' FAZLUR REHMAN KHAN, J.--- By judgment/order, dated 25-3-2005, the learned Additional Sessions Judge-II, Lakki, has convicted the appellants, Gul Shawar and Gul Nawaz under section 337A(ii)/34, P.P.C. And sentenced them to undergo 3 years' R.I. And also to pay a sum of Rs,50,000 as Arsh to Badshah Khan, complainant (respondent No, 2 herein). He has further convicted both the appellants under section 334/34, P.P.C. To undergo 7 years' R.I. And also to pay a sum of Rs,50,000 as Arsh. They have further been convicted to undergo 6 months' R.I. Benefit under section 342-B, Cr.P.C. Was extended to them. The foregoing conviction and sentences were recorded in case F.I.R.
No, 209 dated 1-10-2001 of Police Station Tajori under section 334/337-A(ii)/337-F(i)/34, P.P.C.
Through Criminal Appeal No, 32 of 2005 the appellants have challenged their convictions/sentences while through Criminal Revision No, 5 of 2005, the complainant has prayed for enhancement of the punishment of the appellants. By this common judgment, both the appeals and, the revision are proposed to be disposed of.
2. According to the prosecution version, as given in the F.I.R. (Exh.P.W.4/2), on the day of occurrence, complainant Badshah Khan (PW..5) had come to Tajori Bazar in order to purchase some house- hold articles. It was 17-30 hours when he reached the place known as "Matti Khel Balai", he saw Shawar Gul, appellant duly armed with an axe accompanied by Gul Nawaz, appellant, and absconding co-accused Muhammad Raza. At that time, the latter two were duly armed. However, both of them caught hold of the complainant, while Shawar Gul, appellant, gave the complainant a blow with the blunt side of the axe at his head and other parts of the body, with which, he received injuries on his person. The report of the complainant was entered in the Daily Diary No, 13, dated 16- 9-2001 of Police Station Tajori.
3. During the days of occurrence, Zafarullah Khan, S.H.O., was posted as A.S.-I. At Police Station Tajori. After recording the report of the complainant in the Daily Diary, he referred him to R.H.C.
Tajori for medical examination/treatment. After obtaining opinion from the prosecution branch and opinion of the Medical Officer, the report registered in the Daily Diary was converted into F.I.R. He then proceeded to the spot and prepared the site plan (Exh.P.W.4/4) at the instance of the complainant. He also recorded the supplementary statement of the complainant under section 161, Cr.P.C. On the spot. On arrest of the appellants and after completion of investigation, challan against the appellants was submitted in Court by Muhammad Iqbal Khan, Inspector (P.W.3). The learned trial Court charged the appellants under sections 337-A(ii)/337-F(i)/334/34, P.P.C., to which they pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined as many as 5 witnesses, out of whom Dr. Aurangzeb, M.O. (P.W.1) and Dr. Dost Muhammad (P.W.2) have medically examined the complainant while P.W. Zafarullah Khan, S.H.O. Has investigated the case where P.W. Muhammad Iqbal Khan, Inspector has submitted complete challan against the appellant and P.W. Badshah Khan is the complainant and eye-witness of the occurrence.
5. While medically examining the complainant on 16-9-2001 at about 8-00 p.m., P.W. Dr. Aurangzeb found the following:-- "(1) A lacerated wound 1/2" x 1" in size on the vertex of the head, in the middle horizontally placed, underline skull bone is exposed 3" posterior to the anterior hairlines.
(2) A bruise 2" x 3" in size on the lateral aspect of the left side of the chest below the auxiliary pit.
A.S.D. Done, emergency treatment given. The injured is vomiting profoundly and is not oriented to time and space. He is referred to surgeon to District Hq. Hospital, Bannu.
Nature of injury: Later on Kind of weapon: Blunt Duration of injury: within six hours."
' On 16-9-2001 P.W. Dr. Dost Muhammad examined the complainant and found the following:--- "The patient went into the state of shock. He was transfused blood and then subjected laprotomy in emergency. He underwent splenectomy (removal of spleen).
