ABDUL HAYEE KURESHI, J.-On the completion of hearing of this appeal we had, by a short order, allowed the same and set aside the judg--ment of acquittal of accused/respondent Abdullah and Mohammad Hassan for offences under section 32/34, P.P.C. And 324/3-4, P.P.C. And sentenced each one of them to imprisonment for two years and to pay a fine of Rs. 1,000 (in default further imprisonment for six months). We have ordered that the fine, if released, may be paid as compensation to injured complainant Ghulam Abbas. The reasons for the short order presently follow.
2. The facts of the case are that respondents Abdullah and Mohammad Hassan used to reside in village Zakario Mahesar. They suspected complainant-injured Ghulam Abbas to be on terms of illicit intimacy with Mst. Bachul, who is the paternal aunt of respondent Abdullah and a sister of respondent Mohammad Hassan. It seems that for the reason of such intimacy respondent Abdullah had shifted from the village Zakario Mahesar to village Warwara Bhutta in Taluka Dikri. On 5th April, 1972 at about 8 a. m. Ghulam Abbas complainant while going towards the east of Zakario Mahesar village to ease himself, passed by the houses of respondents Abdullah and Mohammad Hassan who gave a hakal to him, stating that "he had enjoyed so many days" and immediately thereafter both of them gave hatchet blows to him. Cries were raised by Ghulam Abbas which attracted witnesses Rajab Ali, Ramzan and Rehmatullah. Some other villagers also came there.
Each one of these persons saw complainant Ghulam Abbas receiving injuries. On being challenged, both the respondents Abdullah and Mohammad Hussain away. Ghulam Abbas related the circumstances of the transaction to these witnesses where after witnesses Rajab Ali brought him on bullock cart to Dharma Police Station where he lodged a report which was recorded by A. S. I. Abdul Wahid, In this report the, full facts were given and the motive was also disclosed.
3. A.S.I. Abdul Wahid registered the case at 11 a. m: and prepared a mashirnama of injuries on the person of Ghulam Abbas where after he sent the injured to Civil Hospital at Larkana. Dr. Wahid Bux examined Ghulam Abbas and found eleven injuries on his person. While three out of these injuries were scratches or abrasions on the fore-arm, hand and nose, the remaining 8 injuries were incise.
An X-ray film of injured showed fracture and dislocation of the right scapular bone. The other fracture was of the left femur. These two injuries were declared as grievous while the rest were simple. The injured Ghulam Abbas was treated as an indoor-patient for a period of six to eight weeks. Both the respondents were arrested by A.S.I. Abdul Wahid on 7th April 1972. On completion of investigation the respondents were sent up to stand trial for offences under section 307/326/34, P.P.C.
4. The Resident Magistrate, Larkana, treated the case as a committal enquiry and recorded evidence. However, he framed charge under section 326/324/323/34, P.P.C. The respondents pleaded not guilty and the Magistrate thereafter examined two defence witnesses Ghulam Nabi and Ghulam Qadir. The Resident Magistrate acquitted both the respondents of all the charges and hence this appeal.
5. The primary evidence in this case is furnished by injured 0hulam Abbas and witnesses Rajab Ali, Ramzan and Rehmatullah. While Ghulam Abbas had lodged the first information report, Rajah Ali and Ramzan came up to the scene on hearing cries of complainant and saw both the respondents giving injuries to him. Each one of these two witnesses asked the respondents to stop giving injuries whereupon the respondents ran away. P. W. Rehmatullah also came on the scene on hearing the cries of Ghulam Abbas but in the meantime the assault had ended yet he saw the respondents running away with the hatchets. Ghulam Abbas had informed Rehmatullah in regard to the injuries having been suffered by him at the hands of the respondents. The remaining evidence in the case is of Medical Officer, Dr. Wahid Bux and mashir Ali Nawaz in whose presence the scene of occurrence was visited by the Police Officer. The last prosecution witness was A.S.I. Abdul Wahid who had investigated the case.
