Find a Lawyer

Criminal, Appeal No. 179 of 1985, decided on 27th May, 1986.

‑‑‑S. 307/324/34‑‑Evidence, appreciation of‑‑Benefit of doubt‑ Prosecution witnesses related inter se and interested‑‑Incident taking place in broad daylight and a number of persons coming to Wardat and intervening between parties yet none of them examined by prosecution‑ Accused admittedly unarmed and only allegation against them that they caught hold of witnesses, injured by their co‑accused, not specifically mentioned in the statements recorded under S.161, Cr.P.C.‑‑Presence of accused at time of occurrence, held, doubtful, in circumstances‑ Conviction and sentence set aside.

‑‑‑Ss. 307 & 326‑‑Offence, alteration of‑‑Accused causing no more injuries to injured prosecution witnesses after they fell down‑‑Conviction of accused under S.307, P.P.C., altered to that under S.326, P.P.C. in circumstance.

‑‑‑S. 326‑‑Sentence, reduction in‑‑Accused remained in custody for 18 months‑‑Parties compromised and affidavits to such effect filed by injured witnesses‑‑Sentence reduced to one already undergone, in circumstances.

Azizullah K. Shaikh for, Appellants.

Abdul Sattar Shaikh, A . A .‑G. for the State.

Date of hearing: 25th May, 1986.

The appellants have filed this appeal against the conviction and sentence recorded by 1St Additional Sessions Judge, Hyderabad on 23‑12‑1985 by which he convicted the appellants under section 307/34, P.P.C. and sentenced them to suffer R.I. for a period of seven years each on the count of having caused grievous injury to injured Mahmood and also to pay fine of Rs.500 each or in default of payment of fine, to suffer further R.I. for three months each. The appellants were further convicted and sentenced under section 324/34, P.P.C. to suffer RA. for two years for having caused simple injury to Mahmood. The appellants were also convicted and sentenced under section 307/34, P.P.C. to suffer R.I. for a period of seven years and to pay fine of Rs.500 each for having caused grievous injury to injured Muhammad Amin. In case of default in the payment of fine they were ordered to further suffer R.I. for a period of three months. All the sentences awarded to the accused were ordered to run concurrently.

The facts in brief are that the complainant P.W.1 Mahmood lodged the report stating therein that 7‑8 days prior to the incident accused Adam had quarrelled with P.W. Ghulam Muhammad nephew of complainant Mahmood and such F.I.R. was lodged against accused Adam at Police Station Tando Muhammad Khan. It is alleged that on 12‑8‑1983 at about 2‑30 p.m. complainant Mahmood and P.W. Muhammad Amin were taking tea outside the hotel of Sahibdino situated in village Janhan Soomro and his maternal‑nephew Ghulam Muhammad was sitting on a large wooden table, in front of them. The accused persons namely Adam, Master Muhammad Tayab, Abdul Razak and Abdul Shakoor came from western side. On their coming, Adam abused his (Mahmood) maternal‑nephew Ghulam Muhammad and attacked him by taking out a knife from his pocket, whereupon he himself and Muhammad Amin intervened and tried to separate them whereupon accused Abdul Razak, Abdul Shakoor and Master Tayab caught hold of complainant Mahmood and Muhammad Amin from their back side while accused Adam gave a knife blow to Muhammad Amin. Accused gave two knife blows to complainant Mahmood. On the commotion, P.Ws. Usman, Ayoob and others arrived at the spot, who saved both the injured from the accused persons.

After the registration of the case the police made usual investigation and referred both the injured to the hospital for treatment and certificates. After completing the investigation the accused were sent up to face the trial. The charge was framed against them to which they pleaded not guilty.

In order to bring home the charge, prosecution examined P.W.1 Mahmood, P.W.2 Muhammad Amin, P.W.3 Ghulam Muhammad and P.W.4 Muhammad Usman as the eye‑witnesses. Dr. Qutub Ali Shah P.W.6 examined the injured Mahmood and produced the certificate as Exh.19. He found the following injuries on his person:‑--

"(1) Stab wound 3 c. m . x 2 c. m . x organs deep on front of right lumber region with piece of mesentry visible going towards medical size.

(2) Stab wound 4 c.m. x 1 c.m. x muscle deep over the twelfth rib on front left side of chest 4 c.m. lateral from the mid line.

Opinion:

Injury No. 1 was grievous in nature while injury No. 2 was simple. Both the injuries appeared to have been caused by sharp‑pointed weapon such as dagger or knife."

