' Bashir (20), Muhammad Ali (40) son of Sohna, Sadiq (27) son of Rahma, Ismail (40), Ibrahim (25) son of Fajja, Muhammad Shafi (22) and Bashir (30) sons of Barkat. Labourers, residents of Sheikh- da-Kot, Police Station Kahna, were convicted by Mr. Muhammad Arshad, Magistrate Section 30, Lahore, under section 326, P.P.C. And sentenced to R.I. For seven years each. They were also ordered to pay a fine of Rs, 5,000 each or in default to undergo R.I. For one year each. Sadiq, Ismail, Muhammad Ali alias Manna and Bashir son of Sohna were further convicted under section 365, P.P.C. And sentenced to R.I. For five years each. Their sentences were ordered to run consecutively.
Out of the fine, if recovered a sum of Rs, 15,000 was ordered to be paid to Ghulam Muhammad injured P.W. Bashir son of Sohna, Muhammad Ali alias Manna, Muhammad Shafi and Bashir son of Barkat have challenged their conviction and sentence through this appeal. Their co-convicts Ismail, Ibrahim and Sadiq have filed Criminal Appeal No, 158 cf 1982 against their conviction and sentence. Both these appeals shall be disposed of by this judgment.
2. The brief facts of the prosecution case are that on 2nd September, 1976 Bashir Ahmad complainant and Ghulam Muhammad P.W. Went to village Shaikh-da-Kot in order to see the Mela.
Karam Din and Amir Ali P.Ws met them there. They were enjoying a mimic-show when all of a sudden Sadiq, Ismail, Muhammad Ali alias Manna and Bashir son of Sohna accused came there.
Sadiq put a piece of cloth around the neck of Ghulam Muhammad P.W. And started dragging him.
Ismail held him by his arms while Muhammad Ali alias Manna and Bashir held his legs and lifted him. They took him towards their house. The complainant and his companions tried to rescue him but the aforesaid accused threatened them with dire consequences. The accused were annoyed with Ghulam Muhammad P.W. As he had abducted their relative Mst. Shaeedan, daughter of Fajja, two years prior to the occurrence and had not restored her.
3. Aforementioned accused persons took Ghulam Muhammad P.W. To the house of Bashir son of Sohna. Ibrahim son of Fajja, Muhammad Shafi and Bashir son of Barkat also came there. Sadiq accused was armed with hatchet and the others had Dangs. They caused injuries to Ghulam Muhammad P.W. With their weapons. Sadiq accused exhorted his co-accused to kill him while the others proposed that his eyes should be gouged out. Then Bashir, Ismail and Muhammad Shafi held him by his arms, Muhammad Ali and Bashir son of Barkat held his legs, Ibrahim sat on his thighs and Sadiq held his head. Bashir son of Sohna removed both his eyes with a knife. Thereafter all the accused put him on a cot.
' On 3rd September, 1976 Bashir Ahmad complainant met Muhammad Ashraf Sub-Inspector in the IIlaqa and at 4-30 p.m. Reported the incident of the abduction of Ghulam Muhammad vide his statement Exh. P.A. On the basis of which formal F.I.R. Exh. P.A/1 was recorded at the police station.
On the same day the Sub-Inspector visited the house of Bashir son of Sohna. He prepared the injury statement Exh. P.F. Of Ghulam Muhammad P.W. And sent him for medical examination. Bashir, Sadiq and Ismail accused were arrested on 14th September, 1976. On the same day Bashir son of Sohna led to the recovery of knife (P.1). After the investigation the accused persons were challaned.
3. On 3rd September, 1976 Dr. Nasrullah Khan, Medical Officer, Mayo Hospital, Lahore, examined Ghulam Muhammad P.W. And found the following injuries on his person:-
(1) Multiple stabs on left orbital region involving both the eye lids and going into interior of right eye with eye ball missing.
(2) Multiple stabs on left orbital region involving both the eye lids and going into eye with eye ball present. The patient complained of loss of vision.
(3) Contused swelling 4" x 3" on back of right elbow and proximal part of right forearm on its back.
(4) Contused swelling on back of right hard.
(5) Contusion 3" x 3" on posterior fold of left axilla, reddish in colour.
(6) Contusion 2" x 1" on back of right forearm at about its middle.
(7) Incised wound 4" x 1" front of left leg about 2" below the knee joint.
(8) Incised wounds which are three in number on front of about the middle of left leg each 4" x 3/4" in going into muscle.
(9) Contusion 4" x 1" on right buttock with bluish hue.