Nature of injury: grievous rather dangerous."
6. On conclusion of the prosecution evidence, both the appellants were examined under section 342, Cr.P.C. However, they denied the charge against them, pleading innocence.
7. On appraisal of the evidence on record and hearing arguments from both sides, the learned trial Court found both the appellants guilty, as such, convicted as aforesaid.
8. I have heard Mr. Gohar Zaman Kundi, Advocate for the appellants, Mr. Muhammad Yagoob Marwat, Advocate for the State and Mr. Shaukat Hayat Khan Khakwani, Advocate, for the complainant/respondent No, 2 and have also perused the record.
9. In support of the appeal, the learned counsel for the appellants contended: Firstly, that there is a delay of about 2 hours in lodging of the F.I.R., which is fatal to the prosecution case, Secondly; that when immediately after lodging of the report, Dr. Aurangzeb medically examined the complainant, he found him not oriented to time and place, as such, the version given in the F.I.R. Is highly doubtful, Thirdly; that admittedly Gul Nawaz, appellant, at the time of occurrence had been shown to be empty-handed and he had been attributed the role of catching-hold of the complainant and that too had not been proved beyond reasonable doubt, Fourthly; that according to the statement of P.W. Dr. Aurangzeb, spleen in the human body is below the diaphragm and the same is protected by the chest cavity but except a bruise on the chest, no rib of the complainant has been fractured, on account of which, the spleen could have been shattered, and Fifthly; that under subsection (2) of section 337-N, P.P.C., in all cases of hurt, the offender, if not a previous convict, habitual or hardened desperate or dangerous criminal, could not be punished for an offence of hurt committed by, him with imprisonment as Ta'zir and such a convict could only be punished if Qisas could not be imposed with Diyat/Arsh, as the case may be, therefore, appellant Shawar Gul could only be ordered to pay Diyat/Arsh for the hurts.
10. So far as the first argument of the learned counsel for the appellants is concerned, that there is a delay of 2 hours in lodging of the F.I.R., it is without force because the occurrence has taken place on 16-9-2001 at 1730 hours while the report was lodged the same day at 1930 hours and according to the F.I.R. The distance between the place of occurrence and the police station is 5/6 k.m. In these circumstances, there is no delay and even if there be such a delay, the same, keeping in view the facts and circumstances of the case, would not be fatal to the prosecution case.
11. So far as the second argument of the learned counsel for the appellants is concerned, it may be mentioned that the occurrence was reported by the complainant in the police station at 1930 hours while the complainant was medically examined by P.W. Dr. Aurangzeb at 8-00 p.m., meaning thereby that he was examined 30 minutes after lodging of the report and during this period the complainant must have lost his full senses, on account of which, he was not oriented to time and place.
12. As far as the third argument of the learned counsel for the appellants that appellant Gul Nawaz at the time of occurrence was empty-handed and even his presence on the spot has not been proved beyond reasonable doubt, in order to attract section 334, P.P.C. To his case, is concerned, the same is not without force. There is no evidence on record, except the statement of the complainant, that this appellant was also present on the spot. Moreover, if he would have been present on the spot, catching hold of the complainant, even then it was not possible for appellant Shawar Gul to have given blows with the blunt side of the axe to the complainant. His presence on the spot is, therefore, not free from doubt. As such, his convictions and sentences are liable to be set aside.
13. So far as the fourth argument of the learned counsel for the appellants that no fracture had been caused to the ribs of the complainant, on account of which, the spleen should have been shattered is concerned, it is also without force because in his cross-examination, P.W. Dr. Dost Muhammad has stated that it is not necessary before rupturing of the spleen, the overlying structure will also be damaged.
14. As far as the last argument of the learned counsel for the appellants is concerned, it is not without force. Subsection (2) of section 337-N, P.P.C. Reads:-- "(2) Notwithstanding any thing 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 the payment of Arsh award Tazir to an offender who is a previous convict, habitual or hardened desperate or dangerous criminal."
