ROZI KHAN BARRECH, J.---This judgment will dispose of Criminal Revision Petition No. 47 of 2017 filed under sections 435, 439, Cr.P.C. and Constitutio n Petition No. 532 of 2017 under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petition ers in Criminal Revision Petition No.47 of 2017 have challenged their conviction and sentence passed by the learned Judicial Magistrate, Killa Saifullah ("the trial Court ") vide judgment dated 10.03.2017 ("the impugned Judgment ") and upheld by the learned Additional Sessions Judge, Killa Saifullah ("the appellate Court ") vide order dated 28.04.2017 ("the Order ") wherein they were convicted under section 337-F(v) and sentenced to unde rgo RI for six (06) months and to pay Daman of Rs.20,000/- (Rupees Twenty Thousand Only) each which has to be paid to the complainant/injured Muhammad Qaim.
2. The petitioners in C.P. No.532 of 2017 being aggrieved of the impugned judgme nt passed by learned trial Court to the quantum of sentence filed criminal revision petition under sections 435, 439 Cr.P.C, for enhancement of the punishment awarded to the petitioners/ convict before the learned Additional Sessions Judge, Killa Saifullah and the same was partly allowed to the exten t of Daman and Daman amount was increased to Rs.40,000/- (Rupees Fourty Thousand Only) instead of Rs.20,000/- (Rupees Twenty Thousand Only).
Being aggrieved of the same, the complainant/petitioner (Muhammad Qaim) filed Constitution Petition No.532 of 2017 before this Court.
3. Precisely , the relevant facts for the disposal of these petitions are that the complainant/injured Muhammad Qaim son of Muhammad Hanif reported at Police Station, Killa Saifullah that on 03.02.2016 at about 1:50 p.m., he was present at Bakhtayar Adda, Killa Saifulla h. In the meanwhile, Abdul Manan and Muhammad Wali alias Bhutto (petitioner) armed with sticks came on motorcycle and are attacked upon him, they caused him injuries on his face and fractured his leg. Hence crime report No.08 of 2016 dated 03.02.2016 registered at Police Station Killa Saifullah.
4. After completion of all legal formalities the challan was submitted before the learned trial Court. Charge was framed to which the accused/petitioners did not plead guilty and claimed trial, whereby the prosecution in order to prove its case against the accused/ petitioners produced six (06) witnesses during trial. On conclusion of the prosecution evidence, statements of the accused/ petitioners were recorded under section 342, Cr.P.C, wherein they once again denied the allegations and professed their innocence. The accused/petitioners got recorded their statements on oath and produced two witnesses in their defence.
5. On conclusion of trial vide impugned judgment dated 10.03.2017, the learned trial Court convicted the accused/ petitioners of the charge as mentioned in the opening para.
6. Being aggrieved from the impugne d judgment dated 10.03.2017 passed by learned trial Court, the accused/petitioners filed an appeal under section 408, Cr.P.C., before the learned Additional Sessions Judge, Killa Saifullah and the same was dismissed with the modification of the sentence on 28.04.2017. While the complainant filed criminal revision petition before the learned Additional Sessions Judge, Killa Saifullah, and the same was partly allowed.
7. We have heard the learned counsel for the parties and have gone through the available record with their able assistance.
8. It may be observed that the occurrence took place on 03.08.2016 at 12:00 noon and the FIR was lodged on the same date at 1:00 p.m., promptly without any delay . PW-1 Muhammad Qaim who is complainant as well as victim of the case appeared before the Court as PW-1 stated in his statement in a categ orical manner that the accused/ petitioners armed with sticks attacked upon him and he received injuries. The statement of PW-1 further corroborated with the statement of PW-2 Muhammad Din who is an eye-witness of the occurrence and according to his version on the day of occurrence the accused/ petitioners armed with sticks and attacked upon Muhammad Qaim who received injuries and he took the injured to hospital. The name of the said witness mentioned in the FIR as a witness which lodged promptly and statement under section 161, Cr.P.C. of PW-1 Muhammad Qaim was also recorded on the same day by Investigating Of ficer.
9. Carefully scrutiny of the statement of the above prosecution witnesses reflects that they remained unanimous qua the date, time, mode and manner of occurrence. The pen-picture of the occurrence coming out of statements of the prosecution witness of ocular account straightaway rings true and seems to be next to natural. The most astonishing aspect of the case is that during the course of cross-examination not a single question was put to the prosecution witnesses regarding the salient features of the prosecution version in order to create any sort of dent in the credibility of their testimony .
