2007 P Cr (PLP)

RAHMAT HUSSAIN JAFFERI, J.

This judgment will dispose of Criminal Appeal No.37 of 2003 and Criminal Revision Application No.63 of 2003 as they arise out of a common judgment. Brief facts giving rise to the present appeal and revision application are that on 18-3-1999 at about 10-45 a.m. the complainant Syed Zair Ali went to open his shop. He saw appellant Laiqur Rahman present and material of the construction was lying in front of shop of complainant. The complainant asked the appellant to remove the material, as it was creating hindrance to the business. At that time he also saw appellant Zafar, Ghulam Nabi, Muhammad Yousuf. The appellants Zafar abused the complainant and refused to remove the material. He then caused iron rod blow on his head. The appellant Laiqur Rahman gave him spade blow on his head whereas the appellants Muhammad Yousuf and Ghulam Nabi who were labourers caused him kicks and fists blows. He raised cries on which P.Ws. Javed and Faizul Hassan arrived there and saved the complainant. The complainant then went to police station and lodged the report. The police after usual investigation challaned the appellants in the Court of law. The learned third Additional Sessions Judge tried the appellants, convicted them for offences punishable under section 337-A(iii) and (i), P.P.C. for various terms of imprisonment and fine with benefit of section 382-B, Cr.P.C. under the impugned judgment, dated 24-6-2003. I have heard the Advocate for the appellant. A.A.-G. for the State and perused the record of this case very carefully. In order to prove the case the prosecution relied upon three witnesses viz. P.W. complainant Syed Azir Ali, P.W.2 eye-witness Faizul Hassan and P.W.3 eye-witness Muhammad Javed. They gave the same details of the incident as mentioned in the earlier part of the judgment therefore, need not to be repeated. All the witnesses assigned the specific role to the appellant as mentioned above. Their evidence is corroborated by medical evidence as the doctor found five injuries on the person of the injured. Out of them injuries 1 and 2 were incised on the head and the remaining were lacerated wounds. All the witnesses were cross-examined by defence counsel but he could not shake their A evidence. All the witnesses are unanimous on major aspects of the case. The learned counsel for the appellants could not point out any defect in the evidence as such prosecution has proved the case against the appellants therefore, they Dave been rightly convicted and sentenced by the trial Court. The learned counsel for the appellants has stated that the appellants may be sent on probation as they are first offenders and the incident took place in the heat of moment without premeditation, planning and that the parties have business shops near each other. The learned A.A.-G. has no objection if the appellants are sent on probation. I have given due consideration to the arguments in the light of facts and circumstances of the case. It appears that previously the parties were not on inimical terms to each other but the dispute arose over a small matter of placing the construction material in front of the shop of the complainant. Normally the construction materials are kept by the labourers therefore, it is possible that the labourers had left the materials in front of the shop of the complainant as the shop of accused party was also near to the shop of complainant. The altercation took place between the parties at the spur of moment, therefore, the appellants had not planned to commit the offence but in the heat of moment the incident took place. Appellants are first offenders. Out of them appellant Laiqur Rahman is an old and infirm person. If the appellants are sent to jail then they will mix up by the hardened criminals, therefore, there is likelihood of developing bad habits by the appellants. If the appellants remain on probation then they have to execute the bond by which they would not commit offence, create disturbances but would keep peace therefore, not only the complainant would be safe in the hands of appellants but the society would also be benefited. Under these circumstances I am of the considered view that it is a fit case where the appellants can be sent on probation as provided under section 5 of Probation of Offenders Ordinance, 1960. For the above reasons while maintaining the conviction and sentence under the impugned judgment a probation order was passed by my short order dated 4-9-2006 and the appeal was disposed of in the following manner:-- "For reasons to be recorded separately, the conviction and sentence awarded to the appellants under the impugned judgment are maintained. No case has been made out for enhancement of sentence. From the facts of the case I find that this is a fit case where the appellants can be sent on probation under the Probation of Offenders Ordinance, 1960. Consequently, in exercise of powers under section 3 of the said Ordinance, the appellant Laiqur Rahman is sent on probation for a period of three years as the appellant Laiqur Rahman is very old, infirm and appears to be sick person of more than 69 years. The remaining appellants are sent on probation for two years subject to furnishing surety in the sum of Rs.one lac each and execution of required bonds as provided under section 5 of the said Ordinance. All the documents required under the said Ordinance are to be executed before the trial Court. The trial Court should hand over the custody of the appellants to the Probation Officer to supervise the conduct of the appellants in accordance with the said Ordinance. The appellants are directed to appear before the trial Court on 15-9-2006 for completing all the formalities. The appellants are present on bail. They are allowed to continue on the same bail and bonds till the above mentioned period. The appeal is disposed of in the above terms whereas the revision application is dismissed." I.B.T./Z-17/K????????????????????????????????????????????????????????????????????????????????????? Order accordingly.