' The two appellants, who are brothers inter se, have been convicted by a learned Additional Sessions Judge, Khairpur, by his judgment delivered on 29-3-1977; of offences punishable under sections 307 and 326, both read with section 34, P. P. C., for attempting to commit murder of Mst.
Khani alias Mst. Khanzadi and causing grievous hurt to her, and they have been sentenced for each of the said offences to R. I. For 7 years, with the direction that the two sentences will run concurrently.
2. The prosecution case, shortly stated, is that on the night intervening between the 2nd and 3rd October, 1976, Mst. Khani according to her usual custom, was sleeping at the `Juwar Bar' (stack of Juwar grain), located in her Juwar field, at about a call's distance from Smang village, when at about dawn time, she got up to offer prayers. It is alleged that just the appellants one of whose brother is married to the daughter of Mst. Khani and in turn their sister was married to Mst. Khani's son, Panjal, turned up, and out of them appellant Amin, who was armed with a hatchet, gave a blow with the same to the deceased on her right cheek and thereafter climbed on her body and out off her right ear with a knife and removed her gold Wallies which she was wearing in that ear. It is further alleged that appellant Shabbir also caught hold of the left ear of Mst. Khani and removed her gold Wallies from that ear by cutting them away with a knife, and thereafter he fired a pistol shot at her, hitting her in the abdomen. On the pistol shot and her cries, first informant Panjal and P.
W. Khabbar are said to have been attracted and seen the appellants running away. It is also claimed that Mst. Khani, who was semi-conscious, informed Panjal and others, who had gathered in the meanwhile, that she had been injured by the two appellants. Mst. Khani was removed by her son, Panjal, to the Khairpur Police Station, two miles away from the vardat, but as she had lost consciousness by that time and was not in a position to make a statement, the F. I. R. Was lodged by her son Panjal. The motive for the crime is said to be the dispute between the complainant party and the appellants on account of the death of the appellants' sister; Mst. Anwar, who was married to first informant Panjal. She had died in the hospital at Khairpur, but the appellants claimed that she had been poisoned by the complainant party, including the deceased_ and consequently were demanding a sum of Rs, 20,000 or in lieu there of the hands of two girls in marriage, as compensation.
3. Immediately after the lodging of the F. I. R. Mst. Khani was sent for examination and treatment to the Civil Hospital, Khairpur. Thereafter, Additional S. H.
0. Bashir accompanied the first informant to the scene of offence from where he secured blood- stained earth in the presence of trashirs Ali Muhammad and Atta Muhammad. Thereafter, he recorded the statements of P. Ws. Khabbar and Panjal son of Fakir Muhammad. On 7-10-1976, he recorded the statement of Mst. Khani in the hospital. On 12-10-76, the Additional S. H. O. Arrested both the appellants from the Otak of Ali Muhammad Smang. However, neither the missing gold Wallies nor the weapons with which the offence was committed, have been recovered. In fact, there is no evidence that any recoveries were made from either of the appellants.
4. The main evidence in the case is of injured Mst. Khani. She has, in her evidence, described in detail how she was attacked by the two appellants, who not only gave her a hatchet blow on the right side of her cheek and cut off the gold Wallies from her ears with knives but further appellant Shabbir had caused her an injury with a pistol in her abdomen.
5. Mr. Muhammad Hayat Junejo, the learned counsel for the appellants, has assailed the evidence of Mst. Khani on the grounds that she was examined on the 4th day of the lodging of the F. I. R. And since there was admittedly a strong motive for the complainant party to involve the appellants, she has just adopted the version given by her son in the F. I. R. That her evidence is inconsistent with the medical evidence; that she has made contradictory statements and finally that she is contradicted on material points by the other witnesses in the case. Mr. Manzoor Hussain, the learned counsel who appeared for the State, on the other hand strongly relied on her evidence and contended that since the incident occurred at dawn, she had ample opportunity of identifying her assailants and hence there was no reason why she should, substitute the appellants for the real culprits.
6. Although Mst. Khani in her evidence in Court has stated that -appellant Amin had climbed on her body and pressed his knees on her chest -and thereafter he cut off her right ear with a knife while appellant Shabbir cut off her left ear also with a knife, no such thing was stated by her in her section 161 statement. Her evidence also appears to be inconsistent with the medical evidence.
Although she has stated that the first injury to her was caused by appellant Amin with a hatchet on her right cheek, no such injury was -found on her by the Medical Officer who had examined her on the very day -of the incident. Furthermore, the size and the nature of the injuries which the Medical Officer found on her seem to indicate that they were caused with a heavier weapon than a knife.
The medical evidence discloses that the Following injuries were found on her person:- "Injury No, 1.-Incised wound 6' into 2' into ear pinna cut on left side of face extending down to the neck.
(2)Injury No, 2.-Incised wound 4" into 2' into ear pinna cut on right side of face extending down to the neck.
(3)Injury No, 3.-Fire-arm injury half inch into half inch into cavity deep on left side of chest in lower part in the mid axillary line (wound of Entrance).
X-ray of the chest was taken which showed one bullet on the right side of chest with Hemothorax."
