1988 P Cr (PLP)

S. 307/34--Co-accused--Co-accused was armed with a Soti and inflicted simple injury and did not repeat blow--Conduct of co-accused negating intention to cause death of deceased--Conviction under S.307, Penal Code, set aside in circumstances. Malik Abdul Sattar Chughtai for Appellants. Shah Nawaz Khan for the State. Date of hearing: 27th March, 1988. This criminal appeal arises from the judgment of learned Magistrate Section 30, Bhakkar, whereby he on 24-9-1986, convicted Liaqat Ali, Muhammad Aslam and Shamshad alias Shadoo appellants under section 307/34, P.P.C. and sentenced them to 5 years' R.I. each and a fine of Rs.2,000 in default thereof three months' R.I. each. 2. The charge against the appellants was that they launched murderous assault in furtherance of their common intention and caused injuries to Riasat Ali P.W.3 on 20-4-1984 at evening time in the area of Chowk Darya Khan City, at a distance of two furlongs from police station. They denied the charge and claimed to be tried. 3. To prove its case, prosecution produced as many as 7 witnesses. Riasat Ali P.W.3 and Abdul Ghafoor P.W.4 are the eye-witnesses of the occurrence. They claim to have seen the appellants coming to Chowk and launching attack on Riasat Ali. They stated that Liaqat was armed with Chhuri and he inflicted blow on the back of the shoulder of Riasa: Ali. Aslam appellant was armed with Soti and he inflicted injury on his left elbow. Shamshad alias Shadoo appellant was empty handed and he caught hold of the injured in order to facilitate the co-accused to inflict injuries on him. Dr. Muhammad Nisar Malik P. W .1 medically examined Riasat Ali P . W . and found two injuries on his person. One caused by sharp-edged weapon and other by blunt weapon. The injury found on the back of the shoulder of Riasat Ali caused by sharp-edged weapon was declared grievous anc the other was simple. Abdu. Azi2 S.I. had investigated the case. The rest of the evidence is of formal nature. 4. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. Muhammad Ikram D.W.1 and Muhammad Ashraf D.W.2 were produced in defence. 5. The trial Court while believing the ocular evidence and the story stated by the prosecution witnesses has convicted and sentenced the appellants as stated above. 6. Learned counsel for the appellants contended that the prosecution has failed to prove its case against the appellants beyond reasonable doubt, inasmuch as, the statements of the two eye-witnesses suffer from infirmities such, as material contradictions/ major discrepancies; that Abdul Ghafoor P.W. is real uncle of Riasat Ali P.W.3 and he is not resident of the locality that according to the prosecution, other independent witnesses had also seen the occurrence but none of them was produced by the prosecution and that the motive lay with Riasat Ali complainant to attack the appellants. Conversely, the learned counsel for the` State has supported the judgment of the trial Court. 7. I have considered the submissions made by the learned counsel for the parties with care. I find that the two eye-witnesses namely Abdul Ghafoor and Riasat Ali are quite dependable witnesses. They had no serious enmity against the appellants to involve them falsely in the case. They have successfully faced the test of cross-examination. Except for minor and immaterial discrepancies here and there, the learned counsel has not pointed out any major contradiction or dishonest improvement in their statements. Riasat Ali is the victim of assault. The appellants have not been able to lay down any foundation for their substitution in place of the real culprits. The statements made by the eye-witnesses fit in with the rest of the evidence and the circumstances appearing in the case. The appellants have not been able to rebut the prosecution case and shake credibility of the eye-witnesses. Despite the aforesaid observations, I feel inclined to give benefit of doubt to Shamshad alias Shadoo appellant on the question of his constructive liability, in that he was empty handed and did not cause any injury to Riasat Ali P.W. He is, therefore acquitted of the charge. 8. Now I proceed to determine the criminal liability of Muhammad Aslam appellant. He was armed with Soti. He inflicted simple injury and did not repeat the blow. His conduct negates, intention to cause death of Riasat Ali P. W. , so, his, conviction under section 307, P. P. C , is set aside, instead he is convicted under section 323, P.P.C. He remained for sometime in jail as under trial prisoner and as convict also. So, the imprisonment already suffered by him will meet the case. He is on bail and. stands discharged of bail bonds. 9. As for Liaqat Ali appellant. He gave Chhuri blow on the back of left side of the chest 23 c.m. below the left shoulder. The wound was profusely bleeding. The injury was declared grievous. Since he did not repeat blow, therefore, I feel that his conviction under section 307. P. P. C. is not sustainable. The same is set aside, instead he is convicted under section 326, P.P.C. and sentenced to 4 years' R.I. and a fine of Rs.2,000 in default thereof six months' R.I. He will get benefit of section 382-B, Cr.P.C. He is on bail, he will surrender himself before Civil Judge 1st Class Magistrate, Section 30, Bhakkar. In case he fails to surrender himself within seven days from today, the learned Civil Judge 1st Class Magistrate, Section 30 will issue warrants for his arrest. On arrest, he will be sent to jail to undergo imprisonment. Disposed of accordingly. M. Y. H./ L-30/ 1 Appeal partly allowed.