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Criminal Appeal No. 516 of 1984, decided on 18th May, 1986.
‑‑‑S. 326‑‑Hostile witness‑‑Evidentiary value‑‑Hostile witness, held, normally loses its evidentiary value and it cannot be used for or against a party.‑‑[Witness].
‑‑‑S. 326‑‑Appreciation of evidence‑‑Prosecution witness was a chance- cum‑relation witness and other eye‑witness excluded his presence at spot‑‑Ocular evidence of said witness disbelieved in circumstances.
‑‑‑S. 326‑‑Evidence of injured eye‑witness finding full corroboration from statement of another eye‑witness who was an independent and disinterested witness, having no motive to falsely implicate accused‑ Ocular evidence believed and conviction maintained in circumstances.
‑----S. 326‑‑Sentence‑‑Accused chopping off arm of injured witness with a Toka blow‑‑Keeping in view nature of injury and damage done to injured witness sentence of seven years' R.I., held, was appropriate and called for no interference.
Khalid Ranjha for Appellant.
M. Sharif Khokhar for the State.
Kh. Muhammad Sharif for the Complainant.
Date of hearing: 18th March, 1986.
Rab Nawaz son of Ghulam Sarwar Khan, resident of Mohallah Hanjranwan, Sheikhupura Town, has been convicted under section 326, P.P.C. and sentenced to rigorous imprisonment for seven years and a fine of Rs.2,000 or in default in the payment thereof to suffer further R.I. for six months. He was tried alongwith two others, namely, Azhar Nawaz and Nazir Ahmad, who were acquitted Rab Nawaz has appealed.
2. The F.I.R. version is that on 2nd July, 1982 at 5‑30 p. m. Nazir accused (since acquitted) went to Awami Ice Factory situate at Gujranwala Road, Sheikhupura, for taking bath in the tank of the factory. Some other persons were also taking bath in the tank. A Pathan customer from Mardan was present in the factory. After taking the bath Nazir accused said that aforesaid Pathan had stolen his watch. Haji Muhammad Anwar told Nazir accused that he was making a false allegation against the customer and offered to settle the matter on oath, Nazir accused did not agree and left the place giving threats. At about 6 p.m. he again came there alongwith Rab Nawaz accused. Rab Nawaz abused Haji Muhammad Anwar and asked him why he was not returning the watch of Nazir accused. Haji Muhammad Anwar told him that Pathen customer had already left and, again, offered to settle the matter on oath but Rab Nawaz did not agree and went away giving threats of dire consequences. At about 9 p.m. Nazir and Rab Nawaz alongwith latter's brother Azhar Nawaz again came there. Rab Nawaz was armed with a Toka and Azhar Nawaz had a hatchet. Nazir accused pointed towards Haji Muhammad Anwar who was lying on a cot, upon which Rab Nawaz gave him a Toka blow and chopped off his left arm. Azhar Nawaz gave him a hatchet blow on the right ankle Iqbal Hussain and Abdur Rashid saw the occurrence and rescued Muhammad Anwar from the assailants who ran away raising Lalkaras.
3. After the occurrence, Muhammad Anwar was taken to Civil Hospital, Sheikhupura. He was examined at 10‑15 p.m. by Dr. Muhammad Iqbal who found the following injuries on his person:‑
(1) An amputated left forearm over its upper 1/3, only a flap of skin left. The girth of the wound was 30 c.m. x 5 c.m.
(2) An incised wound 6 c.m. x 1 over the lower 1/3 of right shin."
Injury No. 1 was bleeding profusely. It was grievous and dangerous to life. Injury No. 2 was kept under observation and subsequently declared simple in nature.
4. Tufail Ahmad Sub‑Inspector, Police Station City Sheikhpura, investigated the case. He reached the spot on the following morning and secured some blood‑stained earth, vide memo. Exh.P.D. He took a blood‑stained cot into his possession from the spot, vide memo. Exh.P.E. He arrested Rab Nawaz accused on 5‑7‑1982. On 12‑7‑1972 he led to the recovery of Bugda (Exh.P.1) which was taken into possession, vide memo. Exh.P.A.