(10) Contusion 4" x 1" on upper and lateral aspect of right thigh reddish in colour.
(11) Two contusions on lateral aspect of lower part of right thigh reddish in colour.
(12) Incised wound 4" x 1" on front of right leg about 4" below tibial tubercle. It was deep to substaneous tissues.
(13) Multiple contusion of lateral aspect of right elbow and upper part of forearm right left.
' Injury No,1 was declared grievous Nos. 2, 3, 4, 7 and 8 were kept under observation and the rest were simple. Injuries No, 1, 2, 7, 8 and 12 were caused by sharp-edged weapon and the rest with blunt weapon.
5. In support of its case the prosecution examined ten witnesses in all. It also relied on the evidence relating to motive and recovery of knife at the instance of Bashir son of Sohna.
6. The appellants pleaded not guilty to the charge. They admitted that they were closely related to each other. They also admitted that Ghulam Muhammad P.W. Had abducted Mst. Shaeedan sister of Ismail and Ibrahim and that she was staying with him. They denied all other allegations and contended that they had been falsely implicated. They examined Ata Muhammad and Muhammad Ali as defence witnesses. Ata Muhammad D.W. Stated that Bashir Ahmad complainant, Ghulam Muhammad and Amir Ali were not present in the Mela, Hasan Christian, Ibrahim Gujjar and Rafiq were arrested by the police on the allegation that they had removed the eyes of Ghulam Muhammad P.W. And 60/70 persons had appeared before the police to plead innocence for the accused persons. He further stated that Ghulam Muhammad and Amir Ali P.Ws were habitual thieves.
' Muhammad Ali D.W. Stated that no one had abducted Ghulam Muhammad in h,is presence from the Mela; on the next day he had learnt that the eyes of Ghulam Muhammad P.W. Had been removed; Hasan Christian, Ibrahim Gujjar and Rafiq were arrested by the police but were subsequently released.
7. The trial Magistrate accepted the prosecution evidence and convicted and sentenced the appellants as mentioned above.
8. The learned counsel for the appellants contended that the F.I.R. Was lodged 21 hours after the alleged abduction and, thus, sufficient time was gained to build up a story. They submitted that Ghulam Muhammad is Inimically disposed of towards the accused persons, therefore, his solitary statement regarding the main occurrence in which he was injured, is not sufficient to warrant the conviction. They further argued that Karam Din is the uncle of Ghulam Muhammad P.W. While Bashir and Amir are his friends, therefore, their evidence regarding the charge of abduction cannot be accepted unless corroborated from an unimpeachable source. They assailed the evidence relating to the recovery on the ground that the knife allegedly recovered at the instance of Bashir son of Sohna was not produced in Court.
9. Ghulam Muhammad injured P.W. Was abducted from the Mela on 2-9-1976 at 8/9 p.m. And the occurrence was reported to the police on the next day at 4-30 p.m. There is, thus, a delay of about 20 hours in reporting the incident of abduction. However, in this case it cannot be said that the F.I.R.
Was deliberately delayed to gain time so as to build up a story. Had it been so, the names of seven accused and the main occurrence in which the unfortunate victim lost both his eyes would have been incorporated in the F.I.R. In the circumstances, the delay in reporting the occurrence is of no consequence.
10. Bashir Ahmad complainant, Ghulam Muhammad, Karam Din and Amir All P.Ws supported the prosecution version regarding the abduction of Ghulam Muhammad P.W. By Sadiq, Ismail, Muhammad All and Bashir son of Sohna accused. Except Bashir son of Sohna, who removed the eyes of Ghulam Muhammad P.W. The conviction of all other accused under section 326, P.P.C.
Suffers from a legal defect. Ghulam Muhammad P.W. Stated that Sadiq was armed with a hatchet and others had Dangs. Sadiq gave a hatchet blow on his legs and Dang blows were given on his arms, buttocks and thighs. He further stated that Bashir, Ismail and Shafi held him by the arms, Muhammad Ali and Bashir secured his legs, Ibrahim sat on his thighs and Sadiq held his head. He was confronted with his statement under section 161, Cr.P.C. Wherein it was not so recorded. The accused other than Bashir son of Sohna were not charged for being members of an unlawful assembly nor for having committed the assault in prosecution of the common object of any unlawful assembly, therefore, they cannot be held vicariously liable for the act of the principal accused. I, however, do not consider it proper to order a retrial for the reasons that the occurrence took place in the year 1976; Ismail, Ibrahim and Sadiq accused are in jail ever since their conviction and Muhammad Ali alias Manna, Shafi and Bashir son of Barkat remained in jail for two years and ten months each after their conviction. Furthermore, the prosecution evidence against the accused other than Bashir son of Sohna is not sufficient to warrant their conviction. Ghulam Muhammad P.W. Is the only witness of the main occurrence in which his eyes were removed. He is originally. a resident of the village of the accused, known as Sheikh-da-Kot. He is a person of questionable antecedents. He was involved in a theft case and was openly keeping Mst. Shadeen who was married to a relative of the accused persons. He shifted to village Jia Bagga after abducting aforesaid Mst. Sheedan. It is evident that the relations between the parties were strained due to the abduction of the aforesaid woman. His evidence against the accused who are very closely related inter se, can be accepted only if corroborted from an unimpeachable source.
