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Criminal Revision No. 463 of 1982, decided on 6th February, 1983.

‑‑‑S. 307/34‑-Delay in lodging F.I.R., whether fatal‑‑F.I.R. delayed by 24 hours‑‑Complainant in injured condition taken to hospital from spot‑ Investigating Officer reaching hospital and recording statement of injured‑‑Police Karwai showing Investigation Officer reaching hospital on receiving of information through some one‑‑Delay in lodging F.I.R., held, could not be regarded as fatal in circumstances.‑‑[First Information Report].

‑‑‑S. 439‑‑Penal Code (XLV of 1860), S. 307/34‑‑Revisional jurisdiction‑ ‑ Appellate Court not adverting to defence evidence‑‑Both Courts below believing prosecution version‑‑Trial Court fully considering evidence adduced in defence‑‑No inherent defect in appreciation of evidence, pointed out‑‑Court going through defence evidence at revisional stage‑‑Defence version found not probable‑ Nothing wrong as to legality, correctness and propriety of findings, shown‑‑Interference in exercise of revisional jurisdiction declined in circumstances.

Safdar Ali v. Crown P L D 1953 F C 93 ref.

‑‑‑Ss. 307/34 & 324‑‑Nature of offence‑ ‑Co‑accused under similar circumstances, convicted under S. 324, P.P.C.‑‑Accused responsible for causing simple injuries with sharp weapon‑‑Nature of injuries and circumstances in which injuries caused, considered‑‑Case, held, was not falling under S. 307, P.P.C.‑‑Conviction and sentence altered to one under S. 324, P.P.C. in circumstances.

Niaz Muhammad Siddiqi for Petitioner.

Muhammad Irshad Khan for A.‑G. for the State.

Date of hearing: 6th February, 1983.

The petitioner alongwith three others stood his trial under section 307/34, P.P.C. in the Court of Ch. Muhammad Akram, Magistrate Section 30, Faisalabad.

2. The case of the prosecution as adduced in evidence was that on 12‑12‑1980 the complainant namely Akbar Ali P W. 3 was attacked by the petitioner, Muhammad Siddiq who were in possession of Chhuris, Shamshad and Ghulam Mustafa who were empty handed and only held the complainant in Japhha while the petitioner alongwith Muhammad Siddiq co‑accused caused injuries to the complainant with their respective Chhuris which number ranged upto eight out of which six injuries were attributed to the petitioner. It was also alleged that when the petitioner and Muhammad Siddiq co‑accused were causing injuries to the complainant the latter was rescued by Abdul Hamid P.W. and Muhammad Ali (given up P.W.) As to the seat of the injuries first three injuries were on the front left side of chest, then three injuries were on the back of left side of chest, back and upper part of chest and back of armpit and the last two injuries were on the back of left and right shoulders. All the injuries were the result of a sharp‑edged weapon. Injuries Nos. 2, 4 and 5, were kept under observation while the remaining were declared as simple. Later on, injuries Nos. 2, 4 and 5, were also returned as simple.

3. The complainant in his assertion was supported by six witnesses in all, out of which Zulfiqar (P.W. 4) and Abdul Hamid (P.W.5) were cited as eye‑witnesses; Dr. Imtiaz Gill was examined as P.W, 1 who deposed as to the medical examination held by him; Kaf ayatullah M.H.C. appeared in support of the formal F.I.R. having been drawn by him; Ibrahim Shah S.I. (P.W.6) who recorded the statement of the complainant in the hospital as allegedly the complainant thereafter was carried to the hospital. The said S.I. investigated the case. The evidence as to the recovery was also led which was confined to the statement of the S.I. himself according to which evidence the petitioner allegedly led to the recovery of Chhuri F. 2 which was not blood‑stained and co‑accused Muhammad Siddiq led to the recovery of Chhuri P. 1.

4. The petitioner alongwith his co‑accused was examined under section 342, Cr.P.C. He denied all the allegations levelled against him. He, however, stated that the complainant was in fact injured after he had picked the pocket of some body and that he had been falsely involved by the complainant since the latter had earlier been challenged for the murder of his father but ultimately acquitted. The complainant had suspected that, that was done at the instance of the petitioner. In his defence the petitioner produced two witnesses namely Safdar Ali (D.W.1) and Mubarik Ali (D.W.2). They deposed in detail the way the complainant received the alleged injuries.

5. The learned trial Magistrate convicted the petitioner and his co -accused under section 307/34, P.P.C. and sentenced each of them to four years' R.I. and a fine of Rs.5,000 each or in default thereof to undergo further six months' R.I. each, vide his order, dated 4‑5‑1982. Aggrieved therefrom the petitioner alongwith his co‑accused filed an appeal which came to be decided by the learned Additional Sessions Judge, Faisalabad who vide his order, dated 1‑7‑1982 acquitted Shamshad and Ghulam Mustafa who were allegedly holding the complainant in Japhha at the time of occurrence. On certain mitigating circumstances as considered by the learned Additional Sessions Judge, Muhammad Siddiq's sentence was reduced to three months' R.I. and a fine of Rs.1,000. However, the conviction and sentence of the petitioner was maintained.

