1992 P Cr (PLP)

JUSTICE RAJA AFRASIAB KHAN, MEMBER.

Muhammad Aslam son of Rasool Bakhsh, caste Wahoocha, resident of Miranpur, Tehsil and District Lodhran and Haq Nawaz son of Ghulam Qadir, caste Arain,, resident of Chak No.18/MPR Tehsil and District Lodhran, alongwith six, others were tried by the learned Special Judge for Speedy Trials, Multan, under sections 148, 341/149,365/149 and 307/149, P.P.C. The learned Judge convicted Muhammad Aslam and Haq Nawaz under section 326, P.P.C. Muhammad Aslam was sentenced to imprisonment for life and a fine of Rs.50,000 car in default to suffer one year s R.I. Haq Nawaz was sentenced to 10 years' R.I. plus a fine of Rs.20,000 or in default thereof to undergo further R.I. for 8 months. Benefit of section 382-B, Cr.P.C. was given to the convicts. However, the co-accused, Rab Nawaz, Muhammad Nawaz, Haq Nawaz, Muhammad Ashiq and Zafar were acquitted by the learned Judge by giving them the benefit of doubt, on 2-3-1992. The convicts have challenged their conviction and sentence by filing Cr.A. No.14/SAC-L of 1992 before this Court which shall be disposed of through this judgment.

2. Shortly stated, the facts of the case are that Muhammad Rafique (complainant) is a resident of village Meeranpur, Chak Pathanwala, where he has some agricultural land. He has also built a Dera on his land for tethering his cattle. The complainant, however, lives at Multan. On 8-12-1989, at about 8-00 a.m., he alongwith his brother-in-law Muhammad Aslam, came out on his motor-cycle No.5493/MNK in order to go to Multan. Wheri they reached near Adda Pathanwala, Muhammad Aslam Wahoocha (armed with pistol .12 bore), Muhammad Nawaz, Haq Nawaz and Rab Nawaz (all armed with sticks) and Muhammad Ashiq (armed with a Sota), emerged therefrom. Muhammad Nawaz gave a Lalkara that the complainant would not be allowed to go alive. Muhammad Aslam fired but the complainant turned his motor-cycle swiftly towards Chah Pathanwala. The complainant gave this information about the incident to his maternal uncle Raheem Bakhsh and Karim Bakhsh. On receipt of the information both Raheem Bakhsh and Karim Bakhsh went towards Adda Pathanwala. After some time, the complainant also went on his motor cycle to Multan via Lodhran. When he reached near seven Marla Scheme of Pathanwala, Zafar armed with a Sota was standing there. On seeing him, the complainant attempted to run away from the spot. Zafar shouted that he should not be allowed to run away. The unknown persons were also present there. They could be identified by the complainant who also gave their features and descriptions of the said persons in the FIR. The accused party tried to stop the complainant from proceeding further by holding a rope made of cloth. The complainant 'in a hurry tried to turn his motor-cycle aside. In the meantime, Zafar and two others gave a push to the complainant and he fell down from his motor-cycle. Muhammad Ashiq and Muhammad Aslam armed with pistols also reached the sopt. Zafar held the complainant by his legs. The remaining accused also joined Zafar in overpowering the victim. Muhammad Ashiq caught the complainant by his hands and neck. Muhammad Aslam fired a pistol shot while keeping it on his knee. He raised an alarm. Thereafter, the accused dragged the complainant by catching him from his legs. They took him to a deserted place. Karim Bakhsh, Raheem Bakhsh, Ghulam Muhammad, Muhammad Aslam and Gulzar reached the spot and tried to separate the parties. Muhammad Aslam pointed his pistol towards them and issued threats that in case they came near, they will also be finished. Muhammad Aslam again fired at the complainant, which hit on his leg. After committing the crime, the accused ran away while shouting. Motive was that Muhammad Ashiq had instituted several civil cases about a piece of land in the village. Muhammad Nawaz, Haq Nawaz, Muhammad Aslam and Rab Nawaz were their supporters in the said litigation. Besides the above, Muhammad Nawaz, Haq Nawaz and Muhammad Aslam etc., got the complainant implicated in a false case under section 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, vide F.I.R. No.247/89. The said case was still being investigated by a D.S.P. of Shujah Abad. On account of the registration of the aforesaid case, and the civil litigation pending between the parties, the accused party made an attempt to finish him. On statement Exh.P.D. of Muhammad Rafique a formal F.I.R. Exh.P.D./1 was recorded by Muhammad Hanif Moharrar Head Constable,

