' SHEIKH ABDUR RAZZAQ, J.--- Briefly stated the facts are that the complainant Muhammad Yar is a councilor as well as Lamberdar of Village Mohari. On 24-11-1992 at 6-30 a.m. His son Bakhtiar had gone to have a round of cotton crop, which had been irrigated on the preceding night. After a short while he heard some noise, upon which he alongwith his nephew Muzaffar Ahmed son of Muhammad Akram and Syed Ramzan Shah son of Syed Shabbir Shah who were staying with him as his guest rushed towards the spot. They saw that Mazhar alias Mazhari armed with hatchet, Azhar armed with iron Sabal and Allah Ditta armed with Kadala (all sons of Ahmed Yar), and Qutab Din armed with 12 bore gun were forcibly lifting away his son Bakhtiar Ahmed towards their cattle shed. They tried to rescue Bakhtiar Ahmed upon which Qutab Din raised Lalkara that if anybody tried to intervene he will have to face the dire consequence. Mazhar alias Mazhari also instigated his companions not to leave Bakhtiar Ahmed alive and further directed his companions to gouge his eyes. Thereafter, Bakhtiar Ahmed was encircled by falling him on the ground and Mazhar alias Mazhari inflicted a hatchet blow on his right leg. Azhar with his Sabal and Allah Ditta with his Kadala extracted the right and left eye of Bakhtiar Ahmed. They also inflicted injuries on his waist. The complainant, Syed Ramzan Shah and Muzaffar Ahmed entreated the assailants and got him rescued from their hands. He stated that motive behind this occurrence was that about three months ago a case was registered against his son and others by Allah Ditta accused and the case was pending in the Court. Feeling aggrieved of the said case the injured had been lifted and caused injuries. He further stated that the incident has taken place at the behest of Sardar Ahmed, Muhammad Amin sons of Noor Ahmed, Ahmed Yar Gulab Ali son of Sher Ali and Mushtaq Ahmed son of Allah Ditta. Thereafter, he left for Police Station alongwith his injured son.
2. Ali Anwar Khan, A.S.-I. (P.W.8) was posted at Police Station Takhat Mahal on 24-12-1992 who on the statement of Muhammad Yar complainant recorded Exh.P.B. He prepared the injury statement Exh.P.H. Of Bakhtiar Ahmed who was in semi-conscious condition and referred him to civil hospital, Bahawalnagr for treatment. He then went to the spot and prepared site plan. Exh.P.J., recorded the statement of Muzaffar Ahmed and Ramzan P.Ws. He also recorded the statement of Bakhtiar Ahmed injured (P.W.). The subsequent investigation was conducted by Muhammad Safdar S.H.O.
P.W.9 who was entrusted the investigation on 28-11-1992. On 1-12-1992, he arrested accused Azhar, Mazahar and Allah Ditta. On 10-12-1992 he got recovered weapons of offence from them which are hatchet Exh.P.2, Sabal Exh.P.3 and Kadala Exh.P.4 which were secured vide memos. Exhs.P.C., P.D. And P.E. Respectively. He arrested accused Qutab Din on 13-12-1992 who led to the recovery of .12 bore gun Exh.P.1 which was secured on 25-12-1992 vide memo. Exh.P.A. He also arrested Mushtaq accused on 13-12-1992. After completing investigation he submitted the challan.
3. A charge under sections 365/324/336/337/34, P.P.C. Was framed against the accused Mazhar alias Mazhari, Azhar, Allah Ditta and Qutab Din, while accused Mushtaq Ahmed, Sardar Ahmed, Ahmed Yar and Muhammad Amin were charged under sections 365/324/ 136/337/109, P.P.C. All of them pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused the prosecution examined P.W.1 Ahmed Saeed, P.W.2 Muhammad Sharif, P.W.3 Muhammad Sadiq, P.W.4 Muhammad Yar complainant. P.W.5 Bakhtiar Ahmed (injured) P.W.6 Dr. Abdul Rasheed, P.W.7 Manzoor Ahmed. P.W.8 Ali Anwar Khalid, A.S.-I.
(Investigating Officer), P.W.9 Muhammad Safdar and P.W.10 Dr, Shamshad Hussain Rana.
' Thereafter, the learned D.D.A. Closed the case of prosecution.
5. When examined under section 342, Cr.P.C. The accused Mazhar alias Mazhari denied the prosecution version and stated that there was no criminal litigation between the parties and the complainant party were always aggressors and had been lodging false cases against them. In reply to question as to why this case had been registered against him, he replied as follows:-- "The complainant party is inimical towards us and had lodged false cases against the elders of our family. They also trespassed into our lands many a times and assaulted our family members for which the cases were registered against them which are pending in the Courts. Bakhtiar injured was an immoral person. He was carrying on with the daughter of Noora, barber as he had developed illicit relations with her and the sons of Noora, barber felt offended and gave the injuries and gouged the eyes of said Bakhtiar. The complainant being close relative of Noora, barber and on account of our previous litigation, they falsely involved us in the present case."