6. Both the respondents denied the prosecution case and stated that the complainant Ghulam Abbas had not been declared a Karo by which it was meant that he was not on terms of illicit intimacy with Mst. Bachul. In regard to the witnesses they stated that they were interested, hostile, and had been set up by Wadero Ghulam Sarwar. They explained the circumstances of the case by stating that six months before the inci--dent respondent Abdullah had left the village Zakario Mahesar as Wadero Ghulam Sarwar who bore enmity with him had issued threats to involve him in false cases. They further alleged that they had been implicated at the instance of Wadero Ghulam Sarwar.
7. Two defence witnesses had been examined by the respondents. The first out of these two witnesses is Ghulam Nabi who has stated that Wadero Ghulam Sarwar was not on good terms with the respondents for reason of a dispute between them over a piece of land. He went on to state that Ghulam Abbas had threatened to implicate the respondents in some false cases. In relation to the transaction in which Ghulam Abbas received the injuries this defence witness stated that he had gone to the otak of Ghulam Abbas. He has further stated that the respondents bore no enmity with the injured. He has also stated that the injured Ghulam Abbas was related to Wadero Ghulam Sarwar but in cross-exami--nation he again stated that Wadero Ghulam Sarwar was a caste- fellow of Ghulam Abbas. He gave the time of incident as 4 a. m. He also stated that both the respondents first lived in Zakario Mahesar village but they had shifted from that village as they were compelled by Wadero Ghulam Sarwar. The second defence witness is Ghulam Qadir who has stated that the two respondents were living in his village, i.e. Village Warwara since four or five years which would mean a time 1-- or 2 years before the incident. Ghulam Qadir has further stated that on enquiry both the respondents stated that they had shifted from Zakario Mahesar village as they were not on good terms with Wadero Sarwar for reason of enmity over a piece of land. He, however, stated that he knew that the complainant Ghulam Abbas had received injuries through some thieve.
8. Since this is an acquittal appeal we have, while dealing with it, kept the principles governing appreciation of evidence in acquittal appeals in our mind. Such principles, as stated in a few cases, are that the High Court should and will always give proper weight and consideration to gush matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. These are the principles laid down by the Privy Council in the case of Shew Swarup and others v. King-Emperor (AIR 1934 P C 227). The same principles were also enunciated by the Supreme Court in the case of Ghulam Mohammad v. Mohammad Sharif (PLD 1969 SC 398). 'Their Lordships of the Supreme Court stated the principles as follows :- "The State has under section 417 of the Code of Criminal Procedure the right to appeal from an order of acquittal both on facts and law. It is, therefore, not permissible to read into sec--tion 417 the words of limitation employed by the learned Judges. A practice has, however, grown that a Court of Appeal will not interfere with an order of acquittal if the evidence is open to the view formed by the trial Court. In other words the order of acquittal will not be set aside on the grounds of appreciation of evidence alone. But if the reasons given by the trial Judge are of speculative: and artificial nature or the findings recorded by him are based on no evidence or misinterpretation of evidence or the conclusions drawn by him about the guilt or innocence of the accused parsons are perverse or foolish resulting in miscarriage of justice the Court of Appeal will in such a case re- examine the evidence and draw its own conclusions from it.- Again in the case of Gut Nawaz v. The State (1969 SCMR 1168) it was emphasized that in acquittal appeals the appreciation of evidence by a trial Court must be given due weight and importance and should not be lightly discarded. The Supreme Court also cautioned that the initial presump-- tion of innocence in favour of the accused is strengthened and certainly not weakened by acquittal. Mr. Aftab Ahmad Alvi, has, however, relied no one sentence appearing in a Division Bench judgment of the West Pakistan High Court, Karachi Bench in the case of Additional Advocate.
General v. Rajab and others (PLD 1967 Kar. 277). That sentence appears at page W of the report Find is as follows:--- "This is a question of fact and no acquittal appeal can lie on the question of fact only."
