This appeal under section 410, Cr. P. C. Is directed against the Judgment of Mr. Mirza Arshad Beg, Additional Sessions Judge, Sukkur dated 27-1-1970, whereby he tried and convicted the present appellants for offences under section 326 read with section 34, P. P. C. And sentenced to four years'
R. I. Each and a fine of Rs. 500 each and in default of fine further six months' R.I. They were further sentenced to one year's R.I. Under section 324/34, P. P. C. It may be noted that there were three other persons who were tried along with the present appellants for the above offence. They were, however, acquitted by the trial Judge by the same judgment.
2. The prosecution case briefly is that on 27-6-1968 while Muhammad Ali, the injured person was grazing his sheep, about a furlong's distance from his hut, his father Qabool who was grazing his goats in the nearby jungle heard cries and incidentally at the very moment Mst. Nazul, mother of Muhammad Ali had also brought breakfast for Muhammad All. She heard also the cries and both father and mother, who were prosecution eye-witnesses rushed to the scene and found their son unconscious, his nose was chopped off and lying injured. P. W. 1 Qabool who is the first informant and father of the injured, went to the Police Station Ghotki and filed an F.I.R. At about 10-30 a. m., wherein he stated that he and his son who was grazing sheep in the morning when Mst. Nazul brought breakfast for them and they started eating the breakfast, meanwhile 7 persons including the appellants, out of them. Malook and Dargahi were armed with pistols, Banho with gun, Nawaz with hatchet while others with lathis and sticks arriving gave hakkal to Muhammad Ali, as none shall escape. Muhammad Ali tried to escape but they encircled him and over--powered him.
Nawazo chopped off his nose with hatchet and others gave lathis blows on the other portion of his body. They raised cries but in vain as nobody was present in the near surroundings the accused- appellants thereafter, ran swa y. He stated in the F.I. R. That the accused party robbed his son Muhammad Ali after giving him injuries of about Rs. 1,100 in currency notes of Rs. 100 each. He showed the motive of this offence as the accused party about a fortnight ago had suspected his son to be on illicit terms with Mst. Muradi wife of Dodo on account of which they chopped off his nose and robbed of his money as well. P. W. 4 Arbab Ali, A. S. I. After recording the F. I. R. Went to the place of vardat at 3 miles distance from the Police Station and stated that he had seen Muhammad Ali and his mother Mst. Nazul. Muhammad Ali was in his senses, his nose was chopped off and it was bleeding but no mashirnama of vardat was prepared by him. He recorded statement of Muhammad Ali and Mst. Nazul and thereafter, sent the injured person to hospital Ghotki for treatment and certificate. On 29-6-1968 he arrested accused Dargahi, Dostali, Banhon, Dodo and Khawanbux and on 6-7-1968 he arrested accused Malook. In his cross-examination this witness stated that P. W. Nazul had not stated before him, about the sodomy affair committed by the accused on her son Muhammad Ali, nor Muhammad Ali has told him with regard to sodomy.
3. In this case there are only three eye-witnesses, these are informant P.W. Qabool Khan, father of the injured person, P.W. 2 Muhammad Ali, the injured person himself and P. W. 3 Mst. Nazul, mother of the injured person.
4. I have heard Mr. A. S. Pirzada, Advocate for the appellants and Mr. S. Nasiruddin, Advocate for the State. It was pointed out by counsel for the appellants that there are material contradictions in the statement of the three eye-witnesses, who are closely related to each other, whose statements may not be believed in absence of independent corroboration, which is lacking in this case. It was also argued that the statement of P. W. 1 Qabool may not be believed because his statement before the trial Court is entirely different than the F. I. R. In his statement before the trial Court he has added other allegations of sodomy alleged to have been committed on his son by the appellant party while the F. I.R. Is silent on this point. Secondly, this witness was not present at the time of vardat, it was argued and he has not seen any of the accused persons, not only this, be has attempted to falsely implicate as many persons as he could and in fact he did implicate 7 persons out of which three were acquitted by trial Court. I find sufficient force in the arguments of the learned counsel for the appellants and disbelieve this witness who in his statement before the trial Court has falsely alleged that sodomy was committed also on his son by the appellants party after chopping off his nose and that also in his statement he claimed his presence along with his wife Mst. Nazul at the vardat. It appears to me quite illogical that the accused persons, alleged to be 7 persons would commit sodomy as well as chop off the nose of Muhammad Ali, the injured, and that in presence of other persona. It appears that this witness tried his beat to implicate the appellants party by whatsoever false allegations, he could imagine. He in fact was not present at the scene at all and in his cross-examination he states that has not seen the accused giving injuries to his son while in the examination-in-chief and F.I. R. He states that offences wer0 Committed in his presence.
