1975 P Cr (PLP)

Eschara black staining‑ seen on the following parts: (1) Eschara black staining, practically whole of the left side of the neck and whole face. Front of the face including both eye‑lids, nose, upper lip and cheeks. Eye‑lids were swollen and eyes could not be opened. Eyes were also injured. (2) Black staining.‑‑Practically whole back, front of left shoulder, front of abdomen and the middle line for 3' to 4' wide. (3) Practically whole of the left upper extremity. (4) Lower half of inner side of the left thigh. (5) 4' x 2' on the right thigh lower and outer part. (6) Practically whole of the right upper extremity. In the opinion of the doctor the injuries were caused by corrosive solution. He referred the case of Muhammad Zubair to Mayo Hospital for further medical examination 'and treatment. The same doctor again examined Muhammad Zubair in Court and found the following:‑ (1) Vision of both eyes lost practically. (2) Left Pinna lost. (3) Nose, left face and left neck deformed due to after‑effects of acid burns and contracture. (4) There was a contracture going from the left neck to the left angle of the mouth. (5) Left lip on the lower side was contracted downward. Doctor Muhammad Akram Sheikh, formerly Chemical Examiner, Govern ment of West Pakistan at Lahore was examined as P. W. 2 who examined glass, clothes and the bottle. The result of his examination revealed that concentrated acid sulfuric was detected in all the parcels which he examined which contained glass clothes and bottle. The' clothes had been charred with acid sulfuric. In cross‑examination the doctor stated that acid sulfuric concentrated would necessarily had a corrosive effect on plastic, depending upon the constitution of the plastic. He also deposed that it was not essential that acid sulfuric concentrated should leave any marks of stains on any plastic container. The doctor frankly admitted that he was not sure whether bottle (P. 1) shown to him and the contents of the bottle were the same which he examined in his laboratory and regarding which he sent his report. (Exh. C 1) because thousand of exhibits were received in the laboratory and after analysis they were returned in their sealed condition bearing the seal of the laboratory. He deposed that if the exhibit was opened in the Court in a sealed condition bearing the official seal of the Chemical Examiner then it would be presumed that it was the, same exhibit which had been tested in his laboratory. The doctor made it quite clear that on account of passage of time and absorption of moisture and faulty e storage the contents of bottle P. I were liable to have undergone change. It is thus obvious that the evidence of Dr. M. A. H. Siddiqui and that of the Chemical Examiner conclusively proves that the unfortunate victim in this case lost both his eyes on account of acid thrown on his face.

8. Dealing with the question of delay I find that Fazal Haq P. W. father of Muhammad Zubair deposed that when he came to the spot he found Muhammad Shabbir and Muhammad Suleman holding his son and they were at that time removing his clothes. Smoke was coming out of the clothes. Fazal Haq took his son to Civil Hospital, Jhelum in a taxi. Thus it is quite evident that immediately after the occurrence Muhammad Zubair was removed td the hospital at Jhelum where he was provided medical aid. So naturally it would have taken some time for lodging the report, because the first and foremost anxiety of the father was to provide medical aid to his injured son rather than to report the matter to the police. I have not come across anything on record which could indicate or suggest that delay in the instant case was either intentional or was on account of any negligence on the part of the complainant nor that the same has been used by the prosecution in order to fill any loophole in the Pro secution case. The delay, therefore, is not fatal to the prosecution case.

