The appellant Lal Din was tried by the learned Magistrate under sections 307 and 326, P.P.C. The trial Court vide its judgment dated 23-1-1989, sentenced him to seven years' R.I. And a fine of Rs.10,000 or m default one year R.I. For attempting on the life of Mst. Khurshid Bibi P.W. He also awarded similar sentence to him for causing serious burns on the person of Muhammad Saleem, a minor boy. The fine if recovered was ordered to be paid to the two victims as compensation under section 544-A, Cr. P.C., hence the present appeal.
2. According to the F.I.R., lodged by Allah Ditta P.W.3, Mst. Khurshid Bibi P.W.1, one of the victims in this case, and the appellant are husband and wife. Out of this wedlock. Eleven children were born.
About 3/4 years prior to the occurrence, the relations between the spouses became strained. It is alleged that on 6-6-1988, at morning Azan time, Mst. Khurshid Bibi P.W. Raised alarm. The complainant. Rehmatullah and Muhammad Munir rushed to the scene of occurrence. They saw that the appellant was holding a plastic bottle. In his hands. In the presence of the witnesses he threw acid on Mst. Khursaid BIN, which injured her face, chest, arms and legs and also the arms and left side of chest of Muhammad Saleem P.W.2, a minor boy. Thereafter the appellant decamped from the spot.
Both the victims were removed to the hospital: After examination, the doctor gave the reports of the victims and it was thereafter that the case was registered on the statement of Allah Ditta P.W.3.
3. The case was investigated by Nisar ,iii Shah S: I. (P.W.5) He took into possession Chaddar, Kameez, Lungi and Kurta of Mst, Khurshid Bibi alongwith plastic bottle vide memo. Exh.P.B. He recorded the statements of the witnesses, arrested the appellant and after completing legal formalities submitted the challan in the Court.
4. The prosecution in support of its ca .5e examined six witnesses. Mst. Khurshid Bibi P.W.1 and Muhammad Saleem P.W.2 are the victims. Allah Ditta P.W.3 is the complainant. Muhammad Munir P.W.4, is another eye-- witness of the occurrence. Nisar Ali Shah P.W.5 is the investigating officer while Dr. Atta Mustafa Chattha P.W.6 examined both the victims.
5. The appellant has taken up the plea of the total denial and false implication. No evidence was produced in defence except that he appeared as his own witness.
6. Mst. Khurshid Bibi P.W.1, Muhammad Saleem P.W.2, Allah Ditta P.W.3 and Muhammad Munir P.W.4 furnished the eye-witness account in this believing which coupled with the medical evidence, the trial Court convicted and sentenced the appellant as indicated above.
7. Learned counsel for the appellant has contended that all the P.Ws. Who have furnished the ocular version are closely related inter se. Mst. Khurshid Bibi P.W. Is the sister of Allah Ditta P.W.
Muhammad Saleem P.W. Is the son of Allah Ditta P.W. Muhammad Munir P.W. Is the nephew (sister's son) of Mst. Khurshid Bibi. They due to enmity mentioned in the F.I.R. Have falsely implicated the appellant and it would be dangerous to place reliance on their, uncorroborated testimony, the occurrence took place in the dark night, it is a-case of mistaken identity and the appellant has been roped in this case falsely due to matrimonial dispute between Mst. Khurshid Bibi P.W. And the appellant.
In the end, learned counsel forcefully contended that the trial Court has committed illegality by sentencing the appellant under section 307 read with section 326, P.P.C. Simultaneously which is not warranted by law and also without framing charge with respect to the injuries allegedly suffered by Muhammad Saleem P.W. He has convicted him under section 307, P.P.C. And as such the appellant has been greatly prejudiced in his defence.
8. Learned counsel for the State has supported the judgment under appeal, on the same reasons which weighed with the trial Court while passing the impugned judgment. In addition to that, he took up the plea that in view of section 537, Cr.P.C. If there is any illegality in the mode of trial that stood cured, as it has not resulted into miscarriage of justice. He also submitted that this legal objection was not taken at the trial.
9. I have minutely gone through the ocular version and find that all the eye-witnesses are the natural and probable witnesses of the occurrence, because the house of Allah Ditta was near the house of his sister. Muhammad Munir P.W. Was also present in the house of Allah Ditta P.W. It is not a case of mistaken identity, because the occurrence took place at Fajar Azan time in summer season and the appellant being the husband of Mst. Khurshid Bibi was rightly recognised as the assailant and he is so named in the promptly lodged F.I.R. In addition to that, the medical evidence also supports the ocular version; hence the appellant has no case on merits.
10. This brings me to the legal objection raised by the learned counsel for the appellant whereby the trial Court simultaneously convicted the appellant under section 307 and section 326, P.P.C.
And awarded sentence accordingly. According to section 236, Cr.P.C. When there is doubt about the two charges, then conviction can be recorded under the charge which is more suitable after recording of evidence. I find in the presence of the evidence brought on the record, charge under section 326, P.P.C. Stood proved against the appellant, because he caused grievous injuries with acid on the body of Mst. Khurshid Bibi P.W.1 which was confirmed by the medical evidence; hence the conviction of the appellant recorded by the trial Court under section 326, P.P.C. With regard to the injuries of Mst. Khurshid Bibi and sentence of seven years' R.I. Plus fine of Rs.10,000 or in default one year R.I. Are maintained. Consequently the conviction of the appellant under section 307, P.P.C.
Which is not called for is set aside in order to remove the technical defect.
11. 1 find lot of force in the submission of the learned counsel for the appellant that his conviction under section 307, P.P.C. With respect to the injuries received by Muhammad Saleem P.W. Cannot be maintained as no charge was framed against the appellant with respect to that offence and the appellant stood greatly prejudiced on account of this glaring mistake occurring in the mode of trial, which is not curable under the provisions of section 537, Cr.P.C. Hence the conviction of the appellant under section 307, P.P.C. With respect to the injuries of Muhammad Saleem P.W. And the sentence awarded therefor are set aside being not curable under section 537, Cr.P.C. As it goes to the root of the case.
12. In view of the above discussion, the conviction of the, appellant under section 326, P.P.C. With respect to the injuries suffered by Mst. Khurshid Bibi P.W. Is upheld and his sentence of seven years'
R.I. Plus fine of Rs.10,000 or in default one year's R.I. Is maintained. His conviction under section 307, P.P.C. Is set aside. Similarly, the conviction and sentence under section 307, P.P.C. With regard to the injuries suffered by Muhammad Saleem P.W. Are also set aside. The appeal is disposed of accordingly with the modifications as indicated above. However, in view of the heinousness of the offence committed by the appellant, whereby the whole face of Mst. Khurshid Bibi has been disfigured, I am not inclined to grant the benefit of section 382-B, Cr.P.C. To the appellant, as requested by his learned counsel.