LOUNG Versus THE STATE

1. This appeal is directed against the Judgment, dated 27‑3‑1983, of Mr Ghulam Muhammad Rajput, the then Sessions Judge, Thatta, whereby he convicted the appellant, under section 326, P.P.C. and sentenced him to undergo R.I. for 7 years and to pay a fine of Rs.6000 or in default to undergo R.I. for one year more. The sentence in default of fine was ordered to run concurrently with the substantive sentence. Half of the fine if realised was ordered to be paid to the injured as compensation. It was also ordered that the period during which the appellant remained in custody as an under‑trial prisoner will be deducted from the period of sentence as required by section 382‑13, Cr.P.C.

2. Briefly stated the prosecution story is that on 21‑6‑1981, at about 1‑00 p.m. injured Jummo went to the house of complainant Mir Muhammad and after taking meals with him started for Sujawal alongwith the complainant. At Sujawal he, met P.Ws. Jhangli and Shero near the hotel of Mamoon Ladho at about 2‑30 p.m. Jummo purchased Biris from Muhammad Khachi and sat on the bench in front of his cabin while Jhangli and Shero went to the nearby push cart to purchase fruits. At that time, the appellant Loung armed with a hatchet came there. He was accompanied by Siddiq who had a hatchet arid Dino, and Karim Dino who were empty handed (Siddiq, Dino and Karim Dino have not been challaned by the Police). Dino instigated his companions not to spare Jummo who had abducted their woman. On this appellant Loung gave hatchet blow with sharp side on the right side head of Jummo who fell down. Thereafter Siddiq gave hatchet blow from sharp side to Jummo on the left side of his head. Thereafter Karim Dino son of Bachal and Dino son of Lemoon over (sic) Jummo and abused him and gave him beatings. P.Ws. Jhangli and Shero ran towards them giving "Hakals" to accused. The accused however made good their escape alongwith the hatchets. Complainant Mir Muhammad went and lodged F.I.R. which was taken down by A.S.1. Mukhtar Hussain, who was incharge Sujawal Police Station on that day at about 3‑15 p. m. The motive of the incident is that Jummo had abducted Mst Hajani cousin of accused Loung who was restored at the intervention of Nekmards and thereafter married to the accused. On account of this enmity, accused had attempted to kill Jummo. The A.S.I. immediately repaired to the scene of offence. He found Jummo lying injured on footpath in front the Pan Biri Cabin of Muhammad Kachhi. He inspected the injuries of Jummo as well as the scene of offence. He then referred Jummo to Civil Hospital Sujawal, for medical examination, treatment and certificate On the same day, at 4.30 p.m. he arrested accused Loung who produced a blood‑stained hatchet before him. He made enquiries from P.W. Shero on 24‑6‑1981. On 1‑7 1981, he got judicial confession of accused Loung recorded by the local Mukhtiarkar Magistrate. He then got 164, Cr.P.C, statements of P.Ws. Jhangli and Shero recorded by the same Magistrate. The case was challaned by the S.H.O. on 7‑7‑1981, before Civil Judge and F.C.M., Sujawal, under section 307, P.P.C. The learned Civil Judge sent up the case to the Court of Sessions Thatta.

3. A charge was framed against the accused, under sections 307 and 326, P.P.C. by Mr. Taj Muhammad Abro, the then Sessions Judge. Thatta, to which he pleaded not guilty and claimed to be tried. In his statement under section 324, Cr.P.C., the accused has denied all the prosecution allegations. He has alleged that he has been falsely implicated in this case by complainant and P.Ws. He has denied to have produced the hatchet and has alleged that the same has been foisted upon him. He has retracted from his judicial confession and has alleged that his thumb‑impression was taken on the same but the confession was not made by him. It was dictated by the S. H.O. to the Magistrate. He hays further alleged that his mother was molested at the police station and he was pressurized to make the confession. He has also claimed the same enmity with the complainant and P.Ws. as has been shown in the F.I.R. and has alleged that on account of the same, he has been falsely implicated.

