1994 PLP 1788 (MLD)

Learned Judicial Magistrate, Bhalwal, District Sargodha having tried the appellants Bashir Ahmad, Muhammad Afzal, Muhammad Nawaz Muhammad Riaz, Muhammad Ashraf and Mukhtar Ahmad alongwith Sultan and Ghulam Haider acquitting the latter two convicted and sentenced Bashir mall under section 325, P.P.C. to 5 years' R.I. and the remaining appellants under section 323 ibid to one year's R.I. concurrently all to one year's R.I. under section 148/149, P.P.C. for causation of injuries to Manzoor Hussain p .w legality whereof the appellants have assailed through Criminal Appeal 10906/92 while the complainant has recoursed to Criminal Revision No.770/92 tending to seek enhancement of the appellants' sentence in addition to impugning acquittal of the acquitted co-accused and are disposed of together hereinbelow.

2. Manzoor. Hussain P.W.3 brother of Manzur Hussain injured P.W.4 on 31-7-1990 around 10-00 a.m. lodged F.I.R. Exh.PA under section 308/148/ 149/109, P.P.C. with Muhammad Amir Moharrir Head Constable P.W.1 at Police Station Kot Moman alleging that Bashir Ahmad appellant having conspired with the acquitted co-accused to wreak vengeance for the injured and complainant having disallowed him few days ago to bury his daughter in their private graveyard, around 4/5 p.m. of the preceding evening equipped with a hatchet P1 accompanied by the remaining appellants Muhammad Afzal, Muhammad Nawaz, Muhammad Riaz, Muhammad Ashraf and Muhammad Mukhtar carrying sticks P2, P3, P4, P5, P6 respectively waylaid the complainant and the injured near Nadar Luk's bamboo fields within the vicinity of Kot Moman, 3 miles from the police station, while they were returning from Dera Sultan after attending funeral ceremony. On Bashir's exhortation to avenge the refusal Riaz caused 2 stick injuries in succession to the injured followed with two hatchet blows from the reverse side by the former landing on injured's head, right shoulder, as a consequence whereof he collapsed on the ground at which posture the remaining four appellants caused him couple of injuries each on the right shoulder, back of right ribs, left wrist, palm, right upper arm, buttocks and on front of the left calf. The complainant out of scare didn't intervene, however, his hue and cry attracted Nazar P.W.5 and Nur Muhammad (given up) who too witnessed the occurrence, subsequent whereto the appellants vanished away and the injured upon removal was admitted to Civil Hospital, Kot Moman.

3. Dr. Ajmal Iqbal P.W.2 around 9-00 p.m. examined the injured and vide medico-legal report Exh.P.B observed the following:- "(1) Lacerated wound 5 c.m. x 1 c.m. bone deep on right side of head just above the hafting margins on front. (2) Contused swelling 4 x 4 c.m. left side of head 5 c.m. above left ear. (3) Contused swelling 3 x 2 c.m. on left side of head 2 c.m. below and back to injury No. 2. (4) Multiple contusions with swelling in area of 15 x 10 c.m. on top and outer side of right shoulder. (5) Multiple contusions in area of 10 x 4 c.m. on back of right scapula. (6) Contusion 4 x 3 c.m. on right side of lower chest outer part. (7) Abrasion with swelling 12 x 8 c.m. on the back and upper part of right fore-arm. (8) Contused swelling 8 x 5 c.m. on the back and lower part of right forearm. (9) Contused swelling 5 x 4 can. on back of right hand. (10) C/M 8 x 6 c.m. on outer side of left upper arm upper part. (11) Contusion 8 x 6 c.m. on outer side of right buttock. (12) Contused swelling 8 x 6 c.m. on front and upper part of right leg. (13) Patient is unconscious at the time of examination," all of blunt weapon and four hours of origin, keeping injuries 1 to 5, 8, 9 under observation, declared the rest the simple and referred to Radiologist Dr. Muhammad Yaqub P.W. 7 who vide report Exh.PJ declared skull, right forearm, right hand injuries to be bone deep and right scapula grievous which was affirmed by the former vide report Exh.PC and in cross-examination ruled out the possibility of injures Nos. 4 and 5 to have been caused by one blow, 10, 11, 12 of brickbat origin.

4. Muhammad Afzal, S.I. P.W.6 deposing to the investigation testified to the appellant's arrest alongwith their respective weapons on 8-8-1990 reduced into possession vide memos Exhs.PC, PD, PE, PF, PG and PH witnessed by Nazar Muhammad P.W.5, Nur Muhammad (given up) and the investigating officer, upon question stated that investigation didn't reveal Nawaz and Afzal having received any injury nor the complainant side being the aggressor.

5. Manzoor Hussain complainant P.W.3 reiterating the prosecution story in cross-examination affirmed their inter se relationship with the appellants and co-owners in the land, their Dera being 3 squares away from the venue of occurrence, they were returning from the funeral ceremony on two separate, bicycles, mudguard and frame of the (bicycles of the) injured got damage' during the assault who collapsed on the ground after receiving two blows from Bashir and one from Riaz and after the assault was removed to the Hospital on a cot fetching it from Nadar's Dera where he was examined by the doctor aft half an hour's time. 6 Manzur Hussain injured P.W.4 corroborated the complainant on all material particulars saved for the riding on one bike whose mudguards only were damaged and collapsing on the ground upon infliction of third injury while Nazar P.W.5 testified to the recoveries.

7. Whereas the appellants entering the plea of false involvement due to enmity stated that on account of children's triviality a quarrel ensued between Ivtanzur Hussain injured and Bashir appellant whereupon the former launched the assault forming an unlawful assembly with 8 other persons wherein Nazra, Nawaz and Afzal suffered injuries.

8. Learned counsel for the appellants assailed legality of the impugned judgment contending that the complainant didn't witness the occurrence for having been contradicted by the injured P.W. as to the number of cycles the two were riding on, sequence of infliction of injuries, the complaint of injuries could be the doing of one or two persons for which the entire flock has been roped in, the alleged armoury being not blood-stained coupled with en bloc voluntary surrender thereof to the investigating officer doesn't further the prosecution case, the medical evidence contradicts the ocular account qua Bashir as to absence of sharp-edged injury, and, lastly, save for the latter all the appellants have already suffered more than half of the sentence.

9. While learned counsel appearing on behalf of the State has supported the judgment.

10. Having perused the entire evidence I am not persuaded by the contentions urged by the learned counsel for the appellants because the ocular account furnished by the injured of broad daylight merciless barbaric beating spread over entire anatomy for the unquestioned motive stands corroborated by the testimony of the complainant who promptly removed him to the hospital manifestation of whose name in the medico-legal report rules out his subsequent importation fortification whereto is furnished by the medical evidence, including infliction of hatchet injuries from the reverse side qua which the minor contradictions pointed out by the learned counsel for the appellants are inconsequential.

11. Consequently appellant's conviction and sentence being fully borne out from the record is unexceptionable and the appeal being devoid of any substance is hereby dismissed with a right to avail the benefit contemplated by section 382-B, Cr.P.C.

12. Likewise, the revision meets the same fate because no case for taking a different view for the recorded acquittal of the co-accused is made out. N.H.Q./B-124/L Appeal dismissed.