1. ' This appeal has been filed challenging the judgment passed by the learned Ilnd Additional Sessions Judge, Badin in Sessions Case No,135 of 1991 whereby he convicted the present appellants under section 323 and sentenced them to suffer S.I. For three months each and to pay a fine of Rs,500 each or in default to suffer a further S.I. For one month each.
2. ' Briefly the case of the prosecution is that on 17-8-1990 at about 5-00 a.m. When the complainant Bala Din was going towards Bus-stand at Tandobago to catch the bus for Hyderabad from where he had to purchase some articles for his hotel that he found two appellants and co-accused Nazeer standing there. Co-accused Nazeer was armed with a hatchet while the other two accused were armed with Lathis. Seeing the complainant the three accused challenged him and inflicted hatchet and Lathi injuries on him. According to the complaint co-accused Nazeer had given hatchet blow with sharp side which the complainant sustained on the back of his hued while the other accused gave Lathi blows all over his body. It is in the complaint that there is enmity between the parties over running of the hotel. The complainant has also stated that he approached the police for registration of the FIR and in the first instance the accused were arrested by the police but subsequently they were let off as they were influential people and finding that police is not taking any action against them, he lodged the direct complaint under sections 307, 323, 325, 392 and 34, P.P.C. Read with section 17(3) of Offences Against Property (Enforcement of Hadood)
3. Ordinance, 1979. Statement of the complainant was recorded under section 200, Cr.P.C. And subsequently Preliminary Enquiry was held wherein the statement of P.Ws. Yar Muhammad and Muhammad Bachal were also recorded and finally the learned Magistrate and F.C.M. Who had held the P.E. Submitted his report and recommended registration of the case under sections 323 and 392, P.P.C. However, the learned Judge directed process to issue under sections 323, 504, 392, P.P.C.
4. And section 17(3), Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The prosecution side examined the Medical Officer Dr. Nisar Ali, who had examined the complainant.
5. The prosecution also examined the complainant, P.W. Yar Muhammad and P.W. Muhammad Bachal and thereafter closed the side. The statement of accused was recorded who denied the allegations. The accused also examined D.W. Ghulam Muhammad in their defence; The trial Court after hearing the arguments was pleased to announce the said judgment convicting and sentencing the appellants as above while the co-accused Nazeer was acquitted. Being aggrieved, the appellants have preferred this appeal.
6. ' I have heard Mr. Mashooq Ali Samoo, the learned counsel for the appellants and Mr. Muhammad Shall Memon, the learned AA.-G. Assisted by Mr. Ahsanul Hague Siddiqui, Advocate.
7. ' At the very outset the learned counsel for the appellant has argued that the trial Court had no jurisdiction in the matter as the appellants have been convicted under section 323, P.P.C. Which is an offence exclusively triable by the Conciliation Court established under the Conciliation Courts Ordinance, 1961. He has referred to section A of Part I of the Schedule attached to the said Ordinance. There is no cavil about this proposition as, of course, an offence under section 323 is triable by the Conciliation Court. The learned counsel has placed reliance on the case of Ahmed Moinuddin v. Khalil Ahmed and another 1982 SCM R 24. In this case after preliminary enquiry the case was registered only under section 341, P.P.C. Which is exclusively triable by Conciliation Court.
8. The second case relied upon by the learned counsel is that of Haji Muhammad Sodo v. The State 1987 PCr.LJ 351. In this case the complaint was under sections 323, 504 and 147, P.P.C. Again these sections are exclusively triable by the Conciliation Court. After perusing the above two judgments, I, with utmost respect, am of the view that the two judgments would not be applicable to the present case as in the present case, after holding of preliminary enquiry, the case was registered under sections 323, 504, 392 and 17(3), Offences against Property (Enforcement of Hudood) Ordinance, 1979 and charge was framed under the same sections. The offences under section 392, P.P.C. And 17(3) Offences Against Property (Enforcement of Hudood) Ordinance, 1979 are not triable by the Conciliation Court but are triable by the Sessions Court and as such I am of the view that the trial Court in the present case had the jurisdiction to take the cognizance. Accordingly I do not find force in this point urged by the learned counsel for the appellants.
9. ' The second point urged by the learned counsel for appellants is that the direct complaint has been instituted with a delay of 13/14 days. Suffice it to say that in the body of the complaint the delay has been explained as it is said that the matter was reported to the police who had arrested the accused in the first instance but subsequently let them off and it is only in these circumstances that the complainant was compelled to file the direct complaint.
10. ' Corning to the evidence recorded before the trial Court the learned counsel for the appellants has laid stress on two grounds. Firstly, he has submitted that the witnesses examined by the complainant are closely related to him and, therefore, their evidence should not be taken into consideration. He has placed reliance on the case of Manghio v. The State 1976 PCr.LJ 243. It may be observed that admittedly the appellant Sawan is cousin of the present complainant while accused Urs is the brother of accused Sawan and the third accused Nazeer is son of accused Sawan. This shows that the complainant and accused are also themselves closely related inter se, and, therefore, the witnesses who are related to the complainant are also related to the accused.
11. The second point urged with regard to factual aspect of the evidence by the learned counsel for the appellants is that the evidence suffers from material contradictions and inconsistencies. I have perused the evidence of the witnesses. The main question involved is as to whether the complainant has suffered the injuries or not. According to the medical officer's evidence the complainant had suffered three injuries, lacerated wound at right parietal region on head which is skull deep, swelling over right elbow and abrasion on left lower arm. All these three injuries have been certified to have been caused by hard blunt substance and are simple in nature. The two witnesses Yar Muhammad and Muhammad Bachal both said that on learning that the complainant had suffered injuries they went to see him at the hospital where he was admitted, his clothes were blood-stained and his head was bandaged. The medical officer also stated that he was admitted for one day and discharged on the next day. All these facts go to show that the complainant has sustained injuries. Now, according to the medical officer as stated by him in cross-examination, such injuries could have been caused by fall on stony ground. Be that as it may, the version of the complainant is supported with the factum of his having received these injuries. The incident is un witnessed incident at 5-00 o'clock in the morning in the town of Tadno Bagho where one cannot expect the public to be present on the road at such early hours. In these circumstances I am of the view that the version of the complainant stands proved as regards his sustaining the simple injuries caused by hard and blunt substance.
12. ' The learned counsel has then argued that the present appellants are entitled to acquittal on the ground that the co-accused Nazeer has been acquitted on the same set of evidence. He has placed reliance on certain case-law also. It may be observed that the reasoning given by the learned trial Court shows that the co-accused Nazeer was acquitted for the reasons that the allegations against him was of having caused an injury to the back of the head of the complainant by the sharp side of hatchet and such injury was not there whereas the injuries allegedly caused by the present appellants stand proved through medical evidence. No doubt the complainant has made exaggeration in his complaint and evidence but such exaggeration would not exonerate the present appellants of their liability.
13. In this view of the matter, I find no substance in the present appeal which is accordingly dismissed.
14. The accused are on bail their bail bonds are cancelled. Issue N.B.Ws. For the arrest and production of the appellants.