The appellant above-named, being aggrieved by the judgment dated 30th April, 1981 of the learned Sessions Judge, Badin, in Sessions Case No. 21/80, by which the appellant has been convicted under section 307, P. P. C. And sentenced to suffer R. I. For 5 years and to pay fine of Rs.
1,000 or in default of payment of fine to suffer R. I. For 6 months more, has preferred this appeal on the following facts and grounds.
2. The prosecution case briefly stated is, that complainant Anwar Ali has a workshop in Golarchi town. P. W. Saleh and Dilawar are working with him in this workshop. The house of the appellant is situated about 100 yards away from his workshop. On the day of the incident at about 2.15 p. m., while they were present at their workshop, they heard cries of a woman. Complainant Anwar Ali alongwith P. Ws. Soomar, Siddik and Saleh went running there and saw appellant Liaquat Rafi causing knife injuries to his wife. The appellant was saying, that his wife had disreputed him and that he would not spare her. His wife became unconscious on sustaining knife injuries. On the enquiry of witnesses, appellant Liaquat Rafi told them, that his wife had defamed him and, therefore, he was killing her. After saying this, appellant ran away from wardat. Complainant Anwar Ali immediately went and lodged a report of the incident, at Golarchi Police Station.
3. The above report Exh. 8 was recorded by A. S. I. Muhammad Sultan on the same day at 3-00 p. m.
After recording the F. I. R., Muhmmad Sultan reached the wardat alongwith the complainant. He found Mst. Saima lying injured at the wardat and he prepared mashirnama Exh. 12 regarding her injuries. The condition of Mst. Salma was serious and she was not in a position to make any statement and, therefore, she was sent to Medical Officer, Golarchi for treatment. He found blood at 3 or 4 places at the wardat and he prepared mashirnama of wardat Exh.
13. Thereafter, A. S. I.
Muhammad Sultan recorded the statements of P. Ws. Saleh, Soomar and Khalil Ahmed.
3. On the same day A. S. I. Muhammad Sultan arrested the appellant from Golarchi town, vide mashirnama Exh.
14. He interrogated the appellant, who volunteered to produce the crime weapon and took the Police Party and the mashirs to a Ganda Nala in Golarchi town, from where he took out knife, which was secured by the A. S. I. Appellant was wearing a shirt and shalwar, which appeared to be blood-stained. The A. S. I. Secured these articles, vide mashirnama Exh.
15. The A. S. I. Then went to Rural Health Centre, Golarchi, where he recorded the statement of Mst. Salina. After completing the investigation he challaned the appellant.
5. In support of its case the prosecution has examined 6 witnesses before trial Court. P. W. 1 Abdul Latif is the Medical Officer, who had examined the injuries on the person of Mst. Salma P. W. 2 Anwar Ali is the complainant, who lodged F. I. R. With the Police and P. W. 3 Saleh is an eye-witness and both of them have fully supported the prosecution case, P. W. 4 Salina is the victim, who has also implicated the appellant. p. W. 5 Soomar is an eye-witness and be acted as mashir also. He has also implicated the appellant. P. W. 6 Muhammad Sultan is the Investigating Officer who registered and investigated the case and challaned the appellant.
6. The appellant in his statement under section 342, Cr. P. C. Has denied all the allegations of the prosecution made against him. He has denied his arrest from Golarchi town by A. S. I. Muhammad Sultan and stated that he had gone for lodging report to the Police, but instead of his report being lodged, he was arrested by the Police. He also denied recovery of blood-stained shirt and shalwar from his person and securing of knife at his pointation. He further stated, that complainant Anwar Ali had a hotel opposite his house and he used to tease his wife and as such he had quarrelled with him. He further submitted, that P. W. Anwar Ali, com--plainant wanted to eject him from the house, which belongs to one Ismail Qadiani, in order to get the vacant possession of his house, at the instance of Ismail Qadiani, complainant and other witnesses have falsely involved him, as complainant himself is also Qadiani. The appellant examined P. W. Faqir Muhammad and Abdul Ghaffar in his defence and both these witnesses have stated, that on bearing cries from the house of the appellant, they went there and saw one woman lying injured, but the appellant was not present there and as such according to D. W. Faqir Muhammad he went and brought the appellant, who thereafter, went to the Police Station for lodging report, but was involved in his case.
