MUHAMMAD HANIF Versus STATE

Muhammad Hanif, Shams Din Farzand Ali alias Faryad and Mukhtar Ahmad were tried before Mr. Mushtaq Ahmad Malik, Senior Civil Judge, Kasur, also empowered as Magistrate Section 30, Cr. P. C. for the offences of murderous assault and causing grievous hurt etc. under sections 307/324/ 326/34, P. P. C. All the four accused were pronounced guilty by learned trial Magistrate vide his judgment dated 9‑2‑1978 and sentenced to five years each on each of the two counts under section 307/326, P. P. C. and to rigorous imprisonment for six months on the remaining charge under section 324, P. P. C. The sentences were made concurrent. The accused have appealed to challenge their conviction and sentences. Mst. Haleema Bibi complainant in the case is not satisfied with the quantum of penalty imposed on the appellants. She has filed revisional application under section 435/439, Cr. P. C. for suitable enhancement of sentences of the appellants and also for award of compensation to Muhammad Umar P. W. who was allegedly subjected to murderous assault by the appellants, The appeal and the petition. in revision are disposed of together.

2. The facts bearing on the charge against the appellants lie in a narrow compass. The parties were residing in nearby houses in village Jhok Kanwan Wali. Muhammad Hanif and Farzand Ali are real brothers. The remaining two appellants Shams Din and Mukhtar are also real brothers. Muhammad Yusuf father of Shams Din and Mukhtar had a dispute over the land with Muhammad Yaqoob father of Mst. Haleema and Muhammad Umar (P. Ws.). It is alleged by the prosecution that on 2‑10‑1975 at about 5‑30 a.m. the appellants barged into the house of the complainant. Muhammad Hanif and Shams Din were armed with a `Toka' and a `Takwa' respectively. Farzand Ali had a pistol in his hand while Mukhtar was armed with sofa. Muhammad Hanif and Shams Din dealt one injury each to Muhammad Umar in the fore head with their respective weapons. Mst. Haleema Bibi threw herself oil Muhammad Umar so as to save him from further harm at the hands of the accused. Mukhtar tried to drag her aside and also exhorted Farzand Ali to fire at her, Akhtar Hussain P. W. interceded whereat the accused ran away, Muhammad Umar was immediately rushed to Civil Dispensary Bhai Pheru ire serious condition. The witness was referred to Mayo Hospital, Lahore for proper treatment where he was examined by Dr. Iftikhar Ahmad and found to have on him following three injuries all caused by sharp‑edged weapon :‑

(1) 1‑1/2" x 1/8" incised wound extending from right nostril (including it) going 1/2' below right eye.

(ii) 2" x 1/2 incised wound (bone cutting) extending from lateral angle of right eye to the temporal region.

(iii) About 6' curved horizontally framed incised wound on the forehead extending from middle of forehead towards the right side, bone cut and brain matter visible.

After radiological examination injury No. 1 was declared grievous by Doctor Anwar‑ul‑Haq P. W. (Exh. P.D.‑P.D./1). The offence, was registered at Police Station, Bhai Pheru as late as 22‑10‑1975. Pausing, it may be stated here that according to the note recorded by Mujtaba Hussain Assistant Sub- Inspector (P. W. 9) underneath the statement (P. :E.) of Mst. Haleema that the statement was recorded within the. premises of the High Court pursuant to order of the Court. Learned counsel for the complainant has stated from the bar that the police had flagrantly declined to register the crime whereat Mst: Haleema was constrained to file a petition before this Court for issue of proper writ directing the Sub‑Inspector to register the case. The orders were not complied by the Sub‑Inspector and a petition for contempt of Court was also. filed. Thereafter, Mujtaba Hussain A. S. I. recorded the statement (P. E.) of Mst. Haleema. Order passed by the High Court was not proved in evidence. It is, however, clear from the note recorded by the Assistant Sub -Inspector that case was registered under the constraint of orders of the High Court. Muhammad Hanif and Shams Din were arrested on 10‑12‑1975. The remaining two appellants were admitted to pre‑arrest bail by learned Sessions Judge, Kasur, on 16‑12‑1975. Muhammad Hanif and Shams Din led to the recoveries of toka and takwa (P. 1/P. 2) respectively which were taken into possession by the Investigating Officer by means of memos. (P. B. and P. C.).

