1985 P Cr (PLP)

2. Mst. Karam Mai (P.W.1) the victim of murderous assault subject matter of the charge against the petitioner was married to Sultan (P.W.3), an uncle of the petitioner 5‑7 years before this incident which took place shortly before sunset on 25‑9‑1.976, in exchange of hand of Mst. Sughran a sister of the petitioner who was given in marriage to Nazar Hussain (P.W.4), a real brother of Mst. Karam Mai. At the time of incident Mst. Karam Mai went to a cotton field to ease herself which is at a distance of one Bigha (four Kanals) from her residence. The petitioner who has his residence close to that of his uncle Sultan, and his co‑accused Ramzan, since acquitted in appeal, attacked Mst. Karam Mai with knives in their hands causing her serious injuries. Rahim Bakhsh, Sultan, Nazir Ahmed (P.Ws. 2 to 4) rushed to the site on hearing outcries of Mst. Karam Mai. The petitioner and Ramzan threatened the wtinesses and ran away. Mst. Karam Mai was lifted by the witnesses to her residence and then transported to the Civil Hospital Shujabad in a bullock cart, which is at a distance of 15 miles from the place of occurrence, reaching there at 7‑00 a.m. She was examined by Dr. Muhammad Rafi Medical Officer (P.W.7) and found to have suffered following injuries:‑ (1) a stab wound 2" x 1" paritonial deep in the front of abdomen 2" above and on the left side of the umbilicus. Small instestines were lying outside. (2) A stab wound 2" x 1" peritonial deep in the front of left side of the chest at the level of 12th rib. The transerse colon was lying outside. (3) An incised wound 1" x on the front of left side of the chest 2" below the nipple. (4) A cut x on the palmer side of left little finger. (5) A cut x on the front side of neck. The injuries were caused by sharp‑edged weapon. The first two injuries (1 & 2) were declared dangerous to life. The next injury (No. 3) was kept under observation while the remaining two injuries (Nos. 4 & 5) were declared simple (Exh. P.D.). Injury No.3 was also eventually declared simple (P.G./P.G./1). After Mst. Karam Mai had reached the hospital, Nazir Ahmed (P.W.6) who is also an uncle of the petitioner, left for police station to report the occurrence and met Mirza Abdul Beg, Assistant Sub‑Inspector, Police Station Shujabad, at a bus‑stand where his statement (P.C.) was recorded at 5‑45 a.m. Nazir Ahmed had alleged in this statement that both accused had inflicted injuries on Mst. Karam Mai with knives in their hands, the incident was also witnessed by Sultan and Rahim Bakhsh and that the petitioner wanted to marry Mst. Karam Mai and had been pressing for her divorce by Sultan to which the latter did not agree. Further investigation was held by Hidayatullah Sub‑Inspector (P.W.8). He took into possession shirt (P.1) which Mst. Karam Mai was wearing at the time of incident by means of memo. Exh. P.B. The Sub‑Inspector enquired from the doctor if the injured who was admitted in the hospital was fit to make statement (P. E.). The query was replied to in negative by the doctor (Exh. P.E./1). Mst. Karam Mai was declared fit for statement after four days viz. on 29‑9‑1976. After these preliminaries in the Hospital were over, the Sub‑Inspector proceeded to the site and collected blood‑stained earth by means of memo. Exh. P.A. Knife (P.2) with which the petitioner had allegedly caused injuries to Mst. Karam Mai was produced before the Sub‑Inspector by one Khadim Hussain and was taken into possession vide memo. Exh. P.K.

3. Prosecution called eight witnesses to prove the charge against the petitioner and his co‑accused. Karam Mai, Rahim Bakhsh, Sultan and Nazir Ahmed (P.Ws. 1 to 3 and 6) are eye‑witnesses. Nazar Hussain and Sadiq Hussain (P.Ws. 4 & 5) both real brothers of Mst. Karam Mai are witnesses of recovery of her shirt (P.1) and collection of blood stained earth from the site. The next witness was Dr. Muhammad Raft (P.W.7) who as said above had examined Mst. Karam Mai (P.D.). Hidayatullah the last witness on the side of prosecution is the Investigating Officer. A few more witnesses cited by the prosecution inclusive of Khadim Hussain and Mirza Abdul Beg A.S.I. were given up by learned trial Magistrate as their service could not be effected despite issuance of bailable warrants for several dates. The petitioner and his co‑accused denied the allegations in their statements under section 342, Cr.P.C. pleading false implication. Nazir Ahmed was the solitary witness in defence who had said that Mst. Karam Mai was a woman of easy virtue. Both accused used to dissuade her from immoral pursuits. She was assaulted by Shafi and others. Learned trial Magistrate held that Sultan, Rahim Bakhsh and Nazir who had deposed to the occurrence were natural witnesses, they had made consistent statements, Rahim Bakhsh (P.W.2) was a disinterested and independent witness. Consequently, both accused were held guilty of attempted murder under section 307/34, P.P.C. Learned Additional Sessions Judge did not agree with learned trial Magistrate and held that in view of contradictory evidence on the side of prosecution, the case was not proved against Muhammad Ramzan beyond doubt. Conviction of the petitioner was however, maintained but the sentence was reduced with the observation that the quantum of punishment is too much and the ends of justice shall meet in case the same is reduced to rigorous imprisonment for two years with a fine of Rs.500 in default further rigorous imprisonment for three months.

