' The appellant has been convicted by the Assistant Sessions Judge, Shandadpur for offences under sections 449 and 307, P. P. C, and he has been sentenced to undergo R. I. For 7 years and to pay a fine of Rs, 500 or in default to suffer simple imprisonment for six months more on the first count and to R. I. For 7 years and some amount of fine and imprisonment in default in respect of the second count separately for each of the two injured.
2. It is the case of the prosecution that appellant Bagh Bahri had suspected complainant Muhammad Bux to be having an affair with his sister-in-law Mst. Meena wife of Dodo Dahri. He had given out threats to complainant Muhammad Bux who had tried to assure him that the allegation was not correct. On the night of the incident on 2-8-1976 at about 12 or 1 a. m. Muhammad Bux was sleeping on a cot in the courtyard of his house at village Maroof Dahri. He suddenly woke up from sleep and found a person sitting over his chest and trying to cut his throat with a knife. He tried to ward off the blow of the knife with his left arm and struggled to free himself. Meanwhile his brother Usman sleeping on a cot in the same courtyard got up and rescued Muhammad Bux when the culprit stabbed him on the region of the abdomen. Usman fell down and went unconscious. On the cries of complainant Muhammad Bux the neighbours Safar, Aliah Warayo, Mir Muhammad and others came up there. They were informed that Bagh Dahri had entered their house and caused them the knife injuries. Bagh Dahri was tied up with a rope and kept in the cattle-pen of Mero Dahri in custody of Din Muhammad. Complainant Muhammad Bux and injured Usman were taken in a jeep to Shandadpur Police Station where F. I. R. Was lodged at 4-15 a.m. The police station was about 5 miles away from the village. A. S. I. Gul Muhammad recorded the F. I R. And referred the injured to Medical Officer, Shandadpur for treatment and certificate. He then visited the scene of offence and found appellant Bagh alias Arbab kept tied up at the scene with a rope. He was arrested in presence of mashirs. A blood-stained knife was found lying on the ground by the side of the appellant and this was secured. The shirt of the appellant was found stained with blood. There were scratches visible on his face and ears. After his arrest he was also referred to Medical Officer, Shandadpur. The A. S. I. Recorded statements of witnesses and sent up the appellant in Court.
3. According to the medical evidence Muhammad Bux had sustained an incised wound on the lower arm at elbow-joint and another incised wound 2' x 1" skin deep on the base and front of the neck. These were simple injuries. Muhammad Usman had three incised wounds on the abdomen, tip of the thumb and right shoulders. The first injury on the epigastrium x r peritoneum deep was regarded as dangerous to life as the mesentry was protruding out of the wound. On the person of the appellant there were three injuries, namely, swelling on the nose, left ear and right ear.
4. The prosecution has examined Muhammad Bux and his brother Usman as the injured persons and also P. Ws. Safar, Aliah Warayo and Mir Muhammad neighhours who came on the cries immediately after the occurrence and found that the appellant had entered the house and caused injuries to the complainant and his brother. Ali these witnesses were close neighbours and Safar and Mir Muhammad were also relations of the parties. The injured and the appellant belonged to the same caste. The appellant resided about 500 feet away from the house of the injured. Father of the injured was a good man of that village. Under these circumstances it cannot be possible for anyone to falsely implicate a caste-fellow and a close neighbour residing in the same village. It is true that P. W. Mir Muhammad has tried to suggest that the appellant as a suspect was brought from the house of his father and kept tied up for some time and was then allowed to go home and was again called in the morning when the police arrived. It has been explained that the parties were murids or disciples of Pir Sahib of Pagara and some Kbalifas had intervened to settle up the matter between them. P. W. Mir Muhammad was declared hostile and cross-examined by the prosecution counsel.
5. Apart from the oral testimony of eye-witnesses and the neighbours there are also strong pieces of circumstantial evidence connecting the appellant with this offence. Injured Muhammad Bux had struggled to free himself and afterwards appellant was overpowered. The medical evidence shows injuries on the nose and ears of the appellant. Then there were blood stains on the shirt which he was wearing according to the mashirnama. A bloodstained knife is also said to have been recovered from the possession of the appellant.
6. Lastly there is the motive that the appellant suspected Muhammad Bux of having illicit intimacy with his sister-in-law Mst. Meena and he has given out threats to Muhammad Bux long before the incident. The evidence of the injured corroborated by the neighbours of the appellant and the abov pieces of circumstantial evidence hardly leave any room for doubt concerning the guilt of the appellan t.
7. It has been argued by Mr. Zahoorul Haq that the night of the incident was dark and it could not have been possible for the injured to identify the assailant ; that this was also indicated by the circumstance that the footprints outside the house bad been tracked : that apart from the admission of P. W. Mir Muhammad there is also defence evidence that the appellant was brought from his house and handed over to the police and he had not been kept tied up at the scene ; that in any case the evidence was discrepant regarding the persons who overpowered and tied up appellant However, the appellant being a very close neighbour it would be immaterial whether he was kept at the scene or in the cattle-pen of Mir Muhammad who resided in the next house or he was allowed to go back to his own house 500 paces away. The evidence of the A. S. I. Shows that the appellant was kept tied up with a rope and the blood-stained knife was recovered from his possession. In such cases it is not possible to pin-point as to who actually overpowered the assailant and where he was kept.
8. It has next been argued by Mr. Zahoorul Haq that the appellant had at the most caused some simple injuries with a knife and there was no intention on his part to commit murders. He has referred to the decision of G. B. Constantine, J., in the case of Nawab Ali v. The State (1). It was observed in that case that a man is presumed to have intended the natural and probable consequences of his act. The presumption does not extend to consequences which have not occurred. That in hurt cases there is no reason to presume that anything beyond the it jury actually inflicted had B been intended. I entirely agree with Mr. Zahoorul Haq that the circumstances of this case do not indicate that there was intention on the part of the appellant to commit murders of Muhammad Bux and Usman. Muhammad Bux has sustained two skin deep cuts while Usman, an abdominal wound which was considered dangerous to life due to mesentery protruding out of the wound. The conviction of the appellant is accordingly altered to one under sections 459, 324 and 326, P. P. C. The sentence is reduced to {{FOOT NOTE}}
(1) PLD 1962 Kar. 269 {{FOOT NOTE}} concurrent sentence of R. I. For 4 years for offence under section 459, 2 year& for offence under section 324 and 4 years for offence under section 326, P. P. C. In addition to a fine of Rs, 500 or in default R. I. For 6 months in each case. But for this alteration in convictions and reduction of the sentences the appeal is otherwise dismissed.