The petitioners were tried by the Resident Magistrate, Sillanwali, District Sargodha, on a challan submitted against them in pursuance to the case registered against them under section 325/34, P.P.C., at the instance of Muhammad Ghaus (P.W.2), at Police Station Sillanwali, on 26-3-1985.
2. The learned trial Magistrate vide judgment, dated 16-7-1986, convicted the petitioners under section 325/34, P.P.C. And sentenced each of them to undergo R.I. For one year, plus a fine of Rs.1,000, in default whereof, to suffer S.I. For three months.
The appeal filed by the petitioners was dismissed by the Additional Sessions Judge, Sargodha, vide judgment, dated 4-4-1987. The learned appellate Court, while dismissing the appeal of the petitioners, also directed the petitioners to pay Rs.500 each as compensation to the victim.
In default of payment of the amount of compensation, each one of them has been directed to suffer S.I. For one month.
3. The prosecution case at the trial was that Muhammad Ghaus P.W. Was rebuilding his house. One of the walls of his house was joint with the house of Yusuf petitioner. On 25-3-1985, he sent Shamshad Ali, his relative, to request Yusuf petitioner to make arrangements for the upkeep of his roof, as he had to demolish the wall for rebuilding the same. On being approached by Shamshad, Yusuf started abusing and told him that he will be taught a lesson for demolishing the wall. In the meantime, his sons Rafiq and Akhtar also came there armed with Sotas. Rafiq gave a Sota blow to Shamshad on the right shoulder. Akhtar gave a Sota blow on the back of Shamshad. The brickbat hurled by Yusuf petitioner struck on the nose of Shamshad. Another Sota blow given by Akhtar struck Shamshad on the chest. The occurrence was witnessed by Manzur and Alimuddin apart from the complainant. The second blow assigned to Akhtar, suffered by Shamshad on the chest, does not find mention in the F.I.R.
4. Dr. Muhammad Iqbal. (P.W.4), who had medically examined Shamshad, had noted three injuries, on the nose, right shoulder and left back side. He had also noted complain of pain in the chest. As a result of X-Ray of the nosal bone, the injury was declared grievous.
5. The accused during statements under section 342, Cr.P.C. Pleaded innocence and denied the prosecution case as a whole.
6. The injured witness in this case is not resident of the village where the occurrence had taken place. In fact, he belongs to some place in Jhang. He had come, on the day of occurrence, to the village, to meet his uncle, who is complainant in this case. The question of his having, therefore, made false allegations against the petitioners, does not arise.
However, the point which needs consideration and which was argued by the learned counsel for the petitioners, is that since the occurrence had taken place in the house of Yusuf petitioner, common intention of all the accused to inflict injuries to Shamshad Ali, is not made out, because they could not have known that Shamshad was going to visit them, after coming over there from Jhang, and they would not have prepared themselves to launch a joint assault on him.
Keeping this aspect of the case in view, I feel inclined to hold that the petitioners cannot be burdened with having common intention. While believing the prosecution case and the findings of the lower Courts that each one of the petitioners had given injuries to Shamshad P.W. Their conviction under section 325/34, P.P.C. Is set aside. Each of them is held guilty for individual injury caused by him. Resultantly, the conviction of Akhtar and Rafiq petitioners is altered from sections 325 to 323, P.P.C. For having caused simple injuries to Shamshad. Yusuf petitioner is convicted under section 325, P.P.C. As the injury said to have been caused by him was declared grievous.
7. Muhammad Akhtar and Rafiq petitioners had remained in jail as under-trial prisoners before grant of bail for 19 days. They had undergone three days' R.I. After conviction by the Magistrate and before grant of bail by the appellate Court. They have suffered R 1. For one month and 13 days since after the rejection of their appeal. Thus, they are in jail since more than two months. They are, therefore sentenced to imprisonment already undergone, plus a fine of Rs.500 each in default whereof to suffer S.I. For three months. Half of the amount of fine, on realization, shall be paid as compensation to the injured P.W.
The separate order passed by the appellate, Court for payment of, compensation is set aside.
8. The sentence of one year R.I. And the sentence of fine of Rs.1,000 awarded to Muhammad Yusuf petitioner by the trial Magistrate and maintained by the appellate Court is reduced to six months'
R.I., plus a fine of Rs.500, in default whereof to undergo S.I. For three months, keeping in view the fact that he had caused only one injury and that also by a brickbat. The order of the appellate Court for payment of Rs.500 as compensation, is set aside. However, half of the amount of fine, on recovery, shall be paid as compensation to the inured P.W. Muhammad Yusuf shall also be given the benefit of the provisions of section 382-B, Cr.P.C.