1. The appellants were convicted for an offence under section 326/34, P. P. C. And sentenced to undergo R. I. For 5 years by the learned Additional City Magistrate empowered under section 30, Cr.
2. P. C.
3. The incident had taken place on 1-12-67 at 4-30 a.m. In the street at a distance of about 100 paces from the house of the injured Ashfaqur Rehman. ' The first report was lodged on the same day at 1- 40 p.m. By Mst. Mahmuda Begum wife of the injured at Liaqatabad Police Station and it was recorded by Mr. Tajammul Hussain A. S. I. P. In this incident a portion of the tongue of Ashfaqur Rehman was chopped of.
4. Ashfaqur Rehman injured lived with his family in a house situated at a distance of about 100 paces from the scene of offence. Mst. Mahmooda Begum is his wife while Nafisur Rahman is his son. Nur Ahmed son of Mohd. Siraj is brother of Mst. Mahmooda Begum and was also said to be living in the same house. Mahboob alias Baboo and Mohd. Sharif had their shops in the same street and at night they used to sleep in their respective shops. They are not related to the deceased.
5. The deceased was employed as bus driver by Izhar Hussain appellant. He had caused some accident and, therefore, he was fined Rs 500 but since he was not able to pay the fin:, he was sent to jail. Izhar Hussain appellant promised to look after the children of the injured in his absence while he was in jail but he did not fulfil his promise. After the appellant was released he was taken back in employment by Izhar but again a woman fell down from the bus and the injured was sent to jail for 3 days. Thereafter the services of the injured were terminated.. The injured, therefore, made an application to the Industrial Court complaining against the termination of service. Notices were issued from the to the but Izhar Hussain failed to appear. Consequently, as is alleged,. The Industrial Court decided to issue attachment order. When Izhar Hussain came to know of it he abused the injured and issued threats. After 2 or 3 days i.e. On the night of the incident the deceased was summoned by Izhar Hussain through somebody on the pretext of settling the claim. Lie left the house but at about 4-33 a.m. He was found with his tongue cut in the street at a distance of about 100 paces from his house by to witnesses Sharif and Mahboob who subsequently informed the family members of the injured and other people of the locality. Several persons gathered. The injured was found unconscious and he was removed to the hospital.
6. Mr. Abdul Hafeez S. H. O. Was present in his quarter on ]-12-67 at 6-30 a.m. When Constable Mohd.
7. Hayat brought a copy of station diary entered on the basis of a telephonic message received from the Chief Medical Officer about the admission of Ashfaqur Rehman in the hospital. He, therefore, immediately went to the civil hospital and found Ashfapur Rehman lying injured and he would not make any statement. There was no dependant or relations of the injured in the hospital and, therefore, he went to the house of the injured where he recorded the statement of his wife Mst.
8. Mahmooda Begum and subsequently this was treated as first report and transcribed as such in the register maintained under section 154, Cr. P. C.
9. The case as originally disclosed in the first report lodged by Mst. Mahmuda Begum is different from the one which has been put up by her at the trial. In order to appreciate the evidence produced at the trial it is necessary to reproduce the first report in extenso. It reads as under :- "I have been residing at the above address along with my husband and children for the last about 4 years. My husband Ashfaqur Rehman alias Babu is driver, by profession. Few months back, he used to drive the bus of one Izhar, who resided near Lalookhet Post Officer. The said bus used to run towards Drigh Road side. My husband did an accident and so Izhar turned him out of his (employment) and he also did not pay his salary. My husband has filed complaint against Izhar with the Labour Commissioner and due to this reason there is enmity between him and Izhar.
10. Yesterday at about 10 p.m. One man had come to my husband and told him that Izhar had called him and my husband had gone with the said person. At about 4-30 a.m. My neighbour master Sharif and Babu Cyclewala called me and told me that somebody had cut of the tongue of my husband and had brought and thrown him there. I called the B. D. Member. The mouth of my husband was bleeding and he was in a state of comma. Therefore, I and the B. D. Member took him immediately to the Civil Hospital.