With great respect to the learned Judges of the Division Bench who decided the case of Rajab and others we are unable to agree with the proposition that no acquittal appeal can lie on a question of fact only. An appeal by its nature will lie both on question Of fact as well as law and since the Supreme Court as well as the Privy Council have ruled otherwise we feel bound to follow those Courts in preference to the Division Bench judgment. In any view of the matter the decision in the case of Ghulam Muhammad v. Mohammad Sharif and another being later in point of time seems to lay down the authoritative haw. However, while dealing with the acquittal appeals the High Courts has to keep the following factors in view namely that the trial Court had, an opportunity of seeing the witnesses and that its opinion as to the credibility of witnesses deserves to be kept into consideration and also the slowness of the High Court in displacing findings of innocence: The High; Court has also to be cautious that while the accused has ,obtained the benefit of doubt, the presumption of innocence in his favour is also strengthened and not weakened by the acquittal.
Subject to the above limitations, which are in the nature of cautions the High Court has full powers of interfering with acquittal on matters of fact as well as law.
9. Reading the evidence of complainant Ghulam Abbas and eye--witnesses Rajab Ali and Ramzan we are left in no doubt that each one of these witnesses has given clear and consistent evidence implicating the respondents. The incident had taken place in front of the houses of the respondents which can hardly be disputed and the presence of witnesses Ghulam Ali and Rajah Ali is also probable because both of them resided very near to the scene. These witnesses stated that they heard cries and reached the scene and saw the two respondents giving injuries to Ghulam Abbas.
Their names are also mentioned in the first information report which further states that witness Rajab Ali had brought Ghulam Abbas on a bullock cart to the Police station. The incident took place in day--light and there was no question of mistaken identity. In the judgment of the trial Court the main reason for disbelieving the witnesses is that there are 150 houses in Zakario village and therefore normally other persons should have reached the scene or seen the incident. According to the trial Court eye-witnesses Ramzan and Rajab Ali were caste fellows of complainant Ghulam Abbas and these witnesses were related to each other. Additionally the trial Court relied on the medical evidence because Dr. Wahid Bux, in the only question put to him in cross-examination, had stated that these injuries could be caused by six persons. The reasons according to us are conjectural and fanciful. There is no doubt that injured Ghulam Abbas received eleven injuries and no fault would be found with the medical officer stating that the injuries could be caused by five or six persons. In fact be could have even stated, for the reason of number of injuries being eleven that an equal number of persons may have caused the injuries. It is, however, an absurd process of reasoning that if five or sic persons as Dr. Wahid Bux says could have caused the injuries two persons only could no: have caused eleven injuries. In given cases such an argument may be forceful for example when the nature of injuries disclosed use of different types of weapons and such weapons exceeded the number of the accused when it can reasonably be argued, that one person would not normally use more than one weapon. In the present case such an argument is not available because 8 out of 11 injuries being incise in nature could have been caused by two persons armed with hatchet and even the three remaining injuries appear to have been caused by fall. We are, therefore, of the view that such reason, which is more in the nature of assumption rather than argument, was hardly available in this case. Coming again to absence of witnesses other than the caste fellows complainant Ghulam Abbas one cannot overlook the general reluctance on the part of persons in the mofussil to appear as witnesses in a case in which parties belong to different families or caste. Such reluctance has even gained recognition of the Supreme Court in more than one case. This is indeed unfortunate that persons of a different caste or family do not come forward to furnish testimony but the reasons for the same are no less significant. It is common knowledge that in the mofussil a person giving evidence against another incurs perpetual wrath of the person against whom, he deposes as also of the entire family of such person. This reason for acquittal in our view is neither substantial nor convincing.
10. In regard to P. W. Rajab Ali, the Resident Magistrate has taken the view that his presence on the scene was 'strange' perhaps meaning that he was a chance witness and the Magistrate opined that the circum--stance of his being near the scene is far from satisfactory and the evidence was concocted. In that context one must straightway state that Rajab Ali is an inhabitant of Zakario Mahesar village so that it cannot be said that his presence in the village is improbable or unnatural. He has further stated that he was standing near the Otaq of Wadero Ghulam Sarwar and, therefore, went running to the scene on hearing cries. He claims to have seen the entire incident and he has further stated that on enquiry complainant injured Ghulam Abbas disclosed all the facts. Further his name appears in the first information report not only as a witness of the incident but as the person who had carried the injured on a. Bullock cart to the Police Station.
