The petitioner in this case was convicted under section 307 of the Pakistan Penal Code on two counts for making a murderous assault on Mst. Aisha (P. W. 1) and her husband Rasul Bakhsh (P. W.
2). He has sentenced to three years'rigorous imprisonment and a fine of Rs. 300 so far as murderous assault on Mst. Aisha is concerned. He was sentenced to three years' R. I. and a fine of Rs. 200 so far as Rasul Bakhsh is concerned. The sentences of imprisonment in both the cases were ordered to run concurrently. In default of payment of fine in each case, the petitioner was ordered to undergo further rigorous imprisonment for six months.
2. The occurrence took place at about midnight on 27th of March 1967. The report Exh. P. A. was lodged by Mst. Aisha (P. W. 1) at Police Station Khanpur at 5-15 a.m. and was recorded by A. S. I.
Muhammad Ahmad (P. W. 11).
3. The story of the prosecution is that the petitioner was an employee of Rasul Bakhsh P. W. as a tonga driver. He was living with Rasul Bakhsh. During his stay he made indecent overtures to his wife Mst. Aisha who reported the matter to her husband. The petitioner was dismissed from service about 10 or l2 days before, the occurrence. On the night of the occurrence fie entered the house of Rasul Bakhsh and on the point of a knife asked Mst. Aisha to accompany him.
On her refusal he inflicted injuries on her with a knife. Rasul Bakhsh got up and while resisting he also received injuries. Meanwhile, Abdul Malik a sister's son of Rasul Bakhsh P. W. came to the spot along with Ahmad Ali a maternal cousin of Abdul Malik and Sadiq (P. W. 5) a collateral of Abdul Malik. Qasim (P. W. 9) was also attracted to the spot. The petitioner gave one blow to Mst. Aisha in the presence of Abdul Malik etc., when he was apprehended by these persons along with the knife with which he was inflicting injuries. Rasul Bakhsh was lying on the ground while Mst. Aisha was lying injured on her cot. Muhammad Bakhsh Lambardar (P. W. 3) was informed about the incident and he accompanied Mst. Aisha and Rasul Bakhsh to the police station. Qasim (P. W. 9) was also with them. It was stated in the F. I. R. that Muhammad Nawaz petitioner was being held by the witnesses at the spot. The A. S. I. reached the spot and took blood-stained earth into possession.
Knife Exh. P. 1 was produced before him by Abdul Malik which was taken into possession. 1 find from the cross-examination of Muhammad Ahmad, A. S. I. that he arrested Muhammad Nawaz petitioner from the house of Rasul Bakhsh.
4. At the trial, the prosecution produced Mst. Aisha (P. W. 1), Rasul Bakhsh (P. W. 2), Abdul Malik (P. W.
4), Muhammad Sadiq (P. W. 5), Mst. Sardaran (P. W. 8) and Muhammad Qasim (P. W. 9) as witnesses of the occurrence. As stated earlier, Abdul Malik stated that when he reached the spot he saw Mst. Aisha being given the last blow by the petitioner. Mst. Sardaran is the sister of Rasul Bakhsh and is residing with him. When she came out the petitioner was being held by the witnesses. She was told that the petitioner had inflicted injuries on her brother and his wife. Abdul Malik stated that he held Muhammad Nawaz along with his knife and produced him before Muhammad Bakhsh Lambardar (P. W. 3) and then came back. Muhammad Sadiq (P. W. 5) was attracted to the spot after hearing the noise from the house of Rasul Bakhsh. He saw Abdul Malik and Ahmad Ali, who has not been examined, in the house. Abdul Malik was holding the petitioner and was trying to snatch the knife from his hand. The petitioner resisted and received an injury on his hand. Muhammad Qasim stated that the petitioner was employed as a tonga driver with Rasul Bakhsh. He went to the spot after hearing the noise and saw Abdul Malik, Sadiq aud Ahmad Ali holding the petitioner. Abdul Malik snatched the knife from the petitioner.
5. The petitioner took the stand at the trial that he had been falsely involved in the case. He produced five defence witnesses. The first witness for defence Muhammad Akhter stated that he was attracted to the house of Mst. Aisha during the night of the occurrence as he had heard an outcry from that place. He did not see anybody injured, at the spot. The petitioner was present there and Rasul Bakhsh and his relatives said that lawaz had inflicted the injuries. D. Ws. 2 to 4 i.e., Hashmat Ali, ahim Bakhsh and Muhammad Shaft stated that one night they eard noise from the house of Rasul Bakhsh and found Rasul [Vol. V Bakhsh and Mst, Aisha quarrelling with each other. The petitioner was not there and Rasul Bakhsh was insinuating that Mst. Aisha was carrying on with Muhammad Nawaz petitioner. Ismail (D. W. 5) stated that on the day of the last Eedul Azha the petitioner came to him. At about midnight four persons came and took him away saying that there had been a quarrel in Makra Basti and that he should go there. Later on this witness learnt that the petitioner had been involved in a case. The Courts below rejected this defence plea.