3. Muhammad Wazir S.I. (P.W.8) partly investigated the case, On 8-12-1989, he went to Lodhran Hospital. The Doctor on duty produced blood stained clothes Shalwar P.4, Jersy P.5 and Safa P.6 before the Police Officer which were taken into possession vide memo Exh.P.T. The Police Officer went to the spot. He collected the blood-stained earth from there and kept it in a sealed parcel vide Exh.P.G. A bicycle of the accused was also taken into possession vide memo. Exh.P.H. An empty P.3 was picked up from the spot by the investigator. He prepared site-plan Exh.P.K. and recorded the statements of the witnesses under section 161, Cr.P.C. He arrested Rab Nawaz accused on 16-12-1989. A Sota P.2 was recovered at his instance which was taken into possession vide memo. Exh.P.C. He also took into possession Vad and Phial containing bullet vide memo. Exh.P.B. The remaining investigation of the case was conducted by Muhammad Nawaz A.S.I: P.W.9. On 10-2-1990, Muhammad Aslam led the Police Officer to the recovery of a carbine from his village Meeranpur. The said weapon was taken into possession vide memo. Exh.P.A.

4. Dr. Muhammad Ismail C.M.O. T.H.Q. Hospital, Lodhran (P.W.4) medically examined Muhammad Rafique and found the following injuries on his person:-- (1) An oval lecerated wound size 4 x 3 cm x depth directed inward and downward on outer side of lower end of left thigh just above the left knee. Edges irregular and inverted. Burning and tattooing of the margins of the wound present. Corresponding hole in the Shalwar present. (2) A transverse incised wound size 7 c.m. x 1 c.m. cutting lateral condyle of femur on outer side of left knee just below and behind injury No.1, see diagram. Corresponding cut also seen in the Shalwai. (3) A longitudinal incised wound size 8 c.m: x 2 c.m. x muscle deep on outer side of lower end of left thigh just above injury No.2 and behind the injury No.1. Corresponding cut in the Shalwar present. Injuries Nos.1 and 2 were declared grievous. Injury No.3 was found simple in nature. The probable time between injuries and the medical examination was opined to be within six hours. The injured was found conscious.

5. An eye-witness account was furnished by Muhammad Rafique P.W.3 and Muhammad Aslam P.W.5. The appellants denied the allegations levelled against them in their statements under section 342, Cr.P.C. Muhammad Aslam deposed that he was falsely involved in the case on account of enmity. He maintained that he supported Arains in the litigation with the complainant party and as such he was involved in the case falsely. He pleaded his innocence. Haq Nawaz stated that he was a student of Matric and that on the day of occurrence since morning, till evening, he remain d busy in his fields alongwith his grandfather, uncle and younger brother. They remained busy the whole day while cutting Sarsoon crop in their fields. In the evening he also attended his buffaloes at his Dera. According to him, this version was given by him during investigation of the case. According to him, he was arrested on 4-1-1990 from his house by the police and was thus falsely implicated in this case. He pleaded his innocence. It is not necessary to mention here the statements made by the remaining accused because they were acquitted by the learned trial Court. The accused, however, did not make any statement on oath under section 340(2), Cr.P.C. He also failed to produce any evidence in his defence. Mr. Arif Nawaz A.S.P. and Saeed Hussain D.S.P. appeared before the Court as Court witnesses. They deposed about the innocence of the acquitted accused.

6. The learned trial Judge believed the ocular account and sentenced the appellants as already mentioned above.

7. Learned counsel vehemently contends that Haq Nawaz, appellant was not mentioned as an accused in the F.I.R. He maintains that the prosecution story as mentioned was highly improbable in the given facts and circumstances of this case. According to the learned counsel, the complainant came back to his village when he was intercepted by the accused and then again he left his village for Multan through the same route. He argues that it is established that the witnesses were not present at the spot when the alleged occurrence took place. Another argument of the learned counsel was that seven co-accused of the appellants were acquitted on the basis of the prosecution evidence and as such on the basis of the same set of evidence, the two appellants could not be convicted and sentenced. The learned State counsel defended forcefully the conviction and sentence of the appellants. He submits that Muhammad Aslam was specifically mentioned in the F.I.R. and that there was sufficient evidence available on record to maintain his conviction and sentence. In support of his plea, the learned counsel has heavily relied upon the dictum laid down in Ghulam Rasool v. State 1968 P Cr. L J 927 about the quantum of sentence.

