ZULFIQAR ALI AND 3 OTHERS Versus THE STATE

This is an appeal by Zulfiqar Ali 25, Ata Muhammad 30, Muhammad Nawaz 80 and Ghaus Muhammad 26 against their conviction vide judgment dated 15‑4‑1987 by Mr. Munir Mubarak Khan, Magistrate Section 30 Joharabad. They all were sentenced to four years' R.I. and fine of Rs.5,000 or in default six months' R.I. each under section 307/34, P.P.C. and to further one year's R.I. each under section 353/ 24, P . P. C. It was ordered that the two sentences of imprisonment shall run consecutively and that out of the fine, if recovered, Rs.10,000 will be paid as compensation to Muhammad Hanif complainant.

2. In brief the prosecution case is that Muhammad Hanif complainant P.W. 1 on 26‑6‑1985 at about 6 P.M. was having a round of roadside plantation on Khushab Muzaffargarh Road. He noticed Zulfiqar, Ata Muhammad, Ghaus Muhammad and Muhammad Nawaz sitting in Sarkanda bushes. He asked them as to what they were doing. At this they shouted a lalkