' Muhammad Rafiq son of Ghulam Isa caste Arian aged 24/25 years resident of Mauza Laran (appellant) was tried alongwith one Muhammad Bilal son of Allah Bakhsh for having murderously assaulted Manzoor Ahmad PW in furtherance of their common intention by Khan Qudrat Ullah Tariq, Magistrate Section 30 (Judicial), Bahawalpur, who, vide judgment dated 11-1-1981, while acquitting Muhammad Bilal convicted Muhammad Rafiq under section 326, PPC and sentenced him to undergo 5 years' rigorous imprisonment and a fine of Rs,2,000/- and in default of payment of fine to undergo further rigorous imprisonment for 6 months. It was also directed that the amount of fine, if realised, shall be paid to Manzoor Ahmad, the injured PW, as compensation. Feeling aggrieved, Muhammad Rafiq has filed this appeal challenging both his conviction and sentence.
2. Briefly the facts are that appellant's cousin Mst. Aisha purchased some land in the village and Manzoor Ahmad (injured PW) got a suit of pre-emption instituted against her by his brother-in-law Suleman. The appellant asked him to get the suit withdrawn but he declined. At this the appellant felt annoyed. On the fateful day, i,e,, 13-12-1977, at 2-30 p.m., Manzoor Ahmad, injured (PW.5) went to see his cousin Rahim Bakhsh. In the way, he sat near Haqqani Canal with other PWs who met him there. In the meantime, the appellant and Bilal also arrived there. Rafiq, appellant, gave Kassi blow to Manzoor Ahmad hitting his forehead. Muhammad Bilal (acquitted accused) also attempted a hatchet blow but it did not land on his (Manzoor's) person. Manzoor Ahmad fell unconscious. This occurrence was witnessed by Abdul Majid, Rahim Bakhsh and Khuda Bakhsh PWs. In the meantime, Abdul Sattar, complainant, uncle of Manzoor Ahmad happened to come there and removed the injured to Police Station Naushehra Jadid, district Bahawalpur. He lodged F.I.R. Ex.PA there which was recorded at 5-50 p.m., by HC Ghulam Ghaus (PW.7). The injury was then sent to hospital for treatment.
3. Dr. Dilbar Hassan (PW.6) examined Manzoor Ahmad, the same day at 8-45 p.m., and found 5 injuries in all on his person, which included two blunt weapon simple injuries and three incised wounds described as injuries Nos.1, 2 and 5 of the following dimension:-
(1) An incised wound 5" x 1/6" bone deep starting from just above right eye-brow reaching left nostril. Bone below this wound was cut.
(2) An incised wound on the right side of nose 2(1/2) x 1/6" x bone deep starting from root of right side of nose going downwards cutting right nostril.
(3) An incised wound 1" x 1/6" x bone deep at the root of nose. In doctor's opinion the said injuries were grievous in nature of 8 hours duration.
4. ASI Sana Ullah (PW.8) arrested the appellant on 18-12-1977 who at that time produced Kassi P.1 which was seized vide memo Ex.PG attested by Muhammad Ashiq (PW.3). After completing the usual investigation the appellant as well as acquitted accused Muhammad Bilal were challaned to Court.
5. At the trial prosecution in support of its case examined 8 witnesses. From among the eye- witnesses, Rahim Bakhsh (PW.2) was declared hostile while Abdul Majid and Khuda Bakhsh were given up as being won over. Abdul Sattar (PW.1), the informant, as well as Manzoor Ahmad, PW.5 (injured), however, supported the prosecution. Muhammad Ashiq (PW.3) proved the recovery of Kassi P.1 from the appellant.
6. The appellant when examined under section 342, Cr.P.C. Controverted the allegation and explained that he had -been involved in the case due to enmity. He, however, examined 3 witnesses in his defence, namely, Abdul Majid D.W.1 (given-up P.W.), Ghulam Hussain (D.W.2) and Ilahi Bakhsh (D.W.3): Abdul Majid (D.W.1) stated that on the day of occurrence he saw that Manzoor Ahmad had been grounded by Bashir and Din Muhammad was giving knife blows to him because he had suspected him as having illicit connections with his wife Mst.Sablan. On arrival of the PWs both Bashir and Din Muhammad decamped from the scene. In cross-examination he admitted that he did not narrate this occurrence before the police during the investigation. He also admitted that he did not mention this occurrence to anyone in the village. Ghulam Hassan (DW.2), he also made a similar statement, while Elahi Bakhsh (DW.2) stated that Manzoor's uncle Abdul Sattar had enmity with father and uncle of Muhammad Rafiq, appellant, besides this, two judgments, dated 30-11-1979 Ex.DA and dated 21-10-1959 Ex.DB were also produced to show that there had been criminal petition between Abdul Sattar complainant relatives of Muhammad Rafiq, appellant.
