' Niaz Hussain son of Allah Bakhsh aged 20/22 years has been convicted under section 326, P.P.C.
And sentenced to 7 years' R.I. And a fine of Rs,20,000 or in default two years' R.I. Further, vide judgment dated 21-4-1988, passed by a learned Additional Sessions Judge, Bhakkar. Ghulam Hussain, brother and co-accused of Niaz Hussain, has, however, been acquitted vide the same judgment. Niaz Hussain, the convict, has challenged his conviction and sentence through the present appeal.
2. The occurrence in this case took place on 26-12-1986 at 3-00 p.m. Near Saw Machine in village Sarai Mahajor at a distance of 3/4 furlongs from Police Post Sarai Mahajor and 15/16 kilometres from Police Station Sadar Bhakkar. The matter was reported to the police on the same day through statement (Exhibit P.C.) made by Manzoor Hussain deceased himself before Ghulam Abbas S.I.
(P.W. 11), the then Incharge of the Police Post, Sarai Mahajor. The statement (Exhibit P.C.) was recorded at the Police Post at 3-55 p.m. Formal F.I.R. (Exhibit P.C./1) was recorded by Hameedullah Moharrir Head Constable (P.W. 6) at Police Station, Saddar Bhakkar at 4-55 p.m.
3. Regarding motive, it has been alleged that about 3/4 months prior to this occurrence, Riaz Hussain, brother of the appellant and Ahmed Nawaz, cousin of the deceased, fought with each other and cross cases were thus registered. On account of that grievance, the present occurrence is alleged to have taken place.
4. As for the main occurrence, it has been stated that on 26-12-1986, Manzoor Hussain deceased came to Sarai Mahajor at the cattle fare to dispose of his camel which he actually sold for Rs, 2,500.
Thereafter, he left for his village. When he reached near Saw Machine of Muhammad Shafi, the appellant Niaz Hussain emerged from road bushes from Southern side of the road. He was accompanied by another person. Both of them were armed with knives. The appellant opened the attack. He caused injury with knife on the left buttock of the deceased. The companion of Niaz Hussain caused second injury with knife on the left thumb. Yet another injury with knife was caused by Niaz Hussain on the back side of the left thigh, where after the deceased fell down and raised alarm which attracted Ghulam Siddiq (P.W. 7) and Ghulam Hussain (P.W. 8) to the scene of occurrence. On their arrival, the assailants made good their escape. The deceased was then taken to the Police Post Sarai Mahajor where he got recorded statement, Exhibit P.C. The police took him to the hospital. He died on 1-1-1987 in the hospital. The case which was originally registered under Section 307 P.P.C. Was converted to one under Section 302 P.P.C.
5. P.W. 14 Dr. Khalid Iqbal, who was then posted as Medical Officer, District Headquarters Hospital, Bhakkar, medically examined Manzoor Hussain deceased on 26-12-1986 at 5.30 p.m. Exhibit P.J. Is the correct carbon copy of the medical report. The following injuries were noticed on the person of Manzoor Hussain:-
(1) An incised wound 3 cm x 1 cm on the upper part of left buttock. Wound was not probed.
(2) An incised wound 2-1/2-cm x 1 cm on front of left thigh in the middle. Depth was not probed.
' An incised wound 2 cm x 1/2 cm on outer side of left thigh in the middle part.
' Injuries Nos. 1 and 2 were kept under observation. Injury No, 3 was declared simple. All the injuries were opined to Have been caused by sharp-edged weapon. This witness had advised X-Ray of the pelvic bone and left femur. As per X-Ray Report No, 704.DHQ, dated 29-12-1986, there was profuse bleeding from injury No, 1 (upper part of the left buttock). Resultantly, underlying vessels were cut and, therefore, injury No, 1 was declared as grievous. Regarding injury No, 2, the X-Ray report indicated that there was no boney lesion of left femur. So this injury was declared as simple. In cross-examination, this witness conceded that originally he did not consider injury No, 1 to be dangerous to life and that he did not consider it appropriate to operate upon Manzoor Hussain.