Nothing has been brought out in cross-examination to cause the slightest doubt on the veracity of this witness. We do not agree with the reasons recorded by the Resident Magistrate for disbelieving this witness.
11. It has, however, been contended by Mr. Aftab Ahmed Alvi, the learned Advocate for the respondents that the motive for the crime was unreliable. First of all it is not necessary that the motive for every crime must be established but in the present case a definite motive is alleged and proved. Complainant Ghulam Abbas has stated the motive in the first information report. The relevant passage reads as follows :-- "The accused persons have caused injuries to me, only for the reason that about 6 months back Abdullah Mangrio had suspected me on illicit terms with his 'puphi' (father's sister) Mst. Bachul wife of Jamu Mangrio. Accordingly Abdullah Mangrio had shifted from the village to Warwara Bhutta Taluka Dokri. Due to that grudge Abdullah with the help of Muhammad Hassan have caused injuries to me, with intention to commit my murder."
This motive is consistent with general habits of persons in the mofussil. It is common knowledge that if suspicion of illicit intimacy arises in the mind of a person then either the family of the violated woman or paramour shifts or co-villagers compel him to shift from the place of original residence. Often times the paramour is prevented from approaching the house of the violated woman. In the present case also respondent Abdullah had shifted from village Zakario Mahesar to Warwara Bhutta village. The immediate cause of the assault was the approach of Ghulam Abbas to or near the houses of the respondents. Such conduct of complainant Ghulam Abbas who had been suspected of intimacy with Mst. Bachul had given a cause and an opportunity to the respondents to commit the crime. The motive for the crime has also been stated by witness Rajab Ali. The other witnesses have also stated that there was some matrimonial dispute between the respondents and the injured. The evidence of motive in any case is reliable. While dealing with the evidence of motive one may also consider the allegations made by the respondents. They have set up a case that they had a dispute with Wadero Ghulam Sarwar over a piece of land. The nature of dispute and the identity of the land is indeed obscure. No documen--tary evidence has been brought on the record to show that any litigation in regard to the disputed land had taken place. In the statement under section 342, Cr. P. C. Of respondent Abdullah, which has been adopted by respondent Muhammad Hassan, it is stated that six months before the incident respondent Abdullah and his relatives had to leave village Zakario Mahesar for reason of enmity of Wadero Ghulam Sarwar who had issued threats to involve the respondent Abdullah and his relatives in false cases. Defence witness Ghulam Nabi has supported the respondents go that allegation. In such context the Resident Magistrate came to the conclusion that enmity between Ghulam Sarwar, who is related to complainant Ghulam Abbas, with the respondents had been proved and that was the reason of this false case, we cannot agree with that finding because first of all the nature and particulars of enmity in regard to the land has not been stated or established and secondly it is impro--bable that for the satisfaction of such grudge of Ghulam Sarwar, the complainant Ghulam Abbas would either inflict or suffer such injuries on his person solely to implicate the respondents or substitute the respon--dents for the actual assailant. There is nothing on the record to indicate that Ghulam Sarwar bad in any manner instigated complainant Ghulam Abbas to institute the present case against the respondents nor has Ghulam Sarwar in any manner supported the complainant in the prose--cution of the respondents. We are indeed poorly impressed by a sweeping observation by the Resident Magistrate in the judgment to the effect that it was general tendency of Waderas of the area to involve their haris in one or other false case in order to deprive them of their tenancy rights. To such extent there was total absence of evidence and there is nothing to indicate that the respondents were the haris of Ghulam Sarwar. We do not give any credit to this allegation made by the respondents.
12. The other contention of Mr. Aftab Ahmed Alvi is that the evidence of defence witness Ghulam Nabi should be believed. This defence witness has stated that he had come to know, that at 4 am.