4. The case was tried by the Sessions Judge. The prosecutions had examined complainant Mir Muhammad, eye‑witnesses Jhangli and Shero, injured Jummo, Mashir Ramzan, A.S.I. Mukhtar Hussain, Dr. Din Muhammad, Magistrate Mr. Gul Muhammad and Mashir Mano. Accused did not examine any witness in his defence.

5. The learned Sessions Judge, after taking into consideration the evidence of all the prosecution witnesses, decided to believe the evidence of Jummo and P.Ws. Jhangli and Shero, coupled with the supporting evidence of Medical Officer Dr. Din Muhammad. He did not place reliance on the judicial confession or the evidence of complainant Mir Muhammad or even the production of blood‑stained hatchet. On the basis of former evidence, he convicted the accused under section 326 and sentenced him as shown above.

6. Mr. Ghulam Hyder Memon, appearing for the appellant has taken me through the evidence of injured Jummo and P.Ws. Jhangli and Shero. He has contended that injured Jummo had not stated that P.Ws. Jhangli and Shero had been attracted to the scene of offence on his cries and had witnessed the incident. They must be at the push‑cart where they had gone to buy the fruits and therefore, their having witnessed the incident is not believable.

7. I do not agree with this contention. Injured Jummo has very clearly stated that Jhangli and Shero had accompanied him to the market. They went for purchasing fruits from the push‑cart while he sat on the bench in front of the cabin of Muhammad Kachhi. Sujawal is a small place. The market itself is also not big. It is not difficult to visualise that Jummo who was sitting on the bench in front of the cabin of Muhammad Kachhi, must be visible to Jhangli and Shero, who were purchasing fruits from the push‑cart. Hence non‑mention of their coming to witness the incident on hearing the cries is absolutely immaterial.

8. He has further pointed out that in his 161 statement injured Jummo had not mentioned that Jhangli and Shero had accompanied him to Sujawal and then after reaching the market had gone to push‑cart to buy fruits. Hence the mention of their presence in 164 statement and in Court statement is an improvement and cannot be believed.

9. I also do not agree with this contention it is not necessary to give each and every detail in the 161 statement particularly when it is not material.

10. Mr. Ghulam Hyder Memon has further contended that injured A Jummo had not stated before police as to which side of hatchet was used for causing the blows and on which organ of body the blows of the hatchet had landed.

11. It may be pointed out that these details are not expected from a man who had received such serious injuries and at a time when he was hardly in a position to give statement. Even otherwise the side from which the hatchet blows were caused and the site of the body on which the hatchet blows landed are such evident facts that he was not expected to specifically mention the same.

12. Mr. Ghulam Hyder then pointed out that many people had collected at the scene of offence according to admission of the injured himself but neither he disclosed their names nor the prosecution has cited any one of them as a witness. He has submitted that it is quite clear that independent and natural witnesses were available at the scene of offence which is a market place and the incident had taken place during the daylight but none of them had been examined by the prosecution so much so that Muhammad Kachhi in front of whose cabin the injured was sitting has also not been examined as a witness. He has relied upon PLD 1982 Kar. 975 (b) in this connection.

13. I do not agree with this contention as well. It may be remembered that looking to the conditions which are prevalent in our society nowadays no independent and uninterested person is willing to come forward and C give evidence against an offender and to run the risk of inviting his enmity and danger to his life at his hands and at the hands of his comrades. Same view has been expressed by Lahore High Court in N.L.R. 1980 Cr. 485 (Lah.).

14. Mr. Ghulam Hyder has tried to make much capital out of the inconsistency in the statements of the P.Ws. He has pointed out that the F.I.R. and 161 statements of the eye‑witnesses show that one hatchet blow was given by Loung to injured Jummo while two hatchet blows were given to him by Siddiq while in the Court the complainant and P.Ws. have stated that all the hatchet blows were given by accused Loung to injured Jummo. He has confronted the complainant and P. Ws. with the same and falsified that part of their statements by putting such questions to the Investigating Officer

15. No doubt this is an argument, which cannot be lightly overlooked. It no doubt, goes against the prosecution case. But on the overall appraisal of the entire evidence of injured Jummo and P.Ws. Jhangli and Shero and all other witnesses as well as the facts and surrounding circumstances of the case, I find myself in agreement with the findings of learned trial Court that the evidence of injured Jummo should be believed, because it gives a ring of truth. The presence of such serious injuries on his person are in itself evidence to the facts that he had witnessed the incident. There was no reason for him to falsely implicate accused Loung in place of the real culprit.

