' The appellants have been convicted by Assistant Sessions Judge, Nawabshah under section 326/34, P. P. C. And both sentenced to suffer 6 years R.I. And a fine of Rs. 1,000 in default of payment a fine they were to suffer further R. I. For one year.
' On 1st June, 1976 at 13-30 hours F. I. R. Exh, 9 was lodged by Gul Hassan P. W. 2 at Qazi Ahmed Police Station, District Nawabshah to the following effect "1 and my brother Azizullah are doing Harpo' of Amir Bux Khoso. About one year back Talib Rahoo had abducted daughter of Bakhar Gahejo. Bakhar was friend of my brother Azizullah. Therefore my brother Azizullah tried and got daughter of Bakhar returned from Talib. Day before yesterday my brother Azizullah had gone to Nawabshah side with his work. Today in the morning at 09.00 hours a.m. 1, Haji Khan and Kando left our village for Lashari stand for purchasing household articles. We were coming along five feet road along protection bund when we reached near the graveyard of "Satias" we heard cries from the east of the graveyard. We went running there and saw that accused Talib and Rajoo Rahoo had overpowered my brother Azizullah to the south of the road.
Accused Talib was armed with a knife and Rajoo with a hatchet. Accused Talib cut both ears and nose of my brother with knife within our sight and accused Rajoo gave 3/4 knife blows to my brother within my sight. We gave Hakkals to the accused. Upon this both the accused left my brother and ran away towards East, we went there and found that my brothel-was bleeding from his nose, ears and other parts of the body. On enquiry he said that since last third night I had stayed with Master Ahmed Kha!Ri Kaloi, now I was going to the village when all of a sudden above accused came and caught hold of me, from behind. They have forcibly got me down from the road and have injured me by giving blows. Thereafter I have got my brother carried here with the help of above witnesses for report. He has become unconscious on the way. Now I have come here and lodged report that accused Rajoo and Talib having conspired with each other, have given blows to my brother Azizullah with intention to kill him on account of above grudge. They have cut his nose and ears and have thereby made him ugly. I lodge complaint. Action be taken."
' It was recorded by P. W. 6 Ayaz Ahmed who prepared the mashirnama of injuries of Azizullah @ Abdur Rashid Exh. 13 and sent him to hospital. He also examined P. W. Haji Khan and Kando at the police station, and thereafter proceeded to the scene of offence and prepared mashirnahia Exh.
14. Blood was found at the vardat. The accused were arrested on 8th June, 1976 under mashirngma Exh.
15. Accused Rajo led the police to his. House and produced blood-stained hatchet with broken handle. It was taken into possession under mashirnama Exh.
16. Accused Talib also led the police party to his house and voluntarily produced blood-stained knife, shirt and trouser from bushes. The same was secured under Mashirnama Exh. "17. P. W. 5 Gul Mohammad and P. W. 7 Ismail were the mashirs of the recovery. The injured was examined in the hospital on 8th June, 1976. The accused were thereafter challaned.
' The case for the prosecution has been proved by P. W. 2 Gul Hassan who is the complainant and brother of the injured and he has reiterated the contents of the F. I. R. In his deposition and has further stated that another motive for the accused to cause injury to Abdul Rasheed was that 3 years before the incident, a camel of the complainant party was lost for this they have filed F. I. R.
Against the present accused, but they were acquitted of the same and the camel had been given to the complaining party upon which the accused felt annoyed. In cross-examination he had stated that 2 or 3 persons from a village had come on the cries of Abdul Rashid. A question was put to him that some other had fought with Abdul Rashid, who had received injury from them. But he denied the same. He has denied that he was giving false evidence on the basis of enmity.
' P. W. 3 Abdul Rashid injured had stated that at 10 a.m. He was going from I...Ashari Bus-stand to his village when he reached at graveyard of Salioon accused Rajo came behind him and grappled and fell him down on the ground and Talib was along with him, Rajo had hatchet and Talib had knife and Rajo cut down his nose and ear, while Talib gave' him hatchet blow by sharp/blunt side of the hatchet. He raised cries which attracted his brother Gul Hassan complainant and Kando and Haji Khan, who had seen the accused from some distance and he narrated the facts to them.
Thereafter some time he went unconscious. He did not know anything about theft of camel by accused, but he stated that Talib had enticed away a woman of Ghanchees by accused who were his friend, and there upon, be had intervened and made the. Accused Talib to restore that womap.
' Therefore, the accused developed enmity with him. He stated that his face was disfigured permanently by the accused who were, present in Court. No question in lengthy cross-examination was directed in respect of actual offence. He stated that he was friendly with 'accused Talib and Rajo before the enticing away of the woman. He denied that he was getting spy information from village of Oathas from his friend and thus received injuries. He further denied that he had implicated the accused on account of the theft of the camel.