3. Thirteen witnesses were examined on the side of the prosecution. Dr. Iftikhar Ahmad Khokhar who had examined Muhammad Umar could not be produced at the trial as he had already left for abroad. The report (P. H.) of examination of Muhammad Umar was proved by the statement of Muhammad Hussain, Record Keeper (P. W. 13) under section 47, Evidence Act. The appellants repudiated the charge as false. When questioned under section 342, Criminal Procedure Code to explain the evidence against them, the appellants contended that Muhammad Umar was assaulted by un identified persons. They were charged falsely on suspicions due to a dispute over the land with Muhammad Yaqoob, father of Muhammad Umar. Two witnesses were examined in defence. Learned trial Magistrate has held that the charge was established properly against all the four appellants. Farzand Ali (alias Faryad) and Mukhtar Ahmad were liable vicariously for the act of Muhammad Hanif and Shams Din who had actually assaulted Muhammad Umar.

4. It will be shown that charge against the appellant rests on direct evidence of occurrence comprising statements of Muhammad Umar, Akhtar Hussain and Mst. Haleema P. Ws. 3, 4 and 6, recoveries of toka and takwa ascribed to Muhammad Hanif and Shams Din (P. 1/P. 2), medical evidence and the motive. Muhammad Yaqoob (D. W. 7) father of Muhammad Umar also appeared in evidence and stated that he had immediately after the incident seen the appellants fleeing away from inside his house where Muhammad Umar was lying injured. The witness was told by Mst. Haleema Bibi and Akhtar Hussain that Muhammad Umar was caused injuries by Muhammad Hanif and Shams Din. For facility of disposal I will first advert to the recoveries alleged against Muhammad Hanif and Shams Din. Muhammad Shafi a brother‑in‑law of Muhammad Umar and husband of Ust. Haleema and Muhammad Ahmad (P. W. 2) a real brother of Muhammad Umar and Mst. Haleema are witnesses of recoveries. Partiality of both these witnesses is too obvious to merit detailed comments. Muhammad Siddiq Deputy Superintendent Police (P. W. 11),, who had effected the recoveries had admitted in his cross‑examination `that 5/10 persons were present at the time of recoveries. There is no explanation why disinterested, and independent persons were not joined to attest the recoveries. In cases where independent persons are excluded deliberately a presumption should be raised that the recoveries were fake. Evidence of Muhammad Yaqoob also should be left out for the simple reason that his name does not figure in the first information report.

5. This brings us to ocular evidence 'in the case. Akhtar Hussain (P. W. 4) resides at a distance of 30 miles from the place of occurrence. He says that he had visited the complainant side on the preceding day as he toad to realize some money from Muhammad Shaft husband of Mst. Haleema. He stayed at the house of the complainant during the night to await Muhammad Shafi. Evidently, Akhtar Hussain is a chance witness. His statement should be excluded as there is nothing to guarantee his presence at the time of incident. Mujtaba Hussain Sub Inspector (P. W. 9) has said in his cross‑examination that Akhtar Hussain was also present when he had recorded statement (P. E.) of Mst. Haleema which shows that Akhtar Hussain had an extraordinary interest in this case. It would not be proper to lend seal of approval to the statement of Akhtar Hussain merely for the reason that he had no motive to make a false statement against the appellants. The fate of the case, therefore; hinges on the evidence of Muhammad Umar and Mst. Haleema. Presence of Mst. Haleema is not open to any doubt whatever as the occurrence took place inside the house before sunrise. It is not denied by the defence that Muhammad Umar was dealt injuries inside the house. Both these witnesses have well stood the test of cross‑examination. Their evidence is free from any material discrepancy which could justify a reasonable doubt against their version. It was contended feebly, of course, that Muhammad Umar was caused injuries by some unidentified assailants. The appellants were charged on mere suspicions. Assuming or even conceding that occurrence had taken place much before sunrise then even the contention cannot be devalued. As said above the parties are residing in nearby houses. Mst. Haleema and Muhammad Umar could not have mistaken the appellants for others. It does not stand to reason that the appellants had been substituted for the real assailants. Substitution of an innocent person for the real accused, is a rare phenomenon. It was also contended on behalf of the appellants hat the first information report was lodged after about three weeks of the incident. which renders the case doubtful. Delay in first information report if not explained satisfactorily is always fatal to the prosecution. The argument cannot be evalued for the reason that delay in the report was not wilful. Report could not be lodged due to recalcitrant attitude of the‑ police officers verifying clearly on a criminal misconduct. The report should not have been delayed for three weeks if the appellants were to be implicated on mere suspicion in place of some unidentified assailants, as the complainant could not sit over such a serious matter so long. The period of delay itself confirms the view that delay in the report was due to circumstances beyond the control of the complainant side. They were constrained to have recourse to the High Court for orders for registration of the case by the Police. The prosecution could not be penalized for a wanton and culpable dereliction of duty by the Sub‑Inspector.