11. Ghulam Muhammad P.W. Denied having stated before the police that Ismail son of Fajja, had left the house of the accused after leaving him there and thereafter the remaining accused removed his eyes. He was confronted with his statement before the police wherein it was so recorded. He also denied having stated before the police that Ibrahim son of Karam Elahi was already in the house of the accused when he was brought there. He was confronted with his statement before the police wherein it was so recorded. He denied the suggestion that Ibrahim son of Fajja was substituted for Ibrahim son of Karam Elahi. He, however, admitted that initially Ibrahim, son .Of Karam Elahi was an accused in this case but was discharged. Muhammad Sadiq, A.S.I., stated that Ibrahim son of Karam Elahi was discharged and Ibrahim, son of Fajja, was arrested in this case on 25th November, 1976. In the circusmtances, the participation of Ibrahim and Ismail in the assault seems to be doubtful.
It is evident that an assault of this type was not possible by a single assailant and more than one persons must have participated. However, in view of the background of enmity, possibility of false implication of one or some of the accused cannot be ruled out. There is no corroborative evidence against the accused other than Bashir son of Sohna and uncorroborated solitary statement of Ghulam Muhammad P.W. Is not sufficient to wa'rrant their conviction.
12. The case of Bashir son of Sohna, however, stands on a different footing. According to the prosecution, he removed both the eyes of Ghulam Muhammad P.W. Ghulam Muhammad P.W. Had no special reason to attribute this act to him. Bashir Ahmed complainant stated that when the police reached the village, the villagers informed the Sub-Inspector hat Ghulam Muhammad was lying in the house of Bashir son of Sohna. He accompanied the police to the house of aforesaid Bashir and founu Ghulam Muhammad lying injured on a cot. The Sub-Inspector recorded his statement and sent him to the hospital. This statement was not seriously challenged by the defence. Presence of Ghulam Muhammad P.W.In the house of Bashir son of Sohna in injured condition is a very strong circumstance against the aforesaid accused. In the circumstances, I am satisfied that he has been rightly convicted under section 326, P.P.C.
13. During arguments the learned counsel for the appellants did not touch the defence evidence, obviously for the reason that the same is worthless. Muhammad All D.W. Stated that he joined the investigation and told the police that he had no knowledge about this occurrence. Ata Muhammad D.W. Is an arch-liar. He categorically denied the suggestion that Mst. Reshman, Sister of Ibrahim and Ismail, was the wife of his brother Bagh Ali and expressed ignorance if their sister was named as Mst. Reshman. Muhammad Ali D.W., however, admitted this fact. The defence evidence, therefore, does not deserve any credence and is rejected.
13. For the foregoing reasons, the conviction and sentence of all the appellants under section 365, P.P.C. Is set aside. The conviction and sentence of Ibrahim, Ismail, Sadiq, Muhammad Ali alias Manna, Shafi and Bashir son of Barkat, appellants, under section 326, P.P.C. Is set aside and they are acquitted of that charge. Muhammad All alias Manna, Muhammad Shafi and Bashir son of Barkat are on bail. They shall be discharged from their bail bonds. Ismail, Ibrahim and Sadiq appellants shall be set at liberty forthwith if not required to be detained in any other case.
The conviction and sentence (rigorous imprisonment for seven years and a fine of Rs, 5,000) of Bashir son of Sohna appellant under section 326, P.P.C. Is maintained. In default of payment of fine he will undergo further rigorous imprisonment for one year. The fine, if recovered, shall be paid to Ghulam Muhammad injured P.W. As compensation. Bashir son of Sohna appellant is on bail. He shall be re-arrested and re-committed to jail to serve out the unexpired portion of his sentence.
The appeal stands disposed of accordingly.