Muhammad Akbar and Bakhtawar alias Bakhu have been convicted under section 324/34, P.P.C.
And sentenced to rigorous imprisonment for seven years and a fine of Rs.10,000 each or in default in the payment thereof to undergo further R.I. For two years each. They have challenged their conviction and sentence through this appeal. A suo motu notice was issued to them to show cause why in case this appeal fails their sentence should not be enhanced. The appeal and suo motu Revision No. 657 of 1984 are being disposed of by this judgment.
2. The F.I.R. Version of the occurrence is that Ahman complainant was arrested in a case under Section 307, P.P.C. And section 13 of the West Pakistan Arms Ordinance, 1965 and was lodged in Central Jail, Sahiwal. He was facing trial in the Court of Magistrate section 30, Okara. The case was fixed for hearing on 11-3-1984. On that day he was taken to Okara from Central Jail, Sahiwal, in a van. Akbar and his maternal-uncle Bakhtwar alias Bakhu, appellants, who were involved in a number of cases, were also taken to Okara from Central Jail, Sahiwal, in the same van. At Okara, the complainant, the appellants and other under-trials were kept in the same lock-up. Muhammad Akhtar Havildar, Abdul Ghaffar Constable, Raza Muhammad turn-key and Muhammad Sultan 'Bahishti' were on duty. At about 10-30 a.m. Shams alias Shamma, brother of the complainant, and one Waryam came near the lock-up to see the complainant when all of a sudden Bakhtawar appellant put a Safa around the neck of the complainant and felled him down while Akbar appellant injured both his eyes with some thing and gouged them out. The complainant and his relatives raised alarm, upon which Muhammad Akbar, Abdul Ghaffar, Raza Muhammad and Sultan aforementioned came in the lock-up and rescued the complainant from the appellants.
Motive for the offence was that 5/6 months prior to the occurrence Muhammad Akram, brother of Muhammad Akbar appellant, suffered injuries in a fight in the District Courts and a case for the same was registered against Ahman complainant and his relatives, and the complainant was in jail in that case.
Ahman complainant reported the occurrence to Muhammad Ashraf, S.H.O., Police Station Okara, at 10-40 a.m. In the judicial lock-up District Courts, Okara, vide his statement Exh.P.E., on the basis of which formal F.I.R. Exh.PE/1 was recorded at the police station at 11 a. m.
3. The S.H.O. Inspected the spot, recorded the statements of the --eye-witnesses under section 161, Cr.P.C. And formally arrested the appellants in this case. Bakhtawar appellant produced Safa (Exh.P1) before him which he took into his possession vide memo. Exh. P.G. After the investigation, the appellants were challaned.
4. On 11-3-1984 at 12 noon Dr. Muhammad Afzal Malik examined Ahman complainant and found the following injuries on his person:--- (1)Both eyes were profoundly prominent, eye-lids inverted with bleeding evidence from the palpelural fissurs supporting muscles of both eye-balls were cut" which cannot be pushed back in their place." Cornea was looking hazy. There was no movement in the eye-balls. He could not see any thing. Perception of light was present. There was blood in both interior chambers.
(2)Abrasion on the back of left elbow 2. 5 c.m. x 2 c.m.
(3)Abrasion on the outer side of left elbow 1 c.m. x 1 c.m.
(4)Complained of pain on the neck on its front and throat but there was no visible mark of injury.
Injury No.1 was ket under observation and it was caused a sharp-edged weapon. The remaining injuries were caused by blunt weapon and were simple. The patient was referred to Eye Specialist, Mayo Hospital, Lahore.
5. In support of its case the prosecution examined three eye-witnesses, namely, Ahman complainant, Muhammad Akhtar and Raza Muhammad. Waryam, Shams alias Shama, Muhammad Sultan and Abdul Ghaffar were also named as eye-witnesses in the F.I.R. But they were not produced. Sultan was given up as having been won over while no reason for giving up others is available on the record.
