1991 P Cr (PLP)

D.M. Awan for Petitioner. Abdul Qayyum for the State. Date of hearing: 20th April, 1991. Ghulam Muhammad and 4 other petitioners and 3 others were tried under section 307/148/149, P.P.C. for murderous assault on Dost Muhammad P.W.3, Muhammad Feroz P.W.4 and Shah Muhammad P.W.6. They denied the charge and claimed to be tried.

2. Prosecution produced 9 witnesses. Dost Muhammad P.W.3, Feroz P.W.4 and Shah Muhammad P.W.6 stated that the petitioners variously armed launched attack and caused injuries to them with their weapons. Dost Muhammad son of Mian Muhammad P.W.1 supported the statements made by them. Dr. Asad-ud-Din P.W.9 medically examined the injured witnesses. He found 12 injuries on the person of Feroz P.W. out of which 5 were caused by fire-arms, one by sharp-edged weapon and others by blunt weapon. All the injuries were simple in nature. He found 10 injuries on the person of Shah Muhammad P.W. out of which one was caused by fire-arm and the rest with blunt weapon. All the injuries were simple. He found 5 simple injuries caused with blunt weapon on the person of Dost Muhammad son of Ghulam Muhammad. On the same day, he examined Alam Sher accused/petitioner and found 2 injuries, simple in nature on his person. He also examined Ghulam Muhammad accused on the same day and found 3 injuries on his person caused with blunt weapon. The rest of the evidence is of formal nature.

3. When examined under section 342, Cr.P.C., the petitioners denied all the incriminating circumstances. The trial Court acquitted 5 co-accused but convicted Fateh Sher, Ghulam Muhammad and Muhammad Afzal accused. On appeal by the convicts and the revision against acquittal of the co-accused filed by the complainant, the learned Sessions Judge, set aside the judgment of the trial Court and directed retrial of the case vide his judgment, dated 18-9-1980. On remand the trial Court acquitted the 3 accused but convicted the petitioners on 17-11-1982 and sentenced them to 2 years' R.I. each and a fine of Rs.500 each under section

148. P.P.C. and 3 years' R.I. and a fine of Rs.1,000 each under section 307, P.P.C. In default of the payment of fine they were directed to suffer six months' R.I. each under each head. The sentences were ordered to run concurrently. The appeal filed by the petitioners against this judgment was dismissed on 22-3-1983.

4. Learned counsel for the petitioners submitted that the conviction of the petitioners under section 307, P.P.C. was not justified and that the eye-witnesses are not reliable. Learned counsel for the State has supported the conviction and sentences of the petitioners.

5. I have considered the matter carefully. I find that the 3 injured witnesses and Dost Muhammad son of Mian Muhammad are quite dependable. They have faced the test of cross-examination. Learned counsel has not been able to point out any material contradiction of dishonest improvement in their statements. The Courts below have properly appreciated the evidence on record. So there remains no doubt that the 3 injured witnesses had received injuries at the hands of the petitioners. As for the nature of offence, I feel persuaded to agree with the learned counsel for the petitioners. None of the injuries was declared dangerous to life or grievous in nature. This being the position, the conviction of the petitioners under section 307, P.P.C. is set aside. Instead they are convicted under section 323/324/34, P.P.C.

6. This brings me to the question of sentence. I find that the petitioners were sent to jail thrice. They remained in jail for 3 months before they could be released on bail by this Court in this revision. Two persons on the side of the petitioners received injuries during the occurrence and that the occurrence took place in the year 1979. In these circumstances, I feel that the agony of protracted trial coupled with the imprisonment suffered by them as under-trial prisoners and as convicts would meet the case. Order accordingly. SA./G-457/L Order accordingly.