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Criminal Appeal No. 254 of 1982, decided on 13th March, 1983.

‑‑Ss. 307, 148 & 149‑‑Ocular testimony, appreciation of‑Time and place of occurrence, not doubted as alleged by prosecution‑ ‑F.I.R. promptly lodged‑‑All accused named therein with their specific roles‑‑ F.I.R. recorded on statement of injured‑‑Witnesses consistently deposing against accused‑‑Two of eye‑witnesses independent having no enmity or ill‑will against accused‑‑No discrepancies on material points, found‑‑Testimony of witnesses, uniform and confidence inspiring‑‑Motive proved and corroborating ocular account‑‑Medical evidence also supporting prosecution‑‑Ocular evidence, held, was rightly believed by Trial Court‑‑Conviction maintained in circumstances.

‑‑‑Ss. 307, 325, 148 & 149‑‑Nature of offence‑‑Common object‑‑Out of eight injuries on person of injured, six simple in nature and two grievous‑ ‑All injuries on lower part of legs caused by blunt weapon‑ Grievous injuries specifically attributed to two accused‑‑One accused armed with hatchet but not using it‑‑Another accused, empty‑handed‑ Number and nature of injuries, held, did not prove their intention or knowledge to kill injured‑‑Common object was to give beating‑ Conviction under S. 307/149, P.P.C. converted to one under S. 325/149, P.P.C. in circumstances.

Khuda Dad Khan Barki and Muhammad Nazir Janjua for Appellants Nos. 1 to 6.

Sardar Ataullah for Appellant No. 7.

Shah Nawaz Khan for the State.

K.M. Virk for the Complainant.

Dates of hearing: 5th and 6th March, 1983.

This is an appeal by the convicts to set aside their convictions under sections 307/149 and 148, P.P.C. and sentences passed against them by Magistrate vested with Section 30 powers, Faisalabad, on 24th April, 1982 in which all seven convicts were sentenced to suffer rigorous imprisonment for five years each and to pay a fine of Rs.1,000 each or in default of its payment to undergo six months rigorous imprisonment each under the former and were also sentenced to suffer rigorous imprisonment for one year each for the later offence. The substantive sentences were ordered to run concurrently.

2. On 6‑4‑1978 at about sunset time when Jamaat Ali (P.W.) was returning to his house in the Abadi of Chak No. 534/G.B. on his motor cycle and had reached near the house of Mutalli all these seven convicts attacked him. Mutalli appellant had a hatchet and raised a Lalkara not to spare Jamaat Ali. Falak Sher appellant caught hold of the motor‑cycle which was being driven at a slow speed due to turn and after felling it caught hold of Jamaat Ali. Iqbal appellant grasped Jamaat Ali in his hands. Sanatta appellant then delivered a Sota blow which fell on the lower part of left leg of Jamaat Ali which was fractured. Chughatta appellant also gave him injury with a Sota on lower part of right leg: Khanun appellant gave a Sota blow which fell on the left foot of the victim. Wallu appellant gave a Sota blow which hit the victim on the knee of left leg. Thereafter, all the seven appellants continued delivering Sota blows to Jamaat Ali (P.W.). The hue and cry raised by Jamaat Ali (P.W.) attracted Hussain (P.W.), Anwar (not examined) and Allah Yar (P.W.) who witnessed the occurrence and rescued Jamaat Ali from the appellants. Appellants then went away. Soon thereafter, Muhammad Sher (P.W.) son of Jamaat Ali injured (P.W.) reached running from the tube‑well side and on seeing him Sanatta and Falak Sher appellants fired from their guns which did not hit Muhammad Sher. Many people collected at the spot and Sanatta and Falak Sher ran away. Jamaat Ali was carried to Civil Hospital, Jaranwala where he was medically examined and his statement was recorded in the hospital by Muhammad Ibrahim, S.H.O. (P.W.) at 10‑15 p.m. on which formal F.I.R. was registered at the Police Station, Jaranwala on the same day at 10‑30 p.m.

The motive given in the F.I.R. is that about 11/12 years earlier Godha was murdered for which real brothers of Falak Sher appellant were challaned, convicted and sentenced. Jamaat Ali injured (P.W.) was a prosecution witness in that murder case. About three years before the present occurrence Jamaat Ali (P.W.) had given about 2 acres of his land for cultivation as tenant to Chughatta and Sanatta appellants who gave Batai to Jamaat Ali (P.W.) for about two years but stopped giving him Malkana share of the produce of land about one year before the present occurrence and were forcibly keeping the land in their possession. Jamaat Ali injured (P.W.) was continuously asking them to leave the land or give him the share of produce but they always refused to do so. Sanatta, Chughatta, Falak Sher and Khanun appellants were habitual thieves and Jamaat Ali (P.W.) used to restrain them from doing so which annoyed them. For all these reasons the appellants attacked and injured Jamaat Ali (P.W.).

3. The investigation in this case was conducted by Muhammad Ibrahim, S.H.O. (P.W.) who arrested appellants, on 9‑4‑1978. Sanatta appellant got recovered his Bansi Sota P. 1 which was secured vide memo. Exh. P.W.7/B. Khanun appellant also led him to the recovery of Sota P. 2 vide memo. Exh. P.W.7/C. On completion of investigation he challaned the appellants in Court.

