Wazir son of Kouro, by caste Metlo, resident of Luqman, Taluka Khairpur of District Khairpur, has been convicted by the learned Additional Sessions Judge IInd, Khairpur, under section 325, P. P. C.
To suffer R. I. For four years and pay a fine of Rs. 400 and in default of payment of fine to suffer R. I.
For six months more and under section 324. P. P. C. To suffer R. I. For six months. The sentences are to run concurrently.
2. The brief facts of the case are that one Hussain Taluka & District Khairpur lodged his F'. I. R. On 23rd September, 1976 at 10-00 a. m. To the effect that he got his daughter Mst. Shahzadi married to one Wazir Metlo and in exchange. His son Ali Imdad had married Mst. Mumtaz, sister of Wazir, who after 3/4 years detained his sister due to domestic disputes and turned out his wife from his house who used to reside with the complainant. Wazir was approached for settlement but he did not agree. Mst Shahzadi, thereafter, filed a civil suit in the Civil Court, Khairpur, which was pending at the time of this incident. The complai--nant, Saifal and Mst. Fattul came to attend the Civil Court on the day of incident and so also Wazir and Khan Muhammad Metlo. After attending the Court, they went to Government bus stand to go to their villages. Wazir and Khan Muhammad Metlo also arrived there at 10.00 a. m. And told complainant party that they were filing false cases and giving evidence. They used harsh words to Saifal who told them not to do so and upon this, Khan Muhammad grappled with Saifal and Wazir gave him knife blows which hit him below the left eye and also on the fleshy part of his stomach and he started bleeding profusely. The com--plainant and his wife Mst. Fattul raised cries which attracted many people who came there. The accused persons ran away on a cycle. The complainant brought injured Saifal to the Police Station and lodged the report.
3. The A S. I. Nabi Bux, Incharge Town police station, Khairpur (P. W. 3) recorded his F. I. R. And examined Saifal and Mst. Fattul under section 164, Cr. P. C. On the same day. He prepared a mashirnama of injuries Exh. 6-A on person of injured Saifal in presence, of mashirs Mohammad Panjal and Ghulam Qadir and referred the injured to Civil Hospital, Khairpur for treatment and certificate. He then proceeded to scene of offence which was shown to him by the complainant and prepared such a mashirnama Exh. 6-B in presence of same mashirs. He arrested the appellant as well as Khan Mohammad Metlo, the acquitted accused, from the thatched but inside the compound wall of Mir Ali Mardan s bungalow and prepared such mashirnama of arrest Exh. 6-C.
The appellant Wazir during the interrogation volunteered to produce a knife which he took out from the straw wall of his thatched but and produced it before the S. H. O. In presence of same mashirs who secured it and prepared such mashirnama Exh. 6-D. Since the F. I. R. Was registered under section 324/34 P. P. C. Being bailable offences the appellant and the acquitted accused Khan Mohammad were released on -bail by the A. S. I.
4. The prosecution case is mainly based on the statements of eye--witnesses Hussain Bux, his wife Mst. Fattul, Saifal (injured), mashir Ghulam Qadir, Nabi Bux A. S. I., Investigation Officer and Dr. Mushtaq Memon.
5. The appellant however denied all the allegations against him and claimed to have been implicated in a concocted case otherwise he had nothing to do with the offence. He produced true copy of the plaint of the suit for dissolution of marriage filed by Mst. Shahzadi to show that the injured Saifal was not cited as a witness in it. He also denied recovery of blood-stained knife; from him and stated that P. Ws. Were interested and related inter se. There is no doubt that injured Saifal did receive knife injuries on the day and place of incident as stated in. The F. I. R.
6. The evidence of Dr. Mushtaq Memon, P. W. 4 who has attended the injured has proved the injuries. He deposed as under "He was Medical Officer at Civil Hospital Khairpur, on 23rd September, 1976. He received injured Saifal son of Rahim Bux on that day who was referred to him by Town Police Station, Khairpur, for examination, treatment and certificate. He examined the injured at 11-30 a. m. On the same day and found the following injuries on his person: Injury No. 1. A stabbed wound 1 x ----- x paritonial cavity deep on the left side of abdominal wall above the umbilicus.
No. 2. One incised wound 1--- x ----- x muscle deep on the left side of face below the eye-brew."
He states that the injury No. 1 was dangerous in nature and injury No. 2 was simple. Both injuries appeared to have been caused by sharp cutting weapon such as knife. The probable duration of the injuries at the time of examination was one to two hours. The injured was discharged on 6th October, 1976 as fully cured. He produced such certificate Exh. 8-A."
