The three appellants were convicted under section 307/34, P. P. C. and were sentenced to seven years' rigorous imprison ment each by Mr. Murtaza Beg Birlas, Magistrate with powers under Section 30 of the Code of Criminal Procedure, at Gujrat. Ilyas and Ijaz appellants are brothers inter se and lftikhar is their khalazad. Ali, the father of Ilyas and Ijaz, who also arraigned at the trial but was acquitted. [8] beaten Ijaz and a case under section 307, P. P. C. had been registered against them. Sultan had been bailed out about a week before the occurrence, which took place on 28th of August 1967, at 7 a. m. The parties are residents of Chak Jani, Police Station Dinga in the District of Gujrat.
3. The case for the prosecution is that Sultan P. W. was bringing donkey loads of bricks from the brick-kiln of Muhammad Husain of Dinga. He was accompanied by Sher Muhammad alias Shera his sister's husband who appeared at the trial as P. W.
2. Rehmat Kumhar (P. W. 8) was driving the donkeys a little ahead of Sultan and Sher Muhammad P. W. was also with Rehmat. When Sultan P.
W. reached near the shop of one Phalla Mochi, the three appellants and their co-accused Ali came out and surrounded Sultan. The three appellants were armed with dangs while Ali was empty- handed and was inciting the three youngs to beat Sultan. All the three appellants made a concerted attack on Sultan with the result that he got about twenty injuries out of which Nos. 8, 11 and 16 were grievous. Injuries Nos. 8 and 11 had resulted in the fracture of radius and ulna bones of the right and left arms and injury No. 16 had resulted in the fracture of the tibia and febula bones of the leg.
4. The case was registered on the statement Exh. P. A. made by Sultan P. W. in Hospital at Kharian and recorded by S. I. Hashmat Ali Khan of Police Station Dinga at 6 p. m. It appears from the evidence of Rehmat son of Dhalla (P. W. 4) that the injured person was first taken to the Dinga Hospital, but as the doctor was not there he was carried to Kharian Hospital.
5. The prosecution produced eight eye-witnesses at the trial. Out of them, Muhammad Fazil (P. W.
5), Ghulam Ali (P. W. 7), Mirza (P. W. 9) and Nur Ahmad (P. W. 10) were not named in the first information report. Muhammad Fazil (P. W. 5), Rehmat son of Taja (P. W. 6), Ghulam Ali (P. W. 7) and Rehmat son of Pola Kumbar (P. W. 8) who is said to be driving the donkeys at the time of the occurrence did not support the prosecution case. They disowned any knowledge about the incident. Sultan P. W., the injured person, his brother-in-law Sher Muhammad alias Shera (P. W. 3), Mirza (P. W. 9) and Nur Ahmad (P. W. 10), however, fully supported the prosecution case.
6. The learned counsel for the appellants submits that Mirza (P. W. 9) and Nur Ahmad (P. W. 10) were not named in the first information report and were subsequently introduced as prosecu tion witnesses in order to supplement the prosecution story. He further submits that if we exclude the testimony of Mirza (P. W. 9) and Nur Ahmad (P. W. 10) then the support for the prosecution case comes from the testimony of Sultan, the injured person, and his sister's husband Sher Muhammad.
It is submitted that Sultan and Sher Muhammad are interested witnesses and their testimony cannot be acted upon without any corroboration. The learned counsel also submits that the offence, if any, made out is under section 525, P. P. C.
7. In acting upon the testimony of Mirza and Nur Ahmad (P. Ws. 9 and 10 respectively), the learned Magistrate was influenc ed by the observations made by the Karachi Bench in the case of All Khan and another v. The State (1). The weight of the evidence of a person, who was not named in the first information report, is to be determined on the facts of each case. In the Karachi case, the witness who had not been named in the F. I. R, had claimed to have seen the occurrence before the first informant. Their Lordships on this basis came to the conclusion . that the first informant could not have known that that witness 4 had seen the occurrence. In the case before me, the two witnesses who were later on introduced, had claimed that they had seen the occurrence and they had raised hue and cry. The first informant could not have failed to notice them if they were present at the spot. I, therefore, hold that probability is there that Mirza and Nur Ahmad had not seen the occurrence.
8. There is no denying that Sultan is an interested witness and Sher Muhammad alias Shera closely related to him. There are, however, some circumstances in this case which suggest that both Sultan and Sher Muhammad are witnesses of truth. In the first instance they have not attributed any part to Ali, the father of Ilyas and Ijaz appellants. The number of injuries in this case is consistent with the participation of three persons in the commission of the offence. The nature and dimension of the injuries also show that lathi blows were showered at Sultan P. W. In my view, therefore, corroboration of the statements of Sultan and Sher Muhammad is coming forth from the circumstances of this case. So far as they are concerned, they were rightly believed by the trial Court.
9. The next question is as to what offence had been commit ted by the appellants. The learned Magistrate was influenced by the number of injuries in coming to the conclusion that they had made a murderous assault on Sultan, as described in section 307, P. P. C., although he also observed that ordinarily simple and grievous injuries on non-vital parts of the body seldom cause death. If two inferences are possible from the facts of a case, the Court will ordinarily draw an inference which is favourable to the accused. It appears from the judgment that the learned Magist rate was himself not firmly convinced that the case fell within the purview of section 307, P. P.
C. The contention of the learned counsel that the offence more appropriately fell within the purview of section 325, P. P. C. has, therefore, some force. I, therefore, find that the appellants were rightly held guilty but alter their conviction from section 307/34 to that under section 325/34, P. P. C. I