' ABDUL SAMI KHAN, J.--- Through this single judgment I propose to decide the instant revision petition along with Criminal Revision No.255 of 2012 filed by Muhammad Khan and 2 others and Writ Petition No.2230 of 2012 filed by Muzaffar Hussain as all these matters are outcome of one and the same incident reported by Ghulam Rasool complainant vide case F.I.R. No. 41, dated 16-7-2004 in respect of an offence under section 337-A(ii), P.P.C. Read with sections 148 and 149, P.P.C. At Police Station Neela, District Chakwal.
2. The germane events constituting the background of these matters are that the above said criminal case was registered pursuant to Rapat No. 6, dated 14-7-2004 lodged by one Ghulam Rasool wherein he had booked four persons namely Muzaffar Hussain, armed with hatchet, Akhtar, armed with Chhuri, Mst. Gahran Bano and Mst. Shamim Akhtar, both armed with sticks/Soti for causing hurts to the complainant party. According to the story set forth in the F.I.R. Muzaffar Hussain inflicted an injury with handle of hatchet which the complainant Ghulam Rasool sustained on his head whereas Mst. Gahran Bano inflicted Soti blow on his right elbow. Zamurd one of the eye-witnesses tried to rescue the complainant from the clutches of the accused party but he also sustained a hatchet blow on his head at the hands of Muzaffar Hussain. Zamurd had also received a Soti blow on calf of his right leg at the hands of Mst. Shamim Akhtar. Thereafter Mst. Gahran Bano had inflicted another Soti blow on the right elbow of Muhammad Nawaz.
3. Contrary to the case of the prosecution set forth by Ghulam Rasool in the F.I.R., Muzaffar Hussain one of the accused of F.I.R. Also lodged Rapat No.10, dated 14-7-2004 which was consequently converted into cross-version during the investigation of above said F.I.R. And wherein the above said Muzaffar Hussain (complainant of cross-version) booked as many as ten persons. It had been stated in the cross-version that the noise of tractor attracted Muzaffar Hussain to the place of occurrence whereat he had seen Muhammad Ashraf ploughing field in the company of Ghulam Rasool, Anwar, Ejaz, Ghulam Muhammad, Muhammad Khan, Nayyar Hussain, Zamurd, Nawaz (since deceased), Ghulam Ayesha, Shamim Akhtar and Tayyiba Bibi alias Zahra Bibi. After exchange of hot words on ploughing field with tractor Muhammad Khan inflicted Danda blow on the left arm of Muhammad Akhtar whereas Muhammad Ashraf gave a Sota blow on the backside of wrist of left hand of Akhtar Hussain. Then. Ijaz accused inflicted a Danda blow on the left elbow of Muzaffar Hussain complainant of cross-version. Ghulam Muhammad and Muhammad Khan also inflicted Danda blows on the back of Muzaffar Hussain.Nayyar Hussain also inflicted Danda blow hitting Muzaffar Hussain near the thumb of his left hand. The hue and cry raised by Muzaffar Hussain also attracted Mst. Gahran Bano, Naheed Akhtar, Shamim Akhtar, Robina Bibi who attempted to rescue Muzaffar Hussain complainant of cross-version but Anwar inflicted a hatchet blow which landed on the left side of the head of Mst. Naheed Akhtar whereas she also sustained a Soti blow on backside of her left wrist at the hands of Ijaz. Mst. Ghulam Ayesha and Shamim Akhtar gave Danda blows to Mst. Robina on the right side of her ribs. Mst. Zahra Bibi also gave Soti blow on the left side of head of Mst. Robina Bibi. Nayyar Hussain also caused a Danda blow on the backside of Mst. Shamim Akhtar. Muhammad Anwar gave a Chhuri blow which landed on the finger of Mst.
Shamim Akhtar. Muhammad Anwar gave Soti blow on the left ankle of Mst. Gahran Bano. The fists and kicks blows of Muhammad Khan torn the shirt of Mst. Gahran Bano. Zamurd also gave Soti blow on the back of Mst. Gahran Bano. Meanwhile Muhammad Ashraf and Khan Bahadur came at the spot and witnessed the occurrence. The motive set up in the cross version was a dispute over land.
4. The investigation in the above said F.I.R. As well as in the cross-version put forth by Muzaffar Hussain in the same F.I.R. Was conducted and after finding the petitioners of both the revision petitions to be involved in the occurrence the Investigating Officer challaned them to face trial.