10. As far as the medical evidence is concerned, PW-4 Dr. Noor Baloch, examined the injured PW-1 Muhammad.
Qaim and found that two injuries on his person and he also observed in the medical certificate (Ex.P/4-A) that one on his face and there was a fracture on left leg. The statements of PW-1 and PW-2 are corroborated with the medical evidence produced by PW-4 (Ex.P/4- A) and during course of examinatio n no contradiction was pointed out by the learned counsel for the petitioners between the ocular account and medical evidence. Both the Courts below , after appreciation of the evidence rightly convicted the accused/petitioners under section 337-F(v), P .P.C.
11. Now adverting the question of sentence awarded in this case to the petitioners, the petitioner/complainant in C.P. No.532 of 2017 filed criminal revision petition under sections 435, 439-A, Cr.P.C, for enhancement of punishment awarded by learned trial Court before the appellate Court i.e. learned Additional Sessions Judge, Killa Saifullah, which is partly accepted to the extent of Daman instead of Rs.20,000/- (Rupees Twenty Thousand Only) to that of Rs.40,000/- (Rupees Fourty Thousand Only) awarded by the trial Court against the accused/respondent and reduced sentenced from six (06) months RI to that of three (03) months RI.
12. Nothing has been brought on record by the prosecution to show involvement of the petitioners in any criminal case to consider them hardened, dange rous criminal 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 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 .
13. In the case of Abdul Wahab and others v. The State and others (2019 SCMR 506) the Hon'ble Supreme Court held that; "2. Leave to appeal had been granted in this case in order to examine as to whether the provisions of section 337- N(2), P.P.C. stood attracted to the facts of this case or not and if the said provisions were applicable to the case in hand then whether the punishments of imprisonment could have been passed against the appellants by way of Ta'zir or not. W e have noticed that According to the provisions of section 337-N(2), P.P.C. a punishment of imprisonment by way of ta'zir can be passed against a convict is 'previous convict, habitual or hardened, desperate or dangerous criminal or the office has been committed by him in the name or on the pretext of honour". It is pertinent to notice that the trail court as well as the High Court did not observe anything about such credentials of the appellants. It had been held in the cases of Ali Muhammad v. The State (PLD 2009 Lahore 312), Mazhar Hussain v. The State and another (2012 SCMR 887) and Haji Maa Din and another v. The State and another (1998 SCMR1528) that in a case pertaining to causing of hurt unless the provisions of section 337--N(2), P.P.C. are attracted to the case of the convict he cannot be awarded a sentence of imprisonment by way of Ta'zir. In the present case the appellants had initially resorted to ineffective firing and no firearm injury had been received by any of the members of the complainant party . It was alleged that Abdul Wahab Appellant had then cut the right ear of Ahmed Ali (PW2) with the use of a knife and there was some doubt available on the record as to whether the ear was cut off through the use of a knife or it was bitten off by the said appellant. Be that as it may, there was no serious motive on the part of the appellants and the asserted motive had never been proved through any independent evidence. Admittedly the appellants were not precious involvement of the appella nts in any criminal case. It is not denied that no issue of honour was involved in commission of the relevant office by the appellants. In this view of the matter in terms of section 337- N(2) the appellants could not have been punished with imprisonment by way of Ta'zir.
3. For what has been discussed above this appeal is partly allowed, the convictions of the appellants for the offence under section 337, P.P.C. recorded and upheld by the courts below are maintained, the order passed by the trail court regarding payment of Arsh equal shares is modified in terms of the provisions of section 337-R, P.P.C., the appellants are held to be liable to pay Arsh equal to one half of Diyat in equal shares and the sentences of imprisonment by way of Ta'zir passed against the appellants are set aside".
14. For what has been discussed above, the case in hand is related to the year 2016, the petitioners have faced agony of a protracted trial for four years before the learned trial as well as the appellate Courts, thus by taking guidelines from the case law mentioned above and also keeping in view of the facts and circumstances of this case, we are of the view that as the petiti oners are first offenders, thus, they cannot be burdened with sentence of imprisonment under Tazir. Therefore, the rigorous imprisonment for three months awarded to the petitioners Muhammad Wali alias Bhutto and Abdul Manan under section 337-F(v), P.P.C. by the trial Court and upheld by the appellate Court is contrary to section 337-N(2), P .P.C. Hence the same is set aside.
15. The enhancement of Daman by the revisional Court is also unjustified; Hence both the petitioners are held liable to pay Daman of Rs.20,000/- (Rupees Twenty Thousand Only) each to the injured under section 337-F(v), P . P. C.
The petitioners Muhammad Wali alias Bhutto and Abdul Manan are directed to deposit the Daman amount with the trial Court within one month of the date of passing of this order , failing which they shall be taken into custody and shall be dealt with in accordance with law .
The Criminal Revision Petition No.47 of 2017 is disposed of with the above modification made above.
The Constitution Petition No.532 of 2017 filed by the complainant Muhammad Qaim for enhancement of the sentence of the convicts Muhammad W ali alias Bhutto and Abdul Manan is dismissed accordingly .