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Criminal Petition No. 447 of 1985, decided on 17th February, 1986

(On appeal from the judgment, dated 29‑10‑1985 of the Lahore High Court, Lahore in Criminal Appeal 956 of 1980).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), Ss. 325 & 326‑‑Grievous injury caused by blunt weapon‑‑Conviction under S. 326, P.P.C. challenged‑‑Plea that conviction could at best be under S. 325, P.P.C. accepted, but sentence awarded being within maximum limit provided under S. 325, P.P.C., caused no prejudice to petitioners‑‑Leave to appeal refused.

Ch. Nawabud Din Mahmood, Advocate Supreme Court and Ch. Mehdi Khan Mchtab, Advocate‑on‑Record (absent) for Petitioners.

Nemo for the State.

Date of hearing: 17th February, 1986.

‑‑Din Muhammad (petitioner No.2 herein) alongwith his six sons, namely, Allah Rakhah (petitioner No.1 herein), Muhammad Aslam (petitioner No.3 herein), Akbar Ali (petitioner No.4 herein) and Liaqat Ali, Fateh Muhammad, Allah Ditta were tried by a Section 30 Magistrate of Ferozewala for attempting to murder Akhtar Jillani P.W. and for various other offences. The trial Magistrate by his judgment, dated 21‑8‑1980 convicted all the accused persons of the offences for which they were tried viz. section 307/149, P.P.C. for attempting to murder Akhtar Jillani P.W. under section 455/149, P.P.C. for committing house breaking; under section 342/149, P.P.C. for illegally confining Akhtar Jillani and under section 148, P.P.C for rioting. All of them were sentenced to seven years' R.I. under section 307/149, P.P.C., to five years' R.I. under section 455/149, P.P.C., one year's R.I. under section 342/149, P.E.C. and also one year's R.I. under section 148, P.P.C. All the sentences were ordered to run concurrently. They were also directed to pay a fine of Rupees five thousand (Rs.5,000) or in default thereof, to undergo one year's R.I. Out of the fine, if recovered, Rupees twenty thousand was ordered to be paid to Akhtar Jillani, the injured P.W., as compensation and the remaining Rupees fifteen thousand were ordered to be forfeited to the State.

On appeal, a learned single Judge of the Lahore High Court held that although the participation of Din Muhammad, Allah Rakha, Muhammad Aslam and Akbar Ali was fully established, that of Allah Ditta, Liaqat Ali and Fateh Muhammad appeared to be doubtful. Hence the last three mentioned brothers were given benefit of doubt. As regards the offences committed by the petitioners, the learned Judge opined that the petitioners could not be convicted under section 307, P.P.C. because though they were annoyed with Akhtar Jillani P.W. 3 for intermeddling in their affairs but their motive in mounting an attack upon him did not appear to be that they were making an attempt on his life. On the other hand, it appeared that they wanted to teach‑him a lesson and give him a good thrashing extending at the most to causing him grievous hurt. Hence their conviction under section 307/149, P.P.C. was sent aside and substituted by a conviction under section 326/34, P.P.C. As regards the sentences, the learned Judge observed that since Allah Rakha petitioner No.1 herein, who had caused the main grievous injury on the left leg of Akhtar Jillani P.W.3 and fractured it, he should be given a sentence of five years' R.I. and should pay a fine of Rs. 10,000 or in default undergo further rigorous imprisonment for one year. Din Muhammad, Muhammad Aslam and Akbar Ali, petitioners, who had not caused any grievous injury but shared his common intention, were sentenced under section 326/34, P.P.C. to three years' R.I. each with a fine of Rs.1,000 each or in default thereof to undergo further rigorous imprisonment for six months each. Since only four persons were found guilty, the conviction of Allah Rakha, Din Muhammad, Muhammad Aslam and Akbar Ali, the convicted accused, was converted from sections 455/149, P.P.C., and 342/149, P.P.C., into convictions under sections 455/34 P.P.C. and 342/34, P.P.C. and they were sentenced to one year's R.I. and a fine of Rs.1,000 for the first mentioned offence and to one year's R.I. each under 'section 324/34, P.P.C., with a fine of Rs.5,000. The compensation of Rs.5,000 imposed by the trial Magistrate was set aside. However, the fine imposed by the High Court was ordered to be paid. to Akhtar Jillani as compensation. All the sentences were ordered to run concurrently. The petitioners were, however, given the benefit of the provisions of section 382‑B, Cr. P.C.

This petition for leave to appeal is directed against the aforesaid judgment and order of the High Court and in support thereof we have heard Ch. Nawabuddin Mahmood at some length and also perused the available record.

We find that Akhtar Jillani P.W. was brutally beaten up by the petitioners. He was sitting in front of the house of Muhammad Sadiq P.W. on a Charpai and chatting with him, when the petitioners suddenly appeared armed with fire‑arms and lethal weapons. Akhrtar Jillani P.W. having divined their intentions ran into his house to escape their wrath. But the petitioners followed him and although he locked himself in a room, one of the assailants broke open the window of the room and opened the door from inside to allow the others to enter inside, which they did and started showering blows with their weapons on him and he fell down whereupon Allah Rakha petitioner No.1 inflicted a hatchet blow on his leg with its blunt side which was fractured. He was then dragged into the house of Din Muhammad, petitioner and confined there. In all, Akhtar Jillani, P.W. received 14 injuries, out of which two were found to be grievous, namely, the injuries on the left leg and right ankle. The left leg, as already mentioned, was also fractured. The grievous injuries were caused by blunt weapons.

We feel that, in view of the dastardly attack made by the petitioners on Akhtar Jillani, P.W., they have been leniently dealt with by the Courts below. The only argument of some value raised by the learned counsel for the petitioners before us was that the grievous injury caused to Akhtar Jillani by Allah Rakha, petitioner, was caused by a blunt weapon. Thus, the petitioners could not be convicted under section 326/34, P.P.C. by the High Court as section 326/34, P.P.C. would have come into play only if the injury was caused by a sharp‑edged weapon; hence the conviction of the petitioners under section 326/34, P.P.C. was illegal. The submission was that in these circumstances the petitioners could, at best, be convicted under section 325/34, P.P.C.

This submission is correct so far as it goes, but we note that the maximum punishment under section 325, P.P.C extends to seven years' rigorous imprisonment and Allah Rakha has been sentenced under section 326, only to five years' rigorous imprisonment and the other petitioners under section 326, P.P.C. to three years' R.1. Consequently, no prejudice was caused to the petitioners by their conviction under section 326, P.P.C.

The upshot is that there is no force in this petition which is hereby dismissed.

M.I. Petition dismissed.

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