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---Ss. 307 & 325--Witnesses--Interested witness--Mere relationship of witness with complainant party not enough to discard his evidence- Witness should be proved to be inimical and interested in conviction of accused to discard his evidence--Witnesses neither related to complainant nor having an animosity towards accused to falsely implicate him and giving consistant and convincing account of occurrence--Testimony of such witness not doubted.

Nazir and others v. The State P L D 1962 S C 269 ref.

(b) Penal Code (XLV of 1860)-

---Ss. 307 & 325--Discrepancy in medical evidence--Number of injuries on person of injured prosecution witness lesser in number than given in medical evidence--Such discrepancy occurring due to reason that F.I.R. was not lodged by eye-witness--Eye-witness explaining each and every injury during trial--Eye-witness account not found to be conflicting with medical evidence in circumstances.

(c) Penal Code (XLV of 1860)--

---Ss. 307 & 325--Four days delay in lodging of F.I.R.-Injured person given injuries with club and knife--Assailant thus found to be close enough to be identified clearly by injured--Delay in lodging of F.I.R. not appearing to have been due to deliberations to find out real culprit--Delay thus not casting doubts about genuineness of prosecution story in circumstances.

(d) Penal Code (XLV of 1860)--

---Ss. 307 & 325--Medical evidence--Concoction--In view of gravity of head injury and also due to reason that no such suggestion was put either to eye-witnesses or to Doctor plea that medical evidence, was false and concocted, held, was not acceptable.

(e) Penal Code (XLV of 1860)--

---S. 307--Injury not found to be dangerous to life--Held, it could not be inferred that accused gave blow with intention-6'r--knowledge to cause death of injured--Section 307, P. P. C. thus not applicable in circumstances--Grievous injury caused by blunt weapon, offence under section 325 made out--Conviction of accused altered from section 307, P.P.C. to section 325 and sentence reduced from 5 years to 3 years.

Sardar Shah Bokhari for Appellant.

Sardar Muhammad Rafiq for the State.

Date of hearing: 31st October, 1982.

Dildar son of Abdul Aziz, Caste Teli, Chak No. 901W.B. Police Station Mittru, District Vehari, has filed this appeal against the order of Magistrate Section 30, Mailsi, dated 25-5-1982, whereby he was convicted under section 307, P.P.C. and sentenced to five years' R.I. for having made a murderous assault on Muhammad Hussain P.W.4 and caused injuries on his person with a knife and also with a club at 6.30 P.m. on 27-5-1981 in his village at a distance of six miles from the Police Station.

2. The prosecution case in brief is that Muhammad Hussain P.W.4, a lad of 16/17 years of age and student of 8th Class used to be teased by the appellant. Few days before the occurrence Muhammad Hussain rebuked the appellant as he cut indecent joke with him which was not taken with good taste by the former. At 6.30 p. m. on 27-5-1981, Muhammad Hussain happened to pass in front of the flour mill (Chaki) of Mistri Ashiq when Nazir P.W.5 called him in the Chaki for helping him in lifting the flour. He responded to the call and was helping Nazir P.W. in lifting the flour when all of a sudden the appellant came there armed with a knife and opened attack on him. He caused injuries with the knife on his forehead and near his right eye and then picked up a club lying nearby and inflicted injuries with it also on his person. Muhammad Hussain raised alarm which attracted Mansab Ali P.W.6 to the spot who rescued him. The injured was then taken to the hospital where he was examined by Dr. Mushtaq Ahmad Khan at 10.30 p.m. the same day. He observed'; six injuries on his person out of which two were the result of sharp-edged weapon and the rest were caused by blunt weapon. He advised the X-Ray of certain injuries. These injuries in his opinion were within the duration of two to eight hours, vide medical report. Exh.P.D. Dr. M.A. Rauf P.W.1 took the X-Ray Exh.P.A. and Exh. P.A/1 of the injuries and opined that there was a fracture of the vault of the skull and, therefore, the head injury was declared as "grievous hurt" vide his report Exh.P.A. The matter was reported to the police by Muhammad Shafi P.W.3 real brother of Muhammad Hussain P.W. on 31-5-1981 at 5-00 p.m. i.e. on the 5th day after the occurrence. Muhammad Shafi explained, that delay had occurred because the complainant party kept beseeching him not to report the matter to 'the police. Ibrar Hussain Shah A.S.I. P.W.2 recorded his statement Exh. P. B. while on a petrol duty in village Mittri. The formal F.I.R. on the basis of Exh.P.B/1 was drawn up try Afsar Khan Moharrir Head Constable P.W.9. The case was investigated partly, by Syed Abrar Hussain and then by Muhammad Anwar S.I. and the challan was ultimately put in the Court.