Both the parties adduced evidence against each other and consequently the learned/Judicial Magistrate Section 30, Chakwal found the case set forth by Ghulam Rasool in the F.I.R. To be proved against Muzaffar Hussain, hence he was convicted under section 337-A(ii), P.P.C. And was sentenced to pay Arsh 5% of Diyat amount to victim namely Zamurrad Khan vide judgment dated 31-10-2011 whereas after finding the cross-version lodged by Muzaffar Khan to be proved against.
Muhammad Khan, Muhammad Ashraf and Anwar Hussain, accused of cross-version convicted Muhammad Khan under section 337-F(vi), P.P.C. And sentenced to pay Daman amounting to Rs.50,000 to injured victim Akhtar Hussain. The learned Magistrate also convicted Muhammad Ashraf accused of cross-version under section 337-F(vi), P.P.C. And sentenced to pay. Daman amounting to Rs.50,000 to injured namely Akhtar Hussain. Anwar Hussain accused of cross-version was convicted under section 337-F(vi), P. P.0 . And he was sentenced to pay Daman amounting to Rs.50,000 to the injured namely Mst. Gahran Bano vide separate judgment of even date handed down by the learned Judicial Magistrate .Section 30, Chakwal. Both the parties filed their respective appeals before the Sessions Court, Chakwal and the appeal filed by Muzaffar Hussain against his conviction and sentence was partially accepted and the amount of Arsh 5% to the amount of Diyat is reduced from Rs.50,000 to Rs.35,000 payable to Zumurd Khan injured whereas the Criminal Revision filed by Muzaffar Hussain for enhancing the sentence passed against the accused of cross-version was dismissed by the learned Additional Sessions Judge, Chakwal vide judgment dated 23-4-2012. As Muhammad Khan, Muhammad Ashraf and Anwar Hussain accused of cross- version had also filed separate appeals against their convictions and sentences which too was partially accepted and the amount of Daman was reduced from Rs.50,000 to Rs.30,000 each payable to the injured victim sustained injuries at their hands. After feeling dissatisfied with the result of his appeal Muzaffar Hussain assailed the judgment of the learned Additional Sessions Judge, Chakwal dated 23-4-2012 through Criminal Revision No. 184 and also filed Writ Petition No. 2230 of 2012 for enhancing the sentences passed against the accused of cross-version whereas Muhammad Khan, Muhammad Ashraf and Anwar Hussain accused of cross-version has assailed the judgment of learned Additional Sessions Judge, Chakwal dated 23-4-2012 before this Court through Criminal Revision No. 255 of 2012.
5. The learned counsel for the petitioner in Criminal Revision No. 184 of 2012 submits that the conviction and sentence passed against Muzaffar Hussain petitioner is perverse to the fact and circumstances of the incident which was reported due to counterblast of Rapat lodged by the petitioner against respondent No.
2. The statement of Muhammad Afzal (P.W.7) reveals that the complainant party of the F.I.R. Was the aggressor and Muzaffar Hussain petitioner has nothing to do with the incident in question. The injury against which the petitioner is convicted and sentenced to pay Arsh amounting to Rs.35,000 is self-inflicted injury and this fact has not been appreciated by the learned courts below. On the same set of evidence the co-accused of the petitioner have been acquitted, thus, the same ought not to have been considered qua the petitioner. The injuries sustained by the complainant party of the cross-versions have been suppressed by Ghulam Rasool at the time of lodging the F.I.R. Or at the time of lodging Rapat No.
06. The complainant party of the F.I.R. Remained unable to prove any motive against the petitioner and the recovery was planted upon him but both the learned courts below have ignored these important facts of the case and have passed impugned judgments in an illegal and erroneous manner which resulted in causing grave miscarriage of justice. The sentence passed against the accused person of cross-version are liable to be enhanced suitably.