Dr. Anisul Hassan examined P.W. Muhammad Amin and produced medical certificate as Exh.31 and found the following injury on his person:‑

"(1) An incised wound 3 c.m. x 1 c.m. x cavity deep over right hypochondriun .

Opinion:

The injury was grievous in nature as a large piece of omentum was coming out of the wound. It appeared to have been caused by some sharp and cutting substance such as knife yr dagger."

A.S.I. Jehan Khan produced the Mashirnama of injuries and recovery of knife from accused Adam as Exhs. 21, 22 and 23 respectively. The S.H.O. Mehboob Ahmed Jatoi produced a copy of Roznamcha report as Exh.33 lodged by Ghulam Muhammad. The statements of Mashirs Muhammad Qasim and Muhammad Ibrahim were not recorded as witnesses as they were won over by the accused. The accused in their 342, Cr.P.C. statements denied the prosecution allegations. Accused Adam admitted that he saw Abdul Alim, Muhammad Amin, Ghulam Muhammad and Mahmood in front of hotel of Sahibdino armed with hatchets and Lathis, who attacked him and caused blows. He was questioned about the injuries on his person. In his reply, he has stated that the injuries were caused to him by the complainant party and he had lodged such report with the police.

Apart from the ocular evidence the prosecution relied upon the motive. It is alleged that 7‑8 days before the incident the accused Adam had quarrelled with Ghulam Muhammad and report was lodged by Ghulam Muhammad with the police. The recovery of knife made on the pointation of Adam was next piece of evidence. The accused examined three witnesses in defence. D.W. Dr. Qutub All Shah examined accused Adam and found the following injuries on his person:‑

(1) An abrasion 3 c.m. x 1 c.m. on back of left shoulder.

(2) Bruise 5 c.m. x 1.4 c.m. on the upper one‑fourth of front of right side of chest, oblique, 3 c.m. below mid of right clavical.

(3) A bruise with abrasion 2.5 c.m x 0.7 c.m. with swelling 4 x 4 c. m , on left cheek.

(4) A bruise 6 c.m. x 2 c.m. on back over right lumber region obliquely,

(5) An abrasion 3.5 c.m. x 0.6 c.m. oblique on back of lateral part of left hand over the matacarpal bone on left index finger.

Opinion:

The injuries 1, 2, 4 and 5 were simple in nature. They appeared to have been caused by some hard and blunt substance, such as Lathi or falling on the ground. The opinion regarding the nature of injury No.3 was reserved as X‑Ray examination of the said injury was required, and I referred him to the L.M.C. Hospital, Hyderabad for the said purpose."

The learned trial Judge after assessing the evidence convicted the appellants as stated above.

I have heard learned counsel for the appellant and Mr. Sattar A. Shaikh, learned A.A.‑G. for the State.

It is contended by the learned counsel for the appellants that the prosecution has failed to prove the charge against three accused Master Muhammad Tayab, Abdul Razak and Abdul Shakoor. They had not caused any injury to the P.Ws. The allegations against these appellants are that they caught hold of the complainant and injured Muhammad Amin from behind and appellant Adam had given knife blows to complainant and Muhammad Amin. It is an admitted fact that they were not armed with any weapon and the only allegation against them is that they had caught hold of the two witnesses who had received injuries caused by accused Adam. A close scrutiny of the evidence of these witnesses shows that it is not free from doubt to rely upon the evidence of these witnesses with respect to these appellants. P.W. Jehan Khan, the Investigation Officer, recorded the statements of P.Ws. He has stated that P.W. Muhammad Usman has not stated in his 161, Cr.P. C. statement that accused Master Muhammad Tayab and Abdul Razak caught hold of him, so also P.W. Muhammad Amin has not stated in his 161, Cr.P.C. statement that accused Abdul Shakoor caught hold of him. P.W. Muhammad Amin has stated that all the accused pounced upon Ghulam Muhammad at the time of their assault. He went near and asked the accused to spare Ghulam Muhammad but did not try to catch hold of the accused who were unarmed. P.W. Mahmood has stated that accused Adam abused his sister's son Ghulam Muhammad and took out a knife and tried to assault him. So this witness has not stated that the other witnesses also tried to assault Ghulam Muhammad P.W. Ghulam Muhammad has also stated that only accused Adam abused him and took out a knife and tried to attack film. Accused Master Muhammad Tayab, Abdul Razak and Abdul Shakoor were unarmed, and they have not caused any injury to any of the witnesses. According to section 34, P.P.C. 'when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone'. Accused, however, had no common intention as the witnesses referred to above have not specifically alleged in their 161, Cr.P.C. statements that these appellants had caught hold of the complainant and the injured. It is doubtful if they were present at the time of occurrence when P.Ws. Mahmood and Muhammad Amin were injured. P.W.2 Muhammad Amin is nephew of P.W.1 Mahmood. P.W.3 Ghulam Muhammad is also nephew of complainant and P.W.4 Muhammad Usman is also 'Masat' of complainant. The witnesses are related inter se and interested. The incident has occurred in broad daylight in a busy place and according to the P.Ws. 30‑35 persons were present at the time of incident at the Wardat and many persons had come to the Wardat who intervened. Names have also been given by the P.Ws. but none of them has been examined. The Investigating Officer has himself stated that he has not examined any other witnesses.

