Muhammad Nawaz (30 years) and his younger brother Haq Nawaz (25 years) were convicted by the Additional District Magistrate, Jhelum, under sections 307, 458 and 323, P. P. C. Read with section.34, P. P. C. And each of them was sentenced to undergo R. I. For three years under section 307/34, P. P. C. And to undergo R.
1. For one year each under sections 458/34 and 323/34, P. P. C. The learned Sessions Judge, Jhelum, under his orders dated the 10th of April 1968, affirmed the convictions and sentences under sections 307/34 and 458/34, P. P. C. And set aside the convictions and sentence under sec--tion 323/34, P. P. C. The petitioners have come, in revision against their convictions as well sentences.
2. According to the prosecution case, Muhammad Nawaz petitioner had been married to Mst.
Ghulam Zohra (P. W. 2) about three years before the occurrence. The marriage had not been consummated and she had got her marriage dissolved from the Court of the Senior Civil Judge, Jhelum. Muhammad Nawaz petitioner had filed an appeal in the Court of the District Judge, Jhelum, which was pending at the time of the occurrence. Muhammad Nawaz had also brought a suit for the restitution of conjugal rights against Mst. Ghulam Zohra in the Civil Court at Talagang which was also pending and the 10th of January 1967, was a date fixed in the case. Ghulam Ali (P.
W., 1) had also got the petitioners prosecuted under section 366, P. P. C. And they had been acquitted in both the cases.
3. On the night between 8th and. 9th of January 1967, Ghulam Ali (P. W. 1) was sleeping in his house in village Jada` (two miles from Jhelum city). His wife Mst. Fatima (P. W. 3) was sleeping in the same room with him while his two daughters Mst. Ghulam Zohra(P.W.2), first. Khurshid Begum (not produced as unnecessary) were sleeping in the adjoining room. At about 2 a.m., there was a knocking at the door of the room in which Ghulam Ali and Mst. Fatima were sleeping. On the query of Ghulam Ali P. W., the outsiders stated that they were neighbours. He put on the electric light, opened the door of the room and found the two petitioners outside the door. Muhammad Nawaz was armed with a pistol and Haq Nawaz was armed with a hockey-stick. Muhammad Nawaz fired his pistol at Ghulam Ali who was hit on the buttocks. Haq Nawaz gave him hockey-stick blows on his head and other parts of the body. Mistri Muhammad Ali also arrived and the occur--rence was also witnessed by Mst. Ghulam Zohra (P. W. 2) and Mst. Khurshid Begum. The petitioners ran away with their weapons. Ghulam Ali was taken to the Civil Hospital, Jhelum. The hospital authorities informed the local Police andSub---Inspector Abdur Razzaq (P. W. 7) went to the Civil Hospital, Jhelum. He found Ghulam Ali in an unconscious state and recorded the statement of his wife Mst: Fatima (P. W. 3) which is Exh. P. A. It was forwarded to the Police Station where the case was formally registered. The Sub-Inspector took into possession the blood-stained chadar Exh. P. 1 worn by Ghulam Ali P. W. Which bore a cut mark on it. He proceeded to the spot, and took into possession from inside the room of Ghulam Ali P. W. Blood-stained earth under memo., Exh. P. H. He found a .303 empty cartridge lying in the courtyard of Ghulam, Ali's house and took it into possession under memo. Exh. P. G. He also recovered from outside .The courtyard of the said house one pull-through and one small tin of gun-oil vide memo. Exh. P. F. He got the site plan Exh. P. G. Prepared.
4. Doctor Ali Jawad (P. W. 4) medically examined Ghulam Ali (P. W. 1) off the 9th of June 1967 at, 5 a.m. And found the following injuries on his person:-
(1) (a) A wound of entrance 1/4" x 1/4" with inverted margin in front of the lower part of the abdomen on the right side. Corresponding hole on the dhoti was present.
(b) A wound of exit -- " x -- " with everted margin on the right hip on the back; corresponding mark on the dhoti was present.
(2) A lacerated wound 2 -- " x -- " scalp deep on the front of the centre of the head.
(3) A lacerated wound 2 -- " x -- " scalp deep on the top of the.
(4) A lacerated wound 2" x -- " scalp deep on the back of the head.
(5) A lacerated wound -- " x -- " skin deep between the ring and the little finger of the right hand.
Injury No. 1 was caused by some firearm and the rest by blunt weapon. All the injuries were found to be simple after receiv--ing the X-ray reports. The Doctor also stated under cross --examination that he rang up the Police after the arrival of the injured Ghulam Ali and that the Police had arrived in the Hospital within half an hour or so.
5. The petitioners denied the prosecution allegations with regard to the occurrence and stated that they had been falsely implicated to put pressure upon them to deter Muhammad Nawaz from pursuing his legal remedies with regard to his marriage with Mst. Ghulam Zohra (P. W. 2). They also pleaded alibi and produced three defence witnesses.