6. On the other hand the learned counsel appearing on behalf of the petitioners in Criminal Revision No. 255 of 2012 submits that after finding the version of Ghulam Rasool to be correct the police had registered criminal case against Muzaffar Hussain, etc. And the case against him as well as against his co-accused had fully been proved beyond any reasonable shadow of doubt. The petitioners' party was peacefully ploughing their field and it was none else but Muzaffar Hussain and his co-accused who had launched attack at the complainant party of the F.I.R. And caused injuries to them just to establish their possession over the land in dispute. The petitioners are innocent and they have been involved in cross-version after cooking up a false and frivolous story with mala, fide intention of the complainant of cross-version and the local police after suppressing, his role and roles of his co-accused. The recoveries have been planted over the petitioners just to strengthen the case of cross-version. As a matter of fact the victims of cross-version have succeeded to secure false Medico-legal Certificates after inflicting self-suffered injuries just to equal the score in order to save them from punishment in F.I.R. The alleged victim of cross-version namely Mst. Naheed Akhtar, Mst. Robina Bibi, Mst. Shamim Akhtar and Muzaffar Hussain had failed to appear before the Radiologist which fact established the volume of their falsehood inasmuch as the above said ladies had been given up by the prosecution being unnecessary, thus, an adverse inference could easily be drawn that had they been produced before the learned trial Court they would not have supported the case of Muzaffar Hussain put forth in the cross-version. The !Earned Deputy Prosecutor General has however, defended the impugned judgments passed by the learned trial Court and the learned appellate court and has stated that after assessing and evaluating the evidence available against both the parties the learned appellate court has rightly convicted and sentenced them and the same needs no interfere nee by this Court.
7. After hearing the learned counsel for the parties and going through the record of this case it has been observed by this Court that the manner and mode in which both the parties had adduced evidence showed that the occurrence was a result of a sudden and free-fight over the dispute of land situated in Khasra No. 1696. Thus, the time, date, place, happening of incident and presence as well as participation/ involvement of the parties in the occurrence are all admitted facts because both the parties in order to prove their respective stances themselves brought all the accused mentioned in the F.I.R.
As well as in cross-version in the witness box. So far as the manner and mode of taking place of occurrence is concerned both the parties had not only suppressed their respective roles in the incident but they had also tried to magnitude the role of their rivals and also exaggerated the matter just to save themselves from criminal prosecution and to tie the rope of prosecution around the necks of their opponents. In this way both the parties had tried their level best to create a cloudy situation to burry the real facts in the dust of false accusation. In the backdrop of such an unfortunate situation it is tile duty of the Court to sin the grain from the chaff while considering the available evidence led by the paeties with great care and caution. Even the HorOble Superior Court > of the country also expressed at so many occasion that principle of "faieus in line falsus in oinnitus" has no nniversal application and grain has to be sifted from the chaff to ensure justice between the parties. I respectfully refer the verdict laid down by the honourable Supreme Court of Pakistan in the case of Kiza'fini Hussain (tote (2010 SCM R 1090) wherein it has been d in the follow ing words:- 'In fact a fu'lie exercise appears to have been made to press into sernee' the doctrine of 'lams in ftilSUS in omnibus (false in one thing, false in all), which is admittedly not applicable in pre vale nt system of cantina' aministratka of justice and more so there is no rule having universally applicable that where some accused were not found guilty the other accused would ipso facto stand acquitted because the Court has to sift the grain from chaff. Samano v. State 1973 3CIIIR
10. There is no cavil to the proposition that 'the rule that the integrity of a witness indivisible, despite its moral virtue, has not been endorsed by the superior Courts of this country without reservations and cannot be accepted as one of universal applications. In the last analysis, as slated in some of the eminent judicial decisions, the grain has to be sifted from the Chaff in each case, in the light of its own peculiar circumstances Riaz Hussain v. The State 2001 SCMR 177".
' Thus, to better appreciate the above mentioned principles mentioned in supra judgment I would like to discuss the case of both the parties separately, therefore, I discuss the case- mentioned in the F.I.R. First.
8. To prove the case of Ghulam. Rasool complainant set forth in the F.I.R. The prbsecution had examined as many as seven witnesses against Muzaffar Hussain and his co-accused. Ghulam Rasool complainant (P.W.3), Muhammad Ashraf (P.W.4) and Zumurd Khan injured victim (P.W.5).Had furnished the ocular account of the F.I.R. In this case. The complainant had involved Muzaffar Hussain, Akhtar, Mst. Gahran Bano and Mst. Shamim Akhtar in this case and assigned them specific roles therein. As far as the case of Mst. Gahran Bano, Mst. Shamim Akhtar and Akhtar co-accused of IVIuzaffar Hussain is concerned admittedly they had been acquitted of the charge by the learned trial Court after facing a protracted trial and no appeal against their acquittal had been filed by Ghulam Rasool complainant of F.I.R., thus, their acquittal had already attained finality so there is no need to discuss their roles. Now the case of the prosecution rests against Muzaffar Hussain. It is alleged that he had inflicted three injuries out of which two injuries had been sustained by Zumurd Khan, injured victim (P.W.5) whereas one hatchet blow had been sustained by Ghulam Rasool on hishis head. According to the prosecution story mentioned in the F.I.R.
