' Khuda Baldish appellant has preferred this Criminal Appeal against the judgment dated 19-1-1995 passed by learned Magistrate section 30, Alipur District Muzaffargarh by which he has acquitted the respondents Nos. 1 to 10 from the charges under sections 326/148/149 P.P.C.
2. On the statement of Manzoor Hussain (P.W.1), F.I.R. No.143 was recorded on 1-9-1983 at about 3-30 p.m. At Police Station Jatoi by Waris Ali S.H.O./Inspector (P.W.7) under sections 326/148/149, P.P.C.
3. The occurrence in the present case took place on 31-8-1983 at about 10-00 p.m. According to the complainant-petitioner, Wazir Hussain P.W. Is his real maternal nephew. In May 1983, Mst. Aziz Khatoon daughter of Muhammad Bakhsh respondent was abducted by him and case F.I.R. No. 92, dated 1-6-1983 was registered under section 16 Offence of Zina (Enforcement of Hadood)
Ordinance VII of 1979 at Police Station, Jatoi and both Wazir Hussain and Mst. Aziz Khatoon were challaned. In the meanwhile, local police also initiated the proceedings under sections 107/151, Cr.P.C. Against both the parties but, on the intervention of Biraderi a compromise was arrived at.
However, the brothers and relatives of Mst. Aziz Khatoon nourished grudge in their minds. On 1-8- 1983 Wazir Hussain was released on bail and came to his house. The relatives of Mst. Aziz Khatoon were in search of opportunity. The complainant asked Wazir Hussain and his father Khuda Bakhsh to shift the place of their abode and they shifted to his house due to this reason. The complainant also brought his sister, mother of Wazir Hussain and wife of Khuda Bakhsh to his house at Guggiwala. About 10 days ago she (bed there and her ceremony of Qull was to be observed on Thursday. On the preceding night of 31-8-1983 at about 10-00 p.m. The complainant along with Wazir Hussain maternal nephew and Khuda Bakhsh brother-in-law of the complainant had loaded rico and woods etc. On a cart and were going towards Guggiwala. Lantern was hanging on the cart whereas the complainant had also a battery in his hand. At about 10-00 p.m. When they reached at Lunda Nala within the area of Mauza Thatha Chandair, they felt presence of some persons on the bank of said Nala. They were seen in the light of battery and he identified them as Abdul Khaliq, Lal and Ghulam Shabbir sons of Muhammad Bakhsh, Wazir and Ghulam Qadir sons of Ahmad Bakhsh, Gul Muhammad Ghulam Abbas, Ghulam Farid sons of Allah Bakhsh and Allah Rakhia son of Khuda Bakhsh. They were armed with Sotas. On seeing the complainant and other P.Ws., they raised Lalkara that they would teach a lesson for abduction of Mst. Aziz Khatoon-Ghulam Farid and Allah Rakhia gave two Sota blows on the left arm and right shoulder of the complainant and also caught hold of him. Abdul Khaliq, Lal, Bashir and Ahmed Bakhsh gave Sota blows to Wazir Hussain on his head, chest, buttocks and legs. They also caught hold of said Wazir Hussain. Meanwhile Abdul Khaliq picked out a razor from his pocket and chopped off the nose of said Wazir Hussain..
Similarly, Wazir, Ghulam Qadir, Sardar and Ghulam Abbas gave Sota blows to Khuda Bakhsh on his arms, chest buttock. They caught hold of him whereafter Abdul Khaliq chopped off the nose of Khuda Bakhsh. The complainant witnessed the occurrence in the light of lantern in the meantime, Ahmed Bakhsh son of Jalal and Ghous Bakhsh son of Imam Bakhsh came to the spot and witnessed the occurrence, who also challenged the accused-respondents whereupon the latter hurled a warning to them. Said persons, therefore raised hue and cry whereupon the accused- respondents ran away from the spot. Relatives of the injured persons were informed and thereafter the injured persons were removed to civil Hospital Jatoi. However due to non-availability of the Doctor at Jatoi, the injured persons were brought to Hospital at Shaher Sultan.
4. After registration of the case the accused-respondent were arrested by the police and recovery of Sotas was effected from them. Blood-stained razor was also recovered from Abdul Khaliq respondent.
