Qamar-Ul-Zaman and another vs The State and another

ALI ZIA BAJWA, J.----Qamar-ul-Zaman and Muhammad Ramzan both sons of Kalay Khan, Caste Chohan, residents of Chak No.126/EB, Tehsil Burewala, District Vehari, petitioners, through the instant revision petition filed under Section 435 and Section 439 Code of Criminal Procedure, 1898 (`Cr.P.C.') read with Section 561-A, Cr.P.C. have assailed the vires of consolidated judgment dated 05.07.2020 passed by learned Additional Sessions Judge, Burewala through which appeal preferred by the petitioners against the judgment dated 08.12.2009, passed by learned Magistrate Section 30, Burewala was dismissed whereas revision petition filed by the complainant seeking enhancement of their sentences was allowed and their sentences under Section 337-F(v) read with Section 34 of Pakistan Penal Code, 1860 (`P.P.C.') were enhanced. However, their convictions and sentences under section 337-L(2), P.P.C. were set aside.

2. Precise facts necessary to decide instant criminal revision are that Shamoon son of Shah Muhammad, caste Chohan, got registered a case FIR No.326/2008, dated 19.06.2008 for offences under Sections 337-F(iv), 337-L(2) and 34, P.P.C., with Police Station Gaggu, Burewala by contending that on 17.06:2008 at about 5:00 p.m. he was grazing his goats, when Nazar alias Najja Ahmed with cudgel, Qamar armed with cudgel and pump action, Muhammad Ramzan alias Fida armed with cudgel and pistol .30-bore all sons of Kalay Khan and Chohan by caste, Irshad son of Shakoor, caste Chohan armed with rifle .7-MM along with two unknown accused persons armed with firearms and cudgels came there, Nazar alias Najja raised lalkara that Shamoon, had murdered his father, so he should be taught a lesson and thereafter inflicted a cudgel blow at his left arm upon which Qamar-ul-Zaman petitioner gave a cudgel blow at the left leg of the complainant.

Thereafter, Muhammad Ramzan petitioner inflicted multiple cudgel blows at his right leg. Nazar alias Najja while putting leg at right arm of the complaint twisted it, which resulted into its fracture.

Muhammad Ramzan petitioner inflicted another cudgel blow at his back whereas Qamar petitioner inflicted a cudgel blow at his right leg. It is further alleged by the complainant that accused Muhammad Irshad remained present nearby. Upon hearing hue and cry of the complainant, witnesses Jaffar son of Noor Samand and Shah Nawaz son of Abdul Razzaq attracted to the spot and upon their arrival, accused persons decamped from the place of occurrence.

3. After registration of formal FIR, investigation was carried out by Naseem Akhtar, SI, who sent the injured to Nishtar Hospital. Multan for his medical examination. Thereafter, he visited place of occurrence and prepared rough site plan. In order to prove its allegation against the accused persons, prosecution produced four witnesses. Shamoon (PW-1) is complainant/injured of the case while Shah Nawaz (PW-2) is other eye-witness of occurrence. Dr. Muhammad Idrees, Medical Officer (PW-4) medically examined the injured and observed following injuries on his person:- i) A swelling all around right forearm. ii) A swelling all around left forearm iii) A lacerated wound 1 cm x 1/2 cm x bone deep on front of left leg 4 cm blow from knee. iv) Two lacerated wounds 1.5 cm x 1/2 cm x bone deep on the front of left leg it was lower from the middle. He submitted that bone was fractured. v) Lacerated wound 3 cm x x bone deep on the right leg 8 cm above from ankle. vi) Swelling all around right foot.

4. After closing of prosecution evidence, statements of petitioners were recorded under section 342, Cr.P.C; wherein they pleaded their innocence. The petitioners neither appeared as their own witnesses as envisaged under section 340(2), Cr.P.C. nor produced any evidence, oral or documentary, in their defense. At the conclusion of trial, learned trial court convicted and sentenced the petitioners as under:- Sr.#Name of the petitionerConviction/sentence Qamar ul Zaman Under section 337-F(v), P.P.C., sentenced to pay daman of Rs.10,000/- to the injured victim and also to undergo R.I. for eight months Under section 337-L(2), P.P.C., sentenced to pay daman of Rs.5,000/- to injured victim.

Benefit of section 382-B, Cr.P.C. was also extended in favour of the petitioner. Muhammad RamzanUnder section 337-F(v)/34, P.P.C. sentenced to pay daman of Rs.10,000/- to the injured victim and also to undergo R.I. for eight months Under section 337-L(2)/34, P.P.C., sentenced to pay daman of Rs.5,000/- to injured victim.

Benefit of section 382-B, Cr.P.C. was also extended in favour of the petitioner.

