1. I would liketo dispose of Criminal Appeal No,95 of 2001 and Criminal Revision No,4 of 2001 by a single order as both of them arise out of the same order.
2. Through this Criminal Appeal No,95 of 2001, the appellants had challenged the judgment dated 2- 12-2000 passed by VIth Additional Sessions Judge, Karachi South whereby the appellants were convicted under section 337-L(2), P.P.C. and sentenced to pay Daman amount of Rs,15,000 each or in alternate they had to undergo three months' simple imprisonment.
3. On the other hand complainant Mirza Altaf Ali Baig has challenged the same judgment and prayed that the sentence of fine awarded to appellants was inadequate and the same may be enhanced.
4. Both the matters have been admitted to regular hearing. Show-cause notices were given to accused/appellants (hereinafter referred to as the appellants) as to why their sentence should not be enhanced.
5. The brief facts of the case are that on 5-5-1997 at about 15-3Q yours the F.I.R. was recorded by Mithadar on the basis of statement of complainant Mr. Altaf. All Baig recorded in Civil Hospital. The contents of the complaint are that he was residing in Jodia Bazar. Karachi alongwith his family. He was employee in K.M.C. He was gifted Plot No,5/72-61, Thanai Lane by his mother prior to her death.
6. Shops were constructed upon the aforesaid plot. His elder brother Mirza Mushraf Ali was claiming ownership over Shop No,1 of the same plot. The quarrel between the parties was going on and such Civil Suit No,787 of 1993 in respect of Shop No,1 was pending in the Court of VIth Civil Judge, South- Karachi. It is further stated in the F.I.R. that his nephew Kashif brought a labour who started breaking upper floor. Mirza Mushraf Ali Baig caused injury to the labourer. He was booked in that case and was remanded to lock-up of Police Station Mithadar. It is urged that son of Mirza Mushraf Baig namely Mirza Sarfaraz Ali Baig applied his own lock on Shop No,2 constructed on the plot of complainant, which he had given on rent to Rizwan. His nephew Sarfraz Baig restrained him from opening the shop. On 5-5-1997 at about 12 noon the complainant was present in Thanai Lane to put the tenant in possession when his nephew Sarfaraz armed with iron pipe, Zulfiqar and Khurram armed with Chhurries came their Khurram caused Chhuri below on the back of his left arm and left ankle whereas Sarfaraz inflicted iron pipe blow on his chest. Khurram inflicted another Chhuri blow as result of which he fell down. Muhallah people were attracted to the commotion. His brother Ausaf Ali and his son Imran also reached at the scene of offence. The accused caused injuries to Ausaf Ali as well as his son Imran with iron pipe and Chhuri. The police after registration of case started conducting investigation and submitted challan in the Court. Formal charge was framed on 17-8-1998 to which the appellants did not plead guilty and claimed to be tried.
7. The prosecution examined, Dr. Muhammad Hanif P.W.1, Mirza Altaf Ali Baig P.W.2, Mirza Ausaf Ali Baig P:W.3, Mirza Imran Ali Baig P.W.4, Muhammad P.W.5, Muhammad Riaz, Inspector P.W.6 Thereafter the statements of appellants were recorded under section 342, Cr.P.C. as Exhs.25, 26 and
27. The appellants also volunteered to examine themselves on oath and submitted a list for examining defence witnesses. The accused examined themselves on oath as Exhs.31, 32 and 33 and one defence witness namely Mirza Khurram Ali Baig.
8. Ultimately the trial Court came to the conclusion that prosecution had been able to prove case against the appellants beyond any shadow of doubt and awarded them sentence in terms stated above. Being aggrieved by that sentence the appellants have filed criminal appeal whereas the complainant has filed criminal revision for enhancement of sentence.
9. I have heard Mr. Muhammad Akbar Khan, Advocate for appellants, Mr. Muhammad Shafi Rajput for complainant Mirza Altaf Ali Baig and Mr. Habibur Rashid learned counsel for State.
10. It is contended by Mr. Muhammad Akbar Khan learned counsel appearing for appellants that the prosecution has failed to prove the contents of F.I.R. The weapons used in the commission of offence have not been recovered from the possession of accused. The incident took place in a Bazar in broad daylight but no independent witness has been examined by the prosecution. There are material contradictions in the prosecution case which have not been taken into consideration.