6. The accused Qutab Din and Allah Ditta and Azhar denied the prosecution version and relied upon the statement given by their co-accused Mazhar alias Mazhari as narrated above. None of the accused led any evidence in his defence.
7. After going through the evidence produced by the prosecution, the trial Court while acquitting Mushtaq, Sardar Ahmed, Ahmed Yar and Muhammad Amin vide order, dated 17-10-1993 passed separately under section 265-K, Cr.P.C. Convicted Mazhar alias Mazhari under section 336/34, P.P.C.
And sentenced him to 10 years' R.I. For causing Atlaf-i-Salahiat Udw regarding the right eye of injured Bakhtiar Ahmed. He was also directed to pay Arsh equivalent the value of Diyat i,e, Rs,1,70,000 under section 337-Q, P.P.C. Which was to be paid in lump sum. The accused Allah Ditta, Mazhar and Qutab Din were convicted under section 336/34, P.P.C. And sentenced to R.I. For 5 years each. As regards right eye of the injured Bakhtiar Ahmed, the accused Allah Ditta was convicted under section 336/34, P.P.C. And was awarded 10 years' R.I. For gouging the left eye of Bakhtiar Ahmed. He was also directed to pay Arsh equivalent to the value of Diyat i,e, Rs,1,70,000 under section 337/Q, P.P.C., which was to be paid by him in lump sum. The accused Azhar, Mazhar and Mazhari and Qutab Din were also convicted under section 336/34, P.P.C. And were ordered to suffer R.I. For 5 years each. The accused Mazhar alias Mazhari was further convicted under section 337- F/34, P.P.C. For causing injuries Nos.3 to 5 to Bakhtiar Ahmed and was sentenced to R.I. For 2 years as Ta'zir. Each of them was directed to pay Daman of Rs,25,000, which was payable in lump sum. As regard injury No,6 all the accused were convicted under sections 337-F/324, P.P.C. And were ordered to suffer R.I. For six months each as Ta'zir and were further directed to pay Daman of Rs,500 each. All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to all the accused.
8. Feeling aggrieved of the judgment, dated 19-10-1993 the accused/appellants have filed the instant appeal.
9. We have heard the learned counsel for the parties and have gone through the record.
10. Stand of the learned counsel for the appellants is that in the instant case, place of occurrence has been changed as according to prosecution version place of occurrence is the cotton crop whereas actually occurrence has taken place in sugarcane field, that no bloodstained earth has been secured in the instant case which also lends support to the stand of appellants regarding change of place of occurrence, that as per prosecution version the clothes of the injured were blood-stained but the same were not secured and this fact further makes the prosecution version doubtful, that there are improvements in the statements of P.Ws.4 and 5 and similarly oral evidence is in conflict with the medical evidence. While explaining his later contention, he submitted that according to the M.L.R. Injuries have been caused by blunt weapon, whereas iron Sabal and Kadala are sharp-edged weapons, that enmity between the parties is admitted by the complainant himself which shows that involvement of the accused/appellants is not free from doubt, that defence plea was never considered by the trial Court as is evident from the impugned judgment. He further submitted that both Azhar and Allah Ditta accused/appellants have been directed to pay Diyat to the tune of Rs,1,70,000 each, which is not warranted by law. He contended that according to section 337-R, P.P.C. The Diyat of Rs,1,70,000 was to be paid by both the accused Azhar and Allah Ditta in equal share as it has been provided in the explanation to section 337-R, P.P.C., that 'hands, feet, eyes lips are included in the organs which are found in the human body in pairs. He further submitted that according to section 337-R, P.P.C. The Arsh for causing Itlaf for organs found in a human body in pairs shall be equivalent to the value of Diyat and if Itlaf is caused to one of such organs the amount of Arsh shall be one half of the Diyat. He argued that as in the instant case both the eyes are said to have been taken out by accused Azhar and Allah Ditta, so both of them are liable to pay Arsh in equal share. He further contended that the accused/appellant Mazhar and Qutab Din were arrested on 31-12-1992 and were released on bail by this Court on 5-12-1995. Thus they have been in jail for about 3 years, that both Mazhar and Qutab Din have been convicted for 5 years each under section 336/34, P.P.C. So the sentence awarded to them may be modified to one which they have already undergone.
11. Conversely the impugned judgment has been supported by the learned counsel for the complainant assisted by the learned counsel for the State.
