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Criminal ,appeal No. 20 of 1966, decided on 30th October 1968.

S. 326‑Grievous hurt Prosecution version based on evidence of eye‑witnesses supported by statements of other independent witnesses and corroborated by recovery of crime weapon and incriminating articles‑Guilt, held, fully brought home to accused‑Conviction upheld.

S. 326‑Grievous hurt Sentence‑Accused cutting nose and upper lip of complainant for having illicit connection with his wife‑Mitigating circumstance Sentence of 7 years' R. I, reduced to 4 years' R. I.

Ss. 325 & 326 read with S. 71‑ Accused convicted and sentenced for offences under S. 326 and also under S. 325‑Conviction under S. 325 set aside as being contrary to provision of S. 71.

S. Sardar Shah Bokhari for Appellants.

Mufti Nazar Muhammad for the State.

Dates of hearing : 24th and 25th October 1968.

Ghulam Hassan and his uncle Ahmad appellants were convicted under section 316/34, P. P. C. and sentenced to seven years' rigorous imprisonment for causing grievous hurt to Ghulam Siddique (P. W. 1) by the learned Additional District Magistrate, Dera Ghazi Khan. They were also convicted under section 325/34, P. P. C. and sentenced to two years' rigorous imprisonment each for causing hurt to the same person. Both the sentences were ordered to run concurrently. Against their convictions and sentences the appellants have preferred this appeal.

2. The appellants suspected that Ghulam Siddique P. W. had illicit intimacy with Mst. Jannat (D. W. 1), wife of Ahmad appellant. According to the prosecution this constituted the motive for the occurrence under consideration.

3. On 15th August 1965, sometime before noon, Ghulam Siddique P. W. was going back to his louse from his land when he met Ghulam Hussain appellant near Bank Berinwala. Ghulam Hassan appellant had a hatchet with him. He gave some blows to Ghulam Siddique P. W. and after tying his hands with his turban made him walk towards Bank Khuraghrat. Ibrahim (P. W. 5) got attracted to the spot on hearing the hue and cry raised by Ghulam Siddique P. W. He requested Ghulam Hassan appellant to let go Ghulam Siddique P. W., but the said appellant refused and also threatened him with dire consequence if he came near him. Ibrahim P. W. then left for Basti Ahmdani. Hussain Bakhsh (P. W. 4) also came there subsequently and saw Ghulam Hassan appellant taking away Ghulam Siddique P. W. He also asked the appellant to let go Ghulam Siddique P. W. but the appellant refused to listen him. Ghulam Siddique P. W. was then taken to a place where Ahmad appellant was ploughing his land near Bank Khuraghrat. Hussain Bakhsh P. W. had also followed them. Ghulam Hassan appellant shouted to Ahmad appellant that he had brought his enemy, whereupon Ahmad appellant, who had soti in his hand, gave some blows to Ghulam Siddique P. W. and felled him down. Ahmad appellant then sat on his chest while Ghulam Hassan appellant struck him a blow with his hatchet cutting his nose and upper lip. This occurrence was witnessed by Husain Baklish P. W. who thereafter left the spot in order to inform the relations of Ghulam Siddique P. W. about the occurrence. Both the appellants then took Ghula:n Siddique P. W. towards the house of Haji Ghulam Hassan (P. W. 3). In the way, however, Ghulam Hassan appellant left and Ahmad appellant alone took him to the house of the Haji and told him that he and Ghulam Hassan appellant had inflicted injuries to Ghulam Siddique and had also cut his nose, because he had illicit relations with his wife. Ramzan (P. W. 2), a relation of Ghulam Siddique P. W., had been informed about the occurrence by Ibrahim P. W. and so he accompanied by one Ghulam Husain son of Usman and Mahmood went towards the scene of offence and when they reached Band Nokh, they saw Ghulam Siddique P. W. and Ahmad appellant standing near Haji Ghulam Hasan P. W. Ghulam Siddique P. W. related the occurrence to them and Ahmad appellant also admitted his guilt before them. Ramzan P. W. and his other relations took Ghulam Siddiqus P. W. to the hospital and after getting him examined by a doctor, went to Police Station Kala, reaching there at about 5 p.m. and lodged first information report Exh. P. A. which was recorded at his dictation by Sub‑Inspector Shakir Ali (P. W. 8). After that the Sub‑Inspector went to the scene of offence and prepared site‑plan. He arrested Ghulam Hassan appellant, who produced blood‑stained Kulhari Exh. P. 2 and one chaddar Exh. P. 3 which the Sub‑Inspector took into his possession vide memo. Exh. P. B. Ghulam Hassan appellant also led the Sub‑Inspector to a Jand tree from and under it dug out the cut nose and the piece of upper lip, which the S. I. put into a bottle Exh. P. 6 and took the same bottle into his possession vide memo. Exh. P. D. Ahmad appellant produced his shirt Exh. P. 4, turban Exh. P. 5, both blood‑stained, which the Sub‑Inspector took into his possession tide memo. Exh. P. C. All the aforementioned recoveries were witnessed by Ramzan (P. W. 2), Haji Ghulam Hasan (P. W. 3) and Sher Muhammad Chowkidar (P. W. 7).

