' ABDUL SAMI KHAN, J.--- Through this petition under section 439-A, Cr.P.C. The petitioners have challenged their convictions and sentences passed by the learned Judicial Magistrate, Gojra vide judgment dated 7-3-2007 and upheld by the learned Additional Sessions Judge. Gojra vide judgment dated 24-3-2009 wherein they were convicted under section 337-F(vi), P.P.C. And were sentenced to undergo rigorous imprisonment for three years each and to pay a sum of Rs,10,000 as Daman each. Through the above said judgment Muhammad Waseem petitioner was also convicted under section 337-A(ii), P.P.C. And sentenced to undergo rigorous imprisonment for two years and to pay 1/5th Of Diyat as Arsh. The sentences were ordered to run concurrently. The Judgment of the learned trial court is silent regarding benefit of section 382-B, Cr.P.C. Both the petitioners have challenged their convictions and sentences through this revision petition.
2. Precisely, the relevant facts for the disposal of this revision petition are that the petitioners were booked in case FIR. No,191 of 2001, dated 20-6-2001 registered at Police Station Sadar, Gojra in respect of offences under sections 337-A(i)/337-A(ii)/337-F(i)/ 337-F(vi)/337-L(2)/148/149, P.P.C.
Wherein the allegations levelled by the complainant are that they along with their co-accused while armed with weapons forcibly took away Inam Ullah into their Muhammad Siddiquc co- accused snatched wallet and some documents from said Inam Ullah. Muhammad Wasim petitioner inflicted a Sofa blow .To Inam Ullah Khan (P.W.4) which he sustained on his right arm whereas, Jamila Bibi co-accused inflicted a Thapi blow on his head whereupon he fell down.
Muhammad Saleem co-accused inflicted hatchet blow to Sultan which he sustained on his right ear, Muhammad Siddique inflicted Sota blow to Sultan, Rafia,Bibi gave Danda blow on his head.
Nadeem caused Sota blow on the chest of Ihsan Ullah Khan whereafter said Muhammad Nadeem inflicted Sota blow to Parveen on her left arm and Muhammad Saddique gave a Danda blow to Muhammad Asif on his chest. After completion of investigation report under section 173, Cr.P.C. Was submitted before the learned trial court, trial was conducted and the petitioners were convicted and sentenced as mentioned above whereas two co-accused of the petitioners namely Muhammad Siddique and Muhammad Saleem were convicted under section 337-A(i), P.P.C. And were sentenced till rising of the court. They were also ordered to pay Rs,2,000 as Daman each. All the sentences were ordered to run concurrently. Two female co-accused of the petitioners namely Jamila Bibi and Rafia Bibi were, however, acquitted of the charge by the learned trial Court and no appeal against their acquittal has been filed by the complainant. All the four accused convicts challenged their conviction and sentences before the learned Additional Sessions Judge, Gojra by filing appeal whereas the complainant filed revision petition for enhancement of sentence. After consolidating both the matters the learned Additional Sessions Judge, Gojra dismissed the appeal filed by the petitioners and the revision petition filed by Muhammad Suleman Khan complainant also met the same fate vide .Order dated 24-3-2009. Hence, the petitioners filed the instant revision whereas co-convict of the petitioners namely Muhammad Saleem and Muhammad Siddique did not opt to challenge their conviction and sentences before this Court; hence the same has attained finality.
3. The learned counsel for the petitioners contends that there is glaring contradictions between the ocular account and the medical evidence. The occurrence is a result of sudden flare up and there is no premeditation because occurrence took place due to a dispute over holding fare/Mela. The injuries are self-inflicted. According to the statement made by Dr. Anwar-ul-Haq (P.W.1) there was no dislocation of bone, hence section 337-F(vi), P.P.C. Does not attract in this case and the sentences passed against the petitioners are totally unjustified and result of misreading of evidence. No question regarding medical evidence was ever put to the petitioners in their statements under section 342, Cr.P.C., hence it cannot be used against them. In hurt case conviction depends upon the medical evidence and in view of the above fact the petitioners are liable to be acquitted in this case. The learned counsel has placed reliance on the cases of 1990 MLD 1500, 1995 SCM R 1373 and 1999 SCM R 697. Both the learned courts below have erred in law by not giving benefit of section 382-B, Cr.P.C. Which was mandatory in its nature.