6. The appellants pleaded not guilty to the charge, They admitted that Muhammad Akram (brother of Muhammad akbar appellant) was injured in District Courts, Okara, and in that case Ahman complainant was challaned alongwith others. They further admitted that they were taken to Okara alongwith Ahman complainant in the same van, but stated that at Okara Ahman was kept in a separate 'Hawalaat'. They denied having injured Ahman complainant and stated that they had been falsely implicated due to old enmity. They came up with the version that Ahman had an altercation with the police officials on duty and d: ring the course he struck something on his eyes and in order to save their own skin the police officials got them falsely implicated in this case. No evidence was led in defence.
7. The learned trial Magistrate accepted the prosecution evidence and relying on the same convicted and sentenced the appellants as mentioned above.
8. Presence of Ahman complainant, Muhammad Akhtar Havildar and Roza Muhammad turn-key in the lock-up has not been disputed before me. Learned counsel concedes that their presence at the spot is established. He, however, submits That after the occurrence Muhammad Akhtar Head- Constable made Report No.7 (Exh.D.B) wherein Bakhtawar was not attributed the role of putting the 'Safa' around the neck of Ahman complainant and, in that view of the matter, his participation in the occurrence is doubtful. He conceded that evidence against Akbar appellant was there but maintained that in view of the medical evidence only a case under section 324, P.P.C. Was made out. In support of this contention he relied on Fateh Muhammad and 8 others v: The State 1974 P Cr.
L J 84 and Muhammad Anwar v. The State 1985 P Cr. L J 902.
9. The prosecution version of the occurrence is supported by Ahman complainant, Muhammad Akhtar, Head Constable and Raza Muhammad turn-key of the judicial lock-up. There is old enmity between Ahman complainant and the appellants but Muhammad Akhtar, Head Constable and Raza Muhammad turn-key are independent and disinterested witnesses having absolutely no motive to falsely implicate the appellants in this case. At the relevant time they were on duty in the judicial lock-up where this unfortunate occurrence took place. Even the learned counsel for the appellants has not disputed their presence at the spot. Their, evidence can, therefore, be safely relied upon. The mere fact that Muhammad Akhtar, Head Constable did not make any mention in the Report Exh.D.B. That Bakhtawar appellant had put a 'Safa' around the neck of the victim, is no ground for holding that aforesaid appellant had not taken part in the occurrence. The act attributed to the appellant was such that it could not be performed by a single person. I am, therefore, satisfied that the occurrence had taken place in the manner as alleged by the prosecution.
This brings to the question as to what offence was committed. On the day of occurrence Ahman complainant was examined by Dr. Muhammad Afzal. According to him, injury No.1 was caused by sharp-edged weapon and it was kept under observation. The complainant was referred to Eye Specialist, Mayo Hospital, Lahore. Dr. Muhammad Afzal appeared in Court on 7-8-1984. In cross- examination he admitted B that he declared injury No.1 as grievous for the first time on that day. He further admitted that his opinion that injury No.1 was grievous, was based on the report Exh.PD/2 received from Mayo Hospital, Lahore. He was not in a position to say as to who was the author of that report the Specialist who examined the injured in Mayo Hospital and made report Exh.PD/2, was not produced as a witness. In Muhammad Anwar's case, referred to by the learned counsel, a hatchet blow given on the face caused loss of eye, ear and teeth of left side. The injured was X- Rayed and injury was found grievous. The Radiologist was not examined and the conviction under section 326, P.P.C. Was altered to one under section 324, P.P.C. In Fateh Muhammad's case the learned Chief Justice of Karachi High Court quahsed the conviction under section 325, P.P.C. For the reason that the doctor who had taken X-Ray pictures of the injury, was not examined and the doctor who was produced, had based his opinion regarding fracture entirely on X-Ray films. In the, circumstances, the offence proved by the prosecution against the appellants falls under section 324, P.P.C. Accordingly, the conviction of the appellants under section 326/34, P.P.C. Is altered to one under section 324/34, P.P.C. And they are sentenced to rigorous imprisonment for three years and a fine of Rs.10,000 each. In default of payment of fine, they shall undergo R.I. For nine months each.
Out of the fine, if recovered, a sum of Rs.15,000 shall be paid to the injured P.W. As compensation.
The sentence has been passed after considering the provisions of section 382-B, Cr.P.C. The appeal stands disposed of in the above terms.
Suo motu Criminal Revision No. 657 of 1984 automatically fails and notice for enhancement of sentence issued to the respondents discharged.