11. There is a hand of Izhar and his men in cutting of the tongue of my husband. Till now, my husband could not disclose as to whose it was. But Izhar proprietor of the bus, only had enmity.
12. Heard the statement and admitted correct."
13. On the basis of this first report the S. H. O. Resumed the investigation. Since Izhar was suspected the S. H. O. Went to his house but. Izhar was not available, However, the statement of his father was recorded. On 5th December 1967, Izhar Hussain was called at the police station and was interrogated. The state--ment of Tufail Ahmed brother-in-law of the injured was also recorded.
14. Thereafter he was transferred. Mr. Tajammul Hussain S. H. O. Was posted at the police station on 20th December 1967, and, therefore, he resumed the investigation. Since no material was available against Izhar Hussain or any other person nothing further seemed to have been done. When Ashfaqur Rahman left the hospital his statement was recorded on 20th December 1967. On the same day the statements of Nur Ahmed Afzal Akbar, Nur Ahmed son of Muhammad, Muhammad Umar and Afzal Ahmed were also recorded and the scene at offence was inspected in the presence of Mashirs Mahboob alias Babu and Mohd. Sharif. Mashirnama Exh. 7/A was The appellants were arrested. Subsequently the were challaned: They proclaimed their innocence. Izhar Hussain stated that the bus belonged to his father and he was working only as a conductor. He further stated that when Ashfaqur Rehman went to jail on account of non-payment of fine lie requested him to secure some money from his father but he told him to directly approach his father. He added that the was under the impression that if we were to speak to his father tie would have received money. The injured threatened him that he would realise the amount from him, in whatever manner it was possible. So he was implicated. He also produced photostat and original licence of his being a conductor. Ataullah stated that he was working as a fitter at a bus which belonged to Anwar Sahib and Izhar was' merely a conductor. He further stated that on the morning of 20th December 1967, he was going to Lalukhet when on the way he met Ashfaqur Rehman at the and asked him about the bus but he denied any knowledge and went away. He went to see Izhar at about 8 p.m. At the police station when he was detained. Iqbal Ahmed appellant stated that on 20th December 1967, he was standing at Lalukhet Post Office when a constable carne and took him to the police station and produced him before Mr. Tajammul Hussain S. H. O. He was asked to be a witness for the injured Ashfaqur Rehman but lie declined and, therefore, he was detained for 2/3 hours and then let of. He further stated that at about 10 or 11 p.m. a constable came to his house and took him to the police station and again he was persuaded to be a witness but since he refused and he was on friendly terms with Izhar Hussain he was detained and falsely implicated.
15. The appellants examined three witnesses in defence and they are Saeed Akhtar, Liaqat Hussain and Dr. Major A. Hassan.
16. At the trial the ocular testimony of the incident was given by Mst. Mahmuda Begum and her brother Nur Ahmed besides the injured. Then there was a circumstantial evidence that the injured was taken away on the pretext of payment of money coupled with the motive. This entire evidence was believed by the learned Magistrate and on the basis of this evidence all the three appellants were held to be guilty of the offence.
17. There can be no doubt that a portion of the tongue of the injured Ashfaqur Rehman was chopped of and it is borne out by the evidence of Dr. Mohd. Ramzan who found the following injury :-- "incised wound anterior 1/3rd, of tongue with bleeding and anterior 1/3rd of tongue chopped of."
18. In the opinion of the medical officer the injury was caused by a sharp-cutting weapon. The cross- examination was directed to establish that the injury did not amount to grievous hurt and further it was not cut in the manner in which it was suggested by the prosecution officer.