4. On the other hand the learned Deputy Prosecutor-General assisted by the learned counsel for complainant submits that the petitioners were named in the F.I.R. With specific roles of causing injuries to the injured P. Ws. The roles attributed to the petitioners are also borne out from the Medico-legal Certificates produced in this case. Admittedly the occurrence, took place outside the house of Inam Ullah Khan P.W.4/injured person which shows that the petitioners were the aggressors. The statement of doctor is on record and it does not matter whether it was put to the accused in their statements under section 342, Cr.P.C. The learned counsel for the complainant, however, candidly conceded that the benefit of section 382-B,. Cr.P.C. Ought to have been extended in favour of the petitioners. At the end he prays that conviction and sentences of the learned trial court may be maintained.
5. After hearing the learned counsel for the parties and going through the record of this case it has been observed by me that to prove its case the prosecution had examined as many as eleven witnesses. Muhammad Suleman (P.W.2), Ubaid Ullah Khan (P.W.3), Inam Ullah Khan injured (P.W.4), Muhammad Asif Khan (P.W.S), Sultan Ahmad Khan (P.W.6), Parveen Akhtar injured (P.W.7) and Muhammad Yousaf (P.W.8) had furnished the ocular account of this case. During their evidence before the learned trial court they all remained consistent regarding role attributed to the petitioners in the occurrence, weapon of offence used during the incident, injuries inflicted on the bodies of victims and on all other material points. They were subject to lengthy cross-examination by the defence but nothing adverse to the prosecution can be gained. Inam Ullah Khan (P.W.4), Ihsan Ullah Khan (since A dead), Asif Khan (P.W.5), Sultan. Ahmad (P.W.6), and Parveen Akhtar (P.W.7) had received injuries during the occurrence, thus, their presence at the spot at the relevant time is not questioned at all by the defence. The ocular account explained by the above said prosecution witnesses, except Ihsan Ullah. Khan who died during the pendency of trial, had not only inspired the confidence of both the learned courts below but their statements have also persuaded the confidence of this. Court. Although the learned counsel for the complainant described them as interested witnesses yet the law is quite settled on the point that the evidence adduced by the interested witnesses can be believed by the courts if it is in-apt with the facts and circumstances of the case and finds support from the other pieces of evidence. I have not seen anything from the record of this case to disbelieve their evidence. Thus, I do not hesitate in observing that the prosecution has succeeded to prove the ocular account.
6. The medical evidence in this case having vital effect because the conviction were based upon it.
The learned counsel for the petitioners has laid great emphasis on the point that when the medical evidence was not put to the petitioners in their statements under section 342, Cr.P.C. The same cannot be used against them. To consider this particular aspect of the matter I would like to quote the question put to Muhammad Waseem petitioner which is as under:-- Q.No,2. Is it correct that you along with your co-accused on 17-6-2001 at about 2-00 p.m. In the area of Chak No,352/JB, after making an unlawful assembly with your common intention while armed with sotas and attacked on the complainant, Ihsan Ullah Khan and Mst. Parveen and inflicted injuries to the body of the victims.
' Whereas the question put to Muhammad Nadeem is as under:-- Q.No,2 Is it correct that you along with your co-accused on 17-6-2001 at about 2-00 p.m. In the area of Chak No,352/JB, after making an unlawful assembly with your common intention while armed with sotas and attacked on the complainant, Ihsan Ullah Khan and Mst. Parveen and inflicted injuries to the body of the victim.
' From a careful and minute perusal of the above said question it has become clear that both the petitioners were asked questions about the infliction of injuries on the bodies of victim which sufficiently explain the accusation regarding causing of injuries on the bodies of victim had specifically been put to both the petitioners in their statements under section 342, Cr.P.C.