In the day in question complainant Ghulam Abbas had received injuries at the hands of some thieves and he claimed to have gone to the Otaq of the complainant perhaps to console him. He further stated that the complainant had serious injuries and not only the cot on which he was sleeping was stained with blood but even near the cot there were pools of blood. This circumstance apart from being at direct variance with the evidence of prosecution witnesses suffers from serious infirmities. It is established that the complainant had received 11 injuries out of which 8 were incised wounds of fairly large dimension. Two out of these wounds were grievous in nature and had caused fractures and dislocation of bone. The length of 2 out of these injuries were 6 inches and 2 others was 5 and 3 inches. There must have been considerable bleeding. If the complainant would have received these injuries at 4 a.m. His first intention would be to obtain medical aid which could only be available at Larkana. It is highly improbable that he would be lying down on a cot in his house. Larkana town is stated to be at a distance of 8 miles and even if that distance were to be travelled on a bullock cart it would not take more than 2 hours to reach Larkara. In that case if the injuries were caused at 4 a.m. Ghulam Abbas complainant should normally have been in Larkana hospital in the early hours of morning but Dr. Wahid Bux has stated that he reached the hospital at 1.15 p.m. Further to that the evidence of A. S. I. Abdul Wahid and mashir Ghulam Nabi clearly discloses that blood was found on a katcha road in front of the houses of the respondents. This circumstance further belies the evidence of Ghulam Nabi. No question was asked either from the investigating officer or the mashir as to whether they visited the Otaq of complainant or found any blood lying there. Defence witness Ghulam Nabi has also stated that he and other villagers whose names are not disclosed had gone to see complainant Ghulam Abbas after the latter bad received injuries. He then goes on to state that "the people were saying that thieves had given injuries to the complainant." This statement is clearly hearsay, for it does not disclose as to who were the people who had given this version of the incident. What is more that the complainant was not even suggested such a question in cross-examination. We have no hesitation in rejecting the evidence of Ghulam Nabi.
The other defence witness Ghulam Qadir had also spoken about the respondents having migrated to a different village for the reason of enmity of Wadero Ghulam Sarwar. This aspect of the case has been dealt with in earlier part of the judgment.
13. In the first information report, reproduced in the paper book, the incident is shown to have taken place on 4th April 1972, at 8 a.m. And the time of report is shown as 5th April 1972, at 11-30 a.m. To that extent we have seen the original first information report and the date of occurrence is not legible' in the original as it is torn. However, the first information report starts by stating that the incident occurred in the morning on the day the report was lodged. The other evidence also clearly shows that the report had been lodged on the same day within 3J hours. In fact there has been no cross-examination at all on the point of delay in lodging the report. We are satisfied that in the paper book the date of occurrence has wrongly been shown to be 4th April 1972, but in fact the date is 5th April 1972. To such extent even the medical evidence clearly shows that the injuries had been suffered by the complainant within 2 to 12 hours of examination. We are inclined t agree with the medical evidence because the injuries were six hours old.
14. Considering all the aspects of this case we are clearly of the view that the acquittal of the respondents was not only unjustified but has caused a gross failure of justice. Keeping in view the entire evidence we believe that the reasons which have persuaded the Resident Magistrate to acquit the accused are not cogent. We, therefore, set aside the judgment of the Resident Magistrate, Larkana dated 30th November 1974, whereby the present respondents were acquitted.
We convict the respondents Abdullah and Muhammad Hassan for offences under section 326/324/34, P. P. C. The question now is one of sentence. The injuries caused were large in number and two out of them were grievous injuries. The injured remained in hospital for about 2 months and eve on the date of hearing in Court he had been carried. No doubt the incident had taken place in April, 1972 but still we are of the view that fairly substantial jail sentence is called for. We sentence each one o the respondents Abdullah and Muhammad Hassan to suffer R. I. For 2 years and to pay a fine of Rs. 1,000 or in default to suffer C R. For six months more for offence under section 326/34, P. P. C. The fine, if realised, shall be paid as compensation to Ghulam Abbas com-- plainant No separate sentence is awarded for the offence under section 324/34, P. P. C. The respondents are on bail granted by this Court. They shall be forthwith arrested and remanded to the custody to serve the sentence.