2017 PLP 82 (YLRN)

ABDUL SAMI KHAN, J.

Through this petition under sections 435/ 439, Cr.P.C. the petitioner has called in question order dated 26.07.2011 passed by learned Magistrate Section 30, Jhelum through which he has convicted the petitioner under section 337-A(iii), P.P.C. and he was sentenced to undergo rigorous imprisonment for two years as Ta'zir. The petitioner was also ordered to pay Arsh amounting to 10% of the amount of Diyat which is Rs. 75443/- as per schedule according to the scheduled announced in the year 2008 to be paid to victim. The petitioner was also convicted for an offence under section 337-F(v) and he was sentenced to undergo rigorous imprisonment for two years as Ta'zir and he was also ordered to pay Daman amounting to Rs. 5000/- for the injuries caused by him to be paid to victim. All the sentences were ordered by the learned trial court to run concurrently and benefit of section 382-B, Cr.P.C. was extended in his favour. The petitioner filed appeal before the learned appellate court and his sentence of two years was reduced by the learned Additional Sessions Judge, Jhelum vide impugned judgment dated 18.12.2012 from two years for each offence to one year and two months for each offence. However, the conviction passed upon the petitioner for payment of Arsh and Daman was upheld and maintained. The petitioner has challenged the conviction and sentence passed by the learned Additional Sessions Judge, Jhelum dated 18.12.2012 through the instant revision petition.

2. Precisely, the germane events forming background of this case are that the petitioner was booked in case FIR No. 257/08, dated 13.11.2008 registered at Police Station Civil Lines, Jhelum in respect of offences, under sections 337-F(v)/ 337-A(iii)/34, P.P.C. with the allegations that the petitioner entered in the house of the complainant to assault upon him and during occurrence he has inflicted iron rod on the nose of the complainant and also inflicted injury with iron rod at the finger of Mst. Rani Firdous, sister of the complainant. After completion of investigation report under section 173, Cr.P.C. was submitted against the petitioner and his co-accused whereupon charge was framed by the learned trial court on 11.12.2010 and the petitioner was required to face trial. During trial to prove the ocular account both the injured victim, i.e. Adnan Latif, complainant (PW2) and Mst. Rani Firdous, injured victim (PW3) appeared before the learned trial court to prove the injuries caused by the petitioners on their persons and their statements was supported by Mst. Bushra Sultana (PW1). Abdul Bari, SI appeared as PW4 and he stated about various steps taken during investigation of this case. The medical evidence has been furnished in this case by Dr. Khalid Javed, Radiologist (PW5)and Dr. Tayyaba (PW6). After closure of prosecution evidence the petitioner has also got recorded his statement under section 342, Cr.P.C. in which he has refuted the allegations against him and professed his innocence. He, however, did not opt to record statement under section 340(2), Cr.P.C. and did not produce any defence evidence. After conclusion of trial the learned trial court convicted and sentenced the petitioner as mentioned and detailed in preceding paragraph-which sentence was modified by the learned appellate court, hence the instant revision petition before this Court.

3. Learned counsel for the petitioner states that the medical evidence in this case is contradictory with the ocular account and the prosecution has miserably failed to prove the case against the petitioner beyond any reasonable doubt. On the other hand learned Deputy Prosecutor General has contends that the prosecution has proved the guilt of the petitioner to the hilt by producing injured victim who have received injuries at the hands of the petitioner on their persons, hence the impugned judgment of conviction passed by the learned appellate court does not warrant any interference by this Court.

4. After hearing the learned counsel for the parties and going through the documents appended with this revision petition as well as after visiting the impugned judgments dated 15.06.2010 passed by the learned Judicial Magistrate 1st Class, Jhelum and dated 18.12.2012 passed by learned Additional Sessions Judge, Jhelum it has been observed that to substantiate the allegations leveled against the petitioner both the injured victims namely Adnan Latif, complainant/injured victim (PW2) and Mst. Rani Firdous, injured victim (PW3) appeared before the learned trial court and both of them have pointed accusing fingers towards the petitioner as the culprits who have caused injuries on their persons with iron rod. Both the injured persons were duly examined by the doctor and their Medico-legal Certificates bears the injuries attributed to the petitioners. The token of receipt of injuries on their person unambiguously proved their presence at the spot. Both the injured PWs are natural witnesses and both of them are in line with each other qua the culpability of the petitioner in this case. Both of them have been cross-examined by the defence at great length but they remained consistent to each other on all material points. The parties to this case are known each other, therefore, there is no chance of false implication or mistaken identity of the petitioner. Their statements have found ample support from the statement of Mst. Bushra Sultana (PW1) who being inmate of the house is also a natural witness. The defence remained unable to shatter the credibility of prosecution witnesses whose statements have found sufficient support from medical evidence, recovery of weapon of offence and motive of the occurrence. Although during arguments learned counsel for the petitioner highlighted contradiction with regard to left and right hand between medical and ocular account respectively as in the Medico-legal Certificate of Mst. Rani Firdous (PW3) on finger of her left hand yet the fact remains that both the injured victim have categorically stated before the learned trial court that Mst. Rani Firdous has sustained injuries on finger of her right hand. I may observe here that such type of trivial contradiction in medical and ocular account can be a typographical mistake on the part of doctor but the same cannot be made basis for acquittal of the petitioner. This contradiction cannot vitiate the whole evidentiary structure of prosecution evidence. Even otherwise law is quite settled on the point that medical evidence cannot be given preference over direct evidence adduced by the injured victims whose statements are confidence inspiring.

5. For what has been discussed above, the prosecution has proved its case against the petitioner beyond any shadow of doubt. However, as far as sentence passed against the petitioner is concerned the same is contrary to the latest case-law developed in cases of hurt. It is now well-settled proposition of law that in all cases of hurt provided for in Chapter XVI of the Pakistan Penal Code, 1860 the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment as Tazir provided for the relevant offence can be awarded to an offender only where the offender is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour and in the case of such an offender the sentence of imprisonment as Tazir is not to be less than one-third of the maximum imprisonment provided for the hurt caused. For ready reference section 337-N(2), P.P.C. is reproduced as under:-- "337-N. Cases in which qisas for hurt shall not be enforced .. (2) Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may, having regard to the kind of hurt caused by him in addition to payment of arsh, award ta'zir to an offence who is a previous convict, habitual or hardened, desperate or dangerous criminal [of the offence has been committed by him in the name or on the pretext of the honour]: , [Provided that the ta'zir shall not be less than one third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour} Reliance in this regard can be placed on the cases reported as PLD 2009 Lah. 312, Ali Muhammad v. The State (2012 PCr.LJ 104). Admittedly the petitioner is first offender and he has not been convicted and sentenced in any criminal case inasmuch as he is not a hardened, desperate or dangerous criminal. Thus, in the backdrop of such a situation the sentence of rigorous imprisonment for one year and two months is not legally recognized. The same is, therefore, set aside. The conviction of payment of Arsh which is 10% to Diyat amounting to Rs.75443/- and Daman amounting to Rs. 5000/- is hereby upheld and maintained. Learned counsel for the petitioner has brought to the notice of this Court that amount of Arsh and Daman has already been paid by the petitioner. The learned trial court is directed that if amount with regard to Arsh and Daman has been deposited by the petitioner, the same shall be handed over to the injured victims and then the surety should be discharged from liability. This revision petition is disposed of with the observations mentioned above. SL/A-35/L Order accordingly.