7. Learned trial Court on consideration of material on record discarded the defence evidence and believed the prosecution case and ultimately convicting the appellant under section 326, P.P.C.
Sentenced him as indicated above.
8. I have heard learned counsel for the appellant as well as for the State and also perused the record.
9. It is contended that excepting the injured witness Manzoor Ahmad, no other eye-witness named in the F.I.R. Supported the prosecution case; that Abdul Sattar, complainant, had not seen the occurrence yet he posed himself as an eye-witness; and that the recovery of Kassi P.1 is of no consequence since it' was not found stained with blood. Lastly, it is urged that the medical evidence ven if accepted on its face-value does not establish that injuries of Manzoor Ahmad were of grievous nature. As against this, learned counsel for the State has vehemently supported the order of convictioi passed by the trial Court.
10. It is true that excepting Manzoor Ahmad, injured PW, no other eye-witness has supported the prosecution case. Rather one of the eye witnesses, namely, Abdul Majid who was given up by prosecution appeared as defence-witness and stated that he had seen Bashir an Din Muhammad grappling with Manzoor Ahmad and Din Muhammad ha( caused injuries to him suspecting him to be his wife's paramour.
11. The foremost question which arises for consideration is whether or not the story told by Manzoor Ahmad, injured witness, is believable and if so, can his testimony form safe basis for conviction of the appellant. According to the medical witness, Manzoor Ahmad P.W. Was examined by him on the day of occurrence at 8.45 p.m., and incised injuries on his person were formed to be of 8 hours duration and that the injuries were possibly caused with Kassi. It means that Manzoor Ahmad PW was attacked at mid-day, as stated by him and there was no chance of his committing a mistake in identifying Rafiq as his assailant. His injuries have also been affirmed by the doctor to be the result of Kassi blows. Although he had three incised injuries on his person; yet he scrupulously abstained from attributing any injury to Muhammad Bilal (the acquitted accused) which he could de without any fear of being easily falsified. In the circumstances, -I find that his testimony inspires confidence. The objection that his uncle Abdul Sattar, complainant in this case, had enmity with relatives of Muhammad Rafiq, appellant, is not sufficient to hold that he danced to the tune of Abdul Sattar and falsely implicated the appellant. The case of the appellant as per his defence witnesses is that he has been substituted for one Muhammad Din. Substitution as we know is a rare phenomenon. It is therefore, not believable that Manzoor Ahmad had left out his real assailant for implicating the appellant. It may be pointed out that Abdul Majeed (DW.1) and Ghulam Hassan (DW.2) on their own showing did not appear before the Investigating Officer much less to have told him their version of the incident as deposed in Court. Their story being afterthought is thus worthless. I, therefore, find that Muhammad Rafiq, appellant, is proved to have attacked and injured Manzoor Ahmad PW with Kassi. Having held so, the next question arises as to what offence he had committed. The contention of learned counsel that injuries being bone deep without a through and through cut being there are simple in nature, is not without force. It had been held in Asmat Ullah's case PLD 1961 Lah.506 that "Unless a bone is cut through and through a mere cut in the bone would not make the injury as grievous". It is rather the fracture or the dislocation of a bone which fall in the definition of a' grievous hurt. I, therefore, hold that the appellant is guilty of committing an offence under section 324, P.P.C. And not 326 PPC. Consequently, his conviction is altered to one under section 324, P.P.C. And he is sentenced to two (2) years' rigorous imprisonment and a fine of Rupees Two Thousand (Rs,2,000 only), in default of, payment of fine he shall further undergo three
(3) months' rigorous imprisonment. The fine, if realised, shall be paid to Manzoor Ahmad, injured witness, as compensation. The appellant shall get benefit of provisions of section 382-B, Cr.P.C., that is, the period for which he remained in jail as under-trial would be computed towards his substantive sentence of imprisonment. The appellant is on bail. His bail-bonds are cancelled. He shall surrender before District Magistrate, 'Bahawalpur, to be committed to jail for serving his remaining period of sentence of imprisonment. With above modification in the impugned judgment, the appeal is disposed of.