' KHALID MEHMOOD KHAN, J.---Through this single judgment I propose to decide the following cases:---
(A) Criminal Appeal No, 15 of 2011 filed by appellant/accused, namely, Shadiullah against his conviction passed by learned Additional Sessions Judge-II, D.I.Khan dated 1-2-2011 vide which he has been convicted under section 336, P.P.C. And sentenced to three years of simple imprisonment and with payment of Arsh of Rs,5,47,000 which is to be paid in three years. The Arsh amount was ordered to he payable in lump sum or in installments, spread over a period of three years in equal monthly installments from the date of the judgment of trial Court. It was also ordered that where the convict fails to pay Arsh within the period specified he may be kept in Jail and dealt within the same manner as if sentenced to simple imprisonment until Arsh is paid in full. The benefit of section 382-B, Cr.P.C. Was also extended to the appellant/accused.
(B) Habib ur Rahman filed Criminal Revision No,12 of 2011 for enhancement of sentence and the amount of compensation.
' As the above mentioned cases are arising out of the same judgment/order passed by the learned trial Court, therefore, are taken together for decision, through this single judgment.
2. Brief facts of the present case as per F.I.R. Are that on 3-3-2008 at about 14-00 hours the complainant Habib-ur-Rahman reported the matter to the local police that he is teacher in G.H.S., Bahaderi and on the eventful day at 13-00 hours, when he was teaching the students and one of the window of class room was opened, the accused Shadiullah started playing songs on his mobile loudly. Due to this act of accused the students were disturbed, then he went close to the window but the accused threw a stone on him which hit on the upper part of his right eye as a result of which he sustained injuries, hence case F.I.R. No,64 dated 1-4-2008 under section 336, P.P.C.
Registered at Police Station, Yarik District D.I. Khan.
3. Challan against the appellant/accused was submitted before the learned trial Court and the learned trial Court took cognizance of the case. Appellant/accused refused to plead guilty in response to the charge framed against him; therefore prosecution was directed to record its evidence to prove guilt of the appellant/accused.
4. The prosecution examined seven witnesses during trial against the appellant/accused and then closed its evidence, where after statement of appellant/accused was recorded under section 342, Cr.P.C: Neither the appellant/accused recorded his statement on Oath nor produced any evidence in defence.
5. The learned trial Court after hearing arguments of both sides convicted the accused/appellant and sentenced him as per detail given in first Para of this judgment.
6. Learned counsel for the appellant argued that no mobile set as alleged by the complainant in his report was recovered from the appellant/accused nor the alleged stone was recovered from the spot. He contended that no independent witness has been produced by the prosecution and the injury caused by complainant has not been proved that the same has damaged the right eye of the complainant. He submitted that the amount of Arsh has wrongly been levied against the appellant/accused because the half of diyat amount is Rs,3,77,210 whereas appellant/accused has been charged for Rs,5,47 000 which is against the notification issued in 2008 under section 323 of C.P.C. As per notification the value was determined Rs,754430. He urged that the offence under section 336, P.P.C. Allegedly committed by the appellant accused cannot be awarded as the appellant was neither previous convict, desperate and hardened criminal. In this respect he referred to section 337(N)(ii) of C.P.C. He further argued that the appellant/accused can only be punished under section 337(y), P.P.C.For which punishment is only Daman.
7. On the other hand, learned counsel, for complainant/respondent . Argued that it was daylight occurrence and the appellant/accused directly charged in the promptly lodged F.I.R. He contended that the appellant/accused being co-villager. Of the complainant, hence question of misidentification or false implication does not arise. He submitted that medico-legal report and all the P.Ws. Have fully supported the version of complainant. He urged that no reason for false charging of being co-villager of the complainant has been smelled out from the evidence as there is no previous enmity for false implication of being co-villager of the complainant in the present case.
8. Arguments heard and record perused, in the light of which my binding is as under.
9. Perusal of the record reveals that the complainant is teacher by profession and he was injured during his performance of noble duly of teaching to the young generation. The complainant has promptly, lodged his report which has duly been supported by P.W.2 Din Muhammad who was the Incharge of GHS, Bahaderi. He accompanied the complainant for lodging of the report as well as for his medical treatment. Nothing has been brought on record from the complainant as well as from P.W.2 that the appellant/accused has falsely been charged by complainant due to previous enmity, ill will or on mala fide grounds. Complainant lost his right eye-sight and his eye has fully damaged due to the sad incident committed by the appellant/accused. The medico-legal report also A supported the version of complainant. There is no suggestion from the appellant/accused side that the injury caused to the complainant is self inflicting or previous one neither anything has been brought on record by the defence side to the effect that the appellant/accused has falsely been implicated in the present case. The complainant is present in Court whose right side eye has fully been damaged and the same was apparently observed by the Court. In this regard wisdom can he drawn from the decision of Apex Court in case of Zalar Iqbal v. The State reported in 2010 SCM R 401. The conduct of appellant/accused could not be ignored as being desperate and having criminal mind played song near the window of sacred educational institution only to disturb the students due to his ulterior motive. So for the question of producing of Eye Specialist for confirming the loss of eye sight of the complainant is immaterial because the fact of Iltaf-e-Udw/darnage right eye has been proved by disinterested witness coupled with the medico-legal report, hence there is no ground for interfering regarding the conviction of the appellant/accused by this Court.
However, the amount of Arsh has been is reduced to Rs,3,77,210 regarding this reduction of Arsh the counsel for complainant has no objection because during the days of occurrence the notified amount of diyat was Rs,7,45,430.
10. The result of my above discussion is that the conviction awarded by the trial Court on the basis of ocular evidence fully corroborated by independent source and needs no interference. The appeal in hand is being without force, therefore, dismissed and the conviction of the accused/appellant is maintained. However, the amount of Arsh is reduced from Rs,5,47,000 to Rs,3,?7,210 which is to be paid in three years in equal installments. Where the convict fails to pay Arsh within the period specified he may be kept in Jail and dealt within the same manner as if sentenced to simple imprisonment until Arsh is paid in full.
11. As far as criminal revision for enhancement of sentence is concerned, the petitioner/complainant has been failed to make out a case sufficient for enhancement. The trial Court is competent forum to decide the quantum of sentence and in my opinion the sentence awarded is sufficient. Criminal Revision No,12 of 2011 being without force, is hereby dismissed.