The learned A.A. ‑G. has also not supported the conviction against these appellants. According to the prosecution witnesses the complainant has received two knife blows and Muhammad Amin received one knife blow.

In these circumstances it is doubtful if these appellants were really present at the place of occurrence. I, therefore, give them the benefit of doubt. Their appeal is accepted. The convictions and sentences recorded against these appellants are set aside.

As regards the appellant Adam apart from the ocular testimony of these witnesses the recovery of knife on his pointation has been established from the evidence of P.W.7 Jehan Khan P.W.10 S.H.O. has also produced entry of the Roznamcha wherein the complaint of accused (Exh.33) was recorded on the same day against P.Ws. Muhammad Amin, Mahmood and Ghulam Muhammad. Dr. Qutub Ali Shah has deposed about the injury received by Adam. Adam in his statement has also admitted that he was assaulted by the P.Ws. It has also been alleged that 7‑8 days prior to the incident accused had quarrelled with P.W. Ghulam Muhammad. Though the injuries on the person of appellant Adam have not been explained by the prosecution but the circumstances clearly narrate that the appellant was present at the time of incident and caused injuries to P.W. Muhammad Amin and Mahmood. The incident was also witnessed by Ghulam Muhammad. Presence of P.W. Ghulam Muhammad and other injured P.Ws. are admitted by accused Adam. The statements of the medical officers also support the ocular evidence. In view of such fact the case against appellant Adam about the injuries caused to the complainant and Muhammad Amin has been proved. The learned counsel for the appellants has also not challenged the order of conviction against appellant Adam.

The next point for consideration is what offence has been committed by the appellant. The appellant has been convicted under section 307, P.P.C. P. W. Ghulam Muhammad has admitted that the accused did not cause any injury to the two injured after they fall down. The complainant had received two injuries and Muhammad Amin had receive one injury. The accused did not repeat the attack. In these circumstances the bask ingredients of section 307, P.P.C, are lacking. However, grievous injuries have been caused to the injured and offence committed falls under section 326, P.P.C. for causing grievous injuries to complainant Mahmood and P.W. Muhammad Amin. He is convicted for offence under section 326, P.P.C. on two counts. The learned counsel for the appellants has requested for lenient view in awarding sentence as the parties have compromised. The injured have filed affidavits that they have compromised through the intervention of their Nekmard. The appellant was arrested on 12‑8‑1983. He was admitted to bail on 8‑9‑1984. He was convicted on 23‑12‑1985. He remained in custody for 18 months. His conviction is recorded under section 326, P.P.C. and sentenced to 18 months each on two counts for causing grievous injuries to Mahmood and Muhammad Amin. The sentences are to run concurrently. He is entitled to the benefit of section 382‑B, Cr.P.C. As he has already undergone 18 months, he shall be released forthwith. On 25‑5‑1986 I had passed a short order as under:‑---

"For the reasons to be recorded separately, the appeal of appellants Master Tayab, Abdul Razak and Abdul Shakoor is accepted. Their convictions and sentences are set aside. Their bail bond stand discharged.

Appellant Adam has been convicted under section 307/34, P.P.C. His conviction is converted under section 326, P.P.C. He was arrested on 12‑8‑4983 and was released on bail on 5‑9‑1984. He was again taken into custody on 28‑12‑1985. In all he has remained in jail for about 18 months. His sentence is reduced to one already undergone. With this modification in sentence the appeal of appellant Adam is dismissed.

He shall be released forthwith if not required in any other case." The above are the reasons for my aforesaid short order.

S . G . D . Order accordingly.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.