19. In order to meet this evidence Dr. Major A. Hussain was examined in defence. He stated that in his professional career be did not come across any homicidal case of cutting of tongue nor it had been described by any eminent medical jurist whose names were given by him. According to him homicidal injury to the tongue never existed. He further stated that suicidal was possible and accidental was common. He was also of the opinion that the injury which was described in the medical certificate did not amount to privation of any member or joint. The evidence of this worthy doctor speaks for itself and needs no comment. He may not have some across any case of cutting of tongue but that dues not mean that such instances are wanting. Such case halve actually arisen. Mr. Liaqat Hussain Durrani was also examined tip the same effect. At present he is an Advocate and lecturer in Law College and previous to this he remained in the Police Department for 20 years and his last appointment was officiating D. S. P. He also worked as instructor in medical jurisprudence in the Police Training College. He related a story that in 1954 when he was a Police Inspector in Bakar Sub-Division a case of attempt by four persons of cutting of tongue was reported. That man had closed his mouth and when forcible attempt to made his three teeth were broken and his lips and cheeks were badly hurt. The tongue could not be cut and the assailants took out both the eyes. This incident cannot be con--sidered to be in authority that in no case a tongue can be cut. It may not have been possible in a number of cases but it cannot be made the rile. He further stated that the tongue was at to slip out of the hands and unless voluntarily given it was difficult to be caught as it was always impossible, and further when forcible attempt was difficult to cut the tongue marks of violence would necessarily appear on the face. The evidence of the witness is hypothetical and can be given no more weight than it deserves.
20. During the cross-examination a suggestion was made that the injured was thrown oat of employment and he started performing jugglery and while doing so he cut his tongue. The suggestion appears to be ridiculous apart from the fact that this was repelled. If the precedent can serve, to provide any guidance as has been reached by the defence no such case of jugglery and cutting of tongue has come to light.
21. In view of the evidence of the injured himself coupled with the evidence of the Medical Officer examined by the prosecution then cart be no escape from the conclusion that the tongue was cut by certain persons who were his enemies and were interested in rendering him speechless. In this they nearly succeeded. The injured remained in the hospital for a very long the and was not able to speak. Even after he was discharged his speech was not normal and that stage still continues as is reflected by the note made by the learned Magistrate during the coarse of the evidence of the injured. It reads as under :- "The witness is without the proper use of his speech, his tongue having been partially cut. He flew into a rage and finally swooned down and fell down. The case is, therefore, adjourned."
22. So far the complicity of the appellants with the crime is con--cerned it has already been pointed out earlier that the ocular testimony is of three witnesses Mst. Mahmuda Begum; Nur Ahmed and the injured himself. Taking up the evidence of Mst. Mahmuda Begum it had been stated by her that she was sleeping when at about 4 or 4-30 a.m. She woke up on the knocking by somebody and when she went out she found a white car parked at some distance and the present appellants were in the car. She further found several persons collected. She then found her husband lying with his tongue cut. He was unconscious and lot of blood was coming out of his mouth. She called the B.
23. D. Member of the area through a neighbour shopkeeper and then took her husband to the hospital.
24. The appellant suddenly drove away the car. The S. H. O. Came to the hospital and recorded her statement.
25. This story related by the woman does not appear to be true. Not only it stands contradicted by the first report which has been reproduced above in which no such claim was made but it also stands dispelled by the fact that the police could not make any progress in the investigation and therefore it was postponed till the injured was in a position to make a statement. In the first report beyond laying suspicion on appellant Izhar, no allegation was made that he and the others were seen by her in the car. Additionally her evidence does not find support from the evidence of Sharif and Mahboob alias Babu who had found the injured and had informed the woman. Mahboob stated that he was sleeping in his shop when there was a knock and when he came out he found the injured shaking and bleeding from his mouth. Sharif stated that he was also sleeping in his shop when Mahboob called him and he to found the injured lying on the ground. A taxi was called and the injured along with his wife, his brother-in---law and Muhammad Saeed B. D. Member, was taken to the hospital.
26. In connection with their evidence the learned Magistrate adverted to some criticism. According to him Mahboob and Muhammad Sharif had played the part of defence witnesses and had tried to contradict the prosecution case. I have given my anxious thought to this observation of the learned Magistrate and I find no justification in it. Their evidence is consistent with the circumstance of the case and what had happened. Even it was not the case of the injured that his wife had accompanied him when he gone out to meet Izhar or had witnessed the incident. Thus these witnesses had said nothing which could be found in conflict with the evidence of the injured.
