1. ' MRS. QAISER IQBAL, J.--- By this common judgment, I propose to dispose of Criminal Appeal No,116 of 2005 and Criminal Jail Appeal No,121 of 2005 filed by appellants Muhammad Akram alias Laloo and Abdul Wahid son of Muhammad Jamil against judgment, dated 30-6-2005 passed by 1st Additional Sessions Judge, Mirpurkhas in Sessions Case No,18 of 2002 (Crime No,2 of 2002) of Police Station, Digri, whereby appellant Muhammad Akram was convicted under section 324, P.P.C. And sentenced to suffer R.I. For ten years and to pay fine of Rs,10,000, in case of default of payment of fine, to undergo R.I. For six months more, he was also convicted under section 337-D, P.P.C. And sentenced to suffer R.I. For five years as Tazir and to pay Rs,1,27,625 (one third of Diyat) being Arsh to the victim Haji Khalid Mehmood whereas appellant Abdul Wahid was convicted under section 324 read with section 109, P.P.C. And sentenced to suffer for ten years and to pay fine of Rs,10,000 and in case of default in payment of fine, to suffer R. I. For six months more. Both the appellants were extended benefit of section 382-B, Cr.P.C.
2. ' Precisely the prosecution case as disclosed in the first information report dated 13-1-2002 is that the complainant Maqsood Ahmed reported that Khalid Mehmood his brother and was General Secretary Coach Service Union, was having a dispute between him and Aziz alias Jajo over starter- ship. On the fateful night, the complainant was at his house and transpires that some one has given dagger blow at the abdomen of his brother Khalid Mehmood, he proceeded to Digri Taluka Hospital and found his brother Khalid Mehmood has sustained injury. On the next day, the injured regained his senses and on enquiry, Khalid Mehmood narrated that Mama Mushtaq Polo, Aziz alias Jojo QaimIdiani and Akram alias Laloo Kassai had met him and called upon him to deliver the starter-ship to them, otherwise, they would not spare him. At the night time, Khalid Mehmood went to offer prayer in the mosque, while he had returned back at 2-30 hours, reached near the Railway Crossing, appellant Akram alias Laloo was standing, who asked him that Mama Mushtaq alias Polo and Aziz alias Jajo sent him to murder him, thereupon he took out dagger from the fold of his Shalwar and stabbed in his abdomen. In the meanwhile, Nadeem and Islamuddin rushed towards there, seeing them, appellant went away. After usual investigation, the appellants were connected in the commission of the crime.
3. ' At the trial, charge Exh.2 was framed and read over to the appellants, to which they pleaded not guilty and claimed trial.
4. ' The prosecution in support of the case has examined P.W.1 Maqsood Ahmed alias Masqood Exh.6, P.W.2 Haji Khalid Mehmood, Exh.7, P.W.3 Nadeem Exh.8, P.W.4 Dr. Ehteshamul Haq Exh.P.9, P. W. 5 Akbar Ali Exh. P.10, P. W .6 Muhammad Aaqif Exh. 11, P. W. 7 Zahid Hussain Exh.14 and P.W.8, A.S.-I.
5. Muhammad Ismail and thereafter prosecution closed the side.
6. ' The appellants in their statements under section 342, Cr.P.C. Denied to have committed the charge offence and has set up the case that they have been involved in the false case at the instigation of the plan hatched by the complainant and injured Khalid Mehmood. On appraisal of the evidence, the trial Court convicted the appellants as stated above and they being aggrieved and dissatisfied have resorted to file the present appeals.
7. ' Mr. Madad Ali Shah, learned counsel for the appellant Muhanunad Akram has contended that on 12-1-2002 Dr. Ehteshamul Haq, C.M.O. Taluka Hospital, Digri has examined injured Khalid Mehmood and on his examination, he found the following wounds:--
(1) Stab wound 6 c.m. x 4 c.m. Abdominal cavity deep over left para-umbilical region 6 c.m. Lateral to umbilicus. Cut prolapsing out, there was cut through the through over small intestine rupture of part of colon, cut over lower pole of left kidney.
8. ' The doctor has opined that the injury was fresh and appears to have been caused by sharp cutting weapon. The defence has not disputed the set move of stabbed, thus, the medical evidence has gone unchallenged and unrebutted. It is further contended by Mr. Shah that the ocular account is not free from doubt, as the P.W. Maqsood Ahmad had lodged report regarding the incident on 13-1-2002 and Haji Khalid Mehmood has sustained one injury.
9. ' Injured Haji Khalid Mehmood in the cross-examination has deposed that after 13 days of the incident, his statement under section 161, Cr.P.C. Was recorded by the police, whereas besides the accused Mushtaq alias Polo and Aziz alias Jojo Qaimkhani were set free by the police. It is urged that the statement of P.W. Nadeem is also not free from doubt, as the police has recorded his statement on the next day of the occurrence.
10. I have examined the evidence, it appears that injured Haji Khalid Mehmood have fully implicated the appellant Akram for raising "Hakal" and also for causing stab wound injury on his abdomen, both P.Ws. Islamuddin and Nadeem were present at the place of incident and were the witnesses at the incident. Later, injured was shifted to Taluka Hospital, Digri and upon regaining senses on the next day first information report was lodged and he narrated the incident to his brother Maqsood Ahmed. The dispute has arisen upon the starter-ship and that the prosecution witnesses Aaqib and Akbar have categorically stated that the appellant Akram alias Lala Kassai was standing on the night of the incident with injured Haji Khalid Mehmood. P.W. Nadeem has corroborated the testimony of Khalid Mehmood in respect of the manner in which the offence was committed by the appellant Akram coupled with the recovery of crime-weapon, minor contradictions pointed out by the learned defence counsel, are not of much significance.
11. ' In view of the evidence available on the record, I am of the view that appellant Akram alias Lala was responsible for causing sharp cutting weapon injury to P.W. Khalid Mehmood and responsible for commission of an offence under section 324, P.P.C.
12. Adverting to the evidence available with the prosecution in connection with the appellant Abdul Wahid, P.Ws. Aaqif, Akbar and Jalal have deposed that they have seen Abdul Wahid about the manner in which he was making inquiry about the presence of Ithalid Mehmood in the Masjid before commission of the crime, as against Abdul Wahid prosecution has miserably filed to bring the charge at home in terms of sections 324 and 109, P.P.C. The police had already let off Mushtaq alias Polo, and Aziz alias Jojo, to them the role assigned was along with Abdul Wahid to search or to instigate the co-accused Muhammad Akram in the commission of the crime. In any view of the matter, the case of appellant Abdul Wahid is not borne out in accordance with safe administration of criminal justice and he is acquitted from the charges levelled against him.
13. ' Adverting to the case of appellant Muhammad Akram, the ingredients of section 337-D, P.P.C. Is not made out, therefore, conviction on this score is set aside however, he is convicted under section 324, P.P.C. He is confined in jail for more than five years, I am of the view that interest of justice shall be sufficiently be served if sentence is reduced to already undergone.
14. ' The upshot of the above discussion is that so far as the conviction of the appellant Abdul Wahid is concerned, Criminal Jail Appeal No,121 of 2005 is allowed and he is acquitted, he be released forthwith, if not required in any other custody case. Whereas the conviction and sentence awarded to the appellant Muhammad Akram is maintained in above terms, Criminal Appeal No,116 of 2005 stands disposed of in above terms.