' A bare perusal of the above provision of law would show that by using the phrase "Notwithstanding anything contained in this Chapter", obviously has got an overriding effect and according to it, an accused unless it is not proved that he is either a previous convict, habitual or hardened desperate or dangerous criminal, cannot be punished with imprisonment as "Ta'zir" and that too, keeping in view the facts and circumstances of the case discretionary. In this view of mine, reliance could be placed on the case of Aurangzeb v. The State and another 1999 PCr.LJ 230 wherein his Lordship Mian Muhammad Ajmal (as his Lordship was then) has observed:-- "The provisions of subsection (2) of section 337-N of the Act overrides section 324 and all other sections providing punishment for offences of hurt contained in the chapter. Subsection (2) of section 337-N begins with non-obstante clause as 'Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may, give it as overriding effect over all other sections providing punishment for hurt. Under this subsection the offender beside payment of Arsh may be awarded punishment of 'Tazir' who is previous convict, habitual or hardened, desperate or dangerous criminal. There is nothing on the record to suggest that the petitioner is either a previous convict, habitual or hardened desperate or dangerous criminal, therefore, in view of the above legal position, the petitioner who is not more required for further investigation is entitled to bail."
' I respectfully agree with the foregoing observation of his Lordship. In the present case, there is nothing on record to show that the appellant Shawar Gul is either a previous convict, habitual or hardened desperate or dangerous criminal. The question of exercise of discretion against him, therefore, would not arise.
15. Now, coming to the quantum of punishment to appellant Shawar Gul, under both the heads of the charge, i,e, under sections 337-A(ii) and 334, P.P.C., the offender, if the sentence of Qisas could not be imposed, under section 337-A(ii) be punishable with payment of Arsh equal to 5% of Diyat and under section 334, P.P.C. To payment of Diyat, but in this case, the learned trial Court has failed to fix the amount of Diyat. Perusal of the record would show that the prosecution has failed to prove that the offence under section 337-A(ii) or offence under section 334, P.P.C. Or both, are punishable with Qisas. As such, the appellant Shawar Gul would be punishable only with payment of Diyat/ Arsh. The occurrence took place in October, 2001 and the Diyat would be payable for this year, as fixed by the Federal Government. According to S.R.O. No, 499(I)/2001 PLD 2001 Central Statutes 156, the amount for the financial year 2001-2002 had been fixed at Rs,2,90,372, the Arsh of which @ 5% would come to Rs,14518.60.
16. For the aforesaid reasons, the appeal of Gul Nawaz, appellant, is accepted. He is acquitted of the charge levelled against him. He shall be released forthwith, if not required in any other case.
However, to the extent of Shawar Gul, appellant, the appeal is partially accepted and while maintaining his conviction, his sentence of 3 years' R.I. Recorded under section 337-A(ii), P.P.C. Is converted into payment of Arsh equal to 5% of the Diyat, amounting to Rs,14,518.60 instead of fine of Rs,10,000 payable to the complainant. Moreover, his sentence of imprisonment of 7 years' R.I.
Recorded under section 334, P.P.C. Is converted into payment of Arsh equal to Diyat, amounting to Rs,2, 90,372 instead of payment of fine of Rs,50,000, payable to the complainant. On payment of Arsh/Diyat, he shall be released from jail forthwith if not required in any other case and till payment of Arsh/Diyat; he shall be kept in jail as undergoing simple imprisonment. The learned counsel for the appellants made a request that convict-appellant Shawar Gul, being a poor person, would not be able to pay the entire amount of Arsh/Diyat in lump sum, therefore, the same may be ordered to be paid in instalments. However; the learned trial Court, on an application being made to it, to that effect may consider this plea of the convict-appellant under section 331, P.P.C.
17. Resultantly, the criminal revision for enhancement of the punishment of the appellants fails and is hereby dismissed.