6. The contention that the case was not established against Farzand Ali (alias Faryad) and Mukhtar Ahmad beyond all reasonable doubts must prevail. It cannot be denied that Mst. Haleema and Muhammad Umar are interested witnesses. As a rule of prudence evidence of interested witnesses should not be relied upon unless corroborated by some other independent evidence. The evidence of these two .witnesses receives proper corroboration qua Muhammad Hanif and Shams Din who had actually caused injuries to Muhammad Umar. Their evidence lacks in corroboration as regards the remaining two appellants. It is not understandable why Farzand Ali (alias Faryad) and Mukhtar Ahmad both of whom were armed should have abstained from active participation in ‑the crime when they had accompanied Muhammad Hanif and Shams Din for a common purpose. Farzand and Mukhtar are given benefit of doubt and. acquitted of the charge.

Noor Ahmad and Noor Muhammd (D.Ws.12) were examined by the appellants m defence. Muhammad has said that Yaqoob father of Muhammad Umar (P. had informed him that some unidentified persons had dealt injuries to Muhammad Umar. Peer Badshah had on the desire of Muhammad Yaqoob taken oath that the appellants were innocent. Noor Ahmad has also made a similar statement. It will. be un necessary to discuss evidence of these witnesses in detail as learned counsel for the appellants does not rely on them. Suffice it to say that version of both these witnesses is after thought as it was not suggested to Muhammad Yaqoob (P. W. 7) during his cross‑examination. Charge is proved against Muhammad Hanif and Shams Din beyond all doubts.

The nature and locale of injuries which were evidently sufficient to cause death in the ordinary course of nature, the kind of weapon, the force with which it was used and the result it had produced should leave none in doubt that Muhammad Hanif and Shams Din appellants were guilty or a n attempt at the life of Muhammad Umar. Intention is a state of mind which is inferred from the external act. If a person inflicts hurt upon another with the intention of putting his life in danger he should be saddled with the intention envisaged in section 307, P. P. C. Conviction of these two appellants under the said section is maintained. They cannot be awarded separate sentences for the offences under section 326/324, P. P. C. G which were included in the offence of murderous assault under section 307, P. P. C. The appellants had remained in the lock‑up for two years and four months during the trial which is by no means a short period. Section 382‑B which was added to the Code of Criminal Procedure through a recent amendment lays down that the period during which the accused was kept in custody for proceedings at the trial should be kept in view in passing the sentence against him. In the circumstances, sentence of five years of the offence under section 307, P. P. C. cannot be regarded as inadequate. The provisions under section 544‑A, Criminal Procedure Code which were overlooked by learned trial Magistrate are mandator and salutary as well. The object behind the provisions is to alleviate sufferings of the victims of assault through award of compensation and to provide an effective deterrent against the crime. Accordingly, both the appellants shall pay to Muhammad Umar Rs.2,000 each by way of compen sation, in default for the rigorous imprisonment for one and a half years each.

7. In the results, the appeal as well as the revisional application succeed partly as indicated above. Farzand Ali (alias Faryad) and Mukhtar Ahmad shall be set at liberty forthwith if not detained on any other Court.

Order accordingly.