8. We have heard the learned counsel for the parties at considerable length and have read the whole evidence available on record with their assistance very carefully. Muhammad Rafique P.W.3 is the first informant. He was injured by the accused. He reiterated his earlier statement made by him before the police. His evidence was that he was proceeding towards Multan and that near the Seven Marlas Scheme of village Pathanwala, he was stopped by the accused from proceeding further. He, therefore, came back to the village to avoid the danger of being attacked by the accused and gave the information to his relatives. He again left his village for Multan after some time. This time, he was attacked and injured grievously by the appellants. Muhammad Aslam was armed with a .12 bore pistol while Haq Nawaz had a dagger with him. Haq Nawaz inflicted an injury with his dagger on the leg of the complainant. On his alarm, Rahim Bakhsh, Karim Bakhsh and Gulzar reached the spot to witness the occurrence. On the arrival of the witnesses, Muhammad Aslam issued threats that if any of the witnesses dared to come near, he would also be done to death. The second shot fired by Muhammad Aslam hit the complainant on his leg which was already injured by him. About the motive, the evidence given by the witness was that he owned some land at Chah Pathanwala and that Muhammad Ashiq acquitted co-accused had also laid his claim over the said land. About this land there was a litigation going on between the parties before the Civil Court. Muhammad Ashiq had also instituted a civil suit pertaining to that very land. Muhammad Ashiq also got registered 6/7 false criminal cases against him. This witness was subjected to lengthy cross-examination by the learned defence counsel. He deposed that he had also lodged a case of Qazf against Muhammad Nawaz, Rab Nawaz and Muhammad Ashiq etc. The evidence of Muhammad Rafique was materially corroborated by Muhammad Aslam P.W.5. In our view, the offence under section. 326, P.P.C. was proved beyond any shadow of doubt against Muhammad Aslam on the basis of overwhelming' evidence produced by the prosecution against hint. We have no reasons to disbelieve the evidence of Muhammad Rafique P.W.3. He sustained as many as 3 injuries on his person. Injury No.1 had a blackening and tattooing around it. This injury also corresponded to the hole in the Shalwar. Muhammad Raftque P.W.3 and Muhammad Aslam P.W.5 testified that Muhammad Rafiqite complainant was overpowered by the accused and his leg was injured by Muhammad Aslam appellant by firing while placing his carbine on it. It is established that he fired twice on the left knee of Muhammad Rafique P.W.3. The evidence of Dr. Muhammad Ismail -P.W:4 provides sufficient corroboration to the ocular account of P.Ws.3 and

5. It is in the evidence that there was civil as well as criminal litigation going on between the parties before different Courts. A Therefore, the motive part of the prosecution story was also proved beyond any reasonable doubt. The motive, therefore, would also lend support to the prosecution version. This being so, we conclude that the prosecution has succeeded in proving its case against Muhammad Aslam appellant beyond doubt. His conviction, therefore, is held to be justified in law and facts of the case. Mr. Muhammad Munir Khan, learned counsel at the end of his arguments, requested for reduction in the sentence of the appellants on the ground that there was no precedent that a sentence of imprisonment for life would be given in a case under section 326, Cr.P.C. The argument of the learned counsel was challenged by the learned State Counsel by producing an authority referred to above. In the said case, the accused was initially convicted and sentenced to suffer ten years' R.I. However, the High Court enhanced the sentence from ten years' R.I. to transportation for life. The contention of learned counsel, thus, fails and is hereby turned down. The appellant deserves no leniency inasmuch as he fired twice on the leg of the complainant. His intention was to cripple the complainant permanently. He succeeded in his designs against the complainant. The complainant Muhammad Rafique is present in Court. We have noted that he was permanently incapacitated because of the injuries suffered by him at the hands of Muhammad Aslam appellant. He could walk with a great difficulty and that too with the help of someone else. This being so, we are of the view that Muhammad Aslam was rightly convicted and sentenced by the learned trial Court. In consequence, his appeal fails and is hereby dismissed.

9. However, the case of Haq Nawaz, appellant, stands altogether' on a different footing inasmuch as he was not at all mentioned in the F.I.R. as an accused, During the trial, the prosecution witnesses mentioned him as an accused He was also shown to be armed with a knife. We believe that the prosecution has improved its case during trial by implicating this appellant in the commission of the crime. His case, therefore, is not free from doubt. The prosecution witnesses do not inspire confidence qua Haq Nawaz, appellant. As many as nine persons were involved in the case for causing only three injuries on the person of Muhammad Rafique. This being so, the participation of Haq Nawaz appellant in the commission of the crime in the circumstances of the case appears to be highly doubtful. We, therefore, extend the benefit of doubt to the appellant Haq -Nawaz as well by acquitting him. In consequence, his appeal succeeds and is hereby allowed. He shall be released forthwith provided, of course, he is not needed in some other criminal case. N.H.Q/36/SAC Order accordingly.