5. Now I come to the statement of P. W. 2 Muhammad Ali, the injured person. Ho also implicates all the 7 persons and states that they have given lathi injuries and committed sodomy. Sodomy is supposed to have been committed according to him by appellants Banhon and Dargahi on him and thereafter he was caught and Nawazo cut off his nose with hatchet. He raised cries and then he went unconscious and he gained consciousness in the hospital about 6-7 days after the incident. The motive he gave of his being suspected on illicit terms with Mst. Muradi wife of Dodo.
He states that at the time of incident he was one furlong from his father i.e. P. W. 1 Qabool and he was taking meal at that time no other person was grazing nearby, his mother however, was present as she had brought meal for him and he had told the police about sodomy affairs, he however contradicted the state--ment made before the Court below with regard to committing sodomy on him, which fact he has not stated but he asserted before the trial Court that he did state that. In his examination---in-chief he says that his nose was chopped off with the hatchet while in cross-examination he says that it was chopped off with knife and he was not in his senses.
Story of this witness is materially contrary to the statement of his father P. W. Qabool. This witness does not say that his father was present, on the other hand he states that he soon got unconscious and he regained consciousness after 6-7 days and that also in the hospital. The story of sodomy it looks, was put in the mouth of this witness later on by his father P. W. Qabool, as he did not state anything about this affair before the Investigating Police Officer, but later on added this fact before the trial Court ; nor this witness says anything about robbery of the money from him by the appellants party as alleged by his father P. W. Qabool. It is clear that this witness-was influenced and misguided by his father P. W. Qabool who at any cost wanted to implicate the appellants party, even to the extent of bringing false charges unsupported by any evidence against them.
Therefore, I do not attach any value to the state--ment of this witness either. The next eye-witness is Mst. Nazul, the mother of the injured Muhammad Ali. Unfortunately this witness has also been influenced by her husband P. W. Qabool. She claims to be present at the vardat when 7 accused persons came and chopped off the nose of her son as well as committed sodomy in her presence while she was tied up. This is impossible to believe as she does not give any motive of causing injuries to her son by the appellants party and admits that accused persons were related to her as they were nephews 9f `her husband. She does not say that P. W. Qabool was present and was eating meals with Muhammad Ali. In her examination-in-chief all she states is that she took meals for his son who was about to eat breakfast while 7 persons came there. In cross-examination she had to admit that she did not see her husband in the way with his cattle, although she had taken meals both of the con and husband and she used to take meals separately and she denied and stated before the police that her son and husband' were taking meals while her husband stated that they were not taking meals together. Then there is the evidence of Dr. Ghulam Hussain, Medical Officer Ghotki, District Sukkur, who had found 7 injuries after examining, Muhammad Ali and injury No. 1 was an incised wound about 3' cutting away the anterior 1/3rd portion of the nose, which was grievous and the rest were simple, and according to him injuries Nos. 1 and 2 were caused by some sharp cutting weapon such as razor, knife etc., and the rest with lathi.
6. One Jumo by caste Ghoto, who is of a different caste than the complainant party, was first cited as a prosecution witness but later on given up. He was examined as a defence witness No. 1, who stated that on the day of incident he was going to Tando, while passed village Ghazi Khan, he saw Muhammad Ali injured on the way, he was unconscious, his nose was cut and blood was coming from the injury. This witness went and informed his parents and brought the father of the injured, Qabool asked him to sit over the injured and himself went to lodge the report. This witness is specific in his examination-in-chief that none of the persons disclosed him the names of the culprits. Nothing has been brought out from statement of this witness in cross-examination by A. P .
P. To show that this witness either had not come to the scene or was making false statement. I believe the statement of this witness who has seen Muhammad Ali injured and informed and brought his father and mother later on to the scene of offence; therefore, P. Ws. Qabool and Mat.
Nazul, in my opinion, have not seen the appellants committing the crime as alleged.
7. In view of this highly contradictory and coloured evidence by the closely related persons of the injured against the appellants, Mr. Nasiruddin, the learned counsel for the State stated before m that this is a case of no evidence and the learned trial Judge has approached the case from wrong angle and he was not justified in convicting the appellants, benefit of doubt he submitted should be given to the appellants party. After going through the evidence of the case with the help of the counsel for the parties, I am of the opinion that this is one of those unfortunate cases where a father in his own zealousness went out of way to the extent of concocting a story against the appellants and he induced and influenced both P. Ws: Muhammad Ali, his son the injured person and Mst. Nazul his wife to support the false story built up by him, the story is full of contradictions and lapses. Otherwise had he left his son Muhammad Ali the injured to tell the natural truth, perhaps it could have been a case of conviction at least against some of the accused persons.
However, in the present state of the record and the learned counsel for the State not supporting the conviction, I give benefit of doubt to the appellants, set aside the judgment oil the trial Court dated 27- 1-1970 and acquit the appellants. The bail bonds if any stand cancelled.