4. Dr. Khurshid Ahmad (P.W.), Medical Officer, Civil Hospital, Jaranwala medically examined Jamaat Ali first informant (P.W.) in the hospital on 6‑4‑1978 at 8‑45 p m. and found eight injuries on his person including injuries Nos. 2 and 3 which were declared grievous in nature while rest of injuries were simple, all caused by blunt weapon. Injury No.2. was a lacerated wound on lower part of left leg with. swelling all around and Tibia bone underneath it was fractured. Injury No. 3 was also a lacerated wound on right leg. According to the doctor all the eight injuries had been caused within two hours. The simple injuries were on the legs, foot and one on temple.

5. Lady Doctor Salima Mujtiba (P.W.) medically examined Mst. Rasulan (P.W.) on 20‑4‑1978 and found one injury on thigh of right leg. It was simple in nature caused by blunt weapon.

6. The appellants pleaded not guilty to the charge and stated that they had been falsely implicated due to enmity.

7. The trial Court believed the eye‑witness account and found that the motive alleged by the prosecution has been established and the ocular evidence was supported by the medical evidence and was corroborated by the recoveries of Sotas.

8. It has been argued before me that ocular evidence is not reliable because according to it the place of occurrence was near the house of Mutalli appellant but the site plan prepared at the instance of the eye witnesses disclosed that the occurrence took place in th8 wheat crop field. It has also submitted that Allah Yar (P.W.) was a chance witness and that the occurrence took place at night time when the prosecution witnesses did not see nor could identify the assailants but appellants were involved due to enmity. It was then submitted that specific injuries were attributed to Sanatta and Chughatta appellants due to which the presence and participation of the other appellants was not proved. Finally learned counsel submitted that intention of the appellants was not common and each appellant was responsible for his individual act. Learned counsel appearing for Falak Sher appellant submitted that in Court Jamaat Ali injured (P.W.) did not depose that Falak Sher had held him due to which his common intention was not proved that in all eight injuries including three scratches were suffered by Jamaat Ali (P.W.) by seven appellants and thereby the number of accused was exaggerated and that firing of gun by Falak Sher is improbable and was not put to him. It was also submitted that Falak Sher was not related to his co‑accused but had been roped in due to enmity of previous murder case.

9. The occurrence took place at sunset time on 6‑4‑1978. Jamaat Ali (P.W.) in injured condition was carried to Civil Hospital, Jaranwala where he was medically examined at 8‑45 p.m. and his statement was recorded at 10‑15 p.m. on which formal F.I.R. was registered at 10‑30 p.m. The blood stained earth was secured from near the house of Mutalli where the occurrence took place according to the prosecution. The time and place of occurrence were proved by the prosecution and cannot be doubted. The F.I.R. was promptly lodged in which all the appellants were named as accused. It was registered on the statement of Jamaat Ali injured (P.W.) himself who suffered injuries at the hands of the appellants. The occurrence was witnessed by Hussain, Allah Yar (P.Ws.) apart from maid servant of the injured, Mst. Rasulan (P.W.) and son of the injured, Muhammad Sher (P.W.) who reached the spot soon after the occurrence. The injured and other P.Ws. consistently deposed about the occurrence and named all the appellants as accused. Hussain and Allah Yar are independent witnesses who had no enmity or ill‑will against the appellants. The discrepancies pointed out in testimony of P.Ws. are not on any material point. Their testimony is uniform and confidence inspiring. I find that ocular evidence was7 rightly believed by the trial Court. The motive alleged by the prosecution was proved and corroborated the ocular evidence. Chughatta and Sanatta appellants were his tenants and were not paying him share of produce and were also not vacating his land due to which the injured wanted them to hand over vacant possession. Jamaat Ali injured (P.W.) had also annoyed them because he had restrained Sanatta, Chughatta, Falak Sher and Khanun appellants from their nefarious activities of committing thefts. The medical evidence supported the ocular evidence.

10. On the evidence on record, I find that out of eight injuries caused to Jamaat Ali (P.W.) six were simple in nature and the two grievous injuries were on lower part of his legs. The grievous injuries were specifically attributed to Sanatta and Chughatta appellants. The number and nature of injuries caused by the appellants does not prove their intention or knowledge to cause murder of Jamaat Ali (P.W.) I am of the view that common object of the appellants was beating but Sanatta and Chughatta caused grievous injuries as well. Again Mutalli had a hatchet but evidently did not use it from the sharp side. He was attributed a Lalkara. According to the statement of Jamaat Ali (P.W.) in Court Iqbal appellant was empty handed. In these circumstances the convictions of the appellants are liable to be converted under section 325/149 and the sentences of the appellants other than Sanatta and Chughatta are liable to be reduced.

11. For the foregoing reasons the conviction of the appellants under section 148, P.P.C. is maintained but that under section 307/149, P.P.C. is converted to section 325/149, P.P.C. The sentences awarded to Sanatta and Chughatta by the trial Court are maintained. The period during which they were held in custody before conviction shall count towards their substantive sentence under section 382, Cr.P.C. The sentences of Iqbal alias Bali, Mutalli, Wallu, Khanun and Falak Sher appellants are reduced to already undergone. The sentences of Mutalli, Iqbal and Wallu were suspended by this Court. Their bail bonds shall stand discharged and Falak Sher shall be set at liberty provided they pay the fine imposed on each of them by the trial Court within a month otherwise each of them will ergo the sentence in lieu of fine. With the above modifications the appeal is dismissed.

S.A./S‑31/L Sentence altered.

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