9. This leaves me with the question of recovery of bottle (P. 1) and glass (P. 5). Lehrasab Khan (P. W. 4) and Kafait Ali (P. W. 5) testified the recovery of bottle. The recovery of glass (P. 5) was attested by Muhammad Suleman P. W. and Muhammad Qasim who was given up by the prosecution as having been won‑over. Having already believed Muhammad Suleman with regard to the ocular evidence I. do not see any reason to disbelieve his testimony with regard to the recovery of glass as well. Muhammad Arif was arrested on the 25th of August 1963, and while in police custody he led to the recovery of bottle P. 1, which contained acid vide recovery memo. Exh. P. C: Lehrasab Khan P. W. stated that he had gone to the shop of Kafait Ali P. W. for the recovery of price of a pair of shoes which he had sold 20 to 25 days earlier and when he arrived at his shop the police party was already there sitting outside a hotel. The witness was present at Dina Chowk when the appellant was produced by his uncle and the recovery of bottle was then effected from a place at a distance of 30 to 40 karams from Dina Chowk. Similarly, Kafait Ali P. W. supported the recovery of bottle (P. 1). He admitted that he had been buying shoes on credit from Lehrasab Khan P. W4 and that he had bought shoes on credit from him six months prior to the date of recovery. The total price, however which was to be paid he did not remember, but deposed that the amount was paid by him after about 1 months of the purchase. Ledger has been opened in his name by Lehrasab Khan P. W. Lehrasab Khan was recalled alongwith his account books and when cross‑examined he admitted that his account book was a composite one containing the roznamcha and the ledger. According to the witness there was an entry dated 21‑3‑68 to the effect that two sandles and one pump shoe had been sold to Kafait P. W. for Rs. 25/8. This amount had been duly realized from Kafait on 24th April 1968. The suggestion that some entries been made in the book after Lehrasab Khan had been examined by the trial Court was denied by the witness. Similarly, the witness denied that the words Kafait Khookhawala" had been added later after his statement, had been recorded by the learned trial. Magistrate. Learned counsel argued 'that with regard the question of payment of price of the shoes by Kafait Ali there is a patent contradiction in the evidence of the two recovery witnesses and therefore their evidence is not to be relied upon. I am not very much impressed by this, the reason being that assuming that there is some contradiction that would not make much difference because so far as the presence of these witnesses at the time of recovery is concerned that has been duly established. Even if the evidence of recovery is to be ignored even then there is overwhelming evidence, as discussed above to prove the prosecution case.

10. This leaves me with /the last contention of the learned counsel on which great emphasis was laid that Qasim although initially a prosecution witness yet examined by the defence as D. W. 1 continued to be a pro secution witness and, therefore, his evidence must be taken as part and parcel of, the prosecution case. In support of this contention learned counsel cited Jahana and others v. Emperor (8 I C 239). In this judgment my attention war drawn to the following observations at page 240: "Two trackers, Naman and Ganda, have been examined as witnesses in con nection with this part of the case, Naman for tire prosecution and Ganda for the defence. I may note in passing that Ganda was originally mentioned in the challan as a prosecution witness, but for some reason he was not pro duced by the prosecution, and was examined by the accused as their witness. He must; therefore, be regarded for practical purposes as a witness for the Prosecution". The other authority cited by the learned counsel is Akhtar All v. The Crown (P L D 1954 Lah. 21). In this case one Kamal Din was examined by the prosecution and he was cross‑examined before and after 'the charge and was called as a witness by the accused. A copy of his statement to the police was applied for but the same was refused on the ground that the copy of a witness's statement to the police can be given to the accused only when the witness was called for the prosecution. Reliance was placed by the trial Court on A I R 1936 Bom. 154, where it was held that when a witness is called by the defence or by the Court his statement to the police cannot be used either by the prosecution or by the defence. It was held by the learned Judge. "In my opinion, the learned trial Magistrate has been misled by this judgment. In that case the witness whose statement was applied for had not been called by the pro secution at all. In this case Kamal Din was examined by the prosecution and he did not cease to be a witness for the prosecution when he was called for further examination in defence any more than when he was called by the accused for further cross‑examination after the charge. Section 256, Cr. P. C. enables the accused to recall prosecution witnesses for further cross‑examination and section 257, Cr. P. C., enables the, accused, after he has entered upon his defence, to call upon the Magistrate to issue process for compelling the attendance of any witness for the purpose of examination or cross‑examination". So far as Jehuna and others v. Emperor is concerned I find from the observations of the learned Judge that in that case n specific reason was given as to why Ganda was not examined as a prosecution witness. The case, therefore, is distinguishable from the present one where the prosecution gave specific reason for not examining Muhammad Qasim as its own witness because he had been won over. With regard to Akhtar Ali v. The Crown, I am in respectful agreement with the principle laid down by the learned Judge, but I am afraid the same is not applicable to the present case, because the position in the instant case is quite different. Prosecution has complete control over his witnesses and if at any stage any doubt or suspicion arises that a particular witness was not going to depose the truth either having been won over or on account of some other pressure then there is no legal bar for the prosecution to give up such a witness. If such a witness is later on examined by the defence then he can neither be treated as a prosecution witness nor his testimony would amount to a different version of the prosecution case. Such a witness then would be treated as a defence witness and his evidence would be subjected to the test of credibility and would also have to be compared with the rest of the evidence on the record. What actually happened in this case is that on the 4th of February 1969, the prosecuting Sub‑inspector made a statement in which he gave up Muhammad Qasim as having been won over by the defence and it was after this that he was examined by the defence in support of its version. In my view, therefore, the evidence of Muhammad Qasim would be that of a defence witness and cannot be treated to be a different version of the prosecution case as submitted by the learned counsel for the appellant.