5. The petitioners assailed their convictions and sentences before the learned appellate court by filing an appeal whereas the complainant filed revision, petition seeking enhancement in their sentences. The learned appellate court vide consolidated impugned judgment dated 05.07.2020 dismissed the appeal of petitioners but Convictions and sentences of both the petitioners Under section 337-L(2), P.P.C., were set aside. However, while allowing revision petition of complainant, enhanced their sentences in the following terms:- Under Section 337-F(v) read with section 34, P.P.C., sentenced to undergo Rigorous Imprisonment for three years with daman of Rs.50,000/-

6. Arguments heard, record perused. Today at the very outset learned counsel for the petitioners contends that he will not press the vires of convictions of petitioners, however, assails the legality of sentences of imprisonment passed by learned trial court and enhanced by the revisional court below by contending that as case of the petitioners does not fall within the ambit of Section 337- N(2), P.P.C., therefore, they are not liable to the sentence of imprisonment for injuries attributed to each of them. Learned Deputy Prosecutor General also candidly concedes that case of the petitioners is not covered under the provisions of Section 337-N(2), P.P.C.

7. Perusal of the record reveals that case of prosecution mainly hinges upon ocular account and medical evidence.

8. Ocular account had been furnished by complainant/injured (PW.1) and Shah Nawaz (PW.2).

Perusal of their statements reflects that their testament is strictly in line with the prosecution version narrated in the crime FIR. They have reiterated all the details of instant occurrence provided in the crime report, especially mode and manner of infliction of injuries by each accused and kind of weapons used. Both these witnesses corroborated each other on all the material aspects of prosecution version. These witnesses stood the test of lengthy cross-examination but nothing favorable to the petitioners could be brought on the record. It is axiomatic principle of criminal justice that evidence of even a single witness, if found credible and reliable by the Court, is sufficient to convict the accused persons.

9. Evidence of Medical expert Dr. Muhammad Idrees M.O. also lends credence to the story of prosecution. Perusal of his. statement reflects that this witness observed six injuries upon the person of complainant. Injuries No.3 and 5 are specifically attributed to petitioner Qamar-ul- Zaman while injury No.4 is attributed to petitioner Muhammad Ramzan. All these three injuries were declared by medical officer as Ghayr-jaifah-hashimah punishable under section 337-F(v), P.P.C.

Medical evidence confirmed the ocular account regarding seats of injuries and kind of weapons used during the occurrence. Cross examination of this witness by the petitioners' side was also of no avail to them. Through plethora of judgments, it is settled law by now that if medical evidence corroborates ocular version of prosecution, same is sufficient to hold the accused guilty of offence.

Even otherwise, revisional court should not get into re-evaluation of entire evidence rather should only observe the propriety of the proceedings. It was held in Khadija Siddiqui's Case^[1] as under: Apart from that the High Court ought to have appreciated that it was only seized of revision petitions and not an appeal and in exercise of its revisional jurisdiction the High Court ought to have confined itself to correctness, legality, regularity or propriety of the proceedings of the courts below rather than embarking upon a full-fledged reappraisal of the evidence, an exercise fit for appellate jurisdiction.

10. Whole gamut of above discussion is that learned appellate court rightly upheld the convictions of the petitioners, however, propriety of sentences awarded by learned trial court and enhanced by learned appellate court to petitioners under section 337-F(v), P.P.C., deeds re-consideration.

11. As far as sentence of imprisonment is concerned, both the learned trial court and learned appellant/revisional court failed to take into consideration the principle provided in subsection (2) of section 337-N, P.P.C. and interpreted by the Constitutional Courts of our country. Before dilating upon the matter, it will be advantageous to have a bird eye view of subsection (2) of Section 337-N, P.P.C., which is provided below: "337N. Cases in which qisas for hurt shall not be enforced.

(2) Notwithstanding anything contained in this Chapter, in all cases of hurt, the court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who 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."

Provided that the ta'zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour."

This provision clearly envisages that although the use of word "may" confer discretion upon the court to award sentence of Ta'zir against an accused but this discretion is qualified by the condition that Ta'zir can he awarded to an accused who is a previous convict, habitual or hardened, desperate or dangerous criminal or when the offence has been committed by him in the name or on the pretext of honor. In a case not falling under any of these categories, sentence of imprisonment as Ta'zir cannot be awarded to an accused, in addition to Daman or Arsh etc.

