This judgment shall dispose of Criminal Appeal No,127 of 1993 and Criminal Revision No,154 of 1993 as both emanate from the same judgment of the learned trial Court.
2. Shah Muhammad complainant on 23-8-1989 laid information at Police Station Saddar, Mian Channu that his brother Atta Muhammad is residing with him and they jointly cultivate their land.
On 22-8-1989 at about 4-30 p.m. When he and his brother were present in their house, Muhammad Rafique called the name of Atta Muhammad whereupon he went out and Muhammad Rafique informed him that Hassan Bakhsh is present in his Bhaini and is calling him. Atta Muhammad accompanied Muhammad Rafique. When they reached the Pacca Road, Iqbal and Bashir armed with hatchets were present there and Muhammad Rafique raised a Lalkara that Atta Muhammad be taught a lesson for obtaining on lease the land which was being cultivated by the said persons.
Muhammad Rafique grappled with Atta Muhammad and threw him down and sat on his chest while Iqbal and Bashir gave blows to both his legs with the hatchets, as a result whereon, his legs were fractured. Atta Muhammad raised a hue and cry whereupon the persons mentioned in the F.I.R. Gathered. The motive was, thus, stated that 16 Acres land of Hassan Bakhsh was being cultivated by the accused persons and it was obtained on lease by Atta Muhammad and the accused bore a grudge on the said count and had caused injuries to Atta Muhammad. A case was initially registered under section 325/34, P.P.C. The matter was investigated and ultimately a challan was drawn up under section 307/326/34, P.P.C. Against all the three accused persons and they were sent up for trial. Charges were framed. Evidence was recorded. All the three appellants were found guilty of commission of offence under section 307, P.P.C. And were convicted and sentenced to 7 years' R.I. Each and a fine of Rs,25,000 each. On failure to pay the fine, they were to undergo simple imprisonment for one year each. In case of recovery of the fine, half of the amount recovered was ordered to be paid to the injured person. The accused were given the benefit of section 382-B, Cr.P.C. Vide a judgment, dated 6-4-1993.
3. The appellants have filed the present appeal (Criminal Appeal No,127 of 1993) against the impugned conviction and sentence while the complainant has filed Criminal Revision No,154 of 1993 for enhancement of the sentence.
4. Learned counsel for the appellants argues that even if all the P. Ws. Are believed, a case under section 307, P.P.C. Is not made out and only commission of offence under section 325, P.P.C. Is proved. Carrying his point further argues that the conviction even under section 325, P.P.C. Would not be maintainable as the X-Ray procedure was not conducted on the injured person.
Learned counsel for the respondent, on the other hand, not only supports the impugned conviction and sentence but prays that in view of the heinous nature of the crime, the punishment be enhanced.
5. I have gone through the records of the learned trial Court, with the assistance of learned counsel for the parties.
I find myself in agreement with the learned counsel for the appellants that keeping in view the overall circumstances of the case reflected by the evidence on record, it cannot be said with certainty that the appellants in fact assaulted the injured person with an intention to kill. This would be evident from the seat of injuries which are on the legs of the injured and notwithstanding the opinion of the Dr. Abdul Sattar P.W.6 that the injuries could have proved dangerous for life. An intention to kill is not manifested on the record. The motive explained in the complaint also does not support the theory that the appellants attacked the injured person with intention to cause his death. However, at the same time the evidence on record does make out a case under section 325, P.P.C. I have carefully examined the evidence and I do not find any suggestion to any of the P.Ws.
Particularly P.W.6 that the injured person did not suffer multiple fractures on both his legs because of the assault made by the appellants. Learned counsel has referred to the cases of Muhammad Hussain and 4 others v. The State 1994 M LD 1735 and Fateh Muhammad and others v. The State 1991 PCr.LJ 1081, to support his plea that in the absence of X-Ray procedure, the injuries be treated as simple. I find that in all the said cases, X-Ray procedure was in fact conducted but X-Ray films and reports were not produced and proved. In the present case all the witnesses and particularly Dr. Abdul Sattar P.W.6 has stated that the injured person did suffer multiple fractures on his legs and the injury was so evidence that no need for X-Ray was felt. After putting a question in cross- examination regarding the absence of X-Ray procedure, no further question was put to this witness to question his opinion that the legs of the injured persons were in fact fractured. I, therefore, do not agree with the said argument of the learned counsel and find that the appellants are guilty of commission of offence under section 325, P.P.C. So far as the quantum of sentence is concerned, I find that the offence carried a maximum punishment of 7 years and the learned trial Court has competently awarded the same alongwith the fine imposed in the circumstances of the case. It is true that intention to cause death is not manifested on the part of the appellants but the intention to cripple the injured person is certainly evident in the manner the offence has been committed.
One of them rode his chest while his accomplices inflicted injuries resulting in multiple fractures to the legs of the injured person.
6. So far as the criminal revision is concerned, in view of my findings that the matter falls under section 325, P.P.C. And as maximum punishment has already been awarded, I do not find any force in the criminal revision.
7. As a result of the above discussion, both the Criminal Appeal as well as Criminal Revision are dismissed.