1976 P Cr (PLP)

In this Criminal Revision the learned counsel for the petitioners has not challenged the convictions of the petitioners, but has only argued this case on the question of sentence. The facts necessary to be stated in connection with the above prayer are as follows :‑

2. On 12‑10‑1972 a case under section 307/379/332/353, P. P. C. was registered at Police Station. Musakhel at the instance of one Mustafa Shah, Forest Guard, on the allegation that while on patrol duty he alongwith Suleman, Beldar, reached near lot No. 185 in Kundian Forest, they found Wali Muhammad and his son Abbas (petitioners herein) cutting some wood. Mustafa Shah complainant arrested theta and started to take them to the office, but they resisted. The complainant, however, succeeded in snatching the hatchet from Ghulam. Abbas petitioner, with the assistance of Suleman P. W. The petitioners, aforementioned, shouted and called for help, whereupon, the other three petitioners, namely, Dost Muhammad, Ghulam Muhammad and Muhammad Sharif. armed with gun, Wahola and hatchet respectively reached the spot. Muhammad Sharif petitioner gave a hatchet blow on the head of Sideman P. W. while Ghulam Muhammad petitioner inflicted three injuries on his person with the blunt side of his Wahola. Thus the following four injuries were inflicted on the person of Suleman P. W. :‑ (1) Incised wound 1' x ' bone deep on the right upper part of forehead, (2) Swelling 4'x 1 ' on the middle of outer side of left forearm.‑‑ (3) Abrasion 6' x ' on the back and its left and lower part. (4) Abrasion 1' on the left elbow. Injury No. 1 was the result of a sharp edged weapon while the other three injuries were caused by a blunt weapon, Injury No. 1 was kept under observation, but there is nothing on the record to show as to what was the nature of the said injury, i. e. whether it Was simple or' grievous. The occurrence was also witnessed by Muhammad Khan and Haq Nawaz P. Ws. who had arrived at the spot meanwhile. Dost Muhammad petitioner fired two shots from his gun, obliging the P. Ws. to hide themselves behind the trees and the petitioners retreated from the spot under the cover of firing by Dost Muhammad petitioner.

3. The learned trial Magistrate (Rai Muhammad Yar Khan) Isakhel, District Mianwali, vide his order dated 6‑8‑1974, convicted the petitioners of the offences under section 307/353, P. P. C. Under section 307, P. P. C. they were sentenced to three years' R. I. each, as well as to pay a fine of Rs. 300 or in default thereof to undergo further R. I. for six months each. So far as the conviction tinder section 353, P. P. C. is concerned, the petitioners were sentenced to six months' R. I. each. Both the sentences were to run concurrently. It was further directed that out of the fine, if realized, a sum of Rs. 300 each would be payable to Suleman and Mustafa P.Ws. The petitioners challenged the said order by filing an appeal, but their appeal was dismissed by Mr. Muhammad Hussain Kazi, Additional Sessions Judge, Mianwali, who maintained their convictions and sentences, vide his order dated 10‑9‑1975.

4. The contention raised in support of the plea for mitigation of sentences is that none of the injuries inflicted on the person of Suleman P. W. was proved to be grievous and indeed he had, in law, received no injury. In this connection it was pointed out that Suleman h. W. was medically examined by Dr. Bashir Ahmad, Medical Officer. Kundian, but the said doctor was not examined in Court to prove his report and in his place Dr. Aftab Iqbal, Medical Officer, was examined, who identified the handwriting of Dr. Bashir Ahmad, who had examined the said injured P. W. As there was no evidence to prove that Dr. Bashir Ahmad was dead or was not available, or his whereabouts were not known, secondary evidence could not have been recorded. The legal position, therefore, was that there was no evidence to show that Suleman P. W. received any injury. There was also no evidence to show as to whether any of the injuries suffered by Suleman P. W. was grievous in nature, and lastly there was no certitude as to with what weapon particular injury was caused. Moreover, the medical report was wrongly admitted in evidence without due proof and the Courts below had taken into consideration evidence which was not legal evidence.

