P L D 1974 Karachi 195 (PLP)

(1) The third ear‑ring hole of the left ear was cut open with blood cogulated at the ends. (2) The second ear‑ring hole was cut up to the rim of left ear with blood congulated at the cut surfaces. (3) Both first and second ear‑ring holes of right ear were swollen and slightly lacerated with small blood collected in their holes. All the injuries were simple in nature and appeared to have been caused by powerful extraction or snatching of the ear‑rings. They were within six hours old at the time of examination." He examined her at 7‑15 p.m. on the 13th and the period of six hours which lie mentions clearly covers the time of the incident. Although the appellant was represented by an Advocate and she was cross‑examined there is little of substance that has emerged from her cross‑examination. The cross‑exami nation has concentrated entirely upon the persons who came to the scene after the incident. I can, therefore, really see nothing in her evidence which would cause me the slightest hesitation in accepting her testimony.

2. The evidence is besides very strongly corroborated by that of her husband. The incident occurred at about 4‑00 p.m. and it must have taken the girl at least fifteen minutes to be able to, run to the village where Haji was residing and for him again another fifteen minutes to come to the scene. In these circumstances his report at 6‑00 p.m. at the Ghotki Police Station, three miles away, is prompt and mentions all the details of the crime together with the name of the appellant.

3. Criticism has no doubt been made of the fact that the girl Nihalan was not examined and I do think it would have been more satisfactory if the explanation that is offered, namely, that she was .too young to be examined, was borne out by some evidence that she was actually produced in Court and that the learned Judge found her, by reason of her youth, to be unable to give rational answers to questions or to understand them. There is evidence, no doubt, that she was a young girl but exactly how young we are not told and I think it was the duty of the learned Judge to have sent for her and examined her for that purpose. It is possible that he did in fact do so but the record does not show this. In any event the evidence indicates that she ran away almost immediately after the appellant came up and, in the entire circumstances of the case, I do not think that her non‑examination affects the credibility of Mst. Budhi whose own claim to being believed stands upon very strong footing indeed.

4. The evidence of Haji, as I have already stated, is entirely confor matory of that of his wife but to him in cross‑examination it was suggested that he was giving evidence on account of enmity. The enmity suggested was that one Ghulam Rasool, who was the cousin of Haji, was murdered about 15 or 20 years before the incident by Amir Bux was the maternal uncle of the appellant. This fact Haji admitted but I can hardly believe that an enmity so old as this, when the appellant himself must have been only about 15 to 20 years old, would have made the first informant, in the very short time at his disposal, think of involving the appellant. Besides there can be no question but that Budhi must have seen the culprit and it is common ground between the prosecution and the defence that the appellant was known to her. Acceptance of the suggestion of the appellant, therefore, involves the conclusion that Mst. Budhi and her husband delibrately excul pated the real culprit and involved the appellant instead. In cases of hostility the danger that usually arises is the inclusion of innocent persons among the accused in addition to the real culprits and not the danger of substitution. I can see no reason, therefore, why this enmity should affect the truth of the prosecution case.

5. The witness Mohabbat was examined as a prosecution witness but refused to support the prosecution case. He was, therefore, permitted to be cross‑examined by the Assistant Public Prosecutor and his statement in the committal Court was brought up to the record of the Sessions Court under section 288 of the Cr. P. C. and can, therefore, be treated as substantive evidence. It does not, of course, follow that the committal Court's state ment must necessarily be regarded as a true one but the Court's duty is to decide, if possible, which of the versions given is true. The versions given in the committal Court is in accordance with what Mst. Budhi has stated and to that extent, therefore, my inclination is towards accepting that testimony. There are matters moreover, in his statement in the Sessions Court which lead me finally to the conclusion that it must be the story given by him before the Magistrate which ought to be relied upon. He admits having accompanied Haji to the scene but, curiously enough, does not say what Mst. Budhi told them as to what had happened to her. If he had said that Mst. Budhi did not recognize her culprit that of course was understandable. 1t is not understandable, however, that she would tell them nothing at all. On the other hand he says that he was examined some twelve days after the incident although in the committal Court he had admitted that he had been examined on the very first day. Not merely, therefore, because the statement in the committal Court was the earlier in point of time or that it coincides with the evidence of Mst. Budhi but also because of its own intrinsic worth I have come to the conclusion that the statement of the witness before the committal Court is to be believed.

6. The other witness, Malhoo, was not examined by the prosecution and, as l have already stated, for some reason unknown, he was not examined by the police until the 18th August that is to say, five days after the crime. It is possible that on this account the Assistant Public Prosecutor right have felt that his evidence was hardly one which would recommend itself to the Court. But, be that as it may, he was examined as a defence witness. In his deposition he completely denied that there was any incident of robbery in which Mst. Budhi was a victim at all. Since he was related to the parties he is of course quite right in saying that if there had been a robbery he would have come to know of it. But the robbery had occurred and that, as I have already stated, is completely and clearly demonstrated by the injuries, which Mst. Budhi sustained. I think the learned Judge was, therefore, right in rejecting the evidence of this defence witness.

7. It was the case of the prosecution that the appellant was, at the time, carrying a hatchet and this part of the case was not cross‑examined upon at any stage. I should, therefore, have been prepared to hold that the offence was under section 397, P. P. C. and not merely under section

394. The charge, however, did not mention section 397, P. P. C. nor does the attention of the learned Judge seem to have been invited to this aspect of the matter. 'The consequence is that the conviction is only under section

394. Perhaps the learned Judge was of the view that because the hatchet was not actually used for the purpose of causing any injury section 397 did not apply. There is, however, a great deal of authority in favour of the proposition that the word, "uses" in section 397 does not necessarily mean the use of it so as to cause an injury. It should suffice to refer to the case of Ahmad v. State (P L P 1963 S C 737) where at page 739 it was observed as follows: "it would, therefore, seem that even in the case of an attempted robbery or dacoity, the mere carrying of a deadly weapon by an offender would entail the consequence that in case of a conviction, he would receive a minimum sentence of seven years rigorous imprisonment. This section provides the key to the correct interpretation of section 397, P. P. C. and we are disposed to agree with the view expressed in the case cited that the word `uses' occurring in section 397 P. P. C. should be construed broadly as including the case of carrying of a deadly weapon during the dacoity or robbery."

8. Since, however, the conviction has been recorded under suction 394 and not under section 397 the quantum of punishment must, I think, be assessed on the basis of an offence under section 394 only. Regard ought not to be bad to the fact that the offence was under section 397 when there is no conviction under that section. Regarded as an offence under section 394, P. P. C. rather than one under section 397, I do not think that so severe a sentence as seven years' R. I. was justified and I think a sentence of three years' R. I. would be entirely adequate.

9. While maintaining the conviction, therefore I reduce the sentence to one of three years' R. I. and the appeal is to that extent only allowed. S. A. H. Order accordingly.