16. He has further pointed out that presence of Jhangli and Shero was not put to the accused. This is also not material. It is not necessary to ask it in the statement under section 342, Cr.P.C. The accused was sufficiently apprised of the evidence of P. Ws and he was asked as to why they were deposing against him. It is not necessary to mention the names of each and every witness in the statement.

17. Finally he has attacked the motive. He has submitted that the motive was not convincing. On the contrary injured Jummo has a motive to falsely implicate the accused because he had married a woman who was once abducted by him and then she was snatched from him and married to the accused. Motive, he has submitted, is a double‑edged sword it cuts both ways. With these submission of Mr. Ghulam Hyder, I also do not agree. It is a matter of common knowledge that in our villages, if a person entices away a girl then even if thereafter she is returned to her relatives and married to some one yet the relatives F and husband feel it their duty to take revenge from the person who had abducted her in the past. Hence even though, it is correct that the motive is a double‑edged sword but still the Court has to see as toy, who has a grievance and, therefore, was likely to commit the aggression.

18. No doubt I feel that in the F.I.R., besides Loung, Siddiq was also actually held responsible for causing hatchet blows but during the investigation and even thereafter the complainant party has chosen to exonerate Siddiq and gave such obliging statement before the police as well as in the Court. Previously the principle of falsus uno falsus omnibus was applied by the Courts in Pakistan. But now this principle is no more applicable in Pakistan. It has been consistently held so by H the Supreme Court and all the High Courts of this country and it has been observed that it is the duty of the Courts to sift the grain from the chaff. Reliance is placed in P L D 1973 S C 418, P L D 1976 S C 300 and P L D 1972 Pesh. 92 (D.B.) in this behalf. Hence the evidence of the injured and the two eye‑witnesses even if suffers from certain inconsistency can be believed and can be rightly made a basis for conviction. Reliance is placed in 1973 S C M R 518 and 1974 S C M R 209 in this behalf.

19. Mr. Riaz Ahmad who is appearing for the A.A.‑G. has supported the judgment of the learned trial Court. He has submitted that there is evidence of injured Jummo against the accused which in itself is sufficient to prove his guilt Moreover the evidence of injured Jummo is supported by ocular testimony of P. Ws. Jhangli and Shero. The evidence of these three witnesses finds corroboration from the evidence of the medical officer. On the whole the prosecution evidence gives a ring of truth and, therefore, it should be believed.

20. I am, therefore, of the clear view that the learned trial Court was justified in the conviction of the accused on the evidence of injured P.W. Jummo, and P.Ws. Jhangli and Shero which was corroborated by the medical evidence and the evidence of motive. I, therefore, uphold the conviction of the appellant under section 326, P.P.C. The result is that the appeal is dismissed. The sentence of imprisonment of 7 years and fine of Rs.600 and in default R.I. for one year more is appropriate behalf of the amount if realised be to paid injured Jummo as compensation. The period for which the appellant remained as under‑trial prisoner i.e. during the trial as well as during the pendency of appeal shall be deducted from the above‑said sentence as provided under section 382‑B, Cr.P.C.

21. Before parting with the R&P it may be pointed out that section 64, P.P.C. requires that sentence of imprisonment in lieu of fine should run in addition to the sentence of imprisonment imposed for the offence and not concurrently. P L D 1959 (W.P.) Kar. 56 and PLD 1958 (W.P.) Kar. 634 are relied upon in this behalf. At this stage it is not proper to make such an order as it will amount to enhancement of sentence. However, this should be brought to the notice of the learned Sessions Judge who tried this case as well as to all the Judges and Magistrates in the Province for guidance in future.

22. M.Y.H. Appeal dismissed.