6. On 1-1-1987 at 12.30 p.m. Autopsy on the dead body of Manzoor Hussain was conducted by P.W. 12 Dr. Nisar Hussain, who was then posted as Medical Officer, District Headquarters Hospital, Bhakkar.
He noticed the following injuries:-
(1) A stab wound 3 cm x 1 cm going into the abdominal cavity in the uppermost part of the left buttock.
(2) An incised wound 2-1/2 cm x 1 cm bone deep on the front of left thigh in the middle, 13 on above the left knee.
(3)
An incised wound 2 cm x 1/2 cm on the outer side of left thigh 18 cm below left hip joint. Wound was superficial. After dissection, it was observed in regard to injury No, 1 that underlying fascia, muscles and blood-vessels were cut as a result of this injury. It was also noticed that after injury to peritoneum, it was deepened into intestines. Regarding peritoneum, it was observed that it was cut at the site of injury No,
1. Adhesion and local abscess were present at the site of the said injury. It has been opined by Dr. Nisar Hussain that the death occurred on account of septicemia due to gangrenous inflammation of distal part of ileum due to injury No, 1, which was sufficient to cause death in the ordinary course of nature. He further opined that all the injuries found on the dead body were caused by sharp-edged weapon and were ante-mortem. In cross-examination, the doctor admitted that if the patient i,e,, Manzoor Hussain deceased had been operated upon well in time, he would have been saved and that the gangrene was the result of infection due to stabbing.
7. The appellant was arrested on 3-1-1987. On 10-1-1987, while in custody, the appellant led to the recovery of blood-stained knife (P. 6) by digging the earth near his residential house, which was secured into a sealed parcel vide memo. Exh. P.E. The recovery memo. Was attested by Mumtaz Ali A.S.I. P.W. 10, Muhammad Irshad Constable (not produced) and Ghulam Abbas S.I. (P.W. 11).
8. Vide Chemical Examiner and Sergologist's reports, Exhs.P.K. And P.L. Respectively, the stains of blood on the blade of the knife have been found to be of human origin.
9. At the trial, Ghulam Siddiq (P.W. 7) and Ghulam Hussain (P.W. 8) testified as eye-witnesses to furnish the ocular account. Both these P.Ws. Have fully supported the prosecution case, as detailed in the F.I.R. (Exh.P.C./1). Admittedly, these P.Ws. Are related to the deceased and there is nothing on the record to suggest that they had any animosity against the appellant or any motive for his false involvement.
10. Learned counsel representing the State supported the judgment of the learned trial Court but the learned counsel for the appellant contended that:
(a) the co-accused has been acquitted and the eye-witnesses have not been believed by the trial Court to the extent of the acquitted accused and, therefore, as against the appellant, their testimonies required to be appraised with care and caution and the Court in such circumstances must insist upon independent corroboration, which is lacking in the present case;
(b) the alleged recovery of knife, the weapon of offence, took place a fortnight after the occurrence and a week after the arrest of the appellant; he had thus sufficient opportunity to destroy the knife or at least to wash away the stains of blood on it; it has further been urged that the recovery has not been witnessed by any independent person residing in the neighborhood in disregard of the provisions of Section 103 Cr. P.C. While the attesting witnesses in this case are the police officials; it is claimed that the recovery is of doubtful character; and
(c) that the death of the deceased occurred not directly as a result of the injuries allegedly caused to him by the appellant; he died of septicemia and gangrene which developed on account of negligence on the part of the doctors, in treating him; it has also been averred that the injuries found on the person of the deceased were of not grievous nature and, were not dangerous to life and therefore, the appellant at the most could be convicted under Section 324 P.P.C.
