' This appeal is directed against the judgment, dated 29-3-1988 of learned 1st Assistant Sessions Judge, Karachi, (South), whereby he convicted both the appellants under section 307 read with section 34, P.P.C. And sentenced each of them to suffer R.I. For five years, and pay fine of Rs,2,000 or in default to suffer further R.I. For six months. He also directed both the appellants to pay Rs,1,000 each as compensation under section 544-A, Cr.P.C. To injured P.W. Ashfaque. By the same judgment co-accused Siddique was acquitted by the learned trial Judge.
2. The brief facts of the prosecution case are, that there was dispute over a house between the appellants and the complainant party. Due to this dispute on 23-6-1986 the present two appellants and acquitted co-accused Siddique came to the house of the complainant. Acquitted co-accused Siddique caught hold of P.W. Ashfaque, the brother of the complainant, who was standing outside the house while the present appellants, out of whom Maqbool had Danda and Yakoob had Chhuri, inflicted injuries upon P.W. Ashfaque with the intention to commit his murder. On the cries of the complainant other persons of the locality came, but the culprits ran away. The complainant took his brother to hospital. On the inforc ation from the hospital authorities P.W. Rahim Dad, Additional S.H.O., Mehmoodabad Police Station, Karachi went to the hospital and recorded 154, Cr.P.C.
Statement of the complainant in the hospital and subsequently incorporated the same in the 154, Cr.P.C. Book at the police station. After usual investigation the appellants and the acquitted co- accused were challaned.
3. The appellants pleaded not guilty to the charge under section 307/34, P.P.C. The prosecution in support of their case, have examined complainant William Exh. No,6, who has deposed the facts as stated in the above prosecution story. He has produced his statement recorded under section 154, Cr.P.C. At hospital by the police as Exh.6/A. His evidence is corroborated by evidence of P.W.
Ashfaque Exh.7 brother of the complainant, who sustained injuries. P.W. Ilyas Exh.8, who is neighbour of the complainant, also states to have seen the incident and supported the prosecution story. He is also brother of the complainant and injured Ashfaque. He is also Mashir of the scene of offence, Exh.8/A and Mashir of arrest of the accused Exh.8/B. In his presence the police secured one Chhuri from the house of the accused Yaoloob. He has produced Mashirnama as Exh.8/C. The other witness examined by the prosecution is S.H.O. Rahimdad, who recorded the statement under section 154, Cr.P.C. Of the complainant and incorporated it in 154, Cr.P.C. Book. He has produced entry of 154, Cr.P.C. Book as Exh.10/B, and entry in the Roznamcha as Exh.10/A, which he made after receiving intimation from the hospital. He states to have investigated the case, arrested the accused, recovered Chhuri from accused Yaqoob, and subsequently, challaned the case.
4. The Medical Officer, Niaz Muhammad, examined injured, Ashfaque, and found the following two injuries on his person.
"(1) Incised wound 3 x 1 c.m. x muscle deep at left scapular region.
(2) Incised wound 3 x 1 muscle deep at right lateral upper arm, upper 1/3 corresponding cut marks present on clothes and the clothes were blood-stained."
In his opinion, both the injuries were cau*d by sharp cutting weapon. He also examined appellant Yaqoob on the same day, and found the following injuries on his person.
(1) Bruise 10 x 1 c.m. At back of abdomen transversely with tenderness position.
(2) Abrasion 2 x 2 c.m. At lateral side of left upper leg lower 1/3.
5. The appellants in their statement under section 342, Cr.P.C. Have denied all the allegations and allege, that they have been implicated due to enmity. Appellant Maqbool has stated, that the father of the complainant had taken loan from his brother, and when his brother demanded the same from the complainant, the complainant filed this case against them. He has produced the copy of the Roznamcha report lodged by the appellant Yaqoob as Exh.13/A.
6. The evidence of prosecution witnesses appears to have been disbelieved by the learned trial Judge against co-accused Siddique and acquitted him, who was alleged to have caught hold of injured Ashfaque, while the present two appellants are alleged to have inflicted injuries upon him.
According to the prosecution witnesses appellant Maqbool was armed with Danda and he gave injuries with Danda to P.W. Ashfaque. The medical evidence reproduced above shows, that there was no injuries with Danda on the person of the injured but both injuries were caused by sharp- cutting weapon. P.W. Ashfaque has made improvement in the prosecution case and states, that Chhuri was affixed on the Danda with which the appellant Maqbool was armed and he gave him blow with the Chhuri. However, in this respect he is not supporting the complainant, nor by P.W.
