1976 PLP 425 (SCMR)

MUHAMMAD GUL, J.‑This appeal by special leave is against the order of a learned Single Judge of the former High Court of West Pakistan dated 17‑3‑196), acquitting Muhammad Yunis and Muhammad Nazir, the two res pondents herein, who were convicted by the trial Magistrate for offences under sections 307 and J26 read with section 34, P. P. C. The parties are related inter se. Muhammad Yunis and Muhammad Nazir respondents are friends and are also related to each other. Muhammad Yunis respondent is also a nephew (sister's son) of Shah Muhammad, appel lant herein, who was victim of the assault, and the first informant. The incident took place on the night between 5/6th November, 1964. Shah Muhammad appellant and his cousin Ain Din P. W. were in their beds in a veranaah, at Chah Lundawala, where the former used to keep cattle. A hurricane lantern was also lighted by their side. At about mid‑night the two respondents appeared on the scene. Shah Muhammad being then awake asked the two intruders as to why they had come at that hour of the night. Muhammad Yunis retorted that they had come to deliver possession of the hotel to him. Muhammad Yunis caught hold of Shah Muhammad while Muhammad Nazir respondent attacked him with chhurri causing injuries on his shoulder, back, chest and testicles. Shah Muhammad offered resistance and in the course of the struggle the chhurri fell down from the hand of Muhammad Nazir. Saab Muhammad was also able to free himself from the clutches of Muhammad Yunis. Muhammad Nazir respondent then threw Shah Muhammad on the ground and hit him on his testicles and penis and extracted out both the testicles. Shah Muhammad was also given fist blows by Muhammad Yunis respondent. Ain Din who tried to rescue Shah Muhammad was also given fist blows by Muhammad Yunis. On hearing the alarm Ata Muhammad P. W. and Hassan Din, and certain other persons reached the spot and the two respondents decamped from the scene. Ata Muhammad took Shah Muhammad to Mayo Hospital where he was medically examined and five injuries were found on his person. In the opinion of the doctor, the injuries on the chest, testicles and penis were grievous and were cause by sharp‑edged and pointed weapon. Ain Din P. W. wars also medically examined and two simple injuries caused by a blunt weapon were found on his person. On 6‑11‑1964, at about 4 a.m. the constable attached to the Casualty Ward of Mayo Hospital, telephoned P. P. Nawan Kot about the admission of Shah Muhammad in the hospital with grievous injuries. On this informa tion, Sardar Tufail Muhammad, Sub‑Inspector (P. W. 13) reached the hospi tal and recorded statement of Shah Muhammad (Exh. P. A.) at about 8 a.m. on the basis of which formal P. I. R. was registered at P. S. Ichhra. The Sub‑Inspector on visiting the spot recovered chhurri Exh. P.

1. According to the prosecution, the motive for the crime is that Shah Muhammad had built a hotel in Bakar Mandi and gave it on lease to Muhammad Yunis appellant on a monthly rent of Rs.

