1. ' MRS. QAISER IQBAL, J.--- Both these appeals are arising out of one judgment, therefore, both are decided jointly. This appeal is directed against the judgment dated 10-5-1997 passed by Additional Sessions Judge; Tharparkar in Sessions Case No,5 of 1995, Crime No,21 of 1995, registered at Police Station Mithi, under sections 324, 337-A(i), (ii), 337-C, 337-E(i), (vi), P.P.C. Whereby the appellant was convicted under section 324, P.P.C. And sentenced to suffer R.I. For 7 (seven) years and to pay fine of Rs,5,000, in default of payment he shall suffer further R.I. For 6 months and also convicted under section 337-A(iii), P.P.C. And sentenced to suffer R.I. For 5 (five) years as a "Tazeer" and to pay Rs,5,000 as a "Daman" to injured Nandlal, in default of payment, he shall suffer further R.I. For 6 months, both the sentences shall run concurrently.
2. ' The allegations against the appellant are that the complainant Soomjee along with his son victim Nandlal on 13-4-1995 was present on the complainant's shop in Shahi Bazaar Mithi, the appellant on account of the prior dispute relating to non-payment of the salary compelled Nandlal for sodomy, who complained his father and removed the appellant from the service. The appellant threatened Nandlal for dire consequences. On the date of incident the appellant came and caught hold of Nandlal, took out "Chhura" from his Shalwar fold and attacked victim and caused as many as thirty-eight injuries. On the cries P.Ws. Hero and Dongar, Menghwar and others were attracted, intervened and saved the victim. Upon registration of F.I.R., investigation was conducted by A.S.-I.
3. Pario and challaned the appellant to face his trial.
4. ' At the trial charge exhibit 2 was framed under sections 324, 337-A(i), (ii), (iii), 337-C and 337-E(i), P.P.C. On 16-10-1995, to which appellant did not plead guilty and claimed for trial.
5. ' At trial prosecution examined P.W.1 Soomji Exh.5, P.W.2 Nandlal victim Exh.7, P.W.3 Dongar, Exh.8, P.W.5 Pirbho Exh.10, P.6, Dr. Chanda Exh.16 and P.W. A.S.-I. Piaro Exh.12. The prosecution closed the side of prosecution as Exh.22. Statement of the appellant under section 342, Cr.P.C. Exh.23 was recorded, wherein he denied the allegations levelled against the appellant in his statement recorded under section 340(2), Cr.P.C. Wherein he has stated that he has been involved by the complainant in the commission of the crime falsely. The defence was not adduced by the appellant. On the basis of the evidence of the victim Nandlal, the trial Court arrived at the conclusion that the appellant had committed the offence as stated above.
6. ' Syed Madad Ali Shah, learned counsel for the appellant has contended that the alleged incident had taken place on 13-4-1995 at 8-00 a.m., whereas F.I.R. Was lodged on 8-20 a.m. By the complainant Soomjilal father of the victim Nandlal. It is further contended that there is variation of the time of the occurrence as victim Nandlal went on to say that the incident had taken place at 8- 30 a.m. Surprisingly prosecution did not examine P.W. Hero who was eye-witness. It is next urged that it was impossible for the appellant to cause as many as 38 injuries upon the body of the victim in presence of his father, which creates doubt in the prosecution case. Investigating Officer has also given date and time of arrival in the hospital at 8-30 a.m. It is next urged that the recovery of the Chhura on the pointation of appellant in presence of Mashirs Pirbho is of no effect as it was not sent to the Chemical Examiner, to arrive at the conclusion whether the same was used in the commission of offence. It is stressed that at the time of incident many shops were lying open, the appellant was working in the shop in front of the shop of complainant, yet no efforts was made by the Investigating Officer, to collect independent witnesses.
7. ' According to the Doctor, 38 injuries were found on the person of the victim. It is contended that it is not required in all cases that the victim injured should be believed for the purpose of identification of accused and the manner of the alleged incident, due to non-interference by the victim's father, it appears that the incident has taken place in some other manner In support of the above contention, reliance is placed on the case of Said Ahmad v. Zammured Hussain and 4 others 1981 SCM R 795 dictum laid down is, that fact eye-witnesses being injured and injuries being not self- suffered, not by itself indicative witness having told truth. Witnesses closely related to the deceased, while other persons mentioned in F.I.R. Not examined. Such facts show injured eye- witnesses being desired to withhold material aspect of case from Court and prosecution being apprehensive that in case of independent witnesses being examined their depositions might support plea of accused.
8. ' On the point raised by the learned counsel for the appellant that the prosecution did not purposely withhold the evidence of P.W. Hero independent witness creates doubt in the version of the prosecution the presumption would be that had he appeared he would have not supported the prosecution case rather favoured the defence. In support of the above contention, he has relied on the case of Ahmad Yar and others v. The State 1998 SCM R 715.
9. ' Learned State counsel has supported the impugned judgment contended that it is based upon proper appreciation of evidence coupled with medical evidence.
10. I have considered the arguments advanced at bar. The victim Nandlal had sustained 38 injuries on his body, it was impossible that his father would have not intervened if he had been present on the spot to save his son from the hands of the assailants. The conduct of the complainant appears to be unreasonable and unbelievable to a prudent mind. The alleged motive itself is not supported from the evidence of the complainant Soomjilal and victim Nandlal he has stated in his deposition about the presence of the complainant and P.W. Dongar, nor he had in any manner on the place of incident, the time of incident and the time of reporting of F.I.R. At police station indicates that in between 20 minutes, 38 injuries were caused to victim Nandlal, naturally some time should have been consumed by the complainant for arriving at the police station from the place of the incident, which itself creates suspicion in the prosecution case, although the appellant had already undergone the sentence awarded to him. Whereas Mr. Shah, has pressed the appeal on merits. The incident had taken place in broad-daylight in a Bazar, naturally independent witnesses could be picked up by the prosecution, which is missing in the present case. I am satisfied that the prosecution did not prove the case against the appellant beyond any shadow of doubt, benefit of doubt is extended. The sentence awarded to the appellant is set aside, appeal is allowed bails bonds of the appellant stands cancelled, surety stands discharged.