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Criminal Revision No. 348 of 1986, decided on 13th December,1986.

‑‑‑S.439‑‑Penal Code (XLV of 1860) S. 307/34‑‑Nature of offence‑‑Two injuries declared grievous on basis of report of Radiologist‑‑Radiologist not examined at trial‑‑Fracture of skull not attributable to any of grievous injuries‑‑Accused armed with hatchet causing only one injury and repeating no further blow‑‑Other accused giving 3/4 blows with blunt weapon‑‑Conduct of accused and evidence of doctor, was indicative of intention to belabour injured and not to cause his death‑‑Conviction and sentence under section 307/34, P.P.C. was set aside and accused convicted under section 325/34,P.P.C. in circumstances.

Muhammad Aslam Nagi for Petitioners.

Altaf Muhammad Khan for the State.

Date of hearing: 13th December, 1986.

Aslam 30 and Noor 40 were sentenced by a Magistrate Section 30, Okara vide judgment, dated 7‑5‑1986 to suffer three years R.I. plus fine of Rs.20,V00 or in default six months R.I. each under section 307/34 P.P.C. for murderous assault on Murtaza P.W.2. Their co‑accused Naseer 35 was, however, acquitted. It was ordered that half of the fine, if recovered, will be paid as compensation of Murtaza P. W. Aslam and Noor challenged their conviction and sentence before learned Additional Sessions Judge, Okara who dismissed the appeal vide judgment, dated 5‑6‑1986, maintaining their conviction and sentence. Hence this revision.

2. In brief the facts of this case are that Murtaza P.W. had abducted Mst. Muniran, a cousin of the accused and married her against their wishes.

On 27‑9‑1985, at about 8‑00/9‑00 a. m. Ghaffar P. W. and his brother Murtaza went to bazar. They purchased meat and were present at the shop of Nizam P.W. to purchase ghee when all of a sudden, Aslam armed with hatchet, Noor armed with stick and Naseer armed with pistol came there. They challenged Aslam and gave hatchet blow on the right side of head of Murtaza who fell down. Thereafter Noor accused inflicted Sota blows on his person. The occurrence was witnessed by Nizam shop‑keeper P.W.3. Saudagar, Ramzan and Mumtaz, all not examined. The accused left the spot.

Murtaza P. W.2 was taken to hospital for medical examination and treatment. The Medical Officer Dr. Nawab Din Bhatti P.W.6 on 27‑9‑1985, at 11‑00 a.m. examined Murtaza and noted five injuries on his person. Injury No.1 was an incised wound by sharp‑edged weapon on the right chest side of head. The remaining four injuries by blunt weapon were on left side of head, right temporal region, bridge of nose and upper part of right. Injuries 1 and 3 were kept under observation. The remaining injuries were of simple nature. The Radiologist on X‑ray found fracture of vault of skull. As such injuries 1 and 3 were declared grievous. The prosecution examined Ghaffar P. W.1, Murtaza injured P. W.2 and Nizam P. W.3 as eye‑witnesses in support of its case. The occurrence took place at about 8‑00/9‑00 a.m. while the matter was reported to police after medical examination on the same day at 4‑35 p. m. vide statement Exh. P. A . on the basis of which formal F.I.R. Exh.P.A/1 was recorded. Ghaffar and Murtaza P.Ws. had no enmity to falsely implicate the accused in this case. Murtaza had abducted Mst. Muniran, a cousin of the accused and married her against their wishes some time before the occurrence. The accused, therefore, had a motive to assault Murtaza P.W. Nizam P.W.3 is shopkeeper. The occurrence took place in front of his shop. He is an independent witness. He has no enmity whatsoever with the accused. He is not related to the injured or the complainant. He denied the suggestion that he was a tenant of Ghaffar P . W. In my view, the prosecution has successfully proved its case against the two petitioners. The learned counsel for the petitioners also was of the view that the prosecution evidence is reliable and cannot be disbelieved. However, he vehemently argued that on the accepted facts no offence under section 307/34 P.P.C. was made out and only an offence under section 325134 P.P.C. could be said to have been proved from the prosecution evidence. I have considered this contention. Dr. Nawab Din P.W.61 declared injuries and 3 as grievous on the basis of the report of the Radiologist. In cross‑examination, he admitted that it was not possible to state as to whether the fracture of vault of skull was due to injury No. 1 or injury No.3. The Radiologist was not examined as witness during the trial. In view of the statement of Dr. Nawab Din P.W.6, it cannot be said that the grievous injury was the result of incised wound recorded as injury No. l Muhammad Aslam accused was stated to be armed with hatchet at the time of occurrence. He caused only one injury on the person of Murtaza P.W. who had fallen down after receipt of they said injury. Muhammad Aslam did not repeat further blows to Murtaza P. W. Noor accused gave 3 or 4 blunt weapon injuries to Murtaza P. W. The conduct of the accused and evidence of P.W.6. Dr. Nawab Dine Bhatti indicate that the accused only wanted to belabour Murtaza P. W. and had no intention to cause his death. In view of this, I am of the view that Aslam. and Noor petitioners could not be held guilty under section 307/34, P.P.C. They caused grievous injuries to Murtaza P.W. They are, therefore, liable to be convicted under section 325/34,P.P.C. only.

3. In view of the above discussion, Aslam and Noor petitioners are acquitted from the charge under section 307/34,P.P.C. and instead are sentenced to suffer one year R.I. plus fine of Rs.500 or in default one month's R.I. under section 325/34, P.P.C. The two petitioners will be allowed benefit of section 382‑B, Cr.P.C.

4. With the above modification, this revision fails and is accordingly dismissed.

S. A. /A‑21/L Sentence altered.

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