' This appeal is directed against the judgment, dated 22-11-1983 delivered by a Magistrate with section 30 Power at Jauharabad, whereby the appellants Muhammad Munir s/o Ramzan and Muhammad Saleem son of Ghulam Qadir were convicted on charges under sections 326/324 read with section 34, P.P.C. The appellants were sentenced to undergo 3 years' R.I. On charge under section 326, P.P.0 and 2 years' R.I. On charge under section 324 read with section 34, P.P.C. The sentences were ordered to run concurrently.
2. The occurrence resulting into the infliction of the injury on the person of the complainant namely Muhammad Khan, took place on 7-6-1982 at 7-30 a.m. In the field of the complainant in village Roda within the jurisdiction of Police Station Mitha Tiwana situated at a distance of 12 miles from the aforesaid Police Station. The first information repot was lodged at Police Station Mitha Tiwana by the complainant Muhammad Khan at 7-15 p.m. On the day of occurrence, which was recorded by Muhammad Sharif A.S.I. P.W.1. The occurrence as reported in the F.I.R. By the complainant took place while he was looking after his sheep in field. The complainant stated that Munir appellant armed with a knife while Saleem appellant empty-handed appeared in the field and challenged him. The appellants raised Lalkara that they had come to avenge the abduction of Mst. Amina Bibi.
It was stated in the F.I.R. That Saleem appellant held the complainant in Japha while Munir appellant caused a knife blow on the nose of the complainant causing injury to his nose. The complainant further stated that he tried to snatch the knife from the accused on account of which the middle finger of his right hand and a finger of the left hand were injured. The complainant further stated that alarm raised by him attracted Mst. Dolat Khatoon his daughter P.W.3 and one Wadhaya Khan (not produced) who were cutting fodder in the nearby field. It was further stated that eye-witnesses begged assailants to release the complainant and thus the complainant was rescued. Thereafter the complainant proceeded to Civil Hospital, Mitha Tiwana and got him medically examined and then reported the occurrence at the Police Station, which led to the registration of the case against the appellants.
3. The motive for the commission of crime as stated in the F.I.R. Is that, two years before Nazar Muhammad a son of the complainant had abducted the sister of the appellant Muhammad Saleem and on account of the said occurrence the complainant was assaulted.
4. During the investigation the appellants were arrested and knife was recovered from the appellant Muhammad Munir, on account of which another case under the Arms Ordinance was registered against Munir appellant.
5. At the trial the prosecution in support of its case produced Muhammad Khan the complainant and his daughter Mst. Dolat Khatoon as P.W.2 and 3, respectively. Dr. Asghar Nawaz, Medical Officer who examined the complainant entered witness-box as P.W.4. The statement of Muhammad Khan P.W.2 and his daughter Mst. Dolat Khatoon P.W.3 fully supported the prosecution version. Despite the lengthy cross-examination, the defence was unable to shake them. The learned counsel appearing in support of the appellants raised the following contentions:-
(a) That the F.I.R. Was lodged with considerable delay while the place of occurrence is confiected with the police station through a mettled road such delay casts doubt upon the prosecution case.
(b) That Munir appellant had cut the nose of the complainant and the F.I.R. Is silent as to the cutting of nose.
(c) That the complainant was successful to get a false case registered against the appellants in league with the police, and the police had not gone at the spot.
(d) That the injury is not grievous but simple and therefore, the conviction under section 326, P.P.C.
Is unsustainable.
(e) That the site plan was prepared in the Police Station and the presence of the witness in the site plan has not been indicated.
(f) That no evidence as to the recovery of knife was brought on the record and therefore, the alleged recovery of knife which was made basis of the case in the Arms Ordinance stands falsified.
(g) That no independent witness has been produced by the prosecution to substantiate its case.
6. I have considered all these contentions and have perused the entire record carefully. None of these contentions has any force. The complainant had in the first instance gone to the hospital, because of the injury on his nose. The visit to the hospital instead of Police Station is not unnatural and the delay has, therefore, satisfactorily explained. The description of injury clearly shows that the complainant was disfigured, as nostril of the complainant was cut and therefore the injury caused, clearly falls within the purview of the definition of the grievous injury. The failure on the complainant to mention in the F.I.R. That the nose was cut does not effect the prosecution case. In the F.I.R. It has been clearly stated that the appellant Munir had caused injury on the nose of the complainant. Hence this contention has also no force. Not a single good reason was advanced to show the male fides on the part of the police to involve the appellants in a false case. I am therefore, not convinced by the arguments of the learned counsel that the police had transgressed its limits in registering the case against the appellant.
7. As far as the criticism of the site plan prepared by the Investigating Officer is concerned, the contention has no force, inasmuch as, the site plan considered as substance evidence, therefore, the contention is repelled. To conclude the prosecution has proved its case beyond the shadow of any doubt.
8. However, I have noticed that the appellants could not have been convicted both under sections 326 and 324 as well. The principles of law contained in section 71 of the P.P.C. Prohibits to follow the course of action as adopted by the trial Court.
9. In this view of the matter, I would set aside the conviction of the sentence recorded by the trial Magistrate under section 324, P.P.C. Against the appellants, and this appeal is accepted to this extent only. However, the conviction recorded under section 326/34, P.P.C. Is not open to exception.
Already a lenient view has been taken and the sentence awarded is legal and does not call for any interference by this Court.
10. Upshot of the entire discussion is that the conviction under section 324, P.P.C. Is set aside while the conviction under section 326, P.P.C. As awarded by the trial Court is hereby maintained.
11. With these observations this appeal is disposed of.