RIAZ HUSSAIN Versus STATE

This criminal appeal arises from the judgment of Magistrate Section 30, Muzaffargarh, whereby, he on 1-9-1981 convicted Riaz Hussain, Ghulam Shabbir appellants and Mulazim Hussain under section 307/34, P. P. C. for murderous assault upon Abdul Aziz P. W. and sentenced them to 7 years' R. I. and a fine of Rs. 5,000 each. In default thereof to one years' R I. with the direction that the fine if recovered, one half of it shall be paid to the injured.

2. The prosecution case is that on 24-4-1976 at 4-30 p. m. the appel lants and Mulazim Hussain launched the murderous assault upon Abdul Aziz. Riaz Hussain appellant put a string around his neck. Mulazim Hussain caused injuries on his right band and left shoulder and that Ghulam Shabbir chopped off his nose with a knife. This occurrence was allegedly seen by Nazar Hussain P. W. 2, Abdul Majid P. W. 5 and Ghulam Shabbir P. W.

6. It has also been stated that the police had also reached on the spot on hearing the alarm. The injured was removed to the hospital where he has medically examined by P. W. 3 Dr. Gulzar Ahmad who found the following injuries on his person.

Injuries:

(1) An incised wound starting from below the root of the nose extending downwards vertically and cutting completely both nos trils and cartilaginous part of the septum. Cut part of the nose handed over to the injured.

(2) An incised wound 1 " x x 1" (Bone deep) on the top of the left shoulder. There is a corresponding cut in the shirt.

(3) A contusion 2' x 1" on the left shoulder 1 " below the injury No. 2. It is red.

(4) An incised wound 1 " x x bone deep on the inner side of right arm 11" above the wrist joint, There is fracture of ulna also.

In the opinion of the doctor, injury No. 1 was grievous while others were simple. These injuries were caused by sharp-edged weapon.

3. In order to prove its case the prosecution examined as many as 7 witnesses out of whom Abdul Aziz P. W. 1, the victim supported the pro secution case as detailed above. He stated that the appellants and Mulazim attacked on him. Riaz Hussain put a string around his neck and Mulazim Hussain caused injuries on his person and that Ghulam Shabbir chopped off his nose. Nazar Hussain P. W. supported him on all material particulars. Abdul Majid P. W. 5 and Ghulam Shabbir P. W. 6, however, refused to support the complainant. The evidence of the remaining witnesses is more or less of formal nature. The accused when examined under section 342, Cr. P. C. denied all the incriminating circumstances and raised the plea of false implication on account of enmity. They, however, did not lead any evidence in defence.

4. The learned counsel for the appellants submitted that the pro secution has failed to prove its case beyond reasonable doubts inasmuch as Abdul Majid P. W. 5 and Ghulam Shabbir P. W. 6 have not supported the prosecution case; that the enmity of Nazar Hussain P. W. with the appel lants has been proved; that Abdul Aziz being interested witness, for the safe administration of justice in the criminal case, the corroboration was a must and that no case punishable under section 307, P. P. C. is made out against the appellants.

The learned counsel for the State has, however, vehemently defended the judgment of the trial Court.

5. After hearing the learned counsel and going through the record and appreciating the evidence in accordance with the guiding principles laid down by the Superior Courts, for the appreciation of such like cases, I am inclined to believe the prosecution case as stated by Abdul Aziz P. W. 1 for the reasons that it is a case of prompt F. I. R. The defence has not been able to show that the F. I. R. is not a genuine document and that the same was not prepared at the time and place where it purports to be. The motive has also been explained by Abdul Aziz P. W. 1; that the presence of Abdul Aziz P. W. at the place of occurrence is an admitted fact, and that he is an injured person. It being a day-time occurrence, there was no difficulty in the identification of the assailants. Since the nose has been chopped off I cannot think of the substitution, the number of the injuries and the number of the accused and the nature of the crime do commen surate. The learned counsel has pointed out some discrepancies and contradictions here and there which are but natural in the statement of truthful witnesses. The mere fact that Abdul Majid and Ghulam Shabbir P. Ws. have not supported the prosecution case is not sufficient to damage the veracity of Abdul Aziz P. W.

1. As for Nazar Hussain, al. though some enmity has been admitted by him but that by itself may not be sufficient to discard his statement in toto. As for the contention of the A learned counsel that no offence under section 307/34, P. P. C. is made out. I agree with him. The act of chopping of the nose indicates that the inten tion was to cause grievous injury and nothing more. The conviction of the appellants is, therefore, convicted from under sections 307/34, P. P. C. to 326/34, P. P. C. As for the sentence, I find that in case of Ghulam Shabbir who has chopped off the nose, the same is not excessive or harsh. As for Riaz Hussain I find that since he has not caused any injury to the victim, the sentence of 7 years and a fine of Rs. 5,000 is really excessive one and the same is reduced to 3 years' R. I. and a fine of Rs. 1,000 in default thereof to 6 months' R. I. It is further directed that the appel lants would. also get the benefit of section 382-B, Cr. P. C.

M. Y. H. Order accordingly.