3. At the trial the prosecution in support of its case examined 9 witnesses in all. The case against the appellant mainly hinges on the ocular evidence given by Muhammad Hussain, Nazir and Mansab P.Ws., evidence of motive provided by Muhammad Hussain and his brother Muhammad Shafi, the medical e.1.dence furnished by the two doctors namely, Dr. M.A. Rauf P.W.1 and Mushtaq Ahmad P.W.7, and the recovery of weapons effected from the appellant deposed to by Ahmad Ali P.W.8. '

4. The appellant when examined under section 342, Cr. P. C. denied the allegation levelled against him. He stated that on one day, about 2 months before the occurrence, Muhammad Hussain P.W.4 was seeing their T. V. by sitting on a wall. The appellant's brother asked him as to who he was Muhammad Hussain replied that he was 'Noori Nut'. His brother felt it and asked him to get down from the wall but he remained adamant in his attitude whereupon his brother slapped him. It is on account of this enmity that he has been roped in the case. The appellant has examined two witnesses in his defence namely, D.W.1 Ismail and DW-2 Ishaque who merely deposed about the aforesaid incident, between Muhammad Hussain and the brother of the appellant.

5. The learned trial Court on detailed review of the evidence on record rejected the defence plea being unworthy of any credit and believed the prosecution story which according to him, established the guilt of the appellant, without any shadow of doubt. Consequently, he convicted the appellant under section 307, P.P.C. and sentenced him as indicated above.

6. The conviction of the appellant has been assailed before me inter alia on the grounds, that the eye-witnesses are interested as they belonged to the Camp of the complainant and, therefore, no implicit reliance can be placed on them; that the delay of four days in lodging the F.I.R. is suggestive of the fact that the occurrence was not witnessed by anybody and that 4 days were spent in deliberations, guessing about the culprit; that the evidence is in conflict with the ocular account given by the eye-witnesses; and lastly, that the prosecution case has been concocted after procuring a false medical certificate from the medical witnesses who succumbed to the influence of the complainant.

7. I have gone through the record with the assistance of the learned counsel and find that there is not an iota of evidence to suggest that the eye-witnesses belong to the camp of the complainant. Muhammad Shaft or that they are in any manner related to him or interested in the conviction of the appellant. No doubt Muhammad Shaft complainant is the brother of Muhammad Hussain injured but he is not an eye-witness. He simply made a report after having learnt about the occurrence from other witnesses. The complainant is Arain by caste while Nazir Ahmad P.W. belongs to a Jat family. Mansab Ali though come, of Arain family, but he has not been shown as having any relation with the complainant whatsoever. To dub a prosecution witness as an "interested witness" it is not enough to merely show his relationship with the complainant party, rather he should be proved to be inimical and interested in the conviction of the accused. The definition of an 'interested witness' has been given by their Lordships of the Supreme Court in Nazir and others. v. The State PLD 1962 S C 269. At page 274 of the report it has been observed A that the expression "interested witness" means a "witness who has. a motive for falsely implicating an accused person". In the instant: case, the witnesses are neither related nor did they have any animosity with the appellant muchless to falsely implicate him. They have given consistent and convincing account of the occurrence. I, therefore, see no reason to doubt their testimony. No doubt that the number of injuries, given in the F.I.R: is lesser than those observed by the doctor on the person of Muhammad Hussain injured P.W. This discrepancy has occurred, because the F.I.R. was not lodged by an eye-witness. The eye-witness when examined in Court, explained each and every injury and, therefore, I do not agree with the learned counsel that the eye-witness account is in conflict with the medical evidence.

8. It is true that there is a delay of four days in lodging the report. I have considered this objection carefully to see if this delay, was deliberate or that during this period deliberations were held to find out the real culprit. My impression is that since Muhammad Hussain P W. the victim of aggression was given injuries with a club and knife, therefore, the assailant was close enough to be identified clearly by him. I am, further of the view that the period, which elapsed between occurrence and the report was not consumed to deliberations to find out the real culprit. Rather it appears that during this period the appellant and his family has been trying hard to persuade the complainant not to report the matter to the police and at last the complainant was able to shake off the influence most probably after he carne to know that his brother had suffered serious injury. In these circumstances, the delay does not cast doubts about genuineness of the prosecution story.

The objection of the learned counsel that the complainant party having procured a false medical certificate concocted the present case against the appellant is too sweeping to be accepted, specially in view of the gravity of the head injury and also due to the reason that no such suggestion whatsoever had been put either to the eye-witnesses or to the doctor when they entered the witness-box.

10. The only question now remains to be considered is that on the basis of the facts proved on record, an offence under section 307, P. P.C. is made out or not It may be stated that the medical witness did not opine that the injury was "dangerous to life" and it could not, therefore, be inferred that the appellant had caused the blow with such intention or knowledge so as to cause his death. To my mind section 307, P.P.C. has no application to the facts of the case. Since the injury being grievous has been caused with blunt I weapon it discloses an offence under section 325, P.P.C. I, therefore, alter the conviction of the appellant from section 307, P.P.C. to section 325, P. P. C. and consequently sentence him to three years' R.I. and a fine of Rs.2,000 and in default thereof to undergo further one year R.I. Out of the fine, if, realised, Rs.1,500 shall be paid to Muhammad Hussain injured P.W. by way of compensation under section 544-A , Cr . P. C. The result is that the appeal is accepted partly in terms, indicated above.

H.A.K. Order accordingly

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