Vide judgment, dated. 25-8-1982 Mansha and Amir (Crl. Appeal No.461 of 1982) and Shaman, Naseer, Zubair and Muhammad (Crl. Appeal No.470 of 1982) were convicted by Magistrate Section 30, Sheikhupura and sentenced as under:-- Under section 307/149, P.P.C.: Each 5 years' R.I. And a fine of Rs.1,000 or in default thereof two months'
R.I.
Under section 148, P.P.C.: Three months' R.I. Each.
The sentences were ordered to run concurrently. Rs.2,000 out of the fine, if realised, were ordered to be paid to Noor Muhammad (P.W.2) as compensation and Rs.500 to Amir (P.W.7).
The convicts have filed separate appeals which are being disposed of by this single judgment.
2. The occurrence took place at 3-00 p.m. On 31-10-1978 Muhammad Maskin Khan complainant (f.W.1) made a statement (Exh.P.A.) at 9-00 p.m. At Chowk Railway Road to Alta Muhammad A.S.I.
(P.W.8) and on its basis formal F.I.R. (Exh.P.A./1) was registered the same day at 9-40 p.m.
3. The case in the F.I.R. Was that the complainant, a resident of District Haripur Hazara was doing business of the sale-purchase of cows and buffaloes since about 15/20 years and had been to village Jatri Waseeran many times. On the day of occurrence he alongwith Mahmood Shah (given up) were returning to the said village after attending their business at Sheikhupara by a bus via Mandi Dabhan Singh. They dropped on the Pacca road at 3-00 p.m. And started on foot for village Jatri Waseeran which was about one mile from the bus stand. When they reached near a mound, they saw Noor Muhammad Lambardar and Amir Ali (P.Ws. 2 and 7) going; on a Yamaha. From behind the mound the appellants armed with Dangs except Naseer who was carrying a hatchet came out and assaulted them (Noor Muhammad and Amir Ali). They were injured. The alarm raised by the complainant and Mahmood Shah attracted Muhammad Hussain (P.W.3). On their beseaching the appellants left. The injured were taken in a thus to the hospital.
4. The appellants did not plead guilty to the charge and took up the defence that they had been falsely involved. Rehmat Ali (D.W.1) and Mahbood Alam (D.W.3) deposed that they were present near the spot where Noor Muhammad and Amir P.Ws. Came on a scooter, were assaulted by Naseer appellant and one Munir and injured. .
5. According to Rehmat Ali (D.W.I) Naseer was having a hatchet and Munir a Dang. His (Rehmat Ali's) wife Mst. Aisha Bibi and Mst. Fatima Bibi Pathani were also attracted to the spot. Rehmat Ali has a Dera near the spot while Mahboob Alam has his Dera about five acres from the spot. Ghulam Dastagir and Mushtaq Ahmed (D.Ws. 2 and 4) were produced by Zubair appellant to support his plea of alibi that he was employed at Sheikhupura and according to the statements of these two witnesses was present there on the day of occurrence.
6. Muhammad Maskin, Noor Muhammad, Muhammad Hussain and Amir Ali (P.Ws.1, 2, 3 and 7) gave the ocular account of the occurrence. Noor Muhammad and Amir Ali.P.Ws. Had been medically examined by Dr. MA. Khan (P.W.4) on the very day of occurrence. He observed as many as 11 injuries on the person of the former, one by sharp-edged and 10 by blunt weapon and six out of these were grievous. Amir Ali had five blunt weapon simple injuries. Sana Ullah D.S.P. (P.W.5) deposed that he had investigated the case under the order of D.I.-G. And according to his investigation all the appellants were innocent except Naseer Atta Muhammad A.S.I. (P.W.8) had also investigated the case. He had also declared the appellants innocent except Naseer. Mr. Tariq Masood Khosa A.S.P.
(P.W.9) had also investigated the case. Even before him the appellants had produced witnesses in defence including Rehmat Ali, Muhammad Ali, Mst. Aisha and Mst. Fatima Bibi Pathani. He could not deny the suggestion in cross-examination that the culprits might be lesser in number (than the accused mentioned in the F.I.R.). He alto admitted that there was enmity and party faction between the parties in the village. He also admitted that near, the place of occurrence there was the camp of Odds and Pathans. Rehmat Ali (D.W.1) is Odd and he has specifically mentioned that Mst. Fatima Bibi Pathani had also reached the spot alongwith his wife Mst. Aisha Bibi.
7. Learned counsel for the appellant has contended that Noor Muhammad, Amir Ali and Muhammad Hussain, the eye-witnesses were clearly inimical to the appellants, Muhammad Maskin was very close to them as he had always been visiting them from his home place in District Hazara and there being no independent corroboration, the witnesses could not be believed. While going through the statements of these witnesses contention seems to be correct. There being enmity between the parties, independent corroboration was required there is no such corroboration. The two Investigators concluded that only Naseer appellant and one Munir were' involved in the occurrence and none of the other appellants. Even the eye--witnesses have admitted that near the place of occurrence there was the camp a of Pathans. Rehmat Ali and Mahboob Ali D.Ws. Are independent and disinterested. They too support the conclusion of the investigators that only Naseer appellant and Munir were involved in the occurrence.
8. The upshot is that the appeal on behalf of Naseer as against conviction fails but those of the others succeed. They are granted the benefit doubt and acquitted. They are on bail and stand discharged of the bail bonds:'
9. Learned counsel for the appellants contended that even the conviction of Naseer appellant under section 307, P.P.C. Was not proper inasmuch as there was no intention to commit the murder.
Had the intention been to C attempt at life there was no hindrance in the-way of Naseer and his co-culprit. The contention is upheld. The conviction of Naseer appellant is converted to one under section 326, P.P.C.
10. The learned counsel has also drawn the attention of the Court to the fact that it is a case of two trials. Firstly the appellants were convicted and sentenced on 6-4-1980 and on appeal which was heard by an Additional Sessions Judge and decided on 6-10-1980 retrial was ordered. After this retrial the conviction now under consideration was recorded. Naseer appellant has been behind the bars for about two years before the trial and during the trials. The occurrence took place as far back as 1978. So sending him to jail again would not advance the ends of justice. Hence the sentence already undergone and a fine of Rs.10,000 or in default thereof two years' R.I. Would suffice. The fine would be deposited in the Court of the Illaqa Magistrate within one month of today, otherwise Naseer appellant would be taken into custody and sent to jail to serve out the sentence.
Whole of the fine, if realised, shall be paid to Noor Muhammad P.W. As compensation.
N.H.Q./S-147/L