This is an appeal by Shabbir Hussain and five others, appellants, against the judgment of a Judicial Magistrate of Daska Camp at Pasroor dated 4th May. 1981 convicting them under sections 325/149 and 141, P, P. C. And sentencing them to undergo five years' rigorous imprisonment each with a fine of Rs. 1,000 each or in default thereof to six months' R. 1.Each under section 325/149, P. P. C. And to one year's R. I. Each, under section 148, P. P. C. Half of the total fine, if recovered, was ordered to be paid to Abdul Aziz P. W. 2, as compensation.
2. The brief facts of the case are that on 23rd June, 1979 Abdul Aziz complainant P. W. 2, made statement Exh. P. B. Under section 154, Cr. P. C. At Civil Hospital Narowal, to Pasroor Police that on 21st June, 1979 he left his village for Sialkot in order to purchase coal. He stayed for the night in village Baggy Madni, where he had to get a' sum of Rs. 3,500 the cost of his thresher from one Mir Baz. In the morning at 7/8 a.m., after getting the money, he went to Sialkot through Pasroor. He could not get coal from Sialkot and on the same day i.e. 21st June, 1979 he came back in the company of Muhammad Ranif upto Classwala Siphon, where Muhammad Hanif left for his village Chuhar Munda and he proceeded towards village Chada. In village Chada he met Abdul: Haq and Abdul Hamid P. W. 6, sons of Khair Din. He proceeded towards village Chak , Ramdas, alongwith Abdul Hamid P W6. At about 6-30 p.m., they were at a distance of 4/5 killas from village Shah Hussain, when Jamil and Aslam, accused, also met. In the meanwhile, Shabbir Hussain, Liaquat, Shehbaz and Yamin, accused, emerged from inside the bushes, armed with sotas, and attacked him. First of all Jamil, accused, gave dang blows on his right leg, by which he fell down. Then Shabbir Hussain , accused, gave dang blow upon his right leg. Yamin, accused, kept raising lalkaras that he be killed. Aslam, Liaquat, Yamin and Shahbaz, accused, also gave darrg blows upon his legs and arms. Abdul Hamid P. W. Was also attacked by Shahbaz, accused, who gave an blows and head blows and he ran towards his village. Jamil, him d g accused, also removed the golden ring from his ring finger, while, Shabbir Hussain, accused, removed a sum of Rs. 4,200 from his pocket. On hearing his alarm, Maseeta, P. W.
7. Ali Sher Lambardar P. W- 5 and Lal (given up 1'.
W.), residents of village Shah Hussain, came and saw the occurrence. They took him to their village and further to Civil Hospital, Narowal. The motive for the occurrence was that Shabir Hussain, nephew of the complainant, had been robbed by Liaquat and Aslam, accused, earlier, upon which a case under section 392, had been registered with Police Station, Pasroor, against them and the complainant and he had appeared before the Additional I.-G. Police pat Lahore on 16th June, 1979 against the accused persons. Since they had grudge against him, they waylaid and attacked him.
3. On 22nd June, 1979 Dr. Nazir Ahmad, P. W. 14, medically examined Abdul Aziz P. W. 2, and found seven contusion marks and an abraded contusion on various parts of his arms and legs.
All the injuries were found to be ante-mortem andinflicted by blunt weapon. Two of the said injuries were declared to be grievous in nature.
4. After statement Exh. P. B. Of Abdul Aziz P. W. 2 was recorded on 23rd June, 1979 at 2-30 p.m., formal F.
1. R. Exh. P. B./1 was 3 recorded at Police Station, Pasroor on 23rd June, 1979 at about 4-20 p.m. By Adil Hussain Shab, Muharrir Head Constable, P. W. 8.
5. On 24th June, 1979 Shabbir Hussain, Muhammad Aslam, Muhammad Jamil and Liaquat, accused, were arrested by Sh. Bash]: Hussain, Sub-Inspector, P. W.
15. Muhammad Jamil and Shabbir Hussain, accused, produced dandas P. 5 and P. 6 before the Police Officer, who took the same into custody vide memos. Exh. P. D. And Exb. P. E. Respectively, which memos were attested by Zilladar P. W. 10, Muhammad Rafique, P. W. 11 and Sh. Bashir Hussain, S. 1. P. W. I5.
6. On 5th August, 1979 Muhammad Shahbaz and Muhammad Yamin, accused, were arrested by Altaf-ur-Rehman Pasha, H. C., P. W. 13.
7. On 6th August, 1979 Muhammad Shahbaz, accused, led to the recovery of dang P. 1, which was taken into possession vide Memo. P. C. In the presence of Muhammad Hanif, P. W. 3, Ali Muhammad P. W. 4 and Altaf-ur-Rehman, H. C., P. W. 13.
8. After completing the necessary investigation, the challan against all the six accused was sent up.
9. The learned trial Judge, relying upon the motive, the ocular account, the recoveries, but disbelieving the defence evidence, convicted and sentenced all the six accused, as stated in para. 1 above.
10. 1 have heard the arguments of the learned counsel for the appellants and the State and have also perused the record. The evidence as regards the motive is furnished by Abdul Aziz P. W. 2.
Since the said version has been recorded above, the same need not be repeated. There is nothing in the cross-examination of any of the witnesses to suggest that the said version is untrue or otherwise cannot be believed, without reservation. Muhammad Yamin, appellant, is the father of, Muhammad Jamil and Shabbir; appellants, are the brothers of, and Muhammad Shahbaz, appel-- lant, is the nephew of Liaquat and Muhammad Aslam, appellants, against whom the robbery case was registered. In these circumstances, motive stands established against all the appellants.
