1992 P Cr (PLP)

Date of hearing: 14th January, 1992. Muhammad Afzal appellant alongwith 13 others was tried under sections 307/447/149/109/14.8, P.P.C. by Magistrate Section-30 Mianwali Camp at Bhakkar. Vide judgment, dated 28-4-1980 the appellant was convicted under section 325, P.P.C. and sentenced 'to & 5 years' R.I. The others were acquitted. He has appealed.

2. The occurrence took place at about Degarwela on 1-t-1976 and the matter was reported to the police on the next day at 12.30 p.m. by Mst. Janat Bibi (P.W.1). According to 'her version, she alongwith Mst. Malki, Mst Kaneezan, Mst. Sabo etc. P.Ws. were present at the house, the male members being away, when the appellant along with his co-accused started construction over the plot of land in possession and part of the house of the complainant family. When they were asked to desist, they assaulted and injured the complainant, Mst. Sawai, Mst. Sabo, Mst. Malki, Mst. Waziran and Mst. Kaneezan. Two injuries by hatchet to the complainant are ascribed to the appellant.

3. The learned Magistrate, after reviewing the statements of Mst. Janat Bibi complainant (P.W.1), Mst. Sawai, Mst. Sabo, Mst. Waziran, Mst. Malki and Mst. Kaneezan, Dr. Muhammad Aslam Khan (P.W.9) who had medically examined and Munir Ahmad Khan, A.S.I. and Altaf Hussain Shah, S.I. (P.Ws.10 and 11), the investigators concluded the charge against the appellant. 4. 1 have been taken through the statements of the witnesses by the learned counsel for the appellant, none having appeared for the State. Learned counsel contended that on the same evidence the co-accused had been acquitted, the appellant convicted, so on the rule of consistency has also deserved to be acquitted. Of course rule of consistency is there but question is, were the co-accused acquitted on some sound grounds? I think, not. The motive part of the story was clearly stated and many ladies of the house were injured at the hands of the appellant and his co-accused and definite roles had been attributed to various accused. Ostensibly there was no reason to acquit those of the accused to whom specific role of causing injuries to the ladies was ascribed. The contention is, thereforc, rejected.

5. However, since the occurrence took place long back and much water has flowed down the Indus so it is not considered proper to issue Suo Motu notice to the acquitted accused as to why their acquittal be not set aside.

6. The contention of the learned counsel for the appellant is correct that from the statement of the doctor there being no injury to any of the ladies which could be said to be grievous, the conviction against the appellant could A only have been recorded under section 324, P.P.C. The appeal is accordingly allowed. The conviction under section 325, P.P.C. is set aside. The appellant is convicted under section 324, P.P.C. He has already been behind the bars for 2-1/2 months and the occurrence happened long back. In these circumstances the sentence already undergone and a fine of Rs.1,000 or-in default thereof three months R.I. would meet the ends of justice. The fine would be deposited in the Court'of Assistant Commissioner Bhakkar within one month of today otherwise the appellant would be taken into custody and sent to jail to serve out the sentence. N.H.Q./M-194/L Order accordingly.