' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---This judgment will dispose of Criminal Appeal No,69 of 2012 and Criminal Revision Petition No,163 of 2012, as both have arisen out of a common judgment.
2. The present appeal is directed against the judgment dated 28th September, 2012 passed by the learned Sessions Judge, Kalat at Mastung, whereby, the appellants were convicted under section 337-F(iii) read with section 149 of the Pakistan Penal Code; 1860 ("P. P.0 " ) and sentenced for two (2) years rigorous imprisonment (RI) as Ta'zir with payment of Daman of Rs,10,000 each, and convicted under section 337-F(vi) read with section 149 of the P.P.C. With sentence of four (4) years rigorous imprisonment as Ta'zir and payment of Daman of Rs,10,000 each, in both counts they are directed to pay the amount of Daman to the each injured in lump sum. Benefit of section 382-B Criminal Procedure Code, 1898 ("Cr.P.C.") was extended to the appellants.
3. The complainant in this case being aggrieved by the impugned judgment to the extent of quantum of sentences, filed a connected criminal revision petition under section 435, 439, Cr.P.C.
For enhancing the punishment of imprisonment awarded to the petitioners/convicts (appellants/accused hereinafter).
4. Precisely, the relevant facts are that the appellants/accused along with absconding accused were alleged to have launched an assault upon the complainant and his companions. Resultantly, an F.I.R. No,5 of 2011 was registered by the complainant under sections 324,337-ADF read with sections 148/149 P.P.C., with Levies Thana, Dasht on 11th February, 2011, averring therein that he along with his other companions after attending the Court of the Judicial Magistrate, Dasht, were having tea at nearby hotel, when the appellants/accused along with absconding accused came in two vehicles and made a violent attack upon them, in consequence whereof, the complainant and his companions sustained various grievous and serious injuries, allegedly by means of firearm, dagger; iron rods and Lathis. The appellant accused were arrested on various dates and challan against them was submitted before the trial Court. The prosecution in order to substantiate the charge produced as many as nine witnesses. On conclusion of the trial the statements under section 342, Cr.P.C. Were recorded, wherein, they once again professed their innocence. None of them entered in his defence on oath. However, the accused Abdul Quddoos and Ali Jan produced two defence witnesses regarding their absence from the place of occurrence. The learned trial Court on conclusion of trial convicted and sentenced the appellants/accused in the above stated terms.
5. Mr. Abdullah Baloch, learned counsel for the appellants/accused, while assailing the impugned judgment pointed out that initially charge was framed against the appellants/accused under section 324 of the P.P.C. (attempt to Qatl-e-Amd) but in the impugned judgment without any prior notice, the learned trial Court drew the conclusion that the section 324 of the P.P.C. Did not attract, but a conviction was recorded and appellants/accused were sentenced without alteration of charge. He stated that the manner and procedure adopted by the trial Court has caused a serious prejudice to the appellants/accused, when they were misled by the charge framed against them, which is against the settled norms of administration of criminal justice. He referred to a medical certificate Exh.P/2-D of the injured Naseer Ahmed (P.W.5), which shows the fracture of right leg by means of blunt weapon but the witness himself was silent about any such injury. He added that the whole family members of the appellants/accused were nominated but none was assigned any specific role. He stated that the alleged occurrence was shown to have taken place at a hotel but nobody has come forward to support the allegation. He finally submitted that the ocular account was not in line with medical evidence. Therefore, the benefit of doubt should have been extended to the appellants/accused, which was withheld by the learned trial Court against the principles of natural justice. He urged for acquittal of the appellants/accused by setting aside the impugned judgment.
6. Mr. Ahmadullah, Advocate while opposing the contentions stated that once the learned trial Court drew the conclusion that prosecution has proved its case to the hilt, then no occasion was available to the court to pass a lesser punishment without giving any reasons and without discussing mitigating circumstances for not awarding the punishment as prescribed under the law. He finally submitted that the conviction and sentence recorded against the appellants/ accused may be enhanced to the maximum term and the appeal may he dismissed after accepting the criminal revision petition for enhancement.
7. Mr. Liaquat Ali, learned counsel appearing for the State has supported the impugned judgments and did not say anything about the enhancement of sentence. He was of the stance that the conviction and sentence passed against the appellants/accused is sufficient and the same does not require any interference. He finally requested for dismissal of both the petition and the appeal.
8. I have heard the learned counsel for the parties and have carefully examined the record. First, I will take up the legal aspect of the case. The learned counsel for the appellants/convicts has urged that firstly, the trial Court did not frame the charge in accordance with law and secondly, without alteration of charge the conviction was recorded. The objections of the learned counsel for the appellants/ convicts are not supported by law. The provision of subsection (2) of section 238, Cr.P.C. Applies, which being relevant is reproduced here under:- "238. When offence proved included in offence charged.
