MUHAMMAD YAR SADAF and 2 others vs The STATE and another

ABDUL SAMI KHAN, J.---Through this criminal miscellaneous under sections 561-A, Cr.P.C., Muhammad Yar Sadaf, Imran Aziz and Tanveer Iqbal petitioners have challenged the vires of judgment dated 16.08.2017 whereby criminal revision filed by Mst. Anwar Khatoon/ respondent No.2 before learned. Additional Sessions Judge, Mianwali, against the order dated 26.04.2017 passed by learned trial court/Judicial Magistrate Class, Mianwali, was accepted. The learned trial court/ Judicial Magistrate 1st class vide order dated 26.04.2017 convicted the petitioners on the basis of confessional statements of the petitioners convicted them under sections 337-L(2), 34, P.P.C. and sentenced them to pay Daman in sum of Rs.3000/- each. While deciding Criminal Revision, the learned Additional Sessions Judge enhanced the quantum of daman for each of injuries and fixed at the rate of Rs.10000/- per injury which is to be paid by the petitioners equally to the victim/complainant. The petitioners have challenged the enhancement of Daman through the instant criminal miscellaneous, whereas Mr. Anwar Khatoon complainant has filed criminal miscellaneous bearing No.98905-M of 2017 for awarding of sentence of imprisonment to the petitioners.

2. Heard and the record as well as grounds mentioned in the criminal miscellaneous have been perused. Perusal of the record shows that the petitioners have been nominated in Rapt No.4/2016 dated 25.06.2016 under sections 337-L(2), 34, P.P.C., Police Station Chakrala District Mianwali, with the role of causing injury with fist and kicks on the person of Mst. Anwar Khatoon injured/complainant. Due to non-cognizable of offence, rapt No.4 dated 25.06.2016 was incorporated and sent to the learned trial court for trial. Charge against the petitioners was framed to which they pleaded not guilty and witnesses were summoned. Later on, the petitioners got recorded their confessional statements and on the basis of their confessional statements, the learned trial court awarded the punishment of Daman under section 337-L(2), P.P.C. It is noticed by this Court that the petitioners have challenged the enhancement of Daman which was based upon their voluntary confession. In view of these eventualities, I am of the considered view that as the petitioners have themselves confessed their guilt voluntarily, therefore, the conviction of the petitioners on the charge of offence under sections 337-L(2), P.P.C. is hereby maintained. The record of this case also shows that the petitioners are previously non-convicts. Nothing has been brought on record by the prosecution to show involvement of the petitioners in any criminal case to consider them 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 Lah. 312 and 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 petitioners in this case and only the punishment of Daman can be imposed upon them. The learned Trial Court has rightly extended benefit of section 337-N(2), P.P.C. to the petitioners. Admittedly, the amount of Daman imposed by the learned trial court has already been deposited by the petitioners which is evident from the order of learned trial court; hence, there is no reason to enhance the amount of Daman imposed upon the petitioners.

3. For what has been discussed above, the conviction of the petitioners on the charge of offence under section 337-L(2), P.P.C. and the sentence to the extent of payment of Daman for each injuries at the rate of Rs.10000/- per injury imposed by learned Additional Sessions Judge, Mianwali is set aside and the conviction of the petitioners and sentence to the extent of payment of Daman of Rs.3000/- each imposed by the learned trial court is upheld and maintained. With these observations, the instant criminal miscellaneous stands accepted. Consequently Criminal Miscellaneous No.98905-M of 2017 filed by the complainant for the enhancement of Daman and sentence of the petitioners is also hereby dismissed.