Ghulam Rasool complainant of F.I.R. Sustained total four injuries but adinittedly he had not appeared before the Radiologist, thus, no final opinion with regard to the injuries sustained by him is available on the record to conclusively determine the nature of injuries. In the background of such circumstances the hatchet blow sustained by him on his head at the hands of Muzaffar Hussain is of no avail. As far as the two injuries attributed to Muzaffar Hussain on the person of Zumurd Khan injured victim and Ghulam Rasool are concerned, injury No. I found by the Dr. Ashfaq Ahmed Salik (P.W.2) to be caused by sharp-edged weapon and it was also the case of the prosecution that Muzaffar Hussain inflicted hatchet blow on the head of Zumurd Khan. This injury was incised wound 4 x 2 cm, bone deep, which was on posterior side of head and falls under section 337-A(ii), P.P.C. After the report of Radiologist. During the course of investigation the weapon of offence (hatchet) had also been recovered from Muzaffar Hussain petitioner by Muhammad Afzal, S.I. (P.W.7) who had also prepared recovery memo Ex,PJ duly attested by witnesses. The medical evidence had also provided full support to ,.The ocular account qua this injury sustained by Zumurd Khan injured victim (P.W.5). So far as injury No. 2 attributed to Muzaffar Hussain to Ghulam Rasool, complainant (P.W.3) is concerned, as already stated that the said injured had not appeared before Radiologist to- prove this injury, thus, the learned trial Court had rightly given benefit of doubt to Muzaffar Hussain of this injury. Even otherwise the prosecution evidence in respect of injury No. 1 sustained by Zumurd Khan, injured victim (P.W.5) in F.I.R. Is consistent and proved through medical evidence as well as recovery of weapon of offence. More over the learned appellate court also showed its satisfaction to the extent of conviction and sentence of Muzaffar Hussain petitioner which had duly been maintained by him. So far as the quantum of sentence is concerned the learned appellant has rightly reduced the same up to Rs.35,000 thousand while keeping the facts and circumstances of this case. Admittedly petitioner is not a previous convict, habitual or hardened, desperate or dangerous criminal. I have also not seen any illegality into the same so as to warrant an interference in revisional B jurisdiction. To conclude my discussion in respect of the guilt of rightly been convicted and sentenced by the learned appellate Court. Muzaffar Hussain petitioner I am of the considered view that he has rightly been convicted and sentenced by the learned appellate court.
9. ' Now I advert to the case of Muzaffar Hussain set forth in cross-version vide Rapat No.10 against the complainant party of the F.I.R. According to the stance taken by Muzaffar Hussain in his cross- version Gliularri Rasool and his nine co-accused were present at the boundary of his land and their noise attracted him at the spot who along with his brother Akhtar Hussain stopped Muhammad Ashiaf for plouging field with tractor and due to his intervention the accused persons of the cross- versions inflicted injuries upon him as well as his companions. To prove its cross-version Muzaffar Hussain had produced as C many as ten witnesses before the learned trial Court. The ocular account of the cross-version was furnished by Muzaffar Hussain (P.W.1), Mst. Gahran Bano, injured victim (P. W .2) and Akhtar Hussain, injured victim (P.W.3). Admittedly Mst. Nahid Akhtar, Mst. Robina Bibi and Mst. Shamim Akhtar the alleged injured victim did not opt to appear in the witness box in support of the injuries sustained by them, thus, nobody can be prosecuted for the alleged injuries from the accused side of F.I.R. Because the injuries were not proved. Although Muzaffar Hussain complainant of cross-version (P.W.1) sustained five injuries on his persons yet according to Dr. Ashfaq Ahmed Salik (P.W.4) out of five three injuries were swelling and remaining two were pain only inasmuch as Muzaffar Hussain had also failed to appear before the Radiologist to specifically declared the nature of injuries. Thus, in these circumstances nobody from the accused party of cross-version who had allegedly caused injuries to Muzaffar Hussain could be prosecuted. So much so the doctor had also opined that such injuries could be caused due to fall on the ground and he had also gone on to state that possibility cannot be railed out of consideration tnat these are self-inflicted injuries. It is also the case of complainant of cross-version that during the occurrence Mst. Gahran Bano (P.W.2) sustained three injuries. Injury No. 1 had been attributed to Anwar Hussain accused of cross-version which had also been declared as under section 337-F(vi), P.P.C. While furnishing the ocular account P.W.1, P.W.2 and P.W.3 have unanimously attributed this injury to Anwar Hussain petitioner in Criminal Revision No. 255 of 2012 and this role had also found full support from the medical evidence. In his statement made before the learned trial Court Dr. Ashfaq Ahmed Salik (P.W.4) had also unambiguously explained the locale of injury and the weapon used during the occurrence for causing this injury. Tnus, the learned trial Court had rightly convicted and sentenced Anwar Hussain which conviction had correctly been modified by the learned appellate court.