2. When a person is charged with an offence and facts are proved, which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it."
' The provision quoted supra leaves no ambiguity to understand a true aspect of the proposition. It manifests that, when the accused is charged for a major offence which entails a longer term of punishment, but a minor offence was proved which entails a shorter term of punishment, he can be convicted of minor offence but an accused charged for a minor offence cannot be convicted of a major offence, subject to the limitations of section 227 as contained in Chapter XIX of Cr.P.C.
Moreover, a perusal of sections 225, 232, 535 and 537, of Cr.P.C. Show that every conceivable type of error and irregularity referable to a charge that can possibly arise can be cured. The Code of Criminal Procedure is emphatic that whatever the irregularity may be is id not to be regarded as fatal unless there is prejudice. Reference is made to the Imran Ashraf's case 2001 SCM R 424, Nadir Shah's case 1980 SCM R 402.
9. In this case initially the cognizance was taken under section 324 read with sections 147, 148 and 149, P.P.C. The learned trial Court after evaluating the evidence on record concluded that the section 324, P.P.C. Does not attract because the evidence so brought was neither suggesting nor establishing the offence of attempt to Qatl-e-Amd punishable under, section 324, P.P.C., which was discussed elaborately, therefore, the contention about non-reading and misreading of evidence is not impressive and conclusion drawn by the trial Court is according to principles of appreciation of evidence.
10. Yet, the provision of section 149, P.P.C. Hinged as a counter product of the main offence and the same is required to be pondered in view of dictum laid down by the Hon'ble Apex Court.
' Keeping in view the well-settled principle of appreciation of evidence known as 'sifting grains from chaff' I have observed that a number of persons were nominated towards the commission of offence but a role of firearm injury sustained by injured Muhammad Din (P.W.6) was attributed to the appellant Muhammad Yunus only. The role of inflicting a dagger blow sustained by the injured witness Nasir Ahmed was assigned to absconding accused Mehboob Ali, while in respect of the injuries sustained by complainant Abdul Quddoos and injured P.Ws. (Qutab Khan and Ismail) to the extent of abrasion and pain, except naming all the accused persons no role was assigned to any one of them. In addition, the allegation of constituting unlawful assembly in furtherance of their common object is levelled against the appellants/ C accused and the absconding accused. The deposition of Dr. Muhammad Jafer (P.W.2) is relevant for determining the liability of each accused according to a role played by him, which would or would not bring his case within the ambit of second part of section 149, P.P.C. The P.W.2 describes the injuries of witness Muhammad Din as follows:-- "1. Gun shot wound entrance on right Arm latterly.
1. # right Humerus and swelling.
2. Abrasion on left cheek.
3. Lacerated wound on left cheek. 2-1/2 cm Deep lower eye.
' X-Ray of right humerus shows fracture. The patient was referred to orthopedic ward but he was declared lamba i,e, he left the ward against the medical advice.
' Nature of injuries : Grievous.
' Duration : Fresh ' Kind of weapon : Gun shot and Blunt"
' Whereas the injuries stated to have sustained by witness Nasir Ahmed are described as under: "1. Complaint of pain (COP) on left shoulder joint.
2. Complaint of pain (COP) on left hand.
3. Abrasion on left thigh.
4. Lacerated wound on parietal region.
5. Swelling on left posterior chest.
6. Swelling on left leg.
' X-Ray fracture seen in Tibia Fibula.
' No fracture seen in left hand and shoulder.
' Nature of injuries : Grievous.
' Duration : Fresh.
' Kind of weapon : Blunt."
' The witness (P.W.6) Muhammad Din was shown to have injured due to bullet shot made by the appellant Muhammad Yunus, resulted into fracture of his right arm 'Humerus "(a bone extended from the shoulder to the elbow) thus, he alone could be held responsible for this injury, while, rest of his injuries come within first part of section 149, P.P.C.
' The witness Nasir Ahmed was shown to have sustained injuries, wherein, the fracture of `tibia'/shinbone (The inner and thicker of the two bones of the human leg) and fibula '!Calf bone (the outer and thinner of the two bones of human leg, between the knee and ankle) is stated to have been caused by means of blunt weapon. The role for causing the said injury cannot be attributed to anyone, as the witness himself is silent about the injury. The lacerated wound on his temporal region (the side of the skull behind the orbit) could not 1 be caused by means of dagger blow, but the absconding accused viz Mehboob Ahmed, who was alleged to have caused injuries was not arrested. In view of the second part of section 149, P.P.C., none else but the person responsible for causing that injury can only be held responsible, the rest of the injuries caused to the said witness would fall within the ambit of first part of section 149, P.P.C. Thus, the appellants Abdul Qudoos, Ali Jan and Muhammad Farooq could not be held responsible for injuries sustained by means of firearm and dagger blow, however injuries of abrasion and bruises caused to injured witnesses are although minor in nature but these injuries can be considered as a counter product of unlawful assembly constituted in furtherance of unlawful object, therefore, every member of the unlawful assembly could be held responsible for these injuries.