27. Similarly the evidence of Nur Ahmed, who is the brother of Mahmuda Begum, about his having witnessed the incident is equally false and deserves no credit. According to him at about 4 a.m. He was returning home with his vegetable handcart from the vegetable market when he found a white car parked on the kutcha about 30/40 paces from his but and he found Ataullah appellant pressing the throat of the injured while appellant Iqbal had caught hold of the hands of the injured and 1zhar pulled out the tongue of the injured and cut it with a sharp-edged weapon. He also s4id that to more persons were holding the legs of Ashfaq. He tried to raise the alarm but one of them pointed out revolver at him and, therefore, he ran behind the cart for the fear of his life and he raised the alarm after the appellants ran away. On his cries people of the Mohallah gathered and Ashfaq was removed by the people to the hospital while he stood back at home: to look after the children. He was called at the police station for statement but he was sent back without the statement having been recorded. Subsequently he was never called. Later when the police came to record the statement of his sister he was not questioned. The tale told by this witness is absurd.
28. His presence was not confirmed either by Mahboob and Sharif or by the injured himself, apart from the fact that his evidence is not consistent with the circumstances of the case and his being an eye-witness. In case he had witnessed the incident he would have either, accompanied the injured to the hospital or would have gone to the Police Station directly to lodge the report instead of staying at home. He claimed that he was present at the the when the statement of his sister was recorded by the police yet he made no complaint that her statement was wrongly recorded nor he pretended shat he was -also an eye--witness to the occurrence. It is not possible to accept that having been called at the Police Station his statement would not be recorded or even he would be ignored-when the statement of his sister was recorded and treated as first report.' The learned Magistrate clearly fell into error' in accepting the evidence of this witness and instead dwelling upon the criticism against Mahboob and Sharif.
29. Thus there remains the evidence of the injured himself. He is now the only witness upon whose evidence the case depends. He has vividly given the account of the various events culminating in the unfortunate incident. According to his evidence there was dispute between him and Izhar.
30. Hussain on account of the salary for some days he was in service of Izhar prior to his termination of his service on account of having caused the second accident. He stated that on that night he was sitting in his house when a messenger came and delivered the message that he was asked by 1zhar Hussain to meet him in order to settle the claim. On receiving this message he left the house and accom--panied the messenger up to the post office but Izhar Hussain was not available and, therefore, the injured was asked to wait in the hotel. He waited there till mid-night but Izhar Hussain did not turn up. He, therefore, decided to go home and when he was about to leave another person Akhtar witness who was sitting on the table inquired from the injured who told him that he was called by Izhar and since he did not come he was going back home. Akhtar told him that the tyrod of his taxi had been broken. The injured offered to get it repaired as his brother-in---law was a mechanic. The injured then left and took his brother---in-law along with the fitter and tools to the Christian cemetery where the taxi was parked. The taxi was repaired by about 3 or 3-15 a.m. Then the taxi driver gave lift to the injured and his brother-in-law in order to drop them at their respective places. The brother-in-law of the injured was dropped near the post office while the injured was taken to Gharibabad and dropped there. The injured further stated that after he was dropped he proceeded to his house and when he was at a distance of about 10 or 15 paces from his house he heard the voice of Izhar. However, he entered the house but Izhar told him that he was searching for him and why he had left the hotel. The, injured replied that he waited at the hotel till midnight. Izhar then told him that he would pay him the money and they both went to a place at a distance of about 100 paces where a car was parked and there were some people sitting in the car and out of them to were recognised by him who were the other to appellants Ataullah and Iqbal.
31. The injured on seeing them was alarmed and questioned Izhar why so many people were present at that late hour. However, they told him to take the money and Izhar produced a stamp paper for his signature but the injured was not prepared to sign till the actual amount was paid. On this the injured was caught hold of by all the persons and he tried to raise the alarm but Ataullah appellant squeezed his throat. Iqbal caught hold of his hands while the other persons held tight his legs. After the injured was overpowered his thumb-impression was forcibly taken by Izhar on the stamp paper. The injured told Izhar that the amount was still due whereupon Izhar told him that he would not let the tongue remain by which he would make the demand. Ataullah then suddenly squeezed the throat of the injured and felled him on the ground and soon after Izhar cut his tongue with a razor. Thereafter the injured was pushed aside and the culprits disappeared in the car. He became unconscious and regained his senses in the hospital, but for several days he was not able to speak.