The learned Advocate for trial Court on the basis of evidence adduced by the prosecution before it and after hearing the learned Advocate for the appellant, for the reasons given in its impugned judgment dated 30th March, 1981 convicted and sentenced the appellant as hereinabove mentioned and, therefore, the appellant has preferred this appeal, on the grounds mentioned in the memo of appeal.
7. The learned Advocate for the appellant in support of the above appeal stated, that P. Ws.
Anwarah and Saleh were staying 100 yards away from the wardat, but the immediate neighbours, who could have been natural witnesses were not at all produced by the prosecution, in support of its case and as such no reliance can be placed on the evidence of P. W. Anwar Ali and Saleh. The learned Advocate for the appellant further submitted, that the motive given in the F. I. R. Is different from the one given by P. W. 4 Mst. Salina, the injured wife of the appellant. The learned Advocate for the appellant further submitted, that no reliance can be placed on the evidence of Mst. Salma, P. W.
4, the injured wife of the appellant, as no blood was found on the Musalla, where she is alleged to have received injuries and further more in the absence of trustworthy independent witnesses from the neighbourhood, her evidence cannot be relied upon. The learned Advocate for the appellant further submitted, that provisions of section 307, P. P. C. Were not at all attracted in the instant case, as all the injuries on the person of P. W. 4 Salma were simple and not on the vital part and even if the version of prosecution is believed, the appellant, who is alleged to have caused 9 injuries, if he had intention to kill her, he was in position, on the basis of the prosecution evidence to give her injuries, on the vital part of the body, but obviously he had not done so and as such the intention to cause death cannot be presumed, even if the prosecution story is believed. In support of this contention the learned advocate relied upon cases reported in 1976 P Cr. L J 1458 and 1975 P Cr. L J 1210.
8. The learned Advocate for the appellant submitted, that alleged recoveries made from the appellant were not at all produced and/or proved by the prosecution.
9. The learned Advocate appearing for the State has supported the conviction of the appellant under S. 307, P. P. C. As appellant had given 9 injuries, which by itself prove his intention to cause murder of his wife.
10. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the impugned judgment; the statements of the prosecution witnesses examined before the learned trial Court as well as authorities cited by the learned Advocate for the appellant.
11. Prosecution case against the appellant rests on the evidence of P. W. 4 Salma (his injured wife) and three eye-witnesses namely P. Ws. Anwar Ali, Saleh and Soomar as well as on recoveries of incriminating articles from the possession of the appellant.
12. P. W. 4 Salma in her deposition before the learned trial Court stated, that appellant is her husband and reside together in rented house. She further stated, that on the day of incident at 2- 00 p. m., appellant came home and gave her knife injuries, on which she raised cries, and on receiving said injuries, she went -unconscious. She further stated, that on her cries some people came, but she did not know them. She further stated, that she regained her consciousness on the next day in hospital.
She further stated, that appellant wanted' some money and hence he caused her injuries.
Appellant used to tell her to bring money from her father and she in fact had got Rs. 1,000 to appellant from her father, according to her statement. In her cross-examination, she stated, that when appellant came to the house, she was offering prayers on Musalla and was in Sijda, when appellant gave her injuries. She denied; that at the instance of her father, she was deposing against appellant, as her father wanted to get her married to one Dr, Nadeem. It maybe noted, that her statement remained unshaken in her cross-examination.
13. P. W.2 Anwar Ali and P. W. 3 Saleh have corroborated the statement of P. W. 4 Salma to the extent, that they saw appellant giving her knife injuries, on the day of incident at .2-00 p. m., when they reached the house of appellant on cries of P. W. 4 Salma. Both these witnesses have further stated in their statements, that appellant on inquiry told them, that as his wife P. W. Salma had disgraced, him, he was killing her and, thereafter appellant escaped. P. W. 2 Anwar Ali further, stated, that after having-seen the incident, he went to P. S. Golarchi and lodged F. I. R. Exh. 8, which he produced and identified the appellant in Court. This witness in his cross examination denied about any dispute, between appellant and Ismail, his landlord. He however admitted, that he was Qadiani, but had no connections with Ismail. This witness also admitted, that persons from the shops of Khalid had also collected at wardat and admitted that Khalid's shop was near to the house of appellant. He however denied, that appellant was not present; when they reached wardat or that he was deposing falsely at the instance of Ismail. It may be noted that evidence of these two prosecution witnesses have not at all been shaken in their cross-examination.