11. The reappraisal of the evidence made herein above brings me to the conclusion that injuries relating to hurts without exposing bone of the victim are `Shajjah-i-Khafifah', which are punishable under section 337-A(i), P.P.C. The hurt, like abrasion and bruises fall within the ambit of 'other hurts', punishable under subsection (2) of section 337-L, P.P.C. The like fracture of 'Humerus' (a bone extending from the shoulder to the elbow of the human arm) is `Ghair-Jaifah-hushimah', E which is punishable under section 337-F(v) P.P.C. The appellants/accused after constituting an unlawful assembly in furtherance of their common object made a violent attack upon the complainant party, therefore, they were rightly held responsible towards the commission of offence. The perusal of section 149, P.P.C. Manifests that an accused, who is found to be a member of an unlawful assembly can be convicted of lesser offence if under the second part, it is clear that he was aware that such a lesser offence is likely to be committed in furtherance of their common object, although some members of the assembly may have travelled beyond that object and committed a grave offence. Thus a distinction shall necessary be kept in mind F and an offender who has travelled beyond the object of unlawful assembly will be dealt separately as according to part played by him.
12. When adverting to the question of sentence awarded to the appellants/convicts the dictum laid down by the Hon'ble Apex Court in the case of Haji Maa Din v. The State 1998 SCM R 1528 is helpful, wherein the Hon'ble Apex Court has laid down the guidelines and factors to be considered for awarding Ta'zir in hurt cases, it leads me to the conclusion that the case of appellants is covered by subsection (2) of section 337-N, P.P.C. Thus, keeping in view the principles enunciated in the judgment supra I am, of the considered view that there is nothing available on the record of this case to establish that the appellants/convicts had any credentials or antecedents of being "a previous convict, hardened or habitual; desperate or dangerous criminals", thus, their case falls within the ambit of section 337-N(2), P. P . C .
' The occurrence in this case had taken place about three years ago and the appellants/accused have been facing the agony and anguish of a trial. They have repeatedly been in and out of the prison during all this while.
' Therefore, the criminal revision filed by the complainant for enhancement of sentence, cannot be entertained unless otherwise established that the case falls within the proviso to section 337-N(2), P.P.C. As the conditions for awarding Ta'zir in case of hurt are not available on record, the contention of the learned counsel for the complainant that once the case is proved, the accused shall necessarily be awarded a punishment of imprisonment for maximum term, does not find any space in law. Hence, does not carry any weight.
' Consequently, this appeal is partly allowed and the sentences of rigorous imprisonment of two years under section 337-F(iii) and 4 years under section 337-F(vi) P.P.C. Are set aside, however, the appellant Muhammad Yunus shall remain convicted under section 337-F(v), P.P.C. And sentenced to pay an amount of Rs,30,000 (Rupees thirty thousand _only) to the injured Muhammad Din as Daman and in default he shall suffer Simple Imprisonment of six months. In addition, the appellant Muhammad Yunus, Abdul Qudoos, Ali Jan and Muhammad Farooq are convicted under section 337-A(i) read with section 149 P.P.C. And sentenced to pay Daman of Rs,5000 each (total amounting to Rs,20,000), which shall be distributed between the injured witnesses. In default, they shall suffer Simple Imprisonment for one month. The appellants are further convicted under section 337-L(2) read with section 149, P.P.C. And sentenced to pay Daman of Rs,5000 each (total amounting to Rs,20,000), which shall be distributed between the injured witnesses. In default, they shall suffer Simple Imprisonment for one month.
' The appellants are on bail, they are directed to pay the amount of Daman prescribed hereinabove to the injured witnesses within a period of one month. Copy of this judgment is to be transmitted to the learned trial Court with directions to the appellants/accused to deposit the amount of Daman in the trial Court, which shall summon the injured witnesses and pay the same to them. Till payment of Daman the bail bonds of the appellants shall remain intact.
' For the foregoing reasons, the Criminal Appeal No,69 of 2012 is partly accepted with above modification, while the Criminal Revision No,163 of 2012 for enhancement of sentence is dismissed accordingly.