1997 PLP 1004 (SCMR)

Nasir Saeed Shaikh, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in Criminal Petition No. 98 of 1995) Sh. Zameer Hussain, Advocate Supreme Court for Respondent No. 1 (in Criminal Petition No. 98 of 1995). Sh. Zameer Hussain, Advocate Supreme Court for Petitioner (in Criminal Petition No. 104 of 1995). Nasii Saeed Shaikh, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for the Complainant (in Criminal Appeal No. 104 of 1995). Date of hearing: 24th March, 1997. FAZAL ILAHI KHAN, J.‑‑‑The prosecution case in brief is that on 20‑9‑1992 at about 2 p.m. when Muhammad Zaheer complainant and Muhamad Rizwan (P.W.2) were proceeding to the mosque for offering prayer they were contronted by Muhammad Zubair, his father Alam .Khan and his brother Abdul Sattar. Alam Khan, the acquitted accused asked his sons to catch/hold of the complainant and his companions as they indulge in "Gundaism" at which Alam Khan caught hold of Muhammad Rizwan while Muhammad Zubair stabbed him on his abdomen. When the complainant intervened to rescue him he was also given a Chhuri blow on his shoulder. At the same time Abdul Sattar, acquitted accused, caught hold of the complainant and Muhammad Zubair accused stabbed the complainant on his back and, also further inflicted 2 injuries on the person of Muhammad Rizwan P.W. On the arrival of Parvaiz (P.W.3) and Muhammad Saleem the accused decamped from the spot.

2. The accused were arrested and on completion of the investigation they were put on trial. After recording the prosecution evidence and examination of the accused the learned trial Judge found Muhammad Zubair accused guilty of an offence under sections 337‑D, 337‑F(iv) and 337‑F(iii), P.P.C., on conviction sentenced him to a term of imprisonment and Daman for each offence for each injury caused to each of the accused. Abdul Sattar co‑accused was also convicted for the offences under the aforementioned sections of law and sentenced to imprisonment and "arsh" as detailed in the judgment dated 25‑7‑1994 of the learned Magistrate with enhanced powers of section 30, Cr.P.C. Alain Khan co‑accused was acquitted of the charge.

3. In appeal by the convicts the learned High Court maintained the conviction of Muhammad Zubair but modified the judgment of the trial Court to the extent that the sentences of imprisonment recorded under sections 337‑D and 337‑F(iv), P.P.C., and ordered to run consecutively were ordered to run concurrently. '4 The complainant has challenged the judgment of the learned High Court in Cr.P.‑98/95 while Muhammad Zubair has challenged his conviction and sentence in Cr.P.‑104 of 1995. It may be pointed out that Criminal Petition No.104/95 is barred by time but an application under section 5 of the Limitation Act for condonation of delay has been filed alongwith the petition. As both the petitions are directed against the same judgment therefore, for the ends of justice we allowed both the learned counsel to address arguments on merits of the case.

5. It was contended by the learned counsel for the petitioner that under section 337‑W of the P.P.C. when an accused person causes more than one hurt he shall be liable to "arsh" specified for each hurt, separately. In the instant case more than one hurt having been caused to the complainant as well as to Muhammad Rizwan P.W., therefore, the learned trial Judge was legally correct in passing the sentence for each hurt separately and ordering that the sentence shall run consecutively. The acquittal of Abdul Sattar and Alam Khan accused is also challenged as according to the learned counsel the prosecution has brought sufficient reliable evidence to prove the charge against the acquitted accused which evidence has also been relied upon in the case of Muhammad Zubair accused.

6. Learned counsel appearing for Muhammad Zubair did not press his appeal for acquittal but confined his arguments to the quantum of sentence which, according to learned counsel, is too harsh on facts of the present case. Leave is granted in both the petitions, inter alia, to consider the contentions of the learned counsel for both the parties. N.H.Q/M‑3359/S Leave granted.