1. By judgment/order dated 25.3.2005, the learned Addl. Sessions Judge-II, Lakki, has convicted the appellants, Gul Shawar and Gul Nawaz u/S. 337-A(ii)/34 PPC 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-2 herein). He has further convicted both the appellants u/S. 334/34 PPC 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 u/S. 342-B Cr.P.C. was extended to them. The foregoing conviction and sentences were record in case FIR No, 209 dated 1.10.2001 of P.S. Tajori u/S. 334/337-A(ii)/337- F(i)/34 PPC. 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 appeal and the revision are proposed to be disposed of.
2. According to the prosecution version, as given in the FIR (Ex. PW-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 date 16.9.2001 of P.S. Tajori.
2. 3.During the days of occurrence, Zafarullah Khan, SHO, was posted as ASI at P.S. 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 FIR. He then proceeded to the spot and prepared the site-plan (Ex. PW-4/4) at the instance of the complainant.
3. He also recorded the supplementary statement of the complainant u/S. 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 (PW.3). The learned trial Court charged the appellants u/Ss. 337-A(ii)/337-F(0/334/34 PPC, to which, they pleaded not guilty and claimed trial.
4. 4.In support of its case, the prosecution examined as many as 5 *itnesses, out of whom Dr. Aurangzeb, M.O. (PW.1) and Dr. Dost Muhammad (PW.2) have medically examined the complainant while PW Zafarullah Khan, SHO, has investigated the case where PW Muhammad Iqbal Khan, Inspector has submitted complete challan against the appellant and PW Badshah Khan is the complainant and eye-witness of the occurrence.
5. 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 W 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.
6. A bruise 2" x 3" in size on the lateral aspect of the left side of the chest # below the auxiliary pit. ASD 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.
7. Nature of injury: Later on. Kind of Weapon: Blunt.
8. Duration of injury: Within six hours."
9. On 16.9.2001 P.W. Dr. Dost Muhammad examined the complainant and found the following:-- "The patient went into the state of schok. He was transfused blood and then subjected laprotomy in emergency. He underwent splenectomy (removal of spleen). Nature of injury: Grievous rather dangerous."
10. 6.On conclusion of the prosecution evidence, both the appellants were examined u/S. 342 Cr.P.C.
11. However, they denied the charge against them, pleading innocence.
12. 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.
13. 8.I have heard Mr. Gohar Zaman Kundi, Adv. for the appellants, Mr. Muhammad Yaqoob Marwat, Adv. for the State and Mr. Shaukat Hayat Khan Khakwani, Advocate, for the complainant/Respondent No, 2 and have also perused the record.
14. 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 FIR, 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 FIR is highly doubtely, 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 PW Dr. Aurangzeb, spleen in the human body is below the diagram 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 sub-section (2) of S. 337-N PPC, 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.
15. 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 FIR, 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 FIR the distance between the place of occurrence and the P.S. 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.
16. 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 P.S. at 1930 hours while the complainant was medically examined by PW-Dr. Aurangzeb at 8.00 p.m., meaning thereby that he was examined 40 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.
17. 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 S. 334 PPC 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.
18. 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, PW-Dr. Dost Muhammad has stated that it is not necessary that before rupturing of the spleen, the over-lying structure will also be damaged.
19. 14.As far as the last argument of the learned counsel for the appellants is concerned, it is not without force. Sub-section (2) of S. 337-N, PPC reads: "(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 offender who is a previous convict, habitual or hardened, desperate or dangerous criminal."
20. A bare perusal of the above provision of law would show that by using the pharse "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 P.Cr.L.J. 230) wherein his Lordship Mian Muhammad Ajmal (as his Lordship was then) has observed: "The provisions of sub-section (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. Sub-section (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 sub-section the offender beside payment of Arsh may be awarded punishment of `Tazie 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."
21. 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.
22. 15.Now, coming to the quantum of punishment to appellant Shawar Gul, under both the heads of the charge, i,e, u/Ss. 337-A(ii) and 334 PPC, the offender, if the sentence of Qisas could not be imposed, u/S. 337A(ii) be punishable with payment of Arsh equal to 5% of Diyat and u/S. 334 PPC to payment of Diyat, but in this case, the learned trial Court has failed to fix the amount of Diyat.
23. Perusal of the record would show that the prosecution has failed to prove that the offence u/S. 337- A(ii) or offence u/S. 334 PPC, 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 years, as fixed by the Federal Government. According to SRO No, 499(1)/2001 (PLD 2001 Central Statutes 156), the amount of Diyat for the financial year 20012002 had been fixed at Rs, 2,90,372/-, the Arsh of which @5% would come to Rs, 14518.60.
24. 16.For the aforesaid reasons, the appeal of Gul Nawaz, appellant, is accepted. He is acquitted of the charge leveled against him. He shall be released forthwith, if not required in any other case.
25. 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 u/S. 337A(ii) PPC is converted into payment of Arsh equal to 5% of the Diyat, amounting to Rs, 14518.60 instead of fine of Rs, 10,000/- payable to the complainant. Moreover, his sentence of imprisonment of 7 years R.I. recorded u/S. 334 PPC is converted into payment of Arsh equal to Diyat amounting to Rs, 2,90,372.00, 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 u/S. 331 PPC.
17. Resultantly, the Criminal Revision for enhancement of the punishment of the appellants fails and is hereby dismissed.