11. The ocular account in this case is given by Abdul Aziz P. W. 2; Ali Sher Lambardar, P. W. 5, Abdul Hamid P. W. 6 and Maseeta Khan P. W:
7. Abdull Aziz, P. W. 2, is the injured complainant himself. HI is, therefore, the most natural witness to the occurrence. Abdul Hamid p. W. 6 was accompanying.
Abdul Aziz P. W. 2 from village Jadah to Chak Ram Das, when the incident occurred in between the said two villages. He is also a natural witness. He is neither related to the complainant party nor has any enmity against the appellants. Abdul Aziz P. W. 1, out of fear, had requested him to accompany, as he was proceeding to his village alone in the evening. He also accompanied Abdul Aziz, P. W. 2, to the Civil Hospital, Narowal. He also suffered injuries during the occurrence. The application made by the police referring him to the doctor for medical examination shows that he had a swelling on his left ankle and right leg and that he complained of pain. The report of the doctor on the said application shows that he did not find any visible sign of any injuries on him. However, this does spot, exclude the presence of the swelling, which may have subsided. Abdul Hameed P. W. 6 is, therefore, a natural and independent witness. Ali Sher, P. W. 5, Lambardar of village Shah Hussain, has supported the prosecution case to the hilt. He was in the village mosque when he heard the alarm. He clearly stated that he saw all the six appellants, armed with dangs, beating Abdul Aziz P.
W. 2, when he rushed to the spot. He was accompanied by Maseeta Khan, P. W. 7, Lal (not cited in the challan), Muhammad Hanif (not cited in the challan) and Wali Muhammad (not cited in the challan). Ali Sher Lambardar, P. W. 5, is also a disinterested witness. Maseeta Khan P. W. 7, turned hostile at the trial, though he admitted that when he reached the spot on the alarm raised, he was informed that Shabbir and other appellants had beaten Abdul Aziz P. W.
2. He is also an independent and natural witness. The story of all these witnesses is consistent and natural. In these circumstances, the ocular account strongly proves the case of the prosecution against the appellants.
12. This now leave me with the defence evidence. It is suggested on behalf of the defence that none of the appellants committed the crime in instance, that one Khalil, son of Muhammad Yamin, appellant, and real brother of Liaquat appellant, etc., had committed the crime in question and that all the appellants had been falsely roped in. The occurrence took place in the village of the appellants. It is inconceivable that Abdul Aziz P. W. 2 would omit to mention the name of Khalil, who was the real assailant, assuming that he had inflicted all the injuries to him. The evidence led on behalf of the defence is unnatural and not convincing. The Local Police and the Crime Branch both found the appellants guilty in investigations independently carried out by them. In these circumstances, the defence version appears to be concocted and untrue and the same is, therefore, rejected.
13. In view of the independent ocular testimony in this case, corroboration against the appellants is not necessary. However, the medical evidence fully corroborates the prosecution case. The number and nature of injuries on Abdul Aziz P: W. 2 clearly show that a large number of assailants were involved and the weapons used by them were of the nature of dandas and longs P. 4 to P. 6, recovered from and at the instance of three of the appellants. The recoveries of the said dandas and dang, though not blood-stained, at the instance of Muhammad Jamil; Shabbir Hussain said Shahbaz, appellants, is not without significance. In these circumstances the prosecution case stands proved, to the hilt.
15. The only question that now remains is that relating to the offence committed by the appellants.
It is the case of the learned counsel for the appellants that the learned trial Judge relied upon the unproved Certificate No. 2054, dared 14th March, 1980/4th April, 1980 of Dr. Muhammad Anwar, Orthopaedic Surgeon of Makki Hospital Limited, Faisalabad, to hold that injuries Nos. 2 and 5 of Abdul Aziz P.W.2, were grievous and that if the said certificate is not taken into account, then there is no evidence to show that the said injuries are grievous. The medico-legal report Exh. P. D. Of Abdul Aziz P. W. 2 clearly shows that two fractures were detected under injuries Nos. 2 and 5. The fractures were so obvious that these two injuries were not kept under observation for any further verification.
The case is one of res ipsoloquitar. 1n these circumstances, the appellants appear to have been properly convicted under section 325/149, P. P. C. And 148, P. p. C, However, the sentence imposed under section 325/149, P. p. C. Appears to be slightly high and the appellants are entitled to a suitable reduction.
16. For the foregoing reasons, while maintaining the conviction of all the six appellants under section 325/149, P. P. C., I would reduce their sentences to two years' rigorous imprisonment each with a fine of Rupee one thousand (Rs. 1,000 only) each or in default of payment of fine t undergo further rigorous imprisonment for six months each. The conviction and sentence of all the six appellants under section 148, P. P. C. Is maintained. All the substantive sentences shall run concurrently. Half of the fine, if recovered, shall be paid to Abdul Aziz, complainant, as compensation. In view of section 382-B, Cr. P. C., the periods of deten--tion undergone by the appellants as under trial prisoners, shall be counted as period of detention undergone by them as convicts. This appeal, therefore, stands partly accepted, in terms of reduction of sentence, as stated above.
17. All the appellants are on bail. Their bail bonds are cancelled. They are ordered to be taken into custody and sent to jail to serve out the remaining portions of their sentences.