12. As per contents of F.I.R. The accused/appellants Azhar and Allah Ditta have been assigned a specific role of extracting right and eye of Bakhtiar Ahmed (P.W.5). The accused/appellant Mazhar alias Mazhari and Qutab Din have been assigned role of causing a hatchet blow on the right leg of Bakhtiar Ahmed, as well as of raising Lalkara respectively. To support its stand prosecution has examined Muhammad Yar (P.W.4) who is the complainant and father of the injured. To support him prosecution has also brought on record the statement of injured Bakhtiar Ahmed (P.W.5) as well as eye-witness Muzaffar Ahmed P.W.7. The prosecution has also brought on record the statement of Dr. Abdul Rasheed (P.W.6) who examined Bakhtiar Ahmed and issued reports Exh.P.F and Exh.P.G. As per his statement there was hardly any useful vision in the eyes of Bakhtiar Ahmed as a result of injuries sustained by him. To supplement the statement of Dr. Abdul Rasheed (P.W.6) prosecution has brought on record statement of Dr. Shamshad Hussain Rana (P.W.10) who examined Bakhtiar Ahmed on 24-11-1992 at 11-30 a.m. And found the following injuries.
(1) Moderate to severe swelling around the right orbit with fresh bleeding from it and a bluish contusion encircling it, eye ball came out of it.
(2) Moderate swelling and bluish contusion around the left orbit, lids were aedematous and with conjuncival haemorrhages .And proptosis of the eye ball, pupil was dilated.
(3) A lacerated wound 1 c.m. x 1/2 c.m. Bone deep on the front of right leg with fresh bleeding in the middle portion with severe swelling.
(4) A lacerated wound 1/2 x 1 c.m. Muscle deep on the front of right leg with fresh bleeding above the injury No,3.
(5) A lacerated wound 1/2 x 1/2 c.m. Muscle deep on the front of right leg with fresh bleeding blow the injury No,4.
(6) Multiple bluish contusion on the back of chest.
(7) A bluish contusion 3 c.m. x 2 c.m. On the front of left forearm.
13. He kept injuries Nos.1 to 3 under observation and declared injuries Nos.4 and 5 Ghair Jaifah Mutalhima and injury No,6 was declared as Ghair Jaifah Demiah, He also declared injuries No,1 and 2 as Atlaf-i-Salahiat Udw.
14. It is also fact that as a result of injuries Nos.1 and 2 complete eye-sight/vision of the injured Bakhtiar has been lost forever. The I learned counsel for the accused/appellants has challenged the oral evidence on the ground that it is in conflict with medical evidence wherein injuries on the person of Bakhtiar Ahmed injured have been shown to have been caused by blunt weapon. His stand is that both the accused/appellants Azhar and Allah Ditta are said to have extracted the eyes with their iron Sabal and Kadala so these cannot be said to have been caused by blunt weapon. This contention of the learned counsel for the accused/appellants is devoid of any force.
Both iron Sabal and Kadala by no stretch of imagination can be considered as sharp-edged weapon and as such it has rightly been depicted by the medical officer that the injuries have been caused by blunt weapon. The mere fact that neither any blood-stained cloths of the injured have been secured nor any blood-stained earth has been taken into possession, does not make the prosecution case doubtful, which stands proved conclusively by oral evidence coupled with medical evidence.
15. For what has been stated above, the prosecution has succeeded in bringing home guilt to the accused Azhar, Allah Ditta and they are held responsible for gouging the right and left eye of Bakhtiar Ahmed (P.W.5). They have rightly been convicted and sentenced by the trial Court under section 336/34, P.P.C. And the same is maintained. They have also been convicted and sentenced under section 337-F/34, P.P.C. Which is also maintained. It is ordered that all the sentences shall run concurrently and they shall be entitled to the benefit of section 382-B, Cr.P.C. However, we observe that the amount of Diyat fixed by the trial Court to be paid by each Azhar and Allah Ditta is not in accordance with the provisions of section 337-R, P.P.C. As both the accused Azhar and Allah Ditta have caused Altaf-I-Salahiat Udw regarding both eyes of the injured Bakhtiar Ahmed, so the amount of Diyat is to be equally shared by each of them, as per section 337-R, P.P.C. Accordingly we modify the amount of Diyat to Rs,85,000 each.
16. The accused Mazhar alias Mazhari and Qutab Din have been convicted under section 336/34, P.P.C. And sentenced to R.I. For 5 years each. They have also been convicted under section 337- F/34, P.P.C. To undergo R.I. For two years each and to pay Daman of Rs,25,000 each in respect of injuries Nos.3 to 5 and Rs,500 each in respect of injury No,6. Since they have already undergone major portion of substantive sentence, so the sentence of imprisonment under section 336/34.
P.P.C. And under section 337-F/34, P.P.C. Is modified to one which they have already undergone.
However, the sentence of Daman and Arsh awarded to Mazhar alias Mazhari and Qutab Din is maintained and they are granted a period of three months i,e, up to 30-11-2001 for depositing the amount of Daman as well as Arsh. They are on bail and are directed to furnish surety bond for the payment of said amount within a period of fifteen (15) days to the satisfaction of Deputy Registrar
(J) of this Court, failing which they shall be !Edged in jai: in accordance with law.
17. The appellants Azhar and Allah Ditta are on bail, they are ordered to be taken into custody in accordance with law to serve out the sentence imposed upon them.
18. With this modification in the sentence awarded to the appellants the appeal stands disposed of.