rest of injuries were simple. The probable duration of injuries was about 2 hours. Later on, vide Ruqa Exh.P.D. 1, 2, 3, 4 and 9 were declared as simple. Exh.P.E. was the correct carbon copy of his medico-legal report which was in his handwriting and was signed by him. P.W.4 Muhammad Sadiq who was an eye-witness in this case supported the prosecution story on almost all material points. P.W.5 Khushi Muhammad, S.I. and I.O. of the case stated that on 4-2-1983 he was posted as S.H.O., Police Station Wazirabad. On the same day at about 1-00 a.m., Sanaullah complainant came to him at police station and got recorded his statement, Exh.PA. which was read over to him and in token of its correctness he signed it. On the same day he went on the spot, inspected the spot and prepared site plan, Exh.P.F. on which one marginal note was in his handwriting and signed by him. He wrote the statements of the witnesses. On 18-2-1983 at the indication of accused Fayyaz and Muhammad Ashraf who were under police custody, he recovered stick and hatchet respectively which were taken into possession vide recovery memo. Exh.P.B. and Exh.P.C. The stick was P.1 and hatchet was P.2. He prepared site plan of the place of recovery, Exh.P.G. on which marginal note was in his handwriting and signed by him. He completed the investigation and challaned the accused.

4. Thereafter, the statements of the accused under section 342, Cr.P.C. were recorded in which they denied the allegation levelled against them in the prosecution evidence and further stated that they had been falsely involved in this case due to enmity and party friction. Both the accused opted to produce defence evidence. The accused produced D.W.1, Liaquat Ali in their defence who stated that about one year and 4/5 months ago he was present at the wagon stand for going to city. Sanaullah, the son of complainant has a medical store there and accused Fayyaz came there from his dera on a cycle. Sanaullah demanded back money from him. Fayyaz stated that he had to pay no money. Let this issue be decided through `Panchayat'. Abuses were exchanged between the parties there. They separated them. The other accused Ashraf was not present there. Accused Fayyaz was empty-handed. 2/3 days later they came to know that a case had been registered against the accused. He alongwith 30/40 persons appeared before S.H.O. who did not hear him. Then they appeared before the A.S.P., but he also did not hear them. The son of complainant Ismail again said his brother Yaqoob who was Secretary of Social Welfare Society there and accused Ashraf was the Vice-President. Due to this reason there was friction between the parties and due to this reason accused Ashraf was involved in this case. After the evidence of one D.W. both the accused closed their defence evidence and their statements to that effect were duly recorded.

5. The learned trial Court had acquitted the respondents, holding that the eye-witness account provided by P.W.2, Sanaullah and P.W.4, Sadiq was not trustworthy as they were related to the injured P.W.1, Ismail, and for the same reason disbelieving the recoveries effected as the same had been witnessed by P.W.2 and the I.O., P.W.5; and had further held that the prosecution version did not inspire confidence whereas the defence version as brought on the record through D.W.1 was not plausible.

6. We have heard the learned counsel for the parties. As pointed out by the learned counsel for the appellant, the learned trial Court had erred in law in not placing reliance on the testimony of the injured P.W.1, Ismail, duly corroborated by his son, P.W.2, Sanaullah and P.W.4, Sadiq. The learned trial Court had further erred in discarding the testimony of the said eye-witnesses on the ground that whereas P.W.2 was son of the injured P.W.1, the complainant, and P.W.4, Sadiq was from the brotherhood of the complainant. It needs to be pointed out in this respect that P.W.2, Sanaullah being the son of the complainant injured P.W. was in fact the natural witness of the occurrence as it had taken place within the house of the complainant, and that the testimony of P.W.4, Sadiq had stood the test of lengthy cross-examination and that as consistently held by the superior Courts, the testimony of P.Ws. cannot be discarded merely on the ground of relationship, and that the two tests for disbelieving the witnesses are the testimony being demolished by the cross examination and inherently being so contradictory and implausible that it fails to inspire confidence and as such fails to support the case of the prosecution. However, in the instant case, as pointed out earlier, the complainant P.W.1, Ismail being an injured witness was duly supported by the testimoney of P.W.2 and P.W.4 thus proving beyond reasonable doubt that the respondents were guilty of having caused injuries to the P.W.1, as duly borne out by the medico legal report. Furthermore, the recoveries effected from the respondents cannot be discarded on the mere ground that the same has been, attested to, and, proved accordingly to have been effected on the pointing out of the said respondents simply on the ground that one of the attesting P.Ws. was the son of the complainant i.e. P.W.2, whereas the I.O. P.W.5, was the other witness. In fact, as the defence has failed to impugne the evidence of recovery in any manner, therefore, the said recoveries stood proved against the respondents in accordance with law applicable thereto.

7. In view of the afore stated discussion, it is hereby held that the acquittal of the respondents was not justified in view of the evidence on the record and the same being wholly artificial, ridiculous and shocking, the impugned judgment is hereby set aside.

8. However, as the injuries caused to the complainant P.W. Ismail were simple in nature as declared by the medico-legal report duly supported by the testimony of P.W.3 Dr. Imtiaz Ahmed Cheema, therefore, while setting aside the acquittal of the respondents, we hereby convict them for the offence under the provisions of section 324, P.P.C., and as the present case pertains to the year 1983, and the respondents, as such, have already suffered the agony of protracted trial, and as they have already suffered some imprisonment before their acquittal by the learned trial Court it shall meet with the ends of justice while convicting them under section 324, P.P.C. as stated above, if the respondents are awarded the sentence of imprisonment already undergone by them. Order accordingly.

9. In accordance with the terms stated above, the present criminal appeal is hereby allowed and the acquittal of the respondents vide impugned judgment dated 27-8-1984 is hereby set aside, and the respondents are convicted and sentenced as stated above, and, therefore, as the respondents are on bail, their bail bonds-stand discharged accordingly. N.H.Q./S-186/L Appeal allowed.