7. Even otherwise the medical evidence had been furnished by Dr. Anwar-ul-Haq (P.W.1) who in his statement categorically stated that as many as fifteen injuries had been found on the persons of the injured P.Ws. All the injuries attributed to the petitioners were borne out from the medical evidence. Medico-legal Reports of the injured P.Ws. Are available on the record to substantiate the accusation made against the petitioners. The learned counsel for the petitioners has drawn the attention of this Court towards the medical evidence and states that it is nowhere mentioned that the bone of the injured victims were dislocated, thus, the provisions of section 337-F(vi), P.P.C. Are not attracted in this case which makes the sentences against the petitioner to be unjustified. In this context I have observed that although the word dislocation of bone had not been stated by the doctor in his evidence but he had stated in clear words that:--
(i) Injury No,1 on the person of Mst. Parveen Akhtar was declared as Ghayr Jaifah Munaqqillah falling under section 337-F(vi), P. P.C.
(iii) Injury No, 2 on the person of Ihsan Ullah Khan was declared as Ghayr Jaifah Munaqqillah falling under section 337-F(vi), P. P.C.
Thus, the petitioners cannot wriggle out from the sentences awarded to them by the learned trial court against the injuries caused by them to the above said injured victims merely on the technical ground of non-dislocation of bone. The doctor had also sufficiently explained each and every injury and the weapons with which the same were caused. Thus, I have no manner of doubt to express here that the medical evidence has provided sufficient support to the ocular account.
8. The weapons of offences, i,e, Sota Exh.PG from Muhammad Waseem and Sota, Exh. PH from Muhamamd Nadeem, had been recovered during the investigation of this case. Aftab (P.W.9) and Sohail (P.W.10) had amply explained the recovery proceedings in their statements made before the learned trial Court. The motive had also been sufficiently proved by the statements of the prosecution witnesses.
9. Now adverting to the question of sentence awarded in this case to the petitioners, admittedly the complainant has not approached this Court for enhancement of their sentences. The occurrence in this case had taken place due to sudden flare up between the parties on the issue of holding fare/Mela and there was no mens rea or premeditation on the part of the petitioners. The record of this case also shows that the petitioners are previously non-convicts. Nothing has been brought on record by the prosecution to show involvement of the petitioners in any criminal case to consider them hardened dangerous criminals or previously convicted, hence their case is covered by section 337-N(2), P.P.C. The law is by now settled on the point that in all cases of hurt provided for in Chapter XVI of the Pakistan Penal Code, 1860 the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment as Tazir provided for the relevant offence can be awarded to an offender only where the offender is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour and in the case of such an offender the sentence of imprisonment as Tazir is not to be less than one-third of the maximum imprisonment provided for the hurt caused. Reliance is placed on the cases of (PLD 2009 Lah. 312), (PLD 2009 Lahore 312) Ali Muhammad v. The State.
10. Apart from what has been discussed above the case in hand is related to the year 2001. The petitioners have faced the agony and anguish of a protracted trial for nine years before the learned trial court. Thus, by taking guidelines from the case-law mentioned above as well as from a latest judgment of this Court handed down in the case of Hafiz Muhammad Naeem and 3 others v. The State and another (2012 PCr.LJ 104) and also keeping in view the facts and circumstances of this case I am of the view that as the petitioners are first offenders, thus, they cannot be burdened with additional punishment under Tazir. Therefore, the rigorous imprisonment for three years each awarded to both the petitioners under section 337-F(vi), P.P.C. And also rigorous imprisonment for two years awarded to Muhammad Waseem petitioner under section 337-A(ii), P.P.C. By the learned trial court and upheld by the learned appellate court are against the norms of section 337-N, P.P.C., hence the same are set aside. However, the conviction with regard to payment of Daman passed against both the petitioners payable to the victims as mentioned in the judgment of learned trial court is upheld and maintained. Muhammad Waseem petitioner is also liable to pay 1/5th of Diyat as Arsh. This revision petition is disposed of with the modification made above. The petitioners are directed to deposit the above said amount in the learned trial court within one month or in default of payment to undergo simple imprisonment for three months. Copy of the judgment is transmitted to the learned trial Court for compliance. The learned trial Court is directed to collect the amount from both the petitioners as mentioned above and deliver the same to the injured persons and thereafter discharge both the petitioners from the liability of their bail bonds.