' P. W. 4 Kando who was with complainant Gul Hassan has not supported the whole . Of the prosecution case, but has stated that on hearing cries they went running and saw Abdul Rashid lying injured. They did not see any of the accused at the vardat. Abdul Rashid was in semi- conscious state and he was giving evasive replies. In cross-examination he stated that on the next day the injured had informed him that some Oathas had inflicted injuries upon him. From the examination of this witness, the fact of the victim Abdul Rashid having been injured at the relevant time and date and the relevant place is proved. His statement does not provide any support to the statement of complainant Gul Hassan who claims to have seen the accused giving blows to the injured. It seems that Gul Hassan and Kando had reached just after the incident, but since Kando states that they heard cries and went running on cries, it appears probable that the accused were seen running by these two witnesses, but I believe the statement of Abdul Rashid that he had given the names of the accused to his brother Gul Hassan and I do not believe the statement of Kando that Abdul Rasheed was semiconscious and was giving evasive replies as he appears to be obliging the defence. Abdul Rashid, having received the 4 contused wounds and his ears and nose having been cut during day tune, was obviously in a position to correctly identify the accused and since Gul Hassan and Kando had been attracted on cries it must have been immediately after incident and so it is reasonable to believe that Abdul Rashid gave them the names of his assailant.
The P. Ws. Having reached Abdul Rashid on cries, Abdul Rashid could be in his senses so soon after the inflicting of the injuries and the semi-consciousness or unconsciousness which was the result of the injuries must have developed later on. No cross-examination was directed to Abdul Rashid that he was not in a position to speak after the incident and no question was put to P. W. 1 Dr. Mohammad Sharif to ascertain from him whether Abdul Rashid could remain in his sense after the incident or not. The recoveries of hatchet from Rajo and knife from Talib are not supported by the mashirs Gul Mohammad and Ismail who have both stated that all these articles were lying at the police station when they were called. These recoveries are -therefore discarded. Although, the I.
0. Namely Ayaz Ahmed P. W. 6 has supported the same but that is not enough. The motive that Abdul Rashid had helped in the recovery of daughter of Bakhar Gahejo from Talib was mentioned in the F. I. R. Which was lodged without any loss of time. The same has also been deposed to by Gul Hassan and Abdul Rashid and I believe the same. The second motive of the theft of the camel has been deposed to by Gul Hassan and the accused. In their statement have also referred to the same incident of theft of camel as the basis of false accusation against them. The accused have generally denied the case of the prosecution. The injuries upon Abdul. Rashid have 'bEen proved Dr. Mohimmad Sharif who stated thatears and nose 9f Abdul. Rashid had been completely cutby sharp-edged weapon like knife and there were contused wounds on different parts of the body of Abdul Rashid. The medical evidence corroborates the statement of injured Abdul Rashid. F. I. R. Exh.
9 had been lodged within 31 hours of the incident and since the place of incident was 11 miles away from the place of incident I consider that the F. I. R. Was lodged in a reasonable time and without any premeditation, and therefore, it is probable that the 'names of the accused were mentioned by the injured to the complainant Gul Hassan soon after the incident who narrated the same to the police in the F. I. R. I however feel that that portion of the F. I. R. Where complainant Gul Hassan alleges to have seen the incident is not correct as the complainant Gul Hassan must have seen, the assailant running and since he was given the story by Abdul Rashid, therefore he considered himself to be eye-witness to the incident. In this respect, the correct version is given by Abdul Rashid himself who had stated in his deposition that Gul Hassan and Kando had also seen the accused from some distance and came to him and enquired from him and he narrated them the facts. Therefore, the correct position is that Abdul Rashid and Kando did not see the actual incident but could have seen the assailants running away and were told the story by the injured as they have been attracted by his cries. Kando may be having his own _reasons about not supporting the case of the prosecutton in respect of the statement of Abdul Rashid narrating the facts to them.
But I consider that Abdul Rashid who has been completely disfigured could not substitute any other person as assailant and concealed the name of real assailant. The nature of the offence is such that at least two persons were required to overpower the injured, and therefore, both the accused have been rightly involved and the prosecution has been able to establish its case against them. I cannot think. Of any way to discard the testimony of Abdul Rashid injured and to hold that he is merely supporting the case of complainant Gui Hassan who is brother and who might have involved the assailant on mere suspicion. I have already held that complainant Gul Hassan had reached the spot soon after the cries of his brother and was related the incident by P. W. Abdul Rashid and he could have seen the accused from a distance.
' Mr. G. M. Qureshi wanted to point out that in the F.
1. R. The cutting Of nose and ears was attributed to Talib, while Abdul Rashid has assigned this part to Rajo. This difference could be on account of some confusion in the hearing of the incident by P.
W. Gul Hassan from Rashid. In fact it is Abdul Rashid the injured whose evidence is most significant in respect of the part payed by the accused. I therefore see no force in this appeal and dismiss the same.