7. The Medical Officer himself has opined that injuries Nos. 1 and 2 -were apparently caused with a hatchet while injury No, 3 was a fire-arm injury. No question was put to the Medical Officer by the prosecution from -which it could be inferred that the injuries on the ears of hist. Khani could possibly have been caused with a knife as alleged by her. I am also reluctant to believe, in the circumstances of the present case, that the appellants, besides being armed with deadly weapons like pistol and hatchets, would also be carrying knives.
8. Another important aspect of the case is whether Mst. Khani retained her consiousness or at least regained her consciousness shortly after the incident, so as to be able to inform the witnesses as to the identity of her assailants. The evidence on this point is conflicting and it is difficult to place reliance on the same. According to the Medical Officer, Mst. Khani might have gone senseless immediately on receiving the injuries which he found on her person. First informant Muhammad Panjal has himself stated that when he went to the scene of offence, Mst. Khani was unconscious but she regained semi-consciousness after half an hour. He is not supported on this point either by Mst. Khani or any other witness. In this connection it may be mentioned that according to Mst.
Khani she was conscious at the Vardat, the police station and also in the hospital, though sometimes she used to become semi-conscious. According to P. W. Khabbar, when he went to -the vardat, Mst. Khani was unconscious and was in a bad condition. He .Claims that she had regained consciousness at the Police Station. P. W. Panjal son of Fakir Muhammad has indirectly stated that Mst. Khani was conscious by deposing that she had told one Allahwasayo in his presence that the appellants had caused injuries to her. However, Allahwsayo has not been examined. Finally, mashir Ali Muhammad has deposed that Mst. Khani was not in senses and she did not speak. The above analysis of the evidence of the various witnesses does not lead to a positive inference that Mst.
Khani -was either conscious or in a position to give the names of her assailants at the spot.
9. Although the prosecution version is that the incident took place at dawn time, the possibility of its having occurred much earlier cannot be ruled out. According to mashir Ali Muhammad it was still dark when they heard the cries. Mr. Muhammad Hayat Junejo further submitted that if the culprits knew that Mst. Khani was sleeping alone at the "Juwar Bar" the whole night, it was unlikely that they would have committed the crime at dawn time, and thus taken the risk of being seen, identified and perhaps apprehended by villagers who are early risers. There does appear to be some substance in his contention. The contention gains some support from the absence of any mention in Mst. Khani's 161 statement that she had got up for offering prayers when she was attacked.
10. In view of the above circumstances, which do not inspire implicit confidence in Mst. Khani's statement, coupled with the fact that there is admitted hostility between the parties and thus there was a motive for her to falsely implicate the appellants because of this dispute, it is not possible to place reliance on her testimony, without corroboration.
11. Her evidence was sought to be corroborated by the testimony of first informant Panjal and P. Ws.
Khabbar and Panjal son of Fakir Muhammad. I have already referred to the fact that P. W. Khabbar has stated that Mst. Khani was unconscious and had regained consciousness at the police station.
His evidence is only to the effect that he had been informed by first informant Panjal that the appellants have caused injuries to his mother and were running away. So far as first informant Panjal is concerned, his evidence, firstly, is that he saw the appellants running away, and secondly, that he was informed by Mst. Khani that the appellants had caused injuries to her. I have already discussed the point whether Mst. Khani was conscious and was in a position to give the names of the assailants. So far as P. W. Panjal son of Fakir Muhammad is concerned, he too has stated that he was informed by first informant Panjal that the appellants had caused injuries to his mother and had removed her Wallies. It is, therefore, to be considered whether first informant Panjal's evidence regarding his seeing and identifying the appellants can be relied upon. Even if I accept his testimony that at the time of the incident he was going to his field to cut the Juwar crop, which fact itself it is difficult to believe by reason of the fact that admittedly he did not carry a scythe with himself, according to the mashirnama of the scene of offence, he is said to have seen the appellants from a distance of 60 paces. Even if the incident occurred at 5-30 a.m. As alleged by the prosecution, in the month of October when the transaction occurred, it would still be dark, as has been admitted by mashir Ali Muhammad, and identification in such circumstances from a distance of 60 paces, of people who were running away would be difficult and in any case highly unsafe and unreliable.
12. Mr. Muhammad Hayat Junejo contended that the fact that the gold nose rings and gold Wallies of Mst. Khani had been removed by the culprits suggests that the crime was perpetrated by thieves and not by the appellants. The contention does not appear to be without substance. If the appellants wanted to take revenge from Mst. Khani for the alleged poisoning of their sister, Mst.
Anwar, they would have killed Mst. Khani rather than merely injured her and removed her Wallies, so as to leave positive evidence against them. This fact, together with the other circumstances mentioned by me above, casts a shadow of grave doubt over the prosecution version.
13. In the circumstance, I consider that the guilt of the appellants bask not been established beyond any reasonable doubt. I would accordingly give them the benefit of this doubt and would acquit both of them an accept their appeal. If they are not required in any other case, they should be forthwith set at liberty. Before concluding this judgment, I would lik to observe that the learned Additional Sessions Judge misconceived the position in law when he convicted the appellants both under sections 307 and 326, for causing injuries to the same person, and awarded separate sentences to them for the same offence. Such action is in violation of the provisions of section 403, Cr. P. C. And section 26 of the General Clause Act, 1897.