11. The appellant when examined by the trial Court denied the allegation. When asked as to why he had been involved in the present case, b is reply was:‑ "Zubair's character was not above reproach. He had enmity with other boys. The occurrence took place in total darkness and the assailant or assailants were not identified. I was falsely implicated on account of suspicion." The appellant examined Sakhi Muhammad (D. W. 2) in addition to Muhammad Qasim. Muhammad Qasim deposed that he came out of his house at Isha prayers and was going towards mosque when he heard alarm raised by a boy and went to that direction. He found that the alarm had been raised by Zubair P. W. On enquiry he was told that some one had thrown something on him, and that he was not able to identify that person. According to Muhammad Qasim, Sakhi Muhammad, Allah Ditta and Nazir were already present at the spot. Glass (P. 5) was lying at the spot which the witness picked up and later produced before the police vide memo. Exh. P. A. which was duly attested try him. In cross‑examination be admitted that Sakhi Muhammad was a brother of his wife and that he and Sakhi Muhammad alongwith some others were prosecuted under section 307, P. P. C. in the year 1957. Sakhi Muhammad stated that on the day of occurrence he was going to offer Isha prayers in a mosque adjacent to his shop when he alongwith Muhammad Qasim and one Nazir rushed to wards the Chowk because they heard some noise from that direction. They enquired from Zubair as to what had happened and were told that some one had thrown something on him and had run away. The witness was told by Zubair that the person who had thrown something on him could not be identified.

12. I have already held that the two eye‑witnesses Muhammad Shabbir and Muhammad Suleman are the persons who bad actually seen the occurrence. They in their evidence have clearly stated to have correctly identified the appellant. I, therefore do not find any reason to hold that the real culprit who had done this heinous act was not correctly and pro perly identified. I, therefor, do not believe the evidence of Muhammad Qasim and Sakhi Muhammad D. Ws. The result is that in my view the prosecution bas proved its case beyond any shadow of doubt. I, therefore, uphold the conviction of the appellant under section 307, P. P. C. and dismiss his appeal.

13. This leaves me with the question of sentence. This Court by its order dated the 18th January 1971, issued notice to the appellant to show cause as to why the sentence awarded to him be not enhanced. Learned counsel for the appellant cited number of authorities, the most important are Muhammad Sharif v. The Sate (1969 S C M R 521), Zarif Khan v. The State (1968 P Cr. L J 1818), Pahlwan and another v. The State (P L D 1966 Kar. 156) and argued that this Court would not normally interferes in, the quantum of sentence if it is fond that it was not grossly inadequate. Learned counsel also drew my attention to the date of incident which took place on 20th August 1968, and submitted that since then the appellant had been behind the bars. This fact according to the learned counsel also deserved to be taken into consideration while determining the, quantum of sentence. There is no doubt that this Court very rarely inter feres with the sentence, but I am afraid in this case the question of sentence is to be considered in the light of the circumstances of this case and so far as the other submission that the appellant had been in the lock‑up since the day of occurrence is concerned that is not of much help because in Samano v. The State (1973 S C M R 162), it was observed that the mere length of time taken in concluding the trial and deciding the appeal would not by itself constitutes an extenuating circumstance justifying imposition of lesser penalty. In the instant case, the unfortunate young boy who lost both his eyes was on the threshold of his educational career. His entire future stands completely ruined and he bad been rendered cripple for rest of his life. For a heinous offence like this, a very deterrent and severe sentence is required so that" innocent and law abiding citizens are provided some guarantee of their personal safety. I would, therefore, enhance the sentence of the appellant to a period of ten years rigorous imprisonment. The, revision petition is disposed of accordingly. Order accordingly.