RAHIM DAD vs The STATE and others

ABDUL SAMI KHAN, J.---Through this criminal revision under sections 435, 439, Cr.P.C., Rahim Dad petitioner has challenged the vires of judgment dated 12.07.2012 whereby criminal appeal filed by him before learned Additional Sessions Judge, Mianwali, against the judgment dated 06.02.2012 passed by learned trial court/Judicial Magistrate Section-30, Mianwali, was dismissed. The learned trial court/Judicial Magistrate Section-30 vide judgment dated 06.02.2012 convicted the petitioner under section 337-A(ii), P.P.C. and sentenced him to rigorous imprisonment for three years with a direction to pay Arsh equal to five percent of Diyat as notified for the year 2008-09 as Rs,55134/-.

The petitioner was also given benefit of section 382-B, Cr.P.C. While deciding appeal, the learned first appellate court maintained and upheld the decision of trial court. The petitioner Raheem Dad has challenged his conviction and sentence through the instant criminal revision, whereas Rafi Ullah complainant has filed criminal miscellaneous bearing No,3157-M of 2012 for the enhancement of sentence awarded by the learned trial court to the petitioner.

2. Heard and the record as well as grounds mentioned in the criminal revision have been perused.

Perusal of the record shows that the petitioner has been nominated in case FIR No,276/2008 dated 20.09.2008, under sections 337-A(ii), 34, P.P.C., Police Station Daud Khel District Mianwali, with the role of causing injury with Ganti on the person of Rafi Ullah injured/complainant. The FIR was got registered by Rafi Ullah complainant, who entered appearance in the witness box before the learned trial court as PW-1 and supported the story of the incident. The deposition made by Rafi Ullah complainant (PW1) before the learned trial court got full support from the statement of Muhammad Ejaz (PW-2) eye-witness and the injury attributed to the present petitioner by the injured/complainant was declared by Dr. Ishaq Ahmad Khan, (PW-3) as "shajjah-i-mudihah", falling under section 337-A(ii), P.P.C. Rafi Ullah complainant (PW-1), and Muhammad Ijaz eye- witness (PW-2) are consistent on material points and have confidently faced the test of cross- examination and there is nothing on record to rebut the trustworthy and confidence inspiring evidence of these witnesses. - Conversely, the defence failed to bring on record any material on the basis of which it could be considered that the petitioner was involved in the instant case in furtherance of any ulterior motive, malice of previous enmity of the complainant/injured with him.

The case of the prosecution against the present petitioner is duly supported by the medical evidence and as stated above the injury attributed to the petitioner by the complainant and the eye-witnesses, was duly observed by the doctor (PW-3) during medical examination of the injured. In view of these eventualities, I am of the considered view that the prosecution has successfully proved its case against the petitioner, therefore, the conviction of the petitioner on the charge of offence under sections 337-A(ii), P.P.C. is hereby maintained. However, at the same time I am not satisfied with the quantum of sentence of imprisonment awarded by the Courts below to the petitioner. It has been observed by this Court that the occurrence in this case has taken place in the year 2008 (20.09.2008) and since then the petitioner is suffering rigors of criminal proceedings against him. The record of this case also shows that the petitioner is previously non- convicts. Nothing has been brought on record by the prosecution to show involvement of the petitioner in any criminal case to consider him hardened dangerous criminals or previously convicted. It is settled law that in all cases of hurt provided for in Chapter XVI of the Pakistan Penal Code, 1860 the normal punishment to be awarded to an offender is payment of Arsh or Daman and the optional additional punishment of imprisonment as Tazir provided for the relevant offence can be awarded to an offender only where the offender is a previous convict, habitual or hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of honour and in the case of such an offender the sentence of imprisonment as Tazir is not to be less than one-third of the maximum imprisonment provided for the hurt caused. Reliance can be placed on the cases reported as (PLD 2009 Lahore 312) Ali Muhammad v. The State 2012 PCr.LJ 104. In the backdrop of above mentioned case law the provisions of section 337-N(2), P.P.C. also come to rescue the petitioner in this case and only the punishment of Arsh can be imposed upon him.

3. For what has been discussed above, the conviction of the petitioner on the charge of offence under section 337-A(ii), P.P.C. and the sentence to the extent of payment of Arsh equal to five per cent of Diyat as notified for the year 2008-09 as Rs,55134/- are upheld and maintained, however, the sentence of rigorous imprisonment for three years imposed upon the petitioner by the learned trial Court and upheld by the learned Appellate Court is set aside. At this stage, an amount of Rs,55,134/- has been paid by the petitioner to Rafi Ullah complainant/ injured (PW-1) within the view of this Court, therefore, his surety is discharged from the liability of surety bonds. With the above modification in the quantum of sentence of the petitioner, the instant criminal revision stands dismissed. Consequently Criminal Miscellaneous No,3157-M of 2012 filed by the complainant for the enhancement of conviction and sentence of the petitioner is also hereby dismissed.