10. According to the case of Muzaffar Hussain complainant of cross-version Akhtar Hussain, injured victim (P.W.3) had also sustained four injuries. Injuries No. 1 and 2 were declared by Dr. Ashfaq Hussain Salik (P.W A) falls under section 337-F(via, P.P.C. And the same had been attributed to Muhammad Khan and Muhammad Ashraf accused of cross-version respectively. All the prosecution witnesses had consistently attributed the above said injuries to the above said accused and the injured had duly appeared before the Radiologist who had finally determined the nature of injuries as mentioned aboae. Thus, injuries No. 1 and 7. Sustained by Akhtar Husain injured (P.W.3) at the hands ef Muhatiarnacl Khan and Muhammad Ashraf respectively fully established by the evidence produced by the prosecution in cross-version and the learned trial court had rightly convicted and sentenced the above said petitioners and the conviction had suitably modified by the learned appellant court which resulted no interference by this Court in re.Visional 'jurisdiction.
Before proceeding further into the matter I would like to point cut here that injury No. 4 sustained by Akhtar Hussain, injured victim (P.W.3) falling under section 337-F(iv), P.P.C. Was not attributed to anybody from the accused of cross:version, thus, no accused from the cross-version could be burdened or heldresponsible for that injury and the learned trial Court had rightly not taken into consideration this injury. Rest of the accused of cross-version had rightly been acquitter of the charge by extending benefit of doubt and admittedly no appeal against their acquittal had been filed. Muzaffar Hussain complainant of cross-version has also filed Writ Petition No. 2230 of 2012 for enhancement of sentences awarded to Muhammad Khan, Muhammad Ashraf and Anwar Hussain respondentslaccUsed of cross-version but keeping in view the surrounding circumstances of this case and by giving benefit of section 337-N(2), P.P.C. As they are not previous convicts, habitual or hardened, desperate or dangerous criminals so I have found. No occasion to enhanee the sentences passed against them by the learned appellate court in its judgment dated 23-4-2012.
11. I shall also deem it necessary to mention here that in both F.I.R. And cross-version sections 148 and 149, P.P.C. Were invoked against the parties but it has been notice that no witness from either side had uttered even a single word regarding sharing of common intention, thus, both the E learned courts below have rightly left these offences as un-attendant. I am also in agreement with the conclusions of the both the learned trial Court in respect of offences under sections 148 and 149, P.P.C.-
12. Apart from what has been discussed above I have not seen any illegality of the conclusions arrived at by the learned appellate court to interfere in to the impugned judgments separately passed in both cases, i.e. In and in cross-version so as to warrant an interference into the same.
The learned both the lower courts had rightly dig out the truth from the earth and convicted and sentenced only those culprits ho had actually perpetrated the offence in question and awarded them p. Convictions and sentenced to the extent of Arsh and Daman because 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 Taxir is not to be less than one-third of the maximum imprisonment provided for the hurt caused. I respectfully referred the cases reported as 2009 PCr.R (Lah) 311(d) (2009 PLR (Lah.) 870 (d), (PLD 2009 Lahore 312) Ali Muhammad v. The State and 2012 PCr.LJ 104.
13.. In sequel to the discussion made above an irresistible and unavoidable conclusion is that the instant revision petition along with Criminal Revision No.255 of 2012 filed by the Muhammad Khan and 2 others and Writ Petition No.2230 of 2012 filed by Muzaffar Hussain having no force are dismissed.
Revision