This evidence has fully proved that Saifal injured has received injuries on the day of incident.
7. The question therefore for determination is whether the offence was committed by appellant Wazir or somebody else ? In this regard prosecution led ocular evidence, evidence of motive, medical evidence and recovery however hxs not been accepted by the trial Court.
8. Regarding ocular testimony, the complainant Hussain Bux P. W. 1 stated before the trial court that he had given his daughter Mst. Shahzadi in marriage to appellant Wazir and in exchange got his son Ali Imdad married to Mst. Mumtaz, sister of Wazir, who detained Mst. Mumtaz and turned out Mst. Shahzadi from his house about 3/4 years ago. He approached Wazir through respectable persons and requested him to take back his wife and allow his sister to go to her husband but he did not agree. Ultimately Mst. Shahzadi filed a suit for dissolution of marriage. It was about four months back, when he, his wife Mst. Fattul, his daughter Mst. Shahzadi and Saifal had gone to the Court to attend hearing of the civil suit. When on return, they reached near Government Bus Stand they found the appellant Wazir armed with a "chhuri" and Khan Muhammad with a knife who came there and asked P. W. Saifal as to why he was giving false evidence. On this P. W. Saifal asked them not to cross the limits and upon this, the appellant Wazir gave him knife blows and the acquitted accused Khan Muhammad grappled with him. Saifal received knife blows on his stomach and beneath his left eye and was bleeding from the injuries. Many unknown persons came on wardat and rescued Saifal but the appellant ran away on a bicycle. Saifal injured P. W. 6 was removed to Town Police Station, Khairpur, where the complainant lodged his F. I. R. The appellant caused injuries to Saifal, because be had come to give evidence in suit for dissolution of marriage, filed by Mst. Shahzadi.
9. Mst. Fattul P. W, 2 has stated in the trial Court that her daughter Mst. Shahzadi was given in marriage to the appellant Wazir who in exchange gave his sister Mst. Mumtaz to her son Imdad Ali.
Wazir detained her sister and drove out his wife Mst. Shahzadi. He was approached for settlement but he did not agree and her daughter Mst. Shahzadi filed a civil suit for dissolution of marriage against Wazir. She, her husband, Hussain Bux, Mst. Shahzadi her daughter and Saifal injured had gone to Court to attend hearing of case of Mst. Shahzadi on the day of incident and on their return from the Court, when they reached Government bus-stand at 11.00 or 12.00 noon the appellant Wazir and Khano came there on a bicycle. Wazir was armed with a knife (chchuri) and he talked harshly with Saifal on his giving evidence. Saifal (injured) objected to such talk of the appellant Wazir who attacked. Saifal and gave him knife blows on his stomach and beneath the left eye and Khano grappled with him. They raised cries which attracted many people who came and intervened and rescued Saifal. The accused then ran away towards West on a bicycle. They removed Saifal to Town police station, Khairpur, where her husband lodged his F. I. R. The injured Saifal was referred to the hospital by police for examination, treatment and certificate. Saifal was given blows by the accused because he had given evidence in dissolution of marriage suit filed by Mst. Shahzadi against Wazir.
10. Saifal injured P. W. 6 has stated in the trial Court that he knew the appellant Wazir and Khan Mohammad and also the complainant Hussain Bux. They are his "masats". Mst. Shahzadi daughter of the complainant Hussain Bux was married to the accused Wazir and his sister Mst. Mumtaz was given in exchange to the complainant's son Ali Imdad. About two years back, the accused Wazir drove out his wife from his house and detained his sister in his house The complainant approached Wazir for private settlement but he did not agree and ultimately Mst. Shahzadi filed the suit for dissolution of marriage in which he was her witness and about eight months back he had come in the court to give evidence. After attending the Court when he came to the bus stand at about 10.00 a. m. For going to Panno Akil, the accused Wazir and Khan Muhammad also came there and asked him as to why he was giving evidence in the suit for dissolution of marriage filed by Mst. Shahzadi.
He had departed from Hussain Bux, Mst. Fattul and Mst. Shahzadi at that time and was at a distance of about 3/4 paces away from them. The acquitted accused Khan Mohammad grappled with him and the appellant Wazir gave knife blows on his stomach and below his left eye-brew. He fell down on the ground and went unconscious. He was bleeding from his injuries and was brought to police station and removed to the Civil Hospital Khairpur from there. He regained his senses in the hospital on 6th or 7th day of the incident. The complainant Hussain Bux had lodged the F. I. R.