14. P. W. 5 Soomar beside being eye-witness of the incident, acted as mashir in respect of mashirnamas of wardat, injuries on person of P. W. 4 Salma, arrest of the appellant and production of blood-stained knife by appeliant from drain and blood-stained clothes of appellant and P. W. 4 Salma. He produced mashirnamas Exhs. 12, 13, 14 and 15 and identified properties in Court. 1n his deposition, about the incident he corroborated P. Ws. 2 and 3 fully. His evidence was also not shaken in his cross-examination. However there is difference between his evidence and of P. W. 6 Muhammad Sultan S. H. O., about the place of arrest of the appellant. According to this witness appellant was arrested from his house, whereas according to P. W . 6 from place 1 /2 furlong from wardat. As far as evidence of two D. Ws. Is concerned, in my opinion it does not inspire confidence, as they are not independent witnesses, but had business dealings with the appellant and both of them are either partners or related to each other.
15. Taking into consideration the evidence of the above-mentioned prosecution witnesses, in my opinion prosecution has established the fact that the appellant caused injuries mentioned in Exht.
5 and 6 which were produced and proved by P. W. 1 Dr. Abdul Latif. However, according to P. W. 1 Dr. Abdul Latif all the injuries received by P. W. 4 Salma were simple injuries and she remained on hospital as indoor patient .For 16 days. Therefore, .The question arises whether the conviction of the appellant under section 307, P. P. C. Was justified on the basis of the evidence of the' incident on record. The learned Advocate appearing for the State submitted, that in view of the number of injuries on the person of P. W.4 Salma, the provisions of section 307, P. P. C. Ispo facto would be applicable, as the intention of the appellant could not have been otherwise then to cause death of P. W. 4 Salma, by causing so many injuries. The learned Advocate for the appellant on the other hand sub--mitted, that in view of the evidence of P. W. 1, Dr. Abdul Latif all the injuries suffered by P.
W. 4 Salma were simple injuries and were not on the vital part of her body and as such the provisions of section 307, P. P. C. Would not be attracted and consequently the appellant could not have been convicted under the said section 307, P. P. C. In support of this contention the learned Advocate for the appellant relied upon cases reported in 1975 P Cr. L J 1210 and 1976 P Cr. L J 1458.
16. 1 have carefully considered these submissions of the learned counsels and have gone through the evidence of P. W. 1 Dr. Abdul Latif as well as the authorities cited by the learned Advocate for the appellant. It is clear from the evidence on record, that nothing prevented appellant from giving injuries on the vital part of the body, if his intention really was to kill P. W. 4 Salma. In my opinion the conduct of the appellant shows, that he had no intention to kill P. W. 4 Salma, but he wanted to punish her for her alleged conduct and as such he gave no doubt 9 injuries, but all of them were simple injuries and not on the vital part of her body, except one namely injury No. 3, which was given on back of her chest. Therefore in my opinion the offence committed by the appellant would fall under S. 324, P. P. C. And not under S. 307, P. P. C. As held by the learned trial Court. In this conclusion of mine I am fully supported by D. B. Decision of this Court reported to 1975 P Cr. L J 1210.
In view o: this I would alter the conviction of the appellant from one under section 307; P. P. C. To one under section 324, P. P. C. And reduce his sentence from 5 years rigorous imprisonment to 3 years, rigorous' imprisonment and would maintain the fine imposed on him, with al direction that fine if recovered from the appellant, the entire amount will be paid to injured Salma, as compensation under section 545-A, Cr. P. C. The above appeal is dismissed, with the above modification in respect of conviction and sentence awarded to the appellant.