Ilyas, who both state, that Maqbool was armed with Danda. Thus, there is conflicting statement between the evidence of eye-witnesses and as to what type of weapon was used by the appellant Maqbool with which he allegedly caused injuries to the injured Ashfaque.
7. The prosecution case against appellant Maqbool that the appellant gave Danda blows to P.W.
Ashfaque is belied by the medical evidence, which does not show any injury of Danda on the person of injured. The evidence of injured Ashfaque, that Chhuri was affixed on the Danda does not get support from his own brothers namely complainant William and P.W. Ilyas. I, therefore, give benefit of doubt to appellant Maqbool, and acquit him. His conviction and sentence is set aside, and he is ordered to be released forthwith unless otherwise required in some other case.
8. It leaves us with the case of appellant Yaqoob. No doubt, the only evidence against appellant Yaqoob, is, that of three brothers but one of them is injured. His presence on the spot cannot be doubted. There of two injuries with sharp cutting weapon on his person and on the upper part of his body. Besides, there are injuries on the person of appellant Yaqoob, which show the presence of Yaqoob at the time of incident. Maqbool has produced report lodged by appellant Yaqoob at the police station which is Exh.13/A, wherein he alleged that he had purchased the house from Varyam, father of the appellant, who is deceased, but his sons Ashfaque alias Kaka and William are asking him to vacate the house and they abused him. This report has been lodged on 18-4-1986 at 10 p.m.
From the cross-examination of the prosecution witnesses, it appears, that the appellants claim to have purchased the house from the father of the complainant for Rs,10,000, whereas according to P.W. Ashfaque appellant Yaqoob had not made payment of the amount, but it was agreed that the amount will be adjusted from the rent. It is alleged, that Yaqoob attacked Ashfaque because of this dispute.
9. Even from the non-cognizable report lodged by the appellant Yaqoob, which has been discussed above there appears to be no doubt, that there was dispute between the parties over the payment with regard to the house. A few days before the incident, it appears, that the complainant party had abused appellant Yagoob and his brother and, therefore, the appellant Yagoob lodged the above report. Keeping in view all the circumstances, the evidence of the prosecution witnesses, that appellant Yaqoob attacked P.W. Ashfaque with Chhuri looks believable.
It is further corroborated by the medical evidence. The allegation of the prosecution, that Yaqoob intended to commit murder of the injured Ashfaque get some corroboration from the fact, that there are two injuries with sharp cutting weapon on the upper part of the body of P.W. Ashfaque.
However, he two injuries do not appear to be very serious. The medical officer has kept the opinion about the nature of injuries. In his deposition, in the Court he stated, that injury No,1 was grevious.
However, injury No,2 was declared to be simple in nature. According to the medical officer the injured was admitted in the hospital on 23-6-1986 and discharged on 1-7-1986. The injuries were serious enough to keep injured in hospital for about 7 days. The nature of injuries on the person of Ashfaque is such that possibility of there being self-inflicted is rule out.
10. The appellants have examined no witness in their defence to explain as to how injuries were caused by P.W. Ashfaque. In view of the above circumstances, I find no reason to disbelieve their evidence against the appellant Yaqoob. The F.I.R. Was registered without any delay in which also appellant Yaqoob is alleged to have caused the injuries to Ashfaque with Chhuri, which is sharp cutting weapon. However, injuries on the person of appellant Yaqoob are not explained by the prosecution. The possibility that both P.W. Ashfaque and Yagoob received injuries in free fight cannot be ruled out.
' Considering all the facts discussed above, in my opinion, the learned trial Judge has rightly convicted appellant Yaqoob, but in view of the circumstances of the case, the sentence awarded is rather very harsh. I accordingly maintain the conviction awarded to appellant Yagoob, but reduce the sentence to one year's R.I. And Rs,500 as fine or in default he is to suffer further R.I. For three months. Fine, if paid, be given as compensation to the injured Ashfaque under section 544-A. With this modification, the appeal of the appellant Yagoob is dismissed. The appellant Yaqoob is also given benefit of section 382-B, Cr.P.C. .