32. He returned from the hospital after 19 days when his statement was recorded by the Police.
33. It is clear from his evidence that appellant Izhar had earlier issued threats to him as the injured had refused to withdraw his claim which he had filed in the Industrial Court and he also sent a man to call him on that night. The injured in order to meet Izhar left his house and returned home some the at early dawn when this incident took place. The fact that he was not in the house on that night and was found elsewhere is supported by the evidence of to witnesses, namely, Afzal Ahmed and Nur Mohd. Son of Mohd. Umer. It was the taxi of Nur Mohd. The tyrod of which was broken and was repaired by Afzal Ahmed. The injured clearly stated in his evidence that appellant Ataullah tightly held his neck while appellant Izhar took out his tongue and cut it. There is absolutely no reason to disbelieve the injured. It could not be expected that he would spare the real culprits and instead would implicate the appellants. It is true that there was a dispute between the injured and Izhar appellant over some dues as the injured had still to receive pay for some days that he was in service but that could hardly be the reason for the injured to have falsely implicated him or Ataullah. On the contrary the appellant had a grievance against the injured as he was demanding the dues and making efforts to recover those dues. It was for this very reason that the injured was secured and his thumb-impression was forcibly taken on a paper and when the injured stated that the amount was still due to him and he would recover it, his tongue was cut. The appellant blurted out that he would not allow the tongue to remain to make any demand.
34. The only circumstance which may be thought to operate against the evidence of the injured is that his statement was recorded after about 20 days and it was in that statement that he accused the appellants for this crime. This circumstance does not remain unexplained. The explanation is available in the fact that so long the injured was in the hospital he was not in a position to make any statement and, therefore, his statement could not be recorded. So the delay which had occurred in this case does not in any way discredit the testimony of the injured.
35. Before proceeding further I would like to take up the evidence of the third defence witness Saeed Akbar. He was a B. D. Member. He stated that about a year ago at about 4-30 a.m. He was sleeping when he was called by to persons and they told him that somebody had cut the tongue of the injured. He went there and found a crowd having already collected. He found Ashfaque lying there and he removed him to the hospital in a taxi. His wife, his son and brother-in-law also accompanied them. He further stated that nobody disclosed as to how and by whom the tongue .Was cut. Considering the evidence of this witness it does not in any way affect the evidence of the injured; but it can be taken to discredit the evidence of Mst. Mahmooda Begum and her brother Nur Ahmed which I have already discarded.
36. Thus the case against the appellants Izhar and Ataullah has been fully established. Izhar had cut the tongue while Ataullah had twisted the neck of the deceased to facilitate the cutting of the tongue. So both shared the common intention and are equally guilty.
37. Taking up the case of lqbal the only allegation which was made by the injured in his evidence is that he had assisted Izhar appellant when the thumb-Impression was forcibly taken. He made no allegation that Iqbal also helped the other appellant in cutting the tongue or rendered any further assistance. There is, also no indication available in the evidence of the injured that the appellants had a pre-planned design to cut his tongue. This step seems to have been taken by Izhar at the spur of the moment when the injured insisted that the amount was still due to him after his thumb- impression was forcibly taken on a paper. His evidence in this connection reads that Ataullah squeezed his throat while Iqbal caught his hand and there were to other persons who caught hold of his legs and Izhar forcibly took his thumb-- impression. He continued that he told Izhar that money was still to be paid and on this Izhar said that he would not let the tongue remain by which he would make the demand and then Ataullah appellant all of a sudden squeezed hard his throat and felled him down and Izhar cut his tongue. Thus Iqbal at the most participated in obtaining the thumb-impression and may have accompanied Izhar appellant for that purpose only. At any rate there appears to be reasonable doubt about his participation in this crime, and he must be given the benefit of it.
38. In the result I allow the appeal of Iqbal appellant and set aside the conviction and sentence passed against him and acquit him, while I maintain the conviction and sentence passed against the other to appellants, namely, Izhar and Ataullah and dismiss their appeal.