' Jumma (40), Elahi Bakhsh alias Ellahu (43) sons of Pir Bakhsh and Allah Wasaya (45) residents of village fhendlah, District Dere Ghazi Khan, were convicted by Sardar Alam Khan, Assistant Commissioner, lampur on 12-9-74 under section 326, P. P. C. Read with section 34, P. P. C. And sentenced them to lye years' R. I. Each and to a fine of Rs, 500 each ; in default to undergo six months' R.
1. Further. Their appeal is before me.
2. , About 8/9 months before the occurrence in this case, Jumma appellant suspected P. W. 5 Bakht Ali of a liaison with his wife Mst. Rehmat Bibi. Since the parties are related to each other, the brattier' intervened and told Jumma and his brother Ellahu that their suspicion was ill-founded. The appellants, however, bore a grudge against Bakht Ali and at peshiwala on 1.6-73, when he was going with his father P. W. 3 Habib and P. W. I Subara his maternal uncle towards village Noshehra Gharbi after attending a feast (Khairat ceremony) at the house of Gehwar P. W. 4 in village Thandiah and as they reached Sultan Link (Canal), Jumma P. 2 armed with a stick, Elahi Bakhsh armed with a hatchet and Allah Wassya armed with a sword emerged from behind a sand dune (khundal). Jumma raised a lalkara that they would teach them a lesson for the disgrace to their family and hit Bakht All with the stick on his left forearm. Flahi Bakhsh gave a hatchet blow to him on his head, Allah Wasaya hit him on the right shoulder with a sword. Bakht All fell from his cycle : his alarm attracted P. W. Abdul Wahid. The appellants then left. Bakht Ali was taken to the Civil Hospital, Jampur and medically examined.
3. P. W. 8 Dr. Ghulam Farid at 11 p.m. The same day i,e,, on 1-6-73 observes the following injuries on the person of Bakhat Ali :-
(1) An incised wound 3" x I' cutting the periosten of the bone from before backwards on the front of the head just above the forehead on left side 4V` above the left ear.
(2) An incised wound 41 x 2' x cutting the capsule of the left shoulder joint with cutting the lateral end of the left clavical. The wound lies over the upper surface of the shoulder joint half way in between neck and the shoulder-joint.
(3) An abrasion 3" x li" with a laceration at the posthio-anterior surface of the left upper arm near at the middle.
' According to the doctor injury No, 2 was grievous. Injury No, 1 was got X-rayed and vide X-ray report, the injury was also found to be grievous as vault of the skull had fractured.
4. After obtaining the medical certificate, P. W. Habib went to the Police Station Darjal, situated at a distance of 51 miles away from the place of occurrence. He made the F. I. R. (Exh. P. A.) to P. W. 7 Muhammad Nawaz, S. H.
0. At 10 a m. On 2-6-73. During investigation, the A. S. I. Arrested the accused. Each accused produced bis weapon on 2-6-73 those were taken into possession, P. Ws. Gahwar and Habib attested the recoveries. It may be mentioned here that the weapons recovered were not said to be blood-stained. These recoveries, therefore, would not be material.
5. The appellants denied the prosecution case. Their version was that Mst. Mubarik, niece of Elahi Bakhsh appellant, was married to Wahid Bakhsh brother of Habib P. W. And in exchange of this marriage (Watta marriage), Mst. Bakhtawar sister of Habib P. W. Was married to Elahi Bakhsh appellant and a year after the two marriages, Mst. Mubarik died, therefore, the complainant-party demanded in marriage another girl of accused's family to make up for the death of Mst. Mubarik.
