PASAND KHAN Versus THE STATE
1. This appeal is directed against the judgment passed by the learned Third Additional Sessions Judge, Karachi (West) dated 24‑9‑1986 convicting the appellant under 5.307, P.P.C., and sentencing him to undergo R.I. for three years and to pay a fine of Rs.500 in default, to undergo further R.I. for three months.
2. The facts of the case briefly stated are that on 7‑10‑1973 at about 10‑45 p.m. complainant Abdul Qayyum while going to his shop in Liaquatabad saw the present appellant, who was a rickshaw driver, involved in an altercation with some passengers. The complainant tried to intervene which annoyed the appellant and he attacked the complainant with a knife and caused injuries on the left side of his chest. Thereafter the appellant ran away from the scene of incident, leaving behind his rickshaw but was later arrested by the police. The knife was also secured from his possession. The incident was witnessed by P.Ws. Abdul Qayyum (complainant), Zafaruddin, Sufi Hasan Muhammad and Mohibuddin. Then after investigation the appellant was challaned before the learned Court of Sessions.
3. In his defence, the case of the appellant was that he was in fact beaten by complainant Qayyum and others who also snatched away his watch and Rs.40 because he had a quarrel with two passengers of the rickshaw. The appellant also denied to have stabbed complainant Abdul Qayyum.
4. As far as the case of the prosecution is concerned, the same is supported by the evidence of four eye‑witnesses referred to above who have fully implicated the appellant. Besides that, the case is also supported by medical evidence according to which the injured had received two incised wounds, one inch deep, on the left side of his chest and axilla respectively. However, the medical evidence is silent about the nature of the injuries as opinion of the doctor in respect thereof was reserved but thereafter, it appears, no further opinion was given by him. Then there is the evidence of mashirs in whose presence the weapon used in the commission of the offence was recovered from the appellant.
5. The defence version, on the other hand, does not only appear to be implausible on the face of it, but the same has not been established by any evidence. The complainant had received two injuries on his person and it is highly improbable that he would substitute the name of the appellant for the actual culprit. In any case, the onus to establish substitution would lie on the person who raises such plea. Admittedly, no such evidence has been produced by the appellant. However, the basic question which arises is, whether the circumstances of the case warrant the appellant's conviction under section 307, P.P.C. It clearly appears that prior to the incident, the appellant did not know the complainant therefore, it appears to be highly improbable that injuries had been caused by him to they complainant with any intention of causing his death. The offence was committed suddenly at the spur of the moment and without any premeditation as according to the evidence the complainant intervened in the quarrel between the appellant and the rickshaw passengers which annoyed the appellant resulting in causing of injuries to the complainant. Although no opinion is given by the doctor as to the nature of injuries but in absence of such opinion this Court can legitimately infer that the injuries caused to the complainant were simple in nature. Consequently, at the most, the offence committed by the appellant should fall within the purview of section 324, P.P.C. and not section 307.
6. I would therefore, alter the conviction accordingly. As to the question of sentence, the sentence of three years awarded by the Sessions Court, under the circumstances also requires to be altered. Mr. Muhammad Mehboob Khan learned counsel for the appellant has stated that the appellant has already spent 64 days in custody. This fact has also been verified by me from the record of the case. Consequently, I am of the view that the ends of justice would be sufficiently served if the sentence of the appellant is reduced to that already undergone by him.
7. This appeal is, therefore dismissed, but subject to the modifications as already pointed out. The appellant is on bail therefore, the bonds furnished by him or by his surety are discharged.
8. M.Y.H./P‑43/K Order accordingly.