5 On the conclusion of the investigation report under section 173, Cr.P.0 was submitted in the Court and supplying the copies required under section 241-A, Cr. P.C. Charge was framed against them, which was denied by them and they claimed to be tried.
6. The prosecution in order to prove the guilt of the accused-respondents produced as many as seven witnesses. The ocular account was furnished by Manzoor Hussain (P.W.1), Khuda Bakhsh (P.W.2 ) and Wazir Hussain (P.W.3) whereas P.W.4 Ghulam Farid had witnessed the recovery of articles. Peer Bakhsh (P.W.5) also witnessed the recovery from the respondents including the recovery of razor from Abdul Khaliq. Dr. Mushtaq Rasool appeared as P.W.6 who had medically examined the three eye-witnesses. P.W.7 Haji Waris Ali S.-I./S.H.O. Had conducted the investigation.
7. After close of the prosecution evidence, the respondents-accused were examined under section 342, Cr.P.C. In which they denied the allegations and professed their innocence.
8. The learned Magistrate after hearing the learned counsel for the parties through the impugned judgment acquitted the respondents from the charges on various grounds including that it was not proved that Mst. Aziz Khatoon was daughter of Muhammad Bakhsh respondent and was sister of Abdul Khaliq etc, and that the prosecution story was doubtful as the occurrence had taken place in the night hours.
9. Learned counsel for the appellant contends that the learned trial Court has acquitted the respondents on surmises and conjectures and failed to properly appreciate the evidence produced by the prosecution which was otherwise sufficient to connect them with the commission of the crime. It is further contended that the acquittal of respondents being based on wrong approach is liable to be set aside by this Court as all the three witnesses fully supported the prosecution story and they being injured, their presence at the spot was not doubtful. Further contends that all the respondents-accused had attacked upon them and Abdul Khaliq had chopped off the noses of Khuda Bakhsh and Wazir Hussain with razor. Further contends that the prosecution has stood on its own legs and acquittal of the respondents is not sustainable.
10. On the other hand, learned counsel appearing on behalf of private respondents opposes this appeal and contends that the judgment of acquittal is sustainable as it was night time occurrence and the witnesses could not identify the assailants, hence the learned trial Court has correctly acquitted the respondents; that all the three witnesses being closely related to each other were interested witnesses and there was no independent corroboration to their statements and the investigation was also not conducted in an independent manner; that the prosecution also failed to prove that Mst. Aziz Khatoon was daughter of Muhammad Bakhsh respondent.
11. Learned State counsel also supports this appeal on the ground the impugned judgment of acquittal has been passed on surmises and conjectures and though the occurrence had taken place in the night time yet the F.I.R. Was lodged without any inordinate delay in which names of the assailants were duly mentioned with specific roles and at the trial the prosecution produced sufficient evidence to bring home guilt to the respondents beyond any shadow of doubt. It is also contended that the witnesses and the assailants were previously known to each other and there was no question of their misidentification.
12. I have heard the learned counsel for the parties and also gone through the record with due care and caution.
13. P.W.1 Manzoor Hussain categorically stated that Abdul Khaliq respondent brought out razor from his pocket and chopped off the nose of Wazir Hussain and also the nose of Khuda Bakhsh. Khuda Bakhsh injured appeared as P.W.2 and categorically stated that the occurrence had taken place in the night time at about 10-00 p.m. And they had seen the same in the light of lantern. According to P.W.2, Abdul Khaliq respondent had taken out razor from his pocket and first chdpped off the nose of Wazir Hussain and then his nose was also chopped off by him. P.W.2 was medically examined.
Similarly, Wazir Hussain, P.W.3 also categorically stated that about five years ago when they were going to Guggiwala and reached near the place of occurrence all the respondents armed with Sotas emerged there while raising Lalkara and they gave injuries to them. P.W.3 stated that Abdul Khaliq respondent first chopped off his nose and then the nose of Khuda Bakhsh his father was also chopped by him. All these three eye-witnesses were subjected to lengthy cross-examination but there could not be brought anything on the record to show that they had not witnessed the occurrence and there was no question for misidentification at least of Abdul Khaliq respondent who had chopped off the noses of P.Ws. 2 and 3.