5. In support of its case the prosecution examined four eye-witnesses, namely, Haji Muhammad Anwar, Abdul Rashid, Rehmat Ali and lqbal Hussain Shah. Rehmat Ali did not support the prosecution and was declared hostile. The prosecution also relied on the evidence relating to recovery of a Bugda from Rab Nawaz appellant.
6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. When asked why this case again him, he made the following statement:‑
"I have been falsely implicated in this case due to suspicion. The incident took place on a dark night and it was Basharat son of Talib weaver who committed the offence. It was brought into the notice of Investigating Officer during the investigation but no effort was made to join him in the police investigation and I have been challaned under the influence of complainant party. "
No evidence was led in defence.
6‑A. Learned counsel for the appellant contended that the conviction and‑‑sentence of the appellant is unsustainable because he had no direct motive against Haji Muhammad Anwar: the recovery of Bugda is of no consequence as there is nothing on the record to show that it was blood stained: the presence of Abdur Rashid and, lqbal Hussain Shah P.Ws. at the spot is not established and the version given by lqbal Hussain is different from the one narrated by Muhammad Anwar and Abdur Rashid P.Ws. In the alternative, he submitted that the sentence is excessive and prayed for its reduction. Learned counsel for the complainant and the State, on the other hand, submitted that the eye‑witnesses had absolutely no motive to falsely implicate the appellant therefore, he has been rightly convicted.
7. Rehmat Ali complainant did not support the prosecution version at the trial. He stated that at 9 or 10 p.m. he was sitting on the tank of the ice factory when he heard hue and cry outside and on reaching there saw that the arm of Muhammad Anwar had been chopped off. On inquiry he was informed that the assailant belonged to the family of Khans. He was declared hostile. The evidence of a hostile witness normally loses its evidentiary value and it cannot be used for or against, a party.
8. Muhammad Anwar injured and Abdur Rashid P.Ws. supported the prosecution version as detailed in the earlier portion of this judgment. Abdur Rashid P.W. is related to Muhammad Anwar injured. During the days of occurrence he was posted as revenue Patwari at Shahkot. He claims to have travelled from Shahkot to Sheikhupura and reached the ice factory of Muhammad Anwar injured at 7‑30 p.m. and seen the B occurrence at 9 p. m. He is a chance‑cum‑relation witness and lqbal Hussain P.W. has excluded his presence at the spot. In that view of the matter, I would prefer to keep his evidence out of consideration Iqbal Hussain P.W. is an independent and disinterested witness. At the time of occurrence he was serving as a mechanic in the aforesaid Awami Ice Factory but when he appeared in the witness‑box he was residing in Rawalpindi and was not under the influence of any one. He stated that at the time of occurrence he was sitting on a cot all alone while Haji Muhammad Anwar son of Haji Muhammad Latif, the owner the factory, was lying on another cot when Rab Nawaz and another person who was not known to him came there. Rab Nawaz was armed with a Toka with which he caused an injury to Muhammad Anwar chopping of his left arm. The other person was armed with a hatchet. He caused an injury on the upper portion of the left ankle of Muhammad Anwar. In so far as the role played by the appellant is concerned, the evidence of Muhammad Anwar injured finds full corroboration from the statement of lqbal Hussain P.W. who has already stated above, is an independent and disinterested witness having no motive to falsely implicate the C appellant. In the circumstances, the ocular evidence against the appellant can safely be accepted. The prosecution has brought home the charge against him and he has been rightly convicted under section 326, P.P.C. Keeping in view the nature of the injury and the damage done to Muhammad Anwar injured the sentence awarded by the trial Court is appropriate and calls for no interference. The appellant shall, however be given the benefit of section 382‑B, Cr.P.C. as ordered by the trial Court.
9. For the foregoing reasons, there is no merit in this appeal and it is dismissed.
H.A.K. Appeal dismissed.
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