5. There is some force in the contention that the medical testimony could not be read in evidence. However, there is ocular evidence to the fact that one of the injuries was caused by Muhammad Sharif petitioner with his hatchet on the head of Suleman P. W. Even if the plea of the learned counsel for the petitioners was accepted that the offence committed did not fall within the provisions of section 307, P. P. C. it did fall within the ambit of section 324, P. P. C. The learned counsel for the petitioners urged that the sentences of the petitioners be reduced to those already undergone. It was pointed out that the firing by Dost Muhammad with his gun did not cause any injury to any of the P. Ws.; that the petitioners had been facing the agony of trial since October 1972; that they were convicted and sentenced on 6‑8‑1974, and although shortly thereafter they were released on bail by the appellate Court, however, after the dismissal of their appeal, on 10‑9‑1975. all the petitioners except Wali Muhammad and Ghulam Abbas, whose sentences were suspended by me on 13‑10‑1975, have been in prison, the period being about nine months. It is further pointed out that Wali Muhammad and Ghulam Abbas petitioners did not take any part in the attack on Suleman P. W. except for the scuffle to secure their release from the hold of Suleman and Mustafa P. Ws.

6. The learned counsel for the State did not oppose the prayer for reduction of sentences of the petitioners, except that of Muhammad Sharif petitioner.

7. I agree with the learned counsel for the State that the sentence of all the petitioners except that of Muhammad Sharif, deserves to be reduced. Even in the case of Muhammad Sharif, there is some force in the plea 'of the learned counsel for the petitioners that the offence committed by him would fall more appropriately within the purview of section 324, P. P. C. rather than under section 307, P. P. C. because he inflicted only one injury and in spite of the fact that Suleman P. W. had fallen down, he (Muhammad Sharif petitioner) did not take any advantage of his helplessness and inflict any further blow and the injury which Suleman P. W. did receive was not inflicted with such force so as to cause the facture of any bone. Nonetheless the plea that his sentence should be reduced to the sentence already undergone by him also cannot be accepted, as this would result in a miscarriage of justice. The injury caused by, him was with a hatchet. He used its sharp side and the seat of injury was in the region of Suleman P. W: s head. Taking all factors into account the petitioner Muhammad Sharif is convicted under section 324, P. P. C. and the sentence of two years' R. I. and payment of fine of Rs. 300, in default of payment of which he should undergo further R. I. for six months would meet the ends of justice. His conviction and sentence under section 353, P. P. C. is, however, maintained.

8. So far as the other petitioners are concerned, Ghulam Muhammad inflicted only simple injuries on Suleman P. W. with the blunt side of the Wahola, he, therefore, is found guilty under section 323, P. P. C. instead of under section 307, P. P. C. and his sentence reduced to that already C undergone. He shall, however, pay a fine of Rs. 300 in default whereof, he shall undergo further R. I. for three months. His conviction and sentence under section 353, P. P. C. is, however maintained. The firing by Dost Muhammad petitioner appears to have been resorted to only to scare away the P. Ws. His conviction under section 307, P. P. C. is set aside, but that under section 353, P. P. C. is maintained. Similarly the conviction of Wali Muhammad and his son Ghulam Abbas under section 307, P. P. C. is set aside, but that under section 353, P. P. C. maintained. The sentences of the last three mentioned petitioners are reduced to those already under gone by them.

9. The result is that this Criminal Revision is partly accepted. The sentence of Muhammad Sharif petitioner is reduced to two years R. I., but be shall have to pay a fine of Rs. 300 or in default thereof undergo further R. I. for six months. The sentence of Ghulam Muhammad petitioner is reduced to that already undergone by him, but the sentence of fine is maintained. However, in the event of non‑payment of fine, be shall undergo further R. I. for three months. The sentences of the other petitioners, namely. Wali Muhammad, Dost Muhammad and Ghulam Abbas petitioners are reduced to those already undergone by them. The fine, if realized, shall be paid to Suleman P. W.

10. Wali Muhammad and Ghulam Abbas petitioners are on bail and their bail bonds are discharged. Ghulam Muhammad and Dost Muhammad petitioners are in Jail. They shall be released forthwith as their sentences have been reduced to those‑already undergone by them, provided, however, Ghulam Muhammad has paid the fine ordered to be paid by him. so far as his release is concerned.