11. The contentions raised on behalf of the appellant have been duly analyzed and thoroughly considered. As already observed, Ghulam Siddiq and Ghulam Hassan, the two eye-witnesses in this case are not related in any manner to the deceased. They cannot, therefore, be branded as interested witnesses, particularly in view of the fact that they had no animus or motive against the appellant for falsely involving him in the case. It has, however, been noticed that these two witnesses are not the residents of village Sarai Mahajor where the occurrence took place. They are residents of village Kerari Kot. Ghulam Siddiq claimed that he had come to Sarai Mahajor on the day of occurrence to offer Juma prayers while Ghulam Hassan stated that he had to receive back loan from some person, resident of Sarai Mahajor, and had also to make purchases from over there. Both the witnesses stated that on their way back to Kerai Kot, they followed Manzoor Hussain deceased when they were attracted to the scene of occurrence by the alarm raised by the deceased. In this manner, they can be said to be chance witnesses and in case of such witnesses, the Court is required to proceed with caution while appraising their testimonies. In the case of Niaz v. The State (PLD 1960 SC (Pak.) 387), it has been ruled- that testimony of partisan or interested witnesses can be relied upon without corroboration if the Court is satisfied that: (a) the witness, in fact, saw the occurrence and was in a position to identify the culprits; (b) the witness can be relied upon for convicting the accused without corroboration; and (c) such interested witness charges one person only with the commission of offence, or that the number of persons whom he names does not exceed that which appears from independent evidence or from circumstances not open to doubt to be the true number of culprits.
' In Nazir and others v. The State (PLD 1962 SC 269), it has been held that there cannot be an inflexible rule that the statement of an interested witness can never be accepted without corroboration.
12. Reliance on behalf of the appellant has been placed on Abdul Rahman and others v. The State (1983 SCMR 958), wherein it has been laid down that when the witnesses have been found to have falsely implicated three acquitted co-accused, it was a case which eminently required independent corroboration as to participation of appellants in wake of perjured evidence of eye- witnesses qua acquitted co-accused. In the light of the test laid down in Niaz's and Nasir's cases, the presence of the two eye-witnesses in the case, at the time of occurrence is possible and this is supported by the fact that Ghulam Hassan accompanied the deceased to the Police Post where the latter, while alive, made statement, Exh.P.C. The injuries found on the person of the deceased support the testimonies of the eye-witnesses. As already observed, Ghulam Siddiq and Ghulam Hassan P.Ws. Are not interested witnesses by any stretch of imagination, although they can be said to be chance witnesses. But, in view of the circumstances, stated above, they deserve full credence and it stands established beyond any reasonable doubt that the appellant is the author of the injuries as a result whereof, though remotely, Manzoor Hussain died.
13. The recovery of the blood-stained knife, the weapon of offence, in this case is, of course, of little significance because this recovery has been effected more than two weeks after the occurrence and more than a week after the arrest of the appellant. The recovery has not been attested by any independent witness. Besides the investigating officer, two subordinate police officials attested the recovery memo, out of whom one was given up at the trial. It has not been claimed that no independent witness lived in the locality from where the recovery was effected. In Mujahid Hussain v. The State (1985 SCMR 1573), it has been ruled that the accused who was not shown to have absconded and had thus opportunity to get rid of articles, would not keep articles in his house for four days until he was arrested. It may, however, be pointed out independent of the recovery of the weapon of offence, the ocular evidence comprising of the testimonies of two eye-witnesses, the guilt has been sufficiently brought home to the appellant beyond any reasonable doubt.
14. Regarding the nature of injuries, it may be observed that although initially the injuries noticed on the person of the deceased, while he was alive, were not declared as dangerous to life, nevertheless, on account of underlying vessels having been cut, injury No, 1 was declared as grievous. Moreover, at the time of post-mortem examination, after the dissection, under injury No, 1,it was found that underlying skin, fascia, muscles and blood vessels were cut after injury to peritoneum. Regarding peritoneum, it was noticed that it was cut at the site of injury No, 1 and there was adhesion and local abscess at the site of the said injury. Such state of affairs does suggest that this injury No, 1 was certainly dangerous to life. An injury which is dangerous to life has to be treated as grievous within the meaning of Section 320 P.P.C. The learned trial Court has, therefore, rightly convicted the appellant, under section 326, P.P.C. The State or the complainant, however, have not challenged the learned trial Court's order to allege that he should have been convicted under section 304, P.P.C. Instead of under section 326, P.P.C. In the circumstances of the present case, the sentence of six years and a fine of Rs,20,000 for an offence punishable under section 326, P.P.C. Cannot be considered as excessive or harsh in any manner.
15. For the foregoing reasons, the appeal fails and is dismissed while the II conviction and sentence of the appellant are maintained.