12. It is settled law by now that provisions of subsection (2) of section 337-N, P.P.C. have overriding effect over all other sections providing punishment for hurt under Chapter XVI, P.P.C. and in view of principle expounded by subsection (2) of section 337-N, P P.C., an accused, in addition to a sentence for payment of Daman or Arsh etc. may also be awarded punishment of imprisonment as ta'zir only when prosecution will prove that such accused is a previous convict, habitual or hardened, desperate or dangerous criminal and not otherwise This controversy was resolved long ago by a Full Bench of this Court in Ali Muhammad's case^[2], wherein, after exhaustive discussion on the subject, it was held that in all cases of hurt provided in Chapter XVI of P.P.C., normal punishment to be awarded to an offender is payment of Arsh or Daman and punishment of imprisonment as Ta'zir provided for the relevant offence can be awarded to an accused only where such accused is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by such an accused in the name or on the pretext of honour. Relevant extract is provided below: "9. After a careful consideration of the matter we have found that the non-obstante clause contained in subsection (2) of section 337-N, P.P.C. has indeed given the provisions of the said subsection an overriding effect and sway over all the other provisions dealing with hurt contained in Chapter XVI of the Pakistan Penal Code, 1860. We have also found that the provisions of subsection (2) of section 337-N, P.P.C., as they stand today, contemplate that in all cases of hurt the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment 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", It is also quite clear to us that the subsequent addition of the proviso to subsection (2) of section 337-N, P.P.C. had done nothing more than stipulating that if the offender "is a previous convict, habitual, hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour" then the sentence of imprisonment to be awarded to him as Ta'zir shall not be less than one-third of the maximum period of imprisonment provided for the hurt caused According to our understanding the said proviso only fixes the minimum sentence of imprisonment to be awarded to an offender who "is a previous convict, habitual, hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour..."

In its recent decision in Abdul Wahab and others case^[3], august Court, while referring to Ali Muhammad vase supra, has upheld this principle in following words:- "2. ...It is pertinent to notice that the trial court as well as the High Court did not observe anything about such credentials of the petitioners. 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 SCMR 1528) 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 .... Admittedly the petitioners were not previous convicts and there was no evidence of previous involvement of the petitioners in any criminal case. It is not denied that no issue of honour was involved in commission of the relevant offence by the petitioners. In this view of the matter in terms of section 337-N(2) the petitioners could not have been punished with imprisonment by way of Ta'zir."

13. Now, next question for consideration of this Court is that who will be considered as habitual, hardened, desperate or dangerous criminal. Term habitual criminal is not of much difficulty because a habitual offender is one who (habitually commits criminal acts and is involved in some other criminal case also. As far as the terms hardened, desperate or dangerous criminal are, concerned, in Shakeel Shah case^[4] august Court while applying the principle of ejusdem generis, has expounded the concept of terms 'hardened, desperate or dangerous criminal', in following terms: "8. Further, the words hardened, desperate or dangerous are to be understood collectively. The ejusdem generis principle is a principle of constriction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character. For the said principle to apply, there must be sufficient indication of the category or word that can be properly described as the class or genus, which is to control the general words.

The genus must be narrower than the general words it is to regulate. Applying this principle to the phrase a hardened, desperate or dangerous criminal, it is the Word dangerous which not only meets the requirements of conditions (i) and (iii) discussed above, it is also precise and narrow in order to regulate the meaning of the other two words. "Dangerous" means harmful, perilous, hazardous or unsafe someone who can cause physical harm or injury or death, "Hardened" is someone who is pitiless, hardhearted, callous or unfeeling and set in his bad ways and no longer likely to change, having a tendency of repeating the offence and is, thus, dangerous to the society.

"Desperate" is someone who is reckless, violent and ready to risk or do anything; such person is, therefore, also dangerous to society. All the three words paint a picture of a person, who is likely to seriously injure and hurt others without caring for the consequences of his violent act..."

14. Thus, an offender will be considered as hardened, desperate or dangerous criminal if he commits an offence in such a brutal manner that by not awarding the sentence of imprisonment upon such offender, setting him at liberty after payment of Arsh or Daman etc., shall pose a potential threat to the society as a whole. In the case in hand, prosecution has failed to produce even an iota of evidence to establish any of such circumstances against the petitioner, hence, learned trial court was not justified to award the sentence of imprisonment to the petitioners and learned revisional court below fell in error to enhance the same.

15. With these observations, Criminal Revision Petition No.342/2010 is dismissed and convictions of the petitioners under section 337-F(v)/34, P.P.C., are upheld with modification in their sentences.

Their sentences of imprisonment as Ta'zir are hereby set aside. However, both the petitioners Qamar-ul-Zaman and Muhammad Ramzan shall pay Rs.50,000/- each as Daman under section 337-F(v), P.P.C., to the injured/complainant as pronounced by the appellate court. The petitioners are directed to pay the amount of Daman within three months to the victim. In case of failure, they shall be taken into custody and dealt with by the learned trial court in accordance with law keeping in view the consequences of non-payment of amount of Daman. Office shall transmit a copy of this judgment to the learned trial court for further process in this regard.