KHALIL UR REHMAN RAMDAY, J.- Noor, Mamman, Sikandar and Falak Sher had been tried by a learned Magistrate exercising powers under section 30 of the Cr.P.C, at Chiniot for having murderously assaulted one Sher Mohammad on 30.6.1990 at about 4.00 p.m. In the area of Mauza Jhamb about 7 miles from P.S. Saddar Chiniot of District Jhang.
2. Through his judgment dated 7.1.1992, the said learned trial Magistrate found all the four accused persons guilty of the charge and convicted them all under section 307/34 PPC in consequence whereof each one of Noor and Mamman was punished with seven years R1 and a i.e of Rs. 10,000/- or one year SI in default of payment of i.e while each one of Sikandar and Falak Sher was sentenced to three years R1 with a i.e of Rs. 3,000/- or three months SI in default. The learned trial Court further directed that out of the i.e imposed on the convicts, an amount of Rs. 10,000/- be paid to Sher Mohammad complainant as compensation under section 544-A Cr.P.C. All the four convicts were allowed the benefit of the provisions of section 382-B Cr.P.C.
3. Crl. A. No. 96/92 has been filed by all the four convicts above- mentioned to impugn the above- noticed conviction and sentences recorded against them whereas Sher Mohammad complainant has approached this Court through Crl. Revision No. 228/92 and prays that the sentences awarded to the convicts be enhanced and the compensation awarded to the complainant be also enhanced. Both these matters are being disposed of together through this single judgment.
4. The occurrence in question had been reported to Bashir Ahmad SI by Sher Mohammad complainant while the former had reached THQ Hospital, Chiniot at about 6.15 p.m. On the day of occurrence i.e. On 30.6.1990 after receiving information about the presence of the injured Sher Mohammad in the said hospital. Sher Ahmad complainant had informed the said Bashir Ahmad AS1 (I.O.)(PW.6) that as a result of the consolidation proceedings in their village, he had been given some land situate in Killa No.9 of Square No. 26 of their .Village which land was adjacent to the house of one Bakhsha. He had added that the said Bakhsha did not want to part with the said piece of land and, therefore, entered into an agreement with the complainant to purchase the same on payment of money. The complainant had alleged that the said Bakhsha resiled from this agreement at which the complainant filed a civil suit against him to get possession of the land in question and that the day of occurrence i.e. 30.6.1990 was one of the dates fixed before the learned Civil Court at Chiniot in the said civil suit. The complainant further claimed that after the said suit had been adjourned to 16.7.1990, he returned to his village along with Ghulam Mohammad (PW3) and while they were going home after alighting from the bus and just as they had reached near the land of Bakhsha, Mamman and Noor armed with guns and Sikandar and Falak Sher armed with SOTAS emerged there and mounted an attack on him. He had further disclosed that Memman fired two shots at him hitting on the back of his right arm and the back of his chest whereafter Noor also fired two shots which also landed around the above-mentioned area of the body of the complainant. Falak Sher and Sikandar had been burdoned only with a Lalkara and no injury had been attributed to them.
5. During the spot inspection the said I.O. Had found blood stained earth and four crime empties at the place of occurrence which he seized vide memos. Exh.PC and PD, respectively. Noor had been arrested on 14.7.1990 while Falak Sher and Sikandar had been arrested on 26.7.1990 whereas Mamman had been arrested on 12.1.1990. After his arrest, Noor appellant had allegedly led to the recovery of a gun (P-1) which had been seized vide memo Exh.PE while SOTAS had been allegedly recovered at the instance of Sikandar and Falak Sher appellants which had been taken into custody vide memos PG. And PH but the said to as had not been exhibited at the trial.
6. When confronted with the prosecution case Mamman appellant pleaded that they were related to and connected with Bakhsha above-mentioned with whom Sher Mohammad complainant had a dispute regarding a piece of land; that on the day of occurrence Sher Mohammad complainant had launched an attack to forcibly taken possession of the land in question; that it was in the firing which had ensued between Bakhsha and the complainant that the complainant had received injuries at the hands of some unknown persons and finally that he and the other accused persons had been falsely implicated in the occurrence in question because they used to help Bakhsha in the above-mentioned civil suit. Sher Mohammad complainant had been medically examined by Dr. Nasir Mumtaz (PW.8) who had found fifteen i.e-arm injuries on his person which had even caused fractures of his arm and leg.
7. The ocular testimony with respect to the occurrence in question had been offered by the injured complainant Sher Mohammad, Ghulam Sarwar (PW.2) and Ghulam Mohammad (PW3). It may be mentioned here that the said Ghulam Sarwar PW is a son of a brother of the complainant's paternal grandfather while Ghulam Mohammad PW is a grand-son of a sister of the complainant.
8. The defence could not demonstrate any such enmity on the part of the eye-witnesses which could have prompted them to falsely implicate the appellants in the occurrence in question. It is admitted by the defence that Sher Mohammad Complainant had a Jand dispute with Bakhsha above-mentioned. Sher Mohammad complainant could have had some motive to falsely implicate the said Bakhsha but the truthfulness of the complainant and the eye-witnesses is sufficiently indicated by the fact that despite having received injuries in connection with his dispute with Bakhsha over a piece of land, neither the complainant nor the two other eye-witnesses had involved the said Bakhsha in the occurrence in question. The defence plea that the complainant had been injured as a result of the firing exchanged by him with Bakhsha does not appear to be reasonable at all because it is not understood as to why the complainant should have It OF his real enemy, namely, Bakhsha and should have instead falsely substituted the appellants in the occurrence in question.
9. The ocular testimony inspires confidence subject to some sifting and the defence plea taken up by Mamman appellant and adopted by the other three appellants does not appear to be reasonable or plausible. The motive and the medical evidence which stand proved on record supported the eye-witness account.
10. Sikandar and Falak Sher appellants were armed only with to as and accept the proverbial allegation of raising Lalkara they had not taken any part in the occurrence in question. It was admitted by the complainant himself and by other eye-witnesses that neither of these two appellants, namely, Sikandar and Falak Sher, had inflicted or even attempted to inflict any injury on the person of the complainant even when he had fallen down after receipt of i.e-arm injuries. Some doubt, therefore, could be entertained about the participation of Sikandar and Falak Sher in the occurrence in question. On account of this doubt the benefit of which must go to them. The conviction and sentences recorded against Sikandar and Falak Sher appellants are set-aside and they are acquitted of the charge levelled against them.
11. No exception can, however, be taken to the conviction and sentences recorded against Noor and Mamman appellants. Consequently, the conviction and sentences recorded against them by the learned trial Court are maintained.
12. Sikandar and Falak Sher appellants are on bail. They are set at liberty after being discharged from their bail/surety bonds.
13. Crl. Appeal No. 96/92 is thus partly allowed in the above terms with a direction that the entire amount of i.e imposed on Noor and Mamman appellants shall be paid to Sher Mohammad complainant, as compensation. It may also be mentioned here that the benefit of the provisions of section 382-B Cr.P.C, as allowed to Noor and Mamman appellants by the learned trial Court shall hold the field.
14. Since the entire amount of i.e has been directed to be paid to the complainant as compensation, which thus stands enhanced, and also in view of the fact that Noor and Mamman appellants have already been adequately punished with imprisonment of seven years R11 find no merit in Criminal Revision No. 228 of 1992 which is accordingly dismissed.