6. In this revision petition having been brought from the judgment of the learned Additional Sessions Judge, the learned counsel for the petitioner has maintained that there is a delay of 24 hours which goes unexplained; that the appellate Court omitted to discuss the defence evidence produced by the petitioner which according to the learned counsel itself is sufficient to vitiate the judgment as m view of a decision of the Federal Court reported as Safdar Ali v. Crown P L D 1953 F C 93, a Court is supposed to review the entire evidence i.e. the evidence produced on both the sides before it comes to any conclusion. If it is not done so, then the judgment, in law, cannot stand. The next contention of the learned counsel is that there has been a discriminating treatment by the learned Additional Sessions Judge by reducing the sentence of Muhammad Siddiq co‑accused to that of three months' R.I. and maintaining the sentence of the petitioner when both of them were stated to have given blows 'With Chhuris to the complainant. It has been also contended that at the most if the case is made out then the petitioner can only be convicted under section 324, P.P.C. and not under section 307, P.P.C. because the injuries as described medically are all returned as simple. Had there been any intention on the part of the assailants to do away with the complainant, then they had the ample time and opportunity to do so but that had not been done. As to the nature of injuries it is obvious that even the blows were not caused forcefully and upto the time they were successful in causing eight injuries the intention of murder could have been accomplished because till that time no body had intervened. According to the learned counsel it in fact appears that if at all the witnesses had appeared they had, when the petitioner and his co- accused had already left the spot.

7. The learned counsel for the State has resisted the case as argued by the learned counsel for the petitioner as to the actual incident by maintaining that the incident did take place and in respect with that the testimony of the complainant stands corroborated by the medical evidence. Even if the other two witnesses are taken as chance witnesses the complainant if appears truthful in any case he can be believed and the medical evidence can be invoked in corroboration as to the statement of the complainant. However, he has lastly submitted that since both the Courts below have believed the evidence adduced by the prosecution, the matter stands concluded so far as goes the finding of fact as to the guilt of the petitioner and his co‑accused regarding whom the conviction was maintained by the learned Additional Sessions Judge.

8. Regarding the first contention of the learned counsel for the petitioner there is no doubt that there is a delay of about 24 hours but that stands impliedly as explained because the complainant who in this particular case was expected to approach the police had been carried from the spot to the hospital where he remained for seven days. The S.I. himself visited the hospital and recorded the statement though the learned counsel for the State has not pointed out that how he happened to visit the hospital in respect with the complainant but this fact does not defeat the case as complained of because in these circumstances even if it is not mentioned by the Investigating Officer that how he was made to attend the complainant yet in the police Karwai it is mentioned that he received an information from some body and acting upon that he visited the complainant in the hospital. Therefore, the delay cannot be regarded as fatal because it is a settled law about delay that delay is a circumstance which gives rise to suspicion but if the case is established otherwise by direct evidence then such a delay loses its significance.

9. As to the contention of the learned counsel that the lower appellate Court did not advert to the defence evidence, the submission of the learned counsel stands as well placed but in these circumstances if such an evidence remains unadverted to then this Court can go into that evidence in order to see whether this evidence happens to have its impact on the case itself qua the evidence produced by the prosecution. The learned counsel for the petitioner has taken me through that piece of evidence but keeping the evidence as adduced by the prosecution in view the defence taken up by the petitioner does not strike as probable because substitution' is a rare phenomenon. Both the Courts below have believed the prosecution version as to its main gist. The trial Court has fully considered the evidence adduced in defence. The learned counsel has not pointed out any inherent defect in the very appreciation of that by the learned Magistrate except with respect to the conclusion. According to him the conclusion ought to have been drawn in favour of the petitioner. The learned counsel is here not on a strong footing because in revision he is to show something wrong as to the legality, correctness or propriety of the finding which flows from the proceedings as recorded. However, the contention raised as to the discrimination is not without merit and also the submission that the circumstances if at all then warrant a conviction under section 324, P.P.C. and not under section 307, P.P.C. in view of the nature of the injuries and the circumstances in which the injuries were caused as those can be visualised in keeping therewith. The learned counsel for the State has not taken a serious exception to this aspect of the case. From the total get up of the case it does not appear to be a case falling under section 307, P.P.C. So the conviction and sentences of the petitioner under section 307 are set aside and instead he is convicted under section 324, P.P.C. for having caused simple injuries with a sharp‑edged weapon to the complainant. It has been stated that the petitioner has already undergone about ten months' R.I. so it will meet the ends of justice if he is sentenced to the period already undergone by him. I order accordingly. Resultantly, the petition is partly accepted. The petitioner shall be released forthwith if not required to be detained in connection with any other case.

S.A. /M‑117/L Sentence altered.

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