4. Doctor Abdul Wahid (P. W. 9) examined Ghulam Siddique P. W. and found as many as 25 injuries on his person. Most of them were contusions and lacerated wounds and two were incised wounds. Injury No. 1 was a trangular incised wound, 3 " x 2" x bone deep, chopping off his cartilaguous part of his nose and whole of the upper lip. Injury No. 4 was also an incised wound measuring " x 4" x " between the right ring and little finger. Injuries Nos. 1, 4 and 8 were found to be grievous and the rest were found to be simple.

5. Ghulam Hassan appellant pleaded alibi by stating that he was not present at the spot, when the occurrence took place. Ahmad appellant stated that on the day of occurrence he and his wife had gone to Bank Khura Ghrat, that his wife began to cut grass, while he went to a nearby place to collect some firewood, that he after a short while heard an alarm raised by his wife and so he ran back and saw Ghulam Siddique trying to commit rape with her, that he got enraged and attacked Ghulam Siddique P. W. with a hatchet which he leas carrying at that time that he caught hold of Ghulam Siddique P. W. and proceeded with him towards the police station accompanied by his wife, and that in the way Haji Ghulam Hasan, Member Union Council, net them and rescued Ghulam Siddique P. W. and that subsequently the P. Ws. in conspiracy with the police had concocted this case against hire. He also added that Ghulam Hassan appellant was not present at the time of the occurrence. In support of this version he examined his wife, Mst. Jannat, Noor Muhammad and Ilahi Bakhsh.

6. The prosecution case against the appellant rests on :‑

(i) The testimony of Ghalam Siddique (P. W. 1), Husain Bakhsh (P. W. 4), and Ibrahim (P. W. 5), the alleged eye witnesses ;

(ii) on the testimony of Haji Ghulam Hassan (P. W. 3), Ramzan (P. W. 2) before whom Ahmad appellant confessed his guilt ; and

(iii) the recoveries of the incriminating articles at the instance of the appellants.

Since Ahmad appellant admitted his guilt, the point which requires determination is as to whether the prosecution version or his version is correct. The prosecution version is based on the evidence of the witnesses, namely, Ghulam Siddique, Ibrahim and Ghulam Hussain P. Ws. which is supported by the statements of Haji Ghulam Hasan and Ramzaa P. Ws. before whom Ahmad appellant had confessed his guilt. Further their evidence also stands corroborated by the recoveries in this case. It is no doubt true that some of the witnesses are relations of A the injured person but relationship alone would not make me doubt their veracity. Ibrahim is a completely independent and disinterested witness and therefore, there is no reason to disbelieve his testimony. In any case the defence version that Ahmad appellant alone had caused all those injuries to Ghulam Siddique P. W. does not appear to re plausible because he could not have cut the nose and upper lip of Ghulam Siddique P. W. without the help of another person.

7. In the result I am satisfies that the prosecution has successfully brought home the guilt to the appellants. As regards the sentences I feel that there are some mitigating circumstances in favour of the appellants because Ghulam Siddique had illicit connection with the wife of Ahmad appellant. I, accordingly, B while upholding the convictions of the appellants under section 326/34, P. P. C. reduce their sentences to four years' rigorous imprisonment each. The conviction of the appellants under section 325/34, P. P. C. cannot be upheld as it is contrary C to the provision of section 71, P. P. C. I, accordingly, set aside their conviction and sentence under section 315/34, P. P. C. The appeal is accepted to the above extent only.

Sentence reduced.

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