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Criminal Revision No. 1052 of 1967/B W P, decided on 29th March 1968.

, Ss. 307/149 & 315/149-Accused carrying hatchets but in causing injuries to complainant desisting from using sharp-edged sides of hatches-None of injuries inflicted on vital parts of body-Circumstances, held, indicating that accused had no intention to kill complainant-Conviction under S. 307/149 altered to that under S. 325/149 and sentence of 4 years' R. 1 reduced to period of imprisonment already undergone (8 months).

M. S. Naseem for Petitioners.

Fukhar-ud-Din for the State.

Jama1 Din, Haji Ahmad, Ghulam Mustafa, Muhammad Siddiq and Ashiq Muhammad were tried by the learned Magistrate under sections 148 and 307/34, P. P..C for causing injuries to Manzoor Hussain P. W. They were convicted and sentenced to three years' R. I. each under section 148, P. P. C. and a fine of Rs. 1,000, each or in default six months' R. I. Conviction under section 307/34, P. P. C. was recorded and a sentence of four years R. I. was awarded to each of the petitioner with a fine of Rs. 1,000, or in default one year's R. I. Both the sentences were, however, ordered to run concurrently. Out of the fine, recovered, Rs. 3,000, was ordered to be paid to the complainant.

2. On appeal, the learned Sessions Judge, Rahimyar Khan altered the conviction from section 307/34, P. P. C. to section 307/149, P. P. C. but otherwise dismissed the appeal. Hence this revision.

3. The case of the prosecution briefly stated is that Manzoor Hussain (P. W. 1) was coming back from the shrine of Pir Sanjar Mushaikh at about sunrise time. On his return he was attacked by the petitioner along with another person. Jamal Din, Haji Ahmad and Ghulam Mustafa were armed with hatchets and the other two were armed with sticks. The occurrence is alleged to have been seen by Gorey Khan (P. W. 2) and Muhammad Siddiq (P. W. 3). Another person named Rahim Bakhsh was also mentioned as an eye-witness by the injured man in his statement made before the A. S. I. Ghulam Muhammad Khan (P. W. 5) which was recorded in Sadiqabad Hospital where he was carried subsequently. This Rahim Bakhsh was not produced at the trial.

4. Dr. Sheikh Ahmad Bakhsh (P. W. 4), Medical Officer, Incharge, Tehsil Hospital at Sadiqabad examined the complainant on 15th of April 1966, at 8-30 P. M. and found the following injuries: -

(1) A lacerated wound 2/4" x 1/5" x skin deep on the right upper eye-lid.

(2) An abrasion 1" x 1/4" on the left side forehead.

(3), A contusion 8" x 1" on the back left scapular region.

(4) A contusion 5" x 3/4" starting from the lower angle of right scapula going downwards and inwards.

(5) A contusion 5 " x 1 " on the back middle.

(6) A contusion 5 " x 1 " on the left side back starts from the middle of injury No. 5.

(7) A contusion 5" x 2" on the back left shoulder.

(8) A lacerated wound 1" x " x muscle deep on the lower part outer side back left arm

just above the elbow.

(9) Six contusions of different sizes on the left forearm and hand.

(10) A contusion 6"X 1" on the back right arm.

(11) A contusion 5" x 1" on the front lower part right arm.

(12) An abrasion 3" x " on the back right forearm.

(13) A contusion 3" x 1" on the outer side lower part.

(14) A contusion 2" x 1" on the back right hand with fracture of the right hand second metacarpal bone and 3rd metacarpal bone.

(15) A contusion 3" x 1" on the front lower part right thigh.

(16) Three abrasions on the front upper part right leg.

(17) A contusion 3"x 1" on the lower part front right leg with fracture of the tibia lower end.

(18) Two lacerated wounds one " x " x bone deep other 2/3" x 1/6" bone deep on the upper part front left leg with fracture of the upper and tibia and fibula.

(19) A lacerated wound 2 " x " x skin deep on the lower past front left leg. Injuries Nos. 13, 14, 17 and 18 were grievous and the rest were simple. All the injuries were caused by blunt weapon.

5. The patient remained in the hospital for about a month. The doctor, however, opined that the injuries collectively were not sufficient in the ordinary course of nature to cause death and none of the injuries were dangerous to life.

6. I have gone through the evidence in this case with the help of the learned counsel for the petitioners, who hits vehemently argued that the witnesses should not be relied upon as they are chance witnesses and relations and as such are interested in the complainant. Rahim Bakhsh, the independent witness, has been withheld at the trial. Ten witnesses, namely, Allah Dita (D. W. 1), Ismail (D. W. 2), Chakar (D. W. 3), Jan Muhammad (D. W. 4), Abdul Ghani (D. W. 5), Faqir Muhammad (D. W. 6), Ashiq (D. W. 7), Nizam (D. W. 8), Muhammad Murad (D. W. 9), and Abdul Hafiz (D. W. 10) were produced in defence by the petitioners and all of them have denied the occurrence and alleged that they have been implicated on account of enmity over the last elections. The learned counsel appearing on behalf of tire petitioners straightaway admitted that the defence evidence is of little assistance to him and he will argue the case presented by the prosecution witnesses. As the defence evidence is of no value, therefore, it has been rightly discarded by both the Courts below. Coming to the evidence produced by the prosecution, it is clear that out of the eye-witnesses, Muhammad Siddiq is an independent witness while Gorey Khan is related to the injured man, although he has denied the relationship. The occurrence having taken place early in the morning at about 8-00 a.m. outside the village abadi, it cannot be said that these persons are chance witnesses as persons moving about in the area had to be produced. Even the complainant himself had gone to the shrine and so were these witnesses. As such the presence of these witnesses cannot be said to be doubtful.

7. Learned counsel then vehemently argued that there is a delay in the lodging of the F. I. R. in this case, although the distance between the police station and that of the place of occurrence is hardly ten miles. Learned counsel appearing on behalf of the State argued that the father of the complainant was not at home and he was faked to the hospital on charpai. As such the delay is not material.

8. Jamal Din, Haji Ahmad and Ghulam Mustafa petitioners produced hatchets Exh. P. 1, Exh. P. 2 and Exh. P. 3 respectively which were taken into possession by Ghulam Muhammad Khan; A. S. I. (P. W. 5), vide recovery memos. Exh. P. F., Ex. P. G and Exh. P. H. which were signed by Muhammad Siddiq and Gorey Khan P. Ws. Muhammad Siddiq petitioner produced stick Exh. P. 4 on 17th April 1966, while Ashiq Muhammad petitioner produced stick Exh. P. 5 on 22nd of April 1966. The former was taken into possession vide memo. Exh. P. J. and the latter by memo. Exh. P. & The witnesses of the recovery are almost the same.

9. Since one of the witnesses in this case is an independent person and the complainant has received 19 injuries on his person, as a result of which he has become invalid so far as his arms and legs are concerned, the question is what offence the petitioners have committed in the circumstances of the case. Learned Stat counsel has conceded that if the petitioners had any intention t kill the injured man, there was nothing to stop them from causing injuries with sharp-edged tides of the hatchets which they were carrying and none of the injuries are on the vital part of the body. The conviction under section 307/149, P. P. C. cannot therefore, be maintained. I would, therefore, alter the conviction from section 307/149, P. P. C. to section 325/149, P. P. C. Since the sentence is very harsh, I would reduce the sentence of the petitioners to the one already undergone as they have served about eight months. The petitioners will, however, pay the same fine imposed on them on this count. The fine under section 148, P. P. C. will be remitted and the sentence under this section will also be that of one already undergone.

10. With these modifications, this revision petition is accepted to the above extent.

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