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Criminal Petition for Special Leave to Appeal No. K‑36 .of 197.2, decided on 28th August 1973.
(On appeal from the judgment and order of the High Court of Sind & Baluchistan at Karachi, dated the 15th November 1972, in Criminal Appeal No. 217 of 1970).
S. 307/34‑Attempted murder-Both prosecution witnesses partisan and entirely chance witnesses normally. having no occasion 6o be present at spot of occurrence‑Reasons given by witnesses for being present at spot not convincing -Prosecution story as given in F.I.R. and by witnesses that all Injuries including hatchet injuries caused by both accused, both being armed with hatchets‑Contradicted by medical report showing only one out of six injuries being caused by sharp weapon‑Last prosecution witness stating one accused as armed with hatchet and another with lathi‑Prosecution case, held, suffered from obvious infirmities Judgment of High Court in no way perverse‑Leave to appeal refused.
M. I. Memon, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 28th August 1973.
‑Respondents 1 and 2 were tried by the learned Sessions Judge, Dadu, under section 307/34, Pakistan Penal Code, for the attempted murder of Shahmir, petitioner herein, but were convicted under section 326/322/323/34, P. P. C. and sentenced to rigorous imprisonment for one and half years and a fine of Rs. 300. or in default to a further rigorous imprisonment for six months under the first count and to rigorous imprisonment for six months under the second count. The substantive sentences were to run concurrently. On appeal by the two respondents, a learned Single Judge of the High Court on a finding that the case against them was doubtful acquitted them, against which the petitioner now seeks leave to appeal.
The prosecution case as laid in the trial Court briefly was that on 4‑3‑1969 at about noon time the complainant Shahmir was returning to his village Dr. Khudadad on horse back from Khairpur Nathan Shah. As he came near village Wasayo Janwari he met the two respondents. They were sitting on the inspection path and had a hatchet each. As the complainant came near them, respondent No. 1 asked him as to why be bad not forsaken the party of Doctor Khudadad and joined that of Mir Muhammad Janwari. The complainant expressed his inability to do so, and respondent No. 1 abused him and gave a hatchet blow which hit his right foot. As a result, the complainant fell down from the horse. Respondent No. 2 then gave another hatchet blow on the com plainant's head. This was followed by further hatchet blows by the two respondents. On the complainant's cries, Zahro (P. W. 2) and Khamiso (P. W. 5) were attracted to the spot. On their intervention, the two respondents left the scene of occurrence. The two eye‑witnesses then carried the complainant to the otaq of Dr. Khudadad, and then to P. S. Mehar, at a distance of seven miles, where F. I. R. was lodged at 5‑20 p. m.
The medical examination of the complainant showed six injuries on his person, of which the one on his right foot was an incised wound caused by a sharp weapon. The remaining five injuries were either contusions or lacerated wound; all caused by blunt weapon.
Among the reasons which weighed with the learned Single' Judge to acquit the two respondents were that the two eye‑witnesses were not ugly partisans but were entirely chance witnesses, for normally they had no occasion to be present at the spot at about the time of occurrence. The complainant, Shahmir and Khamiso are both close relatives of Dr. Khudadad, and Zahro is a servant. They belong to different villages. The reason the two witnesses gave for their being together near the spot was that they met at Mehar where each of them had gone separately to make sundry purchases and they decided to return to their respective villages together. Among the articles they are stated to have purchased were chillies, salt, onions and some cloth which were readily avail able from nearby shops situated within a radius of one mile from their respective villages and there was scarcely reason for them to journey for 14 miles to and from Mehar to purchase these articles.
According to the F. I. R. as also the statement of the com plainant, both respondents 1 and 2 gave hatchet blows but as pointed out already, barring one injury on the right foot of the complainant the rest were caused by blunt weapon. This explains why Khamiso P. W. who was the last witness to be examined in the trial Court turned round to say that of the two respondents only respondent No. 2 had a hatchet and respondent No. 1 had a lathi.
Learned counsel for the petitioner submitted in support of the petition that the prosecution evidence was treated as reliable on the whole by the trial Judge. He had occasion to watch the demeanour of the witnesses and his assessment of the veracity of the witnesses ', must be accepted. It was also stressed that it was impossible to suggest that the petitioner could falsely implicate the two respond ents and would spare the real culprit who caused him the multiple injuries.
That the prosecution case suffer from obvious infirmities is beyond any question. It cannot be said with any degree of reason that the judgment of the learned Single Judge is in any manner perverse. He in his anxiety to ensure the safe dispensation of criminal justice could not see his way to overlook the material discrepancies in the evidence, which was of partisan character. There is no ground for interference by this Court. The petition is accordingly dismissed.
Leave refused.
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