' Muhammad Ibrahim and 5 others, the petitioners were tried by Assistant Commissioner/Magistrate 1st Class, Talagang on various charges.
2. The prosecution case was that on 11-5-1977, it was morning time when she-camel of Muhammad Ibrahim petitioner strayed into onion crop of Ghulam Hussain complainant and damaged it. Abdul Aziz P.W. gave beating to the she-camel and drove her out. On this Muhammad Ibrahim petitioner abused the sons of Ghulam Hussain complainant, who returned the abuses. Muhammad Ibrahim then declared that he would take the revenge of his insult. In the after-noon when Ghulam Hussain complainant,. Abdul Aziz, Mureed Khan, Ghulam Fatima, Mst. Karam Bhari, Ghulam Muhammad and Mst. Began were present in their house, the petitioners duly armed came there, opened attack and injured the aforementioned P.Ws. with blunt weapons. Mst. Ghulam Fatima and Mst. Began received one grievous injury each with blunt weapon. Mst. Karam Bhari received 3 simple injuries caused by blunt weapon. Ghulam Muhammad received one grievous injury caused by blunt weapon. Abdul Aziz received 4 simple injuries out of which one injury was with sharp edged weapon and the others with blunt weapon. Mureed P.W. received 4 simple injuries with blunt weapon. A case under sections 324/325/ 415/149 and 148, P.P.C. was accordingly registered against the petitioner. After investigation they were challaned. The prosecution produced evidence to prove the charges against the petitioner. The petitioners when examined under section 342, Cr.P.C. denied all the incriminating circumstances and raised plea of false implication due to enmity. Hayat Muhammad respondent, also, pleaded alibi. The trial Court vide its order dated 8-6-1980 convicted the petitioners under section 148/324/452/325/149, P.P.C. and sentenced each of them to a fine of Rs, 500 on each count and in default thereof to R.I. for 6 months on each count with the direction that the fine, if realized, Rs,1,000 be paid to each of the 5 injured witnesses.
3. Although the petitioners did not file any appeal against their convictions and sentences yet Ghulam Hussain complainant filed revision before the learned Sessions Judge Attock who vide his judgment dated 4-10-1980 enhanced the sentence. He awarded a sentence of 5 years R.I. under sections 325/452/149, P.P.C. to the petitioners except Noor Muhammad who was sentenced to one year R.I. under sections 452/ 325/149, P.P.C. Feeling aggrieved, the petitioners challenged the order of the Sessions Judge enhancing the sentence through Writ Petition No, 10585 of 1980 and Criminal Miscellaneous No, 510-Q of 1980. The petitions were accepted by the High Court on 6-4-1982 and the case was sent back to the learned Sessions Judge for re-hearing of the revision petition because revision Court could not award more punishment than one the trial Court was competent to award. On re-hearing of the revision, the learned Sessions Judge vide his order dated 26-6-1982 again enhanced the sentence of the petitioneRs, Under sections 148/324/149, P.P.C. the petitioners other than Noor Muhammad were sentenced to one year R.I. each and a fine of Rs, 200 in default thereof to 3 months R.I. on each count. Under sections 325/452/149, P.P.C. the petitioners other than Noor Muhammad were sentenced to 3 years R.I. each and a fine of Rs, 500 in default thereof to one year R.I. each. Under sections 148/324/149, P.P.C. Noor Muhammad was sentenced to imprisonment till rising of the Court and a fine of Rs,200 or in default thereof to one month S.I. Under section 452/325/149, P.P.C. he was sentenced to imprisonment till rising of the Court and a fine of Rs,500 in default thereof to two months S.I. All the sentences were directed to run concurrently. Aggrieved by this order, the petitioners filed Revision No, 101 of 1982. This Court vide its order dated 13-10-1982 having treated the revision as a petition under section 561-A, Cr.P.C. issued notices to the State and the complainant.
4. The learned counsel for the petitioner cog tended the prosecution has failed to prove its case against the petitioners; that the eye-witnesses are related. and inimical; that there is no corroboration of the ocular evidence; that the alibi pleaded by Hayat Muhammad petitioner stands proved through reliable evidence and that the sentence awarded by the Sessions Judge is too excessive.
' Conversely, the learned counsel for the complainant submitted that the order passed by the Sessions Judge under section 439-A,Cr.P.C. cannot be challenged through petitions under section 561-A Cr.P.C. and that the sentence awarded to the petitioners is legal and proper as well.
5. I have considered the arguments advanced by the learned counsel for the parties with care and have not been able to persuade myself to agree with the learned counsel for the complainant/respondent. As for the objection as to the jurisdiction of this Court to entertain petitions under section 561-A, Cr.P.C. against the orders passed by the Sessions Judge 'under section 439-A, Cr.P.C. the provisions of section 561-A, Cr.P.C. may be reproduced advantageously: 561-A:"Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of process of any Court or otherwise to secure the ends of justice".
' From the plain reading of the provision of law reproduced above, it is very much clear that there is no restraint on the inherent powers of the High Court to make appropriate orders to prevent the abuse o the process of Court or otherwise to secure the ends of justice.
6. Coming to the submissions made by the learned counsel for the petitioners I find that the prosecution examined 5 injured witnesses whose presence on the spot is proved by the fact of injuries on their persons. The petitioners being previously known to the eye-witnesses and the occurrence having taken place in day light, there can be no doubt as to the identity of the offendeRs, The number of the injuries and the number of the assailants do commensurate. The trial Court have given cogent reasons for believing the eye-witnesses. The petitioners did not care to file appeal against the convictions. The learned counsel has failed to point out any inherent infirmity warranting the rejection of the ocular testimony. For these reasons L do not desire to interfere with the appreciation of the evidence made by the Courts below. The material and most important question for determination is as to the nature of offence made out against the petitioneRs, I find that the conviction of the petitioners under sections 452 and 325, P.P.C. is not maintainable on the face of the record inasmuch as, the occurrence took place in the court-yard which was neither surrounded by four walls nor closed by a door and that the Radiologist was not produced to prove the X-Ray report. The act of the petitioners is, therefore, punishable under section 325/149, P.P.C. and under section 447, P.P.C. Section 447, P.P.C. is punishable with imprisonment which may extend to three months or with fine which may extend to Rs,500 or with both. Whereas Section 323, P.P.C. is punishable with imprisonment which may extend to one year's R.I. or with fine which may extend to Rs,1,000 or with both. In this view of the matter, the convictions recorded under section 325/452/149, P.P.C. were illegal. The sentence of three years' R.I. awarded thereunder has therefore to be set aside.
6. The petitioners have paid a fine of Rs,2,000. each and have remained in jail as convict/prisoners for about three months. To my mind, the learned Sessions Judge had not acted justly and equitably. The agony of protracted trial, fine of Rs,2,000 each and three months' sentence already served out by them is sufficient to secure the ends of justice. While maintaining conviction of the petitioners under section 148/3241149, P.P.C. and altering the conviction from 452, P.P.C. to 448, P.P.C. and from 325/149, P.P.C. to 323/149, P.P.C. I reduce the sentence on each count to fine already paid and the sentence already served out by the petitioneRs, Recovered fine shall be paid to each of the injured witness as directed by the trial Court.