14. After perusal of the statements of these three eyewitnesses it is established that Abdul Khaliq respondent had chopped off the noses of Wazir Hussain and Khuda Bakhsh and all the three witnesses remained consistent on material points regarding place of occurrence and also the manner in which the occurrence had taken place. Their statements are fully supported by the statement of P.W.6, Dr. Mushtaq Rasool who medically examined all the three eye-witnesses and found two injuries on the person of Manzoor Hussain, Which were simple in nature and he issued M.L.C. 82/83 Exh. P-K. On the same day, he also examined Wazir Hussain and found 10 injuries on his person including the nose of Wazir Hussain was found chopped off. Injury No.2 was declared grievous which was caused with sharp edged weapon. Rest of the injuries were caused with blunt weapon injuries Nos.2 and 10 were kept under observation. Similarly P.W.6 also medically examined Khuda Bakhsh and found six injures on his person, whose nose was also found chopped off and he issued medical certificates (Exhs.P.M., P.K. And P.L.). He was subjected to lengthy cross-examination but nothing favourable could be gained by the respondents in their favour.
15. P.W.7, Haji Waris Ali, S.-I/ S.H.O. Who investigated the case had also supported the prosecution case. According to him all the respondents had led to the recovery of Sotas and Abdul Khaliq respondent also led to the recovery of razor blood-stained which were taken into pdssession.
These recoveries were proved through the statement of P.W.5, Peer Bakhsh. In. Such circumstances, the statements of the eye-witnesses to the extent of involvement of Abdul Khaliq found corroboration by the recovery of blood-stained razor from him. From the day of occurrence the stand of the prosecution was that Abdul Khaliq respondent with the razor; had chopped off the noses of' Wazir Hussain and Khuda Bakhsh. The motive was also proved on the record as Mst. Aziz Khatoon daughter of Khuda Bakhsh was earlier abducted by Wazir Hussain and they had been facing the trial. There is nothing on the record to show that Mst. Aziz Khmoon was not daughter of Khuda Bakhsh and sister of Abdul Khaliq etc. The learned trial Court has passed the judgment on surmises and conjectures and is not sustainable at least to the extent of Abdul Khaliq as he had chopped off the noses of Wazir Hussain and Khuda Bakhsh and their statements are consistent on this point. There was no chance of his misidentification even at night time as he was previously known to all the injured eye-witnesses and came to them at a very close range facing towards them for chopping off their noses. The defence failed to prove his false involvement in the present case by letting off the real culprit when regarding the earlier occurrence wherefor there was no doubt previous enmity between the parties but it was claimed that compromise had been effected in the said case. I am not in agreement with the learned counsel for the respondents that after such a long period of the occurrence his conviction in the said case will not be justified, as he had committed very serious offence wherein noses of two persons were chopped off and his acquittal caused failure of justice. Hence, to the extent of Abdul Khaliq respondent No.1, the impugned judgment of acquittal is set aside and he is convicted under section 326, P.P.C. On two counts and sentenced to imprisonment for 10 years' R.I. On. Two counts with fine of Rs.1,00,000 on two counts in default in of payment thereof he shall further suffer R.I. For one year on two counts. Both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. Shall also be granted to Abdul Khaliq respondent. To his extent this appeal stands partly accepted. The learned lower Court shall take necessary steps to ensure sending of Abdul Khaliq respondent No.1 to jail to serve out the remaining sentence.
16. As far as remaining respondents Nos.2 to 10 (sic) is possibility that the occurrence might have taken place with their help but the P.Ws. Who appeared in the Court had not made consistent statements about their involvement and participation in the occurrence in the manner narrated in the F.I.R. Khuda Bakhsh P.W.2 has not stated that he was caught hold by any of the accused and only stated that he was injured by the accused. Though Wazir Hussain mentioned the names of the other assailants and categorically stated that he was caught hold of by Ahmad Bakhsh, Bashir, Mosa and Abbas accused but this P.W. Had not supported this portion of his earlier statement made before the police. Hence, as regards respondents Nos.2 to 10, I do not find any illegality in the impugned judgment of their acquittal and this appeal to their extent is partly dismissed.