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Criminal Appeal No. 263 of 1980, decided on 6th February, 1983.

--Ss. 307/34 & 323/34-Injuries received by complainant were simple---Question of accused having intention to murder not present-Prosecution witness, son of complainant, not supporting statement of other prosecution witnesses stating that accused persons on challenge said that they would not spare complainant-Convic tion of accused altered from S. 307/34, P. P. C. to one under S. 323/34, P. P. C. and sentence reduced to one year's R. I.

P L D 1963 Kar. 118 and 1972 P Cr. L J 8 ref.

Muhammad Hayat Junejo for Appellants.

G. R. Warsi for the State.

Date of hearing: 30th January, 1983.

Appellants abovenamed, being aggrieved by judgment dated 30th September, 1980 of the learned Assistant Sessions Judge, Kandhkot, in Sessions Case No. 65/79, whereby appellants have been convicted under section 307/34, P. P. C. and sentenced to suffer R. I. for 5 years and to pay a fine of Rs. 2,000 each or in default to suffer further R. I. for 6 months, have preferred the above appeal, on the following facts and grounds:-

2. Brief facts of the case are that complainant Molvi Muhammad Yaqoob lodged F. I. R. with the Police Station Tangwani on 20th May, 1979 at about 8-45 p. m. stating therein, that he resides in the village of Mir Subh Sadik Khan Khoso alongwith his son Sanaullah and about 6-7 years ago the present appellant Allahwaray alias Miro has alleged his wife Mst. Sadori to be on illicit terms with said Sanaullah and such faisla was made by Sardar Noor Muhammad Khan Bijarani, where said Sanaullah was found innocent. Since then the present appellant Allah Warayo used to ask to take revenge from said Sanaullah. It is alleged, that on the day of the incident, the complainant was coming from the village of Thangai Khan after taking Khariat meals, while his son Azizullah and other villagers were coming behind him. It was about 6 p. m. when he reached near the village Miral Bangulani, when present appellants having lathis in their hands came out from such, alongwith an unidentified person, who had also a lathi. The appellant Allah Warayo challenged the complainant, that as he has not compensated him about the alleged Karanh (illicit term) upon his son, he will therefore murder him. By saying this all the three persons gave him lathi blows, on which complainant raised cries, which attracted P. W. Azizullah; Muhammad Siddiq and other co-villagers and by seeing them the appellants ran away towards northern side, but the P. Ws. and co-villagers followed them and caught hold of the present appellants, while the third unidentified person escaped. The complainant narrated the incident to the P. Ws. who informed him, that they have also witnessed the incident. The complainant and P. Ws. then brought the appellant at Police Station, where F. I. R. was lodged and appellants alongwith lathis were taken up into custody by the police and ultimately challaned.

3. On 12th July, 1980 charge Exh. 1 under sections 307, 323 read with section 34, P. P. C. was framed against the appellants to which they did not plead guilty and stood for trial. At the trial prosecution examined complainant Muhammad Yaqoob Exh. 6 who produced F. I. R. Exh. 6-A and P. W. Azizullah and Muhammad Siddiq Exhs. 7 and 8, respectively as ocular witnesses. P. W. Dangoo was examined as mashir of arrest, injuries on the person of complainant and vardat Exh. 9 and also produced the mashirnama Exhs. 9-A to 9-C. Medical Officer Dr. Habibur Rehman was examined Exh. 10 and he produced medical certificate of injured Muhammad Yaqoob Exh. 10-A. The case was pending for the evidence of I./O. A. S. I. Ghulam Hussain Mangai, who despite the repeated process did not attend the Court and therefore on 24th September, 1980 the prosecution case was closed. Statement of appellants were recorded Exhs. 11 and 12 and they examined D. W. Hazoor Bux Exh. 13 and closed the side Exh. 14.

4. The learned trial Court taking into consideration the evidence adduced before it, convicted and sentenced the appellants abovenamed as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo of appeal.

5. The learned Advocate for the appellants at the outset submitted, that he was not challenging the findings of the learned trial Court as far as the merits of the case is concerned, however in view of the medical evidence on record, the conviction of the appellants under section 307/34, P. P. C. was not at all warranted, as in his opinion the offence committed by the appellants would fall under section 323/34, P. P. C. only as all the injuries received by the injured were simple injuries. In support of this contention the learned Advocate for the appellants relied upon cases reported in P L D 1963 Kar. 118 and 1972 P Cr. L J 8.

6. The learned Advocate appearing for the State rightly conceded the above legal position and submitted that the appellants ought to have been convicted under section 323/34, P. P. C. and not under section 307/ 34, P. P. C. and consequently their sentences may be reduced.

7. Prosecution has established its case beyond reasonable doubt by statements of P. Ws. and appellants' arrest on the spot. This fact is also conceded by the learned Advocate for the appellants.

8. The only contention, that has been raised by the learned Advocate for the appellants before me was, that in view of the statement of P. W. Dr. Habibur Rehman, that all injuries received by complainants were simple, the question of appellants having intention to murder the P. W. Muhammad Yaqoob, complainant did not arise, which is evident from the nature of the injuries, as described by the said P. W. I find great force in this contention of the learned Advocate for the appellants. I find even P. W. 2 Azizullah, who is son of the complainant, has not supported the statement of P. W. 1, that appellants on challenge said that they would not spare the complainant.

9. Therefore, while dismissing the above appeal on merits, I alter the conviction of the appellants from 307/34, P. P. C. to one under section 323/34, P. P. C. and consequently reduce sentences awarded to appellants from 5 years' R. I. to one year R. I. each and maintain the fine of Rs. 2,000 on each one of them and in default of payment of fine to suffer further R. I. for six months. However I direct, that appellants be given benefit of the provisions of section 382-B, Cr. P. C., in respect of the period of their detention, as under-trial prisoner, after due verification, towards their substantive sentences, in addition to all other remissions to which they may be entitled, in accordance with rules. The learned trial Court is directed to issue non-bailable warrants for the arrest of the appellants, as they are on bail and on their arrest to remand them to judicial custody to serve out remaining portion of the sentences awarded to them.

10. Above appeal stands dismissed in terms of the above judgment.

M. A. K. Order accordingly.

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