1970 P Cr (PLP)

4. On 19th April 1967 at 5-45 a. m. Doctor Muhammad Siddique (P. W. 10) examined Muhammad Irfan and found the following injuries on his person (i) A stab wound 3/4' x 1/4" x " on the back right side of the chest 1 I" from the mid line and at the level of the angle of the right scapula. (ii) Stab wound " x x , 1" from injury No. 1 outer side.' (iii) Stab wound " x ' x " on the right back chest 2" below injury No. 1. (iv) Stab wound 1" x ' x transverse, " from the mid line on the upper part of the back right chest. (v) Stab wound " x x at the level of injury No. 4 and 2 on the outer side. (vi) Complained of passing of blood in urine. Injury No. 4 was found grievous because under it the kidney was s found injured. The remaining injuries were simple. The report regarding injury No. 4 was based on the report of Surgeon, which report was kept in the Hospital. The Surgeon's report was, however, not proved in the case.

5. The petitioners denied the allegations and attributed the case to enmity. They examined two witnesses in defence. Ghanu Khan (D. W. 1) and Khan Zaman (D. W.2) stated that immediately after the occurrence, they enquired from Muhammad Irfan, who told them that three unknown persons gave him injuries.

6. At the trial direct evidence was furnished by Muhammad Irfan (P. W. 7), Muhammad Fayyaz (P. W. 1), brother of Mst. Aziz Kbanam, Muhammad Zaman (P. W. 2) brother of Muhammad Irfan and Ghulam Muhammad (P. W. 6). All the three eye-witnesses stated that in their view the petitioners caused injuries to Muhammad Irfan. After the occurrence they took Muhammad Irfan to the police station. Muhammad Irfan duly proved the F.

1. R. Ashiq Hussain (P. W. 5) duly proved the recovery of knife Exh. P. 3 from the possession of Sultan peti tioner. Ghulam Mustafa (P. W. 3) described that Sultan and Aslam petitioners gave him beating and that Muhammad Irfan rescued him from them.

7. The occurrence is alleged to have taken place at Khuflan Wela when Muhammad Irfan was sitting at, his shop. The petitioners are residents of the same village and, in a way, related to Muhammad Irfan and his brother Muhammad Zaman. I believe that Muhammad Irfan did not make any mistake in recognis ing the culprits who caused injuries to him. It is proved that out of the three eye-witnesses, Muhammad Zaman (P. W. 2) is brother of Muhammad Irfan, and Muhammad Fayyaz is brother of Mst. Aziz Khanam who is the wife of Muhammad Zaman P. W. There is a basis of enmity between the petitioners and Muhammad Fayyaz, Muhammad Zaman and Muhammad Irfan P. Ws. Ordinarily their statements can be accepted, provided they are corroborated by other independent confirmatory evidence. Ghulam Muhammad (P. W. 6), apparently a disinterested person, furnished such corroboration. The learned counsel for the peti tioners urged that Ghulam Muhammad was resident of Chakra and happened to see the occurrence only by chance. He admitted that his house is at a distance of five miles from the place of occurrence. He is neither related to the victim nor he is shown to be inimical to the petitioners. The question is whether he happened to witness the occurrence at all. Undisputedly, the F. I. R. was lodged rather promptly at 11-30 p. m. Muhammad Irfan, while mentioning the other witnesses, specifically mentioned that Ghulam Muhammad son of Nawab of Chakra had seen the occurrence and had rescued him. The Courts below decided to accept the statement of Ghulam Muhammad and acted upon' it. I agree with them. It follows that there is adequate evidence to establish that Aslam had caught hold of Muhammad Irfan and Sultan gave him injuries with the knife Exh. P. 3.

8. The learned counsel for the petitioners lastly contended that the offence did not fall under section 307, P. P. C. and that it was covered by section 324, P. P. C. only. He stressed that the act done by the petitioners did not indicate such intention or knowledge that if they by that act caused the death they would be guilty of murder. According to him, the victim was at the mercy of the petitioners and if they did not kill him, that means that they did not intend to kill him. In this connection, the learned counsel relied on Taj Muhammad v. State (1). The evidence on record fully bears out this contention. Had the petitioners the intention to murder, there was nothing to prevent them from doing so. Perhaps they intended only to cause such injuries as they actually did and no more. Accordingly I hold that their offence falls squarely under section 324/34, P. P. C. An offence under section 324, P. P. C. is punishable with imprisonment for a term which may extend to three years or with fine or with both.

9. Accordingly the conviction of the petitioners is altered from one under section 307/34, P. P. C. to one under section 324/34, P. P. C. and their sentences are reduced from three years to two years' rigorous imprisonment each.

10. Section 106 of the Code of Criminal Procedure provides as follows: - "Whenever any person accused of any offence punishable under Chapter VIII of P. P. C. other than an offence punishable under section 143, section 149, section 153-A, or section 154 thereof, or of assault or other offence-involving breach of peace . . . . . is convictea of such offence before . . . the Magistrate lit Class, and such Court is of opinion that it is necessary to require such person to execute a bond for keeping the peace, the Court may order him to execute a bond. It follows that In the instant case relating to assault, the trial Court Was Competent to make an order under section 106 of the Code of Criminal Procedure. I am satisfied that in view of they dispute relating to land, the said order was justified. Accordingly that order is maintained.

11. For the foregoing reasons, the appeal is partly accepted to the extent, indicated above. Appeal partly accepted. (1) P L D 1963 Kar. 118