' The propriety of the judgment dated 8-10-1988 pronounced by the learned Senior Civil Judge/Magistrate Section 30, Bahawalnagar, has been questioned in this appeal, who had convicted Ghulam Haider, Zulfiqar Ali and Nawaz appellants under section 326/34 of the P.P.C. And had awarded them six years' R.I. Each and a fine of Rs,5,000 each. In default of the payment of fine, they were to suffer six months' R.I. Each. The fine, if recovered, was directed to be paid to Ghulam Muhammad complainant as envisaged under section 544-A of the Cr.P.C.
2. The facts of this case, as gleaned from the F.I.R., in substance, are that Ghulam Muhammad complainant had an old acquaintance with Allah Yar son of Azam Khan of Chak No,295/H.R. And was on visiting terms with him. Allah Yar suspected amatorial ties between his wife Mst. Lalan and Ghulam Muhammad complainant. The complainant had approached Allah Yar through the respectables of the locality and had satisfied him that he was not involved in this nefarious affair.
But Allah Yar and his brotherhood felt chagrined and they were on a look out to harm the complainant. On 10-9-1987 at 8-00 a.m., the complainant was driving his motor-bike with Manzoor Ahmad towards Fortabbas Town. When he was at a distance of one #TBS 8. Muhammad Ali PW 2, Hayat Muhammad PW 4 and Allah Bachaya #TBE furlong from Chak No,279/H.R., Zulfiqar and Muhammad Nawaz blocked his way with the help of a rope. Manzoor Ahmad ran away and stood at a distance. Ghulam Haider appellant came there with the other accomplices, namely, Allah Yar, Ata Muhammad and Muhamamd Sarwar. He was overpowered and Ghulam Haider, who happens to be the nephew of Allah Yar son of Azam Khan slashed the nose and the right ear of the complainant. He was given Soti blows by Zulfiqar, Nawaz and others. Allah Yar and Muhammad Sarwar, who were armed with guns threatened the bystanders with their respective weapons. The legs of Ghulam Muhamamd were also fractured by blunt weapons. In the meantime, Muhammad Hayat, Muhammad Ali and Allah Bachaya came there on a motor-bike and the assailants ran away.
3. Ghulam Muhammad was transported to the Police Station in a tractor trolley and he dictated the F.I.R. Ex.P.A. On the same day at 9.00 a.m., which was recorded by Sana-ul-Haq Inspector Police PW3.
4. The police went to the spot, collected the blood-stained earth and medically examined Ghulam Muhammad. Dr.Muhammad Afzal Saqib PW-6 found the following injuries on the person of Ghulam Muhammad:-
(1) An incised wound over the right ear. All the pinna of the right ear were cut. Fresh bleeding coming from the wound.
(2) Nose was cut with sharp-edged weapon. Nasal bone was also cut. Advised X-ray.
(3) Two lacerated wounds over exterior of right leg, size 2 x 1 c.m. And 3 c.m. And 3 c.m. x 2 c.m. x 1 c.m. Cropitus of fractured bone can be felt. Tender swelling present on 15 c.m. x 13 c.m. Advised X- ray.
(4) A rounded lacerated wound on' outside of left leg alongwith tender swelling. Wound 3 c.m. x 2 c.m. x 1 c.m. Swelling over an area 10 c.m. x 10 c.m.
(5) Tender swelling over left forearm over an area 15 c.m. x 8 c.m. Advised X-ray.
5. He has opined that injuries Nos.1 and 2 were caused by a sharp-edged weapon whereas injuries Nos.3, 4 and 5 were sustained by a blunt weapon.
6. On 15-9-1987, all the appellants were arrested. Ghulam Haider appellant, while in police custody, got recovered Chhuri P.3 which was taken into possession vide memo. Ex.P.G. On the same day, Zulfiqar Ali appellant produced his rope P.2 and Sota 'P.1, which were taken into possession vide memo. Ex.P.F. Muhammad Nawaz appellant produced his Sota P.4 which was secured vide memo.
Ex.P.H. After the completion of the investigation, the challan of all the accused was submitted and, as a sequel to the impugned trial, the appellants were awarded the aforementined punishment whereas Allah Yar, Ata Muhammad and Muhammad Sarwar were acquitted.
7. Ghulam Muhammad, the complainant and an injured person, appeared as PW-1 and has narrated the incident as stated above. He denied that he was having an old acquaintance with Allah Yar although he had stated this fact in the PW5 have unanimously stated that the nose and the ear of Ghulam Muhammad were slashed by Ghulam Haider whereas the other appellants had given him Sota blows.
9. Sana-ul-llaq had recorded the F.I.R. Ex.P.A. And had also effected the recoveries from the spot including a motor-bike Honda 125-CC and the blood-stained earth. He had taken into possession rope P.2 vide memo. Ex.P.F. He has stated that the incident took place near Chak No,279/H.R. And Chak No,289/H.R. Is at a distance of 8 or 9 miles.From the spot where Manzoor, Allah Bachaya, Muhammad All and Muhammad 'Kamal PWs live.
10. Muhammad Kamal PW 7 has corroborated the recoveries of Chhuri P.3 from Ghulam Haider appellant and Sotas from Muhammad Nawaz and Zulfiqar. He happens to be the first cousin of Ghulam Muhammad complainant.
11. In his statement recorded under section 342 of the Cr.P.C. Ghulam Haider has explained that on 10-9-1987 at 8-00 a.m. He had come to his house to have fertilizer and saw the motor-bike of Ghulam Muhammad having been parked near the house of his uncle Allah Yar. He has added that Ghulam Muhammad was forcibly dragging his aunt Mst. Lalan towards a Kotha and he, out of grave and sudden provocation, gave him a Sota blow and he had fallen down. He cut his nose and ear with a Chhuri lying near the hearth and had himself reported the matter to the police. Zulfiqar and Nawaz appellants pleaded to be innocent.
12. In rebuttal, Ghulam Haider appeared as his own witness under section 340(2) of the Cr.P.C. And has repeated the story of grave and sudden provocation. He has stated that he did not beat Mst.
Lalan at all after this incident. Muhammad Ali DW 2 and Mubarik Ali DW 3 have stated that they did not see any incident near Chak No,279/H.R. Nor did the police come to their village. Ibrahim DW 4 has testified that he had seen Haider giving Sota blows to Gaman and they tried to pacify the situation but Haider had shouted that it was a matter of their honour and then he cut the nose and ear of Ghulam Muhammad. Sultan Ahmad DW 5 has made similar statement.
13. Obviously, the ear and nose of a person cannot be cut by a single assailant and the number of assailants must be more than two. In this case, Ghulam Haider appellant has taken the plea of grave and sudden provocation and Sota blows have been attributed to Zulfiqar and Nawaz, who had fractured the leg of Ghulam Muhammad. The A story narrated by Ghulam Haider is illogical and not convincing because the incident took place near Chak No,279/H.R. Wherefrom the village of Ghulam Haider is at a distance of about two miles. The motor-bike of the complainant was also taken into possession from the spot and the blood-stained earth was also collected from the venue of the crime. It is not credible that the police had brought Ghulam Muhammad to the alleged venue of crime from Chak No,295/H.R. It is also not believable that Ghulam Muhammad would go to the house of Allah Yar at day time where three other brothers of Allah Yar lived with their children and Ghulam Muhammad complainant would drag Mst. Lalan in their presence.
14. In the circumstances of the case, the learned trial Court has rightly convicted the appellants. I dismiss their appeal. They are, I however, given the benefit of section 382-B of the Cr.P.C.