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Criminal Revision No.583 of 1983, decided on 17th December, 1984.

Penal Code (XLV of 1860)--

--- S. 324/325/148--Complainant suffering one grievous injury attributed to accused alleged to be armed with Barchhi--Grievous injury evoked difference of opinion amongst experts as to nature of weapon of offence- Matter referred to Police Surgeon who opined it to be caused by blunt weapon--Complainant's version sufficiently supported by other evidence--Presence of accused not having been disproved--Benefit of difference in expert opinion, held, could not be allowed to accused in circumstances.

(b) Penal Code (XLV of 1860)--

---S. 324/325/148--Accused responsible for causing simple injuries--Part attributed to such accused, held, called for some concession--Sentence reduced to already undergone.

Kh. Muhammad Sharif for Petitioner.

Bashir Pervaiz for A.-G. for the State.

Date of hearing: 14th December, 1983.

This Criminal Revision is directed against an order, dated 22-10-1983 of Mr. Javed lqbal Siddiqui, Additional Sessions Judge, Kasur, whereby he upheld the conviction of the five, petitioners under sections 148, 324 and 325 read with section 149, P.P.C. as also the sentences passed on them by Mr. Pervaiz Khusro, Magistrate Section 30, Chunian, in his judgment, dated 2-2-1980. They were each awarded R.I. for 3 months under section 148, P.P.C., 6 months under section 324, P.P.C. and 1 year with a fine of Rs.500 under section 325, P.P.C. with further R.I. for 6 months in default. All terms were to run concurrently.

2. The occurrence took 'place Ht about 2' 0 clock when a mare belonging to Rehman petitioner trespassed into a wheat-crop of Muhammad Din alias Manna complainant. He drove it to the cattle pond at Sarai Mughal but in the meantime, the petitioners numbering six including Lai (who died during trial) intercepted him. They not only took away the mare but caused him injuries. Petitioner Sami Ullah had a Barchhi while others carried Lathis. Sami. Ullah inflicted him a blow on his wrist while Rehman, Shamsher and Razzaq struck their Lathis. Lal and Dara raised only Lalkara. Badar Din P.W. attracted on alarm like Chiragh and Bashir P.Ws. came to help the complainant but was also injured by the petitioners. They both were taken to the Pattoki hospital, where the complainant's statement was recorded by the police.

3. The complainant sustained in all four injuries including an incised wound on his right ulna causing its fracture. The others were simple. Badar Din P.W. however, sustained fifteen injuries, all simple by blunt weapon excepting No.l which was incised wound on his right leg.

4. Learned counsel for the petitioners contended that the grievous injury sustained by the complainant evoked difference of opinion, one view being that it was caused by a sharp-edged weapon and the other that it was by a blunt one. The matter was referred to the Police Surgeon who found it to have been caused by a blunt weapon. Counsel tried to exploit this difference to the extent of making the entire prosecution version incredible. 1 don't think there is any point in it. Sami Ullah petitioner to whom the relevant injury was attributed, carried a Barchhi with a long handle which despite the difference as to the manner of its use he wielded it in the course of attack. The objection is too much. There was no other hypothesis suggested as to how after all the complainant received the injuries. The complainant's version was sufficiently supported by the other eye-witnesses including Badar-Din injured. The presence of the petitioner Sami Ullah being so armed had not been disproved and, therefore, he could not be allowed to take benefit of some difference in expert opinion.

5. Counsel next contended that for simple injuries as many as five petitioners were convicted and that the occurrence having now become some eight years old, the ordeal of such a long trial faced by the petitioners was a mitigating circumstance to accord them some concession.

6. Learned counsel for the State, on the other hand, stressed that it was a case of unlawful assembly having a colour of desperadoes in taking away the mare when the complainant was driving it lawfully to a cattle pond and that the petitioners did not rest content in injuring him alone but also did not spare an innocent passer by like Badar Din P.W. who was mercilessly beaten to sustain as many as fifteen injuries all over his body.

7. The defence plea appeared to be merely that of denial. Of course, some of them pleaded that they had been falsely implicated due to enmity but that was neither explained nor proved.

8. There is no substance in the revision petition. The case against them stood proved beyond doubt. However, the part attributed to the petitioners other than Sami Ullah calls for some concession in the matter of sentence-, in that the injuries attributed to them were all simple. I accordingly maintain their conviction but reduce the sentence of imprisonment under each count to the period already undergone. They shall be released forthwith if not required in any other case. Sami Ullah petitioner will, however, undergo the entire term awarded to him at the trial. All the petitioners shall pay the fine and suffer the same sentence in default.

S. A.

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