11. It is further argued that enmity is admitted in the F.I.R. as the civil suit is pending between the parties and dispute over plot is going on between the parties. He further submitted that the accused examined themselves on oath and one defence witness. The defence evidence is more weighty than the evidence of prosecution. Reliance has been placed upon the cases of Bashir v.
12. The State 1985 PCr.LJ 1997, Muhammad Afzal alias Ajoo v. The State 1985 PCr.LJ 1803, Muhammad Saleh and another v. The State 1987 PCr.LJ 17 Liaquat Ali v. The State 1990 PCr.LJ 403 and Mahmood ur Rehman v. The State 1993 PCr.LJ 1729.
13. Mr. M. Shafi Rajput argued that criminal appeal is time-barred by about 82 days. They have filed criminal appeal after a criminal revision for enhancement of sentence was preferred in this Court.
14. This criminal revision was filed on 17-1-2001 whereas criminal appeal was presented on 24-5-2001.
15. It is submitted that no explanation has been given for this delay except that the certified copies were supplied to them late. It is submitted that the copies were supplied to appellants on the very day of judgment and signatures were obtained from them by the trial Court and as such this explanation is not satisfactory. It is argued that the list of 5 D.Ws. was given but defence examined only one of them namely Abdul Razzak Habib. He is brother of one of the appellants. Ausaf Ali was seriously injured and remained in hospital for about 19 days. According to Dr. Muhammad Hand he was admitted on 5th May, 1997 and discharged on 22nd May, 1997. On 15th May, 1997 chest tube was introduced due to haemo-pneumo thorax. The injuries on his person were declared to be Jarah-e-Jaifa and Ghair Jaifa Damia.
16. Complainant Altaf Ali Baig remained indoor patient for one day only. Eye-witness Imran is said to have received the treatment as outdoor patient and was not admitted in the hospital. Learned counsel submitted that the offence under Jarah-e-Jaifa would fall under section 337-L, P.P.C Part
(1) which is punishable for 7 years and the learned trial Court has unnecessarily and wrongly brought this offence under the scope of 337-L(2), P.P.C. and awarded the sentence of fine only which is insufficient and has caused miscarriage of justice. He further argued that the case has been discussed by the trial Court at length and had come to the conclusion that it has been proved beyond any shadow of doubt.
17. Mr. Habibur Rashid learned counsel appearing for the State has supported the impugned judgment but stated that the sentence awarded to the appellants was inadequate and the offence would fall under subsection (1) of section 337-L, P.P.C., therefore, he suggested that substantive sentence at least for 12 months be awarded to the appellants. He argued that Criminal Appeal No,90 of 1995 be dismissed and Criminal Revision No,4 of 2001 may be allowed to the extent mentioned above. The record shows that criminal appeal filed by the appellants is hopelessly time-barred by about 82 days and no plausible explanation is furnished. It is manifest from R & Ps that the appellants had received copies of impugned judgments on the very day when it was announced. The appeal was only preferred after the criminal revision for enhancement of sentence was filed by the complainant. Prima facie injured Ausaf Ali had received injuries which were declared Jarah-e-Jaifa and the offence would fall under section 337-L(1), P.P.C. as the injured remained in hospital for 19 days and the section speaks that it would apply when it .endangers life or which causes the sufferer to remain in severe bodily pain for 20 days or more or renders him unable to follow his ordinary pursuits for 20 days, for which the punishment is provided for seven years. In is view of the matter the case of the prosecution was not falling under subsection (2) of section 337-L, P.P.C. but the same was covered by subsection (1).
18. Admittedly the prosecution had proved its case as the two injured witnesses had fully implicated the appellants. The complainant and appellants are closely related. The testimony of injured witness has not been shattered. It is consistent to medical evidence. The trial Court was therefore, not justified to award them sentence of fine only.
19. The case-law cited at the bar by learned counsel for appellants is distinguish able and does not apply to the facts and circumstances of the instant case.
20. Resultantly the Criminal Appeal No,95 of 2001 is dismissed and Criminal Revision No,4 of 2001 is allowed. Since the sentence awarded to the appellants was not adequate, therefore, it is enhanced and the appellants are convicted and awarded sentence of one year R.I. each and fine of Rs,5,000 each. In default of payment of fine they have to undergo three months' R.I. more.
21. The trial Court is directed to take further steps to get the appellants arrested and remand them to custody to serve out the sentence awarded in terms stated above. The benefit of section 382-B, Cr.P.C. shall be given to the appellants.