Over this demand, a dispute arose and Mn.t Bakhtawar left her husband and came to live with her brother P. W. Habib. On the day of occurrence, P. W. Habib and his son Bakht All came to take back the clothes and oranaments of Mst. Bakhtawar from Elahi Bakhsh and on his refusal, Bakht All fired at him but missed him. Habib then attacked him with his hatchet but he also missed and in the confusion injured Bakht Ali who fell on the ground over a kassi and sustained another injury. In support of their defence, the appellants produced three witnesses, namely, D. W. 1 Ghulam Muhammad, D. W. 2, Wazir and D. W. 3 Gut Muhammad. According to D. W. I Ghulam Muhammad, he had heard that a fight had taken place inside the house of Elahi Bakhsh. This being hearsay evidence is, therefore, of no value, D. W. 2 Wazir claimed to be a resideat Rear Sultan Minor.
According to this witness, the fight as alleged by the prosecution never took place there. In my view, this evidence is also of no value because the witness could not specify the correct time of the occurrence. D. W. 3 Gul Muhammad supported the defence version and said that the incident took place in the house of Elahi Bakhsh appellant. But according to him. Allah Wasaya was also involved in the incident with Elahi Bakhsh and Jumma. This was not the case of the accused as according to them, Allah Wasaya appellant was not there. Besides this material contradiction in the statements of the accused and the defence witness, it is improbable that Bakht Ali was accidentally hit by his father with a hatchet and thereafter he fell on a kassi and received another injury.
6. A great stress was laid on the admission of the Investigating Officer that he had registered a case against Habib P. W. For possessing an unlicensed pistol. According to the learned defence counsel, Habib P. W. Was produced before the police with the pistol soon after the occurrence in this case as explained by the accused in their examination. Had the complainant party been armed with a pistol and a hatchet and had they been the aggressors they would have caused some harm to the accused, but there was not a scratch on them. Moreover, a highly improbable story has been put up in defence that Bakhat Ali was accidentally injured by Habib with a hatchet.
But at the same time it was Habib who was said to have been produced before the police with the pistol ; although according to the defence version Bakht All had fired at Elabi Bakhsh with the pistol.
It may be mentioned at this stage that the Investigating Officer explained that an unlicensed pistol was recovered from P. , W. Habib many days after the occurrence in this case. It appears that the accused having come to know of this recovery, attempted to use it to their advantage by saying that it was a single transaction. The defence was obviously worthless and has been rightly disbelieved by the trial Court. The mere fact that the Investigating Officer did not take into possession blood-stained earth from the place of occurrence would not make the prosecution case doubtful. I have no reason to doubt the testimony of the eye-witnesses. Bakht Ali (Injured has attributed his injuries to the appellants. His statement was corroborated by his father P. W. Habib and his maternal uncle Suhara ; mere relationship of these two witnesses with Bakht All is not enough to doubt their testimony. However, Abdul Wahid P. W. a disinterested witness who saw the occurrence and was named in the F.
1. R., corroborated their testimany. The delay in making the report to the police has been satisfactorily explained because the injured was first attended to. I am satisfied about the guilt of the appellants.
7. It was also contended that since it was not a through and through fracture of the skull bone, therefore, the injury on the head was not a grievous injury. It would suffice to say that according to the radiologist's report, the upper vault of the skull bone was fractured. This obviously meant the breaking of the bone. It cannot, therefore, be called a scratch or a cut which does not go across the bone. The outer and the inner tables of the skull bone are bones by themselves and fracture of the outer or inner table by' itself can be taken to be a fracture of a bone within the meaning of section 320, P. P. C. Thus the fracture of the upper vault of the skull bone was a grievous injury caused to Bakht Ali. I, therefore, maintain the conviction of the appellants. As it appears from the circumstances of this case that family honour of the appellants was involved, I ' therefore, reduce their sentences. Elahi Bakhsh appellant who was responsible for the head injury to suffer three years' R. I. And to a fine of Rs, 50 in default to undergo six months' R. I. Allah Wasaya appellant to two years' R. I. And to a fine of Rs, 200 ; in default to undergo three months' R.
1. Jumma appellant did not hit his victim on any vital part of the body, his sentence is reduced to a period-already undergone. His sentence of fine hi also remitted.