6. Mr. Qaiser Mahmood Shaft, the learned counsel appearing for the petitioner has submitted that there was inordinate delay in lodging the F. I. R. which has remained unexplained; that the circumstances of the case indicate that the F. I. R. was recorded at the spot and that the petitioner was not apprehended from the house of Rasul Bakhsh as has been alleged by the prosecution. The learned counsel also points out that it is not the case of the prosecution that the knife which had been recovered from the petitioner by Abdul Malik was stained with blood. He, therefore, urges that the entire case is doubtful and the petitioner is entitled to the benefit of doubt.
7. The occurrence took place at about midnight or some time after that. The distance between the place of occurrence and the police station is two miles. It is the own case of the prosecution that tonga was available to the complainant party for going to the police station. No question was, however, put to any prosecution witness asking for explanation of this delay. It is, therefore, not possible for me to say as to what were the reasons for this obvious delay in lodging the F. I. R.
8. In support of the contention that the F. I. R. was recorded at the spot, the learned counsel has referred to the statement of Muhammad Sadiq (P. W. 5) who stated that the police had arrived at the spot after two or two and a half hours of the incident and had taken down the statement of Abdul Malik. They had also taken down the statements of Mst. Aisha and Rasul Bakhsh who were present in the house and were thereafter sent to the hospital for treatment. The case as unfolded in the F. I. R. is that the injured persons after recording the F.
1. R. in the police station were sent to the hospital. Abdul Malik claimed to have accompanied the injured persons to the hospital. He stated that the police station fell in the way. He further stated that the statement of Mst. Aisha was recorded in the hospital. The version given by these two persons is against the case of the prosecution as contained in the first information report. The contention of the learned counsel that the F. I. R. may have been recorded at the spot, therefore, has some force.
9. The circumstances of the arrest of the petitioner arc also not very clear. According to Muhammad Sadiq and Abdul Malik P. Ws. the petitioner after his arrest was taken to the house of Muhammad Bakhsh Lambardar and was handed over to him along with the knife. It appears from' the statement of Muhammad Sadiq that Muhammad Bakhsh had taken the petitioner to the police station but had brought him back and produced him before the A. S. I. when the police arrived at the spot. If the petitioner had been produced before Muhammad Bakhsh Lambardar, before he proceeded with Mst. Aisha for lodging the F. I. R., the natural course of action for him would have been to take the petitioner along with him to the police station. The Assistant Sub-Inspector in that event must have arrested him in the police station. The story that the petitioner was arrested at the spot and then produced before Muhammad Bakhsh does not fit in with the probabilities of the case. If Muhammad Bakhsh had any information before his departure for the police station that the petitioner had been caught hold of by the witnesses he would have certainly taken him away to the police station. The A. S. I. stated in cross-examination that he arrested the petitioner from the spot but he does not name the person in whose custody he was found at that time. The possibility, therefore, cannot be excluded that the petitioner was first named as an assailant and was then arrested under circumstances which remain undisclosed.
10. Strangely enough, the memo, by which the knife was taken into possession does not mention that the knife was bloodstained. According to the memo, it was Abdul Malik P. W. who produced this knife but Abdul Malik does not at all refer to the production of the knife.
11. In view of the above discussion, we cannot rely on the F. I. R. as a piece of evidence in this case, and lt does appeal that there was some pre-deliberation before lodging the F. I. R. It having been further found that the circumstances regarding the arrest of the petitioner and his production before the A. S. I. being not key clean it will not be safe to rely on the evidence of Abdul Malik, Muhammad Sadiq, Mst. Sardaran and Muhammad Qasim. Mst. Sardaran who was an inmate of the house and a natural witness does not claim that she saw anybody inflicting injuries on Mst, Aisha or Rasul Bakhsh. It is also in evidence that there are six jfiuggis in close proximity to the house of the injured persons but none of the residents of these jhuggis had been produced as a witness.
12. It is, however, not possible to reject the testimony of Mst. Aisha or Rasul Bakhsh. There is only one assailant in this case and since there was a light burning in the house, they were in a position to identify their assailant who had been their employee. There does not appear to be any indication on the record that they had any motive toinvolve the petitioner falsely. The learned counsel pointed out that Rasul Bakhsh's testimony should not be believed because according to the doctor there were two lacerated wounds on his body which had been caused by blunt weapon, whereas the claim of Rasul Bakhsh was that he had been injured with a knife. The doctor was not cross- examined on this aspect of the case at all. I would rather prefer the direct testimony of the injured person himself than the tentative opinion of the doctor. I may refer to Mody's Medical^ Jurisprudence, 14th dition (1963). The lacerated wounds have been dealt with t page 225 and we find at page 228 that a lacerated wound can e caused by a cutting weapon.
13. As a result of the above discussion, I find that the petitioner was rightly convicted on both counts. There were nine incised wounds on the body of Mst. Aisha and three wounds on the body of Rasu 1 Bakhsh. The sentence of three years on each count which has to run concurrently, is not excessive in the circumstances of the case. I, however, find that. the petitioner is a poor man and may not be in a position to pay the fine. I, therefore, remit the sentence of fine. The revision petition is decided accordingly. .