100. A rent note was also executed to evidence the transaction. Muhammad Yunis respondent paid rent only for the first two months and subsequently refused to pay any rent. This obliged Shah Muhammad to apply for the ejectment of Muhammad Yunis from the leased premises. However, while proceedings were pending, hotel was demolished by the Lahore Municipal Corporation because: it bad been constructed without the sanction of the Corporation after demolition, Shah Muhammad tried to remove the debris but was pre vented by Muhammad Yunis from doing so. Muhammad Yunis then set up a tent in the place of demolished premises to run his restaurant. Muhammad Yunis, had also suspected that the Municipal Authorities bad demolished the hotel at the instigation of Shah Muhammad. The two respondents denied the allegations against them and pleaded alibi. They also stated that Shah Muhammad was of loose character and vans attacked by some unidentified persons, and they have been named as accused because of ill‑feeling between the parties created by ejectment pro ceedings. The trial Magistrate believed the evidence regarding motive and of the eve‑witnesses given by Shah Muhammad, Ain Din and Ata Muhammad Hassan Din was not produced. The evidence of the above witnesses was held sufficiently corroborated by the medical evidence and sentenced both the respondents to five years' R. I. under section 307, and three years' R. I. under section 326, P. P. C. Both the sentences were ordered to run concurrently against each respondent. On appeal by the two respondents, the learned Single Judge set aside their convictions and sentences as aforesaid. The learned Judge gave benefit of doubt to the respondents because the prosecution evidence was interested which there was no independent corroboration, and which was even con tradicted by the medical evidence. Leave to appeal was granted for re‑examination of the evidence in the interest of safe administration of justice. During the pendency of the appeal, an application was submitted on be half of the appellant for the rescission of the leave to appeal and for permis sion to withdraw the petition for special leave. By order dated 20‑5‑1968, this petition was directed to be heard along with this appeal. This judgment wilt dispose of both the petition as also the criminal appeal. Dealing first with the application for withdrawal of the appeal, learned counsel for the appellant frankly conceded that in view of the decision of this Court in Sikandar Hayat v. Ata Muhammad (P L D 1970 S C 224) the appellant has no right to abandon his appeal as of right, save with the leave of the Court. He, however, submitted that any such leave to him would not be opposed to public interest or public policy, more so, when the parties are inter‑related and the withdrawal of the appeal against their acquittal help repair the strained relations. Having regard to the facts of the case and the nature of the offence alleged against both the respondents, we do not consider it to be appropriate in public interest to allow the appellant to abandon the appeal; notwithstanding his relationship with the respondents. Therefore, we reject the application and the appeal proceeds on merits. As to the merits of the appeal, it must be observed at once that there is ample evidence on the record as to the lease of the hotel, and the proceedings by the appellant against Muhammad Yunis for his ejectment for default in payment of agreed rent. This was not contested even in the High Court. So also, there is no denying the fact that the Municipal Corporation bad demolished the premises for the construction raised was without sanction. Therefore, the motive stands proved. The main reason which weighed with the learned Judge to acquit the two respondents herein was that there was inordinate delay in making the F. I. R and the ocular evidence was wholly interested. Ata Muhammad was treated as a chance witness besides being distantly related to Shah N1uhammpd. In these circumstances, the learned Single Judge considered it necessary to look for independent corroboration. For this purpose, the learned Judge found the, medical evidence wanting being con tradictory to the ocular evidence. Learned counsel for the appellant, however, contended that the learned Single Judge was wholly mistaken to discard the evidence of Shah Muhammad, who despite the serious injuries remained in full consciousness and there is no reason for him to spare the actual culprits and‑ to falsely implicate his real maternal nephew and another relation for injuries whirr were not and could not be self‑suffered. Similarly, it was rightly pointed out that the learned Single Judge misread the evidence in that, there was no contradiction between the medical evidence and that of the eye‑witnesses According to the medical evidence, the injuries on the testicles were caused by a sharp‑edged weapon, while according to the learned Judge the appellant stated in evidence that his testicles were extracted by a bite by Muhammad Yunis. In reaching this conclusion the learned Judge misread that part of statement of Shah Muhammad in which he had definitely stated that Muhammad Nazir bad initially caused injuries on the testicles with chhurri It was only after the chhurri was dropped in the course of grappling that Muhammad Nazi: hit the appellant's penis and the testicles. The parties being related to each other there is no question of mistaken identity. For the foregoing reasons, we accept the appeal, set aside the acquittal of the two respondents and restore their convictions under sections 347, and 326, read with section 34, P. P. C. As to the sentences we cannot pos sibly overlook the fact that the respondents on their acquittal were released from the Jail early in 1967 and it would be really hard to send them back to Jail more so, when the parties being relatives have also reached a com promise. In these circumstances the interests of justice will be satisfied if each respondent is sentenced to imprisonment already undergone and a fine of Rs. 1,000 on each count and in default of payment of fine to suffer further, rigorous imprisonment of six months in each case. We order accordingly. Appeal accepted.