SHAHBAZI Versus THE STATE
1. The appellants were charged and tried under sections 307, 148 and 149, P.P.C. before the learned Assistant Sessions Judge, Kandhkot, who has convicted and sentenced them under section 307 read with section 149, P.P.C. to suffer R.I. for five years each and to pay fine of Rs.10,000 each or in default to undergo further R.I. for one year. They have also been convicted under section 148/149, P.P.C. and sentenced to suffer R.I. for one year.
2. The brief facts giving rise to the present appeal are that on 29‑12‑1984, complainant Khadim Hussain lodged a report at P.S. Kandhkot inter alia alleging therein, that about 1‑1/2 years back he was Incharge P.P. Khai P.C. Rehmatullah and P.C. Muhammad Yaqoob were with him. Shahbazi Bangwar filed a. direct complaint in the Court of Assistant Sessions Judge and also in the Court of S.D.M. Kandhkot against him and P.C. Rehmatullah. They were acquitted by the Assistant Sessions Judge. While the case before the S.D.M. was fixed today, and he and P.C. Rahmatullah attended the Court of S.D.M. at about 9‑30 a.m. they went outside the Court, on the road they found Shahbazi, Kajlo, Rahram, Hauran, Murad Ali, and Agwani were standing there duly armed with lathis. Accused Shahbazi challenged them, and observed that Court had acquitted them but they will not spare them. Saying so, Shahbazi, Agwani and Murad Ali gave him lathi blows, while accused Hauran, Kajlo and Bashram gave lathi blows to Rehmatullah on his head. They raised cries, which attracted Mashooq Ali, Mechanic who came running and tried to intervene but the accused ran away after causing injuries to them. The F.I.R. was recorded by P.W.7 Ali Gohar, Additional S.H.O. who after necessary investigation challaned the case.
3. A formal charge was framed against the appellants and co‑accused Murad Ali to which they pleaded not guilty.
4. At the trial prosecution examined complainant Khadim Hussain P.W.1, he has produced the F.I.R. as Exh.3, Mashooq Ali an eye‑witness P.W.2, Rehmatullah injured P.W.3, Sadoro (Masher) P.W.4, he has produced Mashirnama of injuries as Exh.7, arrest of Shahbazi and Houran Exh.9, production of lathis Exh.10 Dr. Muhammad Kabir Exh.5, he has produced the injury certificate as Exhs.39‑A and 39‑B, co‑Masher Ghulam Mustafa P.W.6, and Additional S.H.O. Ali Gohar P.W.7.
5. After close of the prosecution case, the statements of the appellants were recorded under section 342, Cr.P.C. in which they denied the allegations and have produced number of documents in order to show that they had enmity with complainant Khadim Hussain and P.W. Rahmatullah and, therefore, they were involved in this case falsely.
6. The learned trial Judge while relying upon the evidence of complainant and two eye‑witnesses has convicted the appellants as described above, and the present appeal is directed against the said judgment of conviction.
7. I have heard Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellants, Mr. A.K. Jatoi, learned counsel appearing for the State, and have also gone through the R & P of the case.
8. The medical evidence shows that the complainant Khadim Hussain had received two lacerated wounds and one bruise, and the same were simple in nature, while injured Rehmatullah had received five blunt weapon injuries out of which injury No. 5 which has been described as bruise 3 c.m. x 1‑1/2 c.m. x 1.5 c.m. on the right hand dorsally was grievous. The medical evidence shows that all the injuries on the person of Rehmatullah were simple in nature except injury No. 5. According to Doctor, X‑ray report shows fracture of the praximal bone of the finger. In cross‑examination, the Medical Officer Muhammad Kabir has admitted that it was possible that injury No. 5 on the person of injured Rehmatullah would be self‑suffered.
9. It has been contended by Mr. Muhammad Hayat Junejo, learned counsel appearing for the appellants that the case was false and the appellants were implicated due to enmity for which number of documents were produced. He has further contended that P.W. Mashooq Ali was chance witness and his evidence could not be relied upon. In view of the fact that according to complainant P.W. Murad Ali was Mechanic, whereas according to P.W. Mashooq Ali he never worked as mechanic he was not the same person. Mr. Muhammad Hayat Junejo has further contended that the incident took place in a town of Kandhkot near the Court of S.D.M. but it was surprising that not a single independent witness has been cited or examined by the prosecution. Alternatively it was contended by Mr. Muhammad Hayat Junejo that looking to the nature of injuries, offence, if any, would fall under section 323, P.P.C. and the appellants have already remained in custody after . conviction for 22/23 days (more than three weeks) they had suffered agony of protracted trial from 1984.
10. Mr. A.K. Jatoi, learned counsel appearing for the State has contended that the incident took place during the day time, and P.W. Mashooq Ali had no enmity with the appellants and, therefore, the prosecution evidence was reliable and natural. However, he has further contended that in view of the evidence of Medical Officer, the offence would fall under section 323, P.P.C., and a lenient view may be taken so far as the sentence was concerned.
11. I have considered the contention of the learned counsel. Of course it is an admitted position that there was recorded c amity between parties for which not only admissions are there but number of documents have been produced. It appears that because of those cases, the appellants had a motive to attack the complainant and P.W. Rehmatullah. The evidence of eye‑witness Mashooq Ali, appears to be independent, straightforward and natural, he had no enmity with the appellants nor any enmity was suggested to him. The incident was broad daylight incident and there could not be any doubt about the identity of the assailants. In view of the above circumstances I am of the considered view that the evidence of 3 eye‑witnesses out of which two were injured was natural, straightforward, and reliable. Therefore, I hold that the prosecution had proved its case beyond any doubt against the appellants.
12. However, the next contention of Mr. Muhammad Hayat Junejo, regarding the nature of offence remains to be considered.
13. The medical evidence shows that the injuries suffered by complainant Khadim Hussain and P.W. Rehmatullah were simple in nature except injury No. 5 on the person of P.W. Rehmatullah, and the same is described as fracture of finger, and according to Medical Officer the same could be self‑suffered. In view of the above position I am of the considered view that the offence, if any, will fall under section 323 read with section 149 and not under section 307, P.P.C. as held by the learned trial Judge.
14. In view of the above conclusion I alter the conviction of the appellants from section 307, P.P.C. to section 323/149, P.P.C. and reduce the sentence to one already undergone, as the appellants have remained in custody for more than three weeks after their conviction and they had also suffered agony of protracted trial over two years. The sentence under section 148/149, P.P.C. is altered to section 147, P.P.C. for which no additional sentence is awarded. Looking to the circumstances of the case, with this modification, the appeal is disposed of. The appellants are on bail and their bail bonds stand discharged.
15. M.Y.H./S‑225/K
16. Appeal partly accepted.