With the police and he had remained in the hospital under treatment as an indoor patient for about 15 days. He was examined by the police in the hospital. The accused attacked him and gave him knife blows because he was giving evidence in the suit for dissolution of marriage filed by Mst.
Shahzadi. The knife lying in the Court is not the same. He has been fully corroborated by both the eye--witnesses, i.e. Hussain Bux and his wife Mst. Fattul on the point of motive as well as receiving injuries at the hands of the appellant. No material contradictions have been brought out by the defence in cross-examination of the injured Saifal and eye-witnesses, Hussain Bux and Mst. Fattul, so as to disbelieve their evidence or even make it doubtful. They are on the contrary natural and truthful. There is therefore nothing on the record to disbelieve them.
11. The evidence of motive has been deposed to by all the three eye-witnesses and I therefore accept it as nothing has been said to falsify it and thus stands proved.
12. The recovery of knife is not being accepted as the trial Court has also not believed it.
13. I have heard Mr. A. G. Talpur, Advocate for the appellant and Syed Sarfraz Ahmed, Advocate for the State. Great stress was laid by the learned counsel for the appellant that the incident had taken place at the Government Bus stand where many people came still no independent witness has been examined for the purpose of corroboration. He also argued that the eye-witnesses being interrelated were interested witnesses and should not be believed. He however failed to show as to why these witnesses have substituted the appellant, falsely implicated him and have left the real culprit in this case. There is no doubt that the statements of the witnesses who are inter-related are generally rejected if their statements appeared to be false but each case has to be considered with its peculiar circumstances. As I have stated already, to my mind these P. Ws. Are real eye- witnesses of the offence and their statements inspire confidence. There has been no delay in lodging the First Information Report which has been registered within an hour of incident and thereby entirely eliminating a probability of faslification or false implication. The contention that there are no independent witnesses is not something unusual in this case only. But it is a frequent experience of criminal Courts that many a gruesome tragedy is enacted with scores of onlookers, the assailant is allowed to escape from the scene, with impunity. Not only that, these "independent" on lookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. The recovery of the blood-stained knife has already been disregarded by the trial Court still there is sufficient material on record to show that it is the appellant and no body else who has committed this of--fence. The trial Judge found him guilty of offences and convicted him under section 325, P P.C. By sentencing him to suffer R. I. For four years and pay a fine of Rs. 400 and in default of payment of fine to suffer R. I. For six months more and convicted him also under section 324, P. P. C. To suffer R. I. For four months.
14. The injury No. 1 on person of Saifal injured, was caused by a sharp-cutting weapon such as knife and described by the Medical Officer to be dangerous, therefore a grievous one. The conviction for such injury should have been under section 326, P. P. C. And not under section 325, P. P. C. The question now before me is, if, conviction under section 325, P. P. C. Could be altered to one under section 326, P. P. C. By this court while disposing of an appeal particularly when the appellant has not been specifically charged for offence under section 326, P. P. C. And also acquitted of the charge of graver offence under section 307, P. P. C. And convicted under sections 325 and 324, P. P.
C. Only. It is clear that there is no charge under section 326, P. P. C. Against the appellant at the trial but he has been charged for graver offence under section 307, P. P. C. Which gives notice to him of all the circumstances going to constitute the minor offence of which he may be convicted. It is manifestly clear that answer has been provided by sections 236 and 237, Cr. P. C. Which are exceptions to the general rule that an accused person cannot be convicted of an offence of which he has not been charged and of which he has no notice. These two sections however enable the Court to convict a person of offence which is disclosed in the evidence. This point has been considered at length in the case of Jehanzeb Khan v. The State (PD 1963 (W. P.) Pesh. 145).
This Court is therefore empowered to alter conviction under section 325 P. P. C. To one under section 326, P. P. C. In terms of sections 236 and 237, Cr. P. C. Read with section 423, Cr. P. C",.
However I do not enhance the sentence but alter the conviction from section 325, P. P. C. To one under section 326, P. P. C. Only and sentence awarded by trial Court for offence under section 325, P. P. C. Would be now under section 326, P. P. C. The conviction and sentence under section 324, P. P.
C. Being adequate are maintained accordingly as awarded by the trial Court.
15. The result is that there being no substance in this appeal, it is dismissed with modification of altering the conviction as above.
16. The appellant is on bail and he shall forthwith surrender to serve out the balance of sentence.