6. The prosecution case rests on the eye-witness testimony of Ghulam Ali, Mst. Ghulam Zohra and Mst. Fatima P. Ws. Which has been accepted by the learned Courts below. The evidence of motive is there, and the petitioners had the motive to attack Ghulam Ali P. W. The medical evidence is generally supporting the eye-witness testimony with regard to the time of the occurrence and the number of the assailants. The Police had also recovered blood-stained earth from inside the room.
There is, therefore, no dispute with regard to the place of occurrence as also the time of the occurrence. It was suggested to Ghulam Ali P. W. Under cross-examination that some other persons had attacked Ghulam Ali for the reasons suggested under cross-examination and that the petitioners had been substituted to deter Muhammad Nawaz petitioner from pursuing his legal remedies against Mst. Ghulam Zohra P. W. It has been con--tended at the Bar that the testimony of Ghulam. Ali, Mst. Ghulam Zohra and Mst. Fatima was interested and inimical. No doubt, Ghulam Ali, Mst. Ghulam Zohra and Mst. Fatima are interested and there were strained relations between them and the petitioners, but I have no reason to accept the petitioners' suggestion that there was any assailant other than the petitioners or that the complainant party had any good reasons to sub-- stitute the petitioners in a false case and to let off the real culprits. Muhammad Ali .Was mentioned in the First Informa--tion Report but was given up as having been won over. This can be understood and his non-production by the prosecution does not necessarily suggest innocence in favour of the petitioners. The place of occurrence is quite close to Jhelum City, and the house of the complainant has got electric supply. The prosecu--tion case can, therefore, be accepted that when Ghulam Ali had opened the door at about midnight he had put on the light in the room before opening the door. His wife Mst. Fatima P. W. Was sleeping for the night in the same room.
Both of them, therefore, had ample opportunity to identify the assailants at whose hands several injuries had been received by Ghulam Ali P.W. And who were previously very well-known to the witnesses. The claim of Mst. Ghulam Zohra that she had identified the assailants can also be accepted as she was sleeping for the night in the adjoining room and must have been awakened by the sound of the pistol-fire. The eye-witness testimony, therefore, can be safely relied upon with regard to the identity of the assailants. One of the injuries was received from fire-arm while the other four were received from a blunt weapon. The petitioners are real brothers and had come at about midnight from a far-off village. Considering the number of weapons used and the other circumstances of this case, the eye-witness testimony can be accepted with regard to the participation of the petitioners in the occurrence. In the First Information Report it is mentioned that Ghulam Ali P. W. Had been hit by the pistol-fire on his buttocks while according to the medical evidence he had been hit on the abdomen and the injury at the back was the exit wound. I have no reason to discard the eye-witness testimony with regard to the identity of the assailants on the basis of this disagreement between the ocular evidence and the medical evidence and it may even be accepted that Mst. Fatima P. W. May have got awakened by hearing the sound of pistol- fire to witness the occurrence thereafter and may not have been awakened before the pistol was fired. In any case, this point does not really affect the identity of the assailants which is the principal point for determination in this case. It is also mentioned that there has been some delay in lodging the F. I. R. As observed by the learned Sessions Judge, however, the head of the family had received serious injuries at 2 a.m. And had lost consciousness. There was not other male member in the family and he had to be carried to the hospital for medical aid and the hospital authorities then informed the Police. In these circumstances, the delay in lodging the F. I. R. Does not suggest anything in favour of the petitioners especially when they are only two in number and the nature of the injuries and the weapons of offence suggest that the culprit was not one. The alibi evidence has been rejected by the Courts below and I agree with the learned Sessions Judge that the same was insufficient to make out a case for the acquittal of the petitioners.
7. It was also urged at the Bar that there was not proper case for conviction of the petitioners under section 307/34, P. P. C. And that the case could at best be under section 324/34, P. P. C. It was suggested that there was only one pistol-fire and it was aimed not at a very vital part and that there could have been more pistol-fires if the intention was to kill Ghulam Ali P. W. Learned counsel for the State first conceded that there was no case for conviction of any of the petitioners and then conceded that their convictions should in any case be under section 324/34, P. P. C. And that the sentences already undergone were sufficient. Learned counsel for the petitioners also relied on Taj Muhammad v. The State (PL D 1963 Kar. 118) and Dhani Bakhsh v. The State (PLD 1964 Kar. 264). I, there--fore, allow this petition in part and maintain the conviction of each of the petitioners under section 458/34, P. P. C. And the sentence of one year's R.
1. Awarded thereunder. I, however, alter their convictions recorded under section 307/34, P. P. C. To one under section 324/34, P. P. C. And reduce the sentences to those already undergone. The sentences are to be concurrent. The petitioners shall be set at liberty unless required in some other case.