4. I have been taken through record by learned counsel for the petitioner. Mst. Karam Mai says that Muhammad Ramzan had held her by her arm and the petitioner had dealt her two injuries in the chest and one injury in the belly as a result of which her intestines had come out. Rahim Bakhsh, Sultan, and Nazir had rushed to the site on her outcries. She was taken to the hospital where she regained consciousness after 2‑3 days. The witness stated that the petitioner wanted her to seek divorce and re‑marry with his uncle to which she did not agree. Rahim Bakhsh (P.W.2) whose residence is not much far from the place of incident says that he, Nazir and Sultan were at the time of incident performing ablutions at a canal which is close to the field where Mst. Karam Mai was assaulted. They heard shrieks of Mst. Karam Mai and rushed to the cotton field. Muhammad Ramzan co‑accused of the petitioner had held Mst. Karam Mai by her arms and the petitioner was dealing her injuries with knife in his hand. Both accused ran away as the witnesses reached closer. Sultan and Nazir (P.Ws. 3 & 6) made similar statements and they both had alike Mst. Karam Mai and Rahim Bakhsh denied categorically that Ramzan had also caused an injury to hlst. Karam Mai as was alleged in the first information report. Nazir Ahmed had, however, made certain admissions in favour of the petitioner. He had said that it was dark at the time of incident and the assailants had muffled their face. However, he had identified them correctly from a distance of 1‑2 Bigha when they were running with their back towards him. Evidence of Mst. Karam Mai, Rahim Bakhsh and Sultan is scarcely open to any conceivable criticism. Rahim Bakhsh is an independent witness having no reason whatever for a false statement against the petitioner. Similarly, Sultan, a real uncle of the petitioner was not expected to charge the petitioner falsely in place of the real assailant for a murderous assault on his wife. It is hard to believe that Mst. Karam Mai or the witnesses had substituted the petitioner for the real culprit. The accused who pleads substitution which is a rare phenomenon has to lay foundation for the plea which is not to be` found in this case. Nazir Ahmad had stated falsely that it was dark at the time of occurrence. Rahim Bakhsh had said that he had broken fast after the incident. Sultan had also said that sun had not set completely at the time of incident. As indicated above, Nazir had alleged in the first information report that Muhammad Ramzan had also caused injury to Mst. Karam Mai while different version was given at the trial that Muhammad Ramzan had only held Mst. Karam Mai by her arms. This discrepancy in the report and the evidence at the trial was not in my view sufficient to discredit the witnesses. First information report is a previous statement and can be used for contradiction or corroboration A of the maker of the report and not for contradiction of other witnesses. Mst. Karam Mai had said that she had received three injuries although she was found to have suffered five injuries. This also does not constitute a material contradiction between the statement of eye‑witnesses and medical evidence. It is in evidence that first information report was recorded after enquiry at the site by the Assistant Sub‑Inspector. This illegality in the investigation which deserved worst disapproval also does not justify summary dismissal of the charge against the petitioner which was fully borne out by the evidence of Mst. Karam Mai, Rahim Bakhsh and Sultan. Prosecution has failed to prove motive against the petitioner when there is clear evidence as in this case it is immaterial that motive has not been proved. The allegation that Mst. Karam Mai was immoral, she was carrying on with several persons and had been assaulted by one of her paramour due to rivalry with others in fantastic and mischievous. The statement of Nazir Ahmad the solitary witness in defence that the petitioner and his co‑accused used to dissuade Mst. Karam Mai from immorality is not worth the paper written upon. Section 307, P.P.C. was rightly applied in this case as injuries Nos.1 and 2 on Mst. Karam Mai were capable of causing death in the ordinary course of events. Conviction of the petitioner is maintained.

5. The authority of trial Court was lightly disturbed by learned Additional Sessions Judge in reducing the sentence of the petitioner. The place of occurrence itself shows that the offence was pre‑planned. In view of the nature of the injuries suffered by Mst. Karam Mai it could not be said with any justification that punishment of four years awarded to the petitioner by the trial Magistrate was "too much". Penalty to be exacted from the accused against whom charge has been proved beyond doubt should be such that it should act as an eye‑opener for others and the pain of punishment should outweigh the relish for crime. Sentence of the petitioner as reduced by learned Additional Sessions Judge was clearly out of proportion to the offence proved against him, was grossly and manifestly inadequate and had led to miscarriage of justice, which eminently justified interference by this Court in exercise of revisional jurisdiction under section 439, Cr.P.C. Accordingly, sentence of the petitioner is enhanced to the term of imprisonment of four years' rigorous imprisonment and fine of Rs.1,000 (one thousand), in default further rigorous imprisonment for six months as was imposed on him by learned trial Magistrate. The amount of fine if realized shall be paid to the injured as compensation. Petition dismissed and notice for enhancement of sentence made absolute. Order be immediately notified, to all concerned. S. G. D. Sentence enhanced.