GHULAM MUHAMMAD Versus STATE

This appeal arises from the order of Magistrate Ist Class Section 30, Muzaffargarh, whereby he on 20th December, 1981 , convicted Ghulam Muhammad and Muhammad appellants under section 307/34, P.P.C. for murderous assault upon Ghulam Muhammad P.W. 3 and sentenced them to 7 years R.1. and a fine of Rs. 10,000 each or in default thereof to further R.1. for one year.

2. The prosecution case is that on the night between 17/18th May, 1975, Allah Bakhsh complainant and Ghulam Muhammad, the victim were sleeping in the open in front of the house of the complainant. It was last 'pehr' of the night when Allah Bakhsh heard alarm raised by Ghulam Muhammad which attracted him, Mst. Aisha and Umar. P.W. to the spot. Ghulam Muhammad had a torch in his hand and in the light of the same, they saw and identified Ghulam Muhammad and Muhammad appellants giving blows with hatchet and dank, respectively on the person of Ghulam Muhammad P.W. The motive as alleged by the prosecution is that Ghulam Muhammad P.W. had asked the accused not to damage his crops which annoyed the appellants.

3. The prosecution examined as many as 8 witnesses out of whom Allah Bakhsh P.W. 2, Ghulam Muhammad P.W. 3, Mst. Aisha P.W. 4 and Umar P.W. 5 have given the ocular account of the occurrence. Ghulam Muhammad P.W. 3 has stated that Ghulam Muhammad and Muhammad appellants had caused injuries with hatchet and Sota on his person. Ghulam Muhammad's blow fell on his face. He further stated that since he had asked the appellants not to damage his crops, they have caused injuries on his person. Mst. Aisha P.W. 4 and Allah Bakhsh P.W. 2 the complainant have supported Ghulam Muhammad's statement on all material particulars. Dr. Muhammad Saleem Arshad, P.W. 7 had examined Ghulam Muhammad P.W. 3 and found as many as 4 injuries on his person.

Injuries:

(1) Incised wound 4" x 1" buccal cavity starting from the middle of upper lip, passing downward and laterally towards the right side, in the way cutting the lower jaw and lower lip, right side of the chin, upper left incissor tooth found missing, cavity found injured, lower right incissor tooth found missing.

(2) Incised wound 1" x " muscle deep on the right and front of the chest.

(3) Lacerated wound 3" x 1" muscle deep on the lateral side of the hand at the root of right index finger.

(4) Lacerated wound 1" x 3/4" muscle deep at the root of right thumb " away from injury No.3.

Injury No. 1 was declared grievous and rest simple. In his cross -examination, the doctor stated that the possibility cannot be ruled out that both teeth might be missing before the occurrence.

4. 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. He, however, did not lead any evidence in defence.

5. The learned counsel for the appellants has not challenged the findings of the learned trial Court that Ghulam Muhammad had received injuries at the hands of the appellants. He submitted that in view of the statement of the doctor, the offence at the worst committed by the appel lants would be punishable under section 324/34, P.P.C. The learned counsel for the State, has however, defended the judgment of the trial Court.

6. After hearing the learned counsel and going through the record, I find that there is ample evidence to connect the appellants with the infliction of the injuries on the person of Ghulam Muhammad P.W.3 and as such the learned counsel has rightly conceded that the victim received injuries at the hands of the appellants and none else. After having examined injury No. with care, I find that this injury has been declared grievous by the doctor for the reason that 2 teeth of the victim were found missing. The doctor in his cross-examination has stated that the possibility cannot be ruled out that both the teeth might be missing before the occurrence. In these circumstances, I am of the opinion that benefit of doubt must go to the accused on the point of the nature of offence. The rest of the injuries were found simple. The conviction of the appellants under section 307/34, P.P.C. is, therefore, altered to one under section 324/34, P.P.C. and the sentence is reduced from 7 years' R.I. to 2 years' R.I. each and the fine of Rs.10,000 awarded to each of the appellants is reduced to Rs.5,000 each in default of the payment of fine. The appellants would get benefit of section 382-B, Cr.P.C. 6 months' R.1. With this modification, the appeal is dismissed.

7. Before parting with the judgment I would like to observe that it appears that Ch. Faqir Muhammad, Judicial Magistrate Section 30, Muzaffargarh has announced the judgment before writing the same. Let a separate file be opened against him and he be directed to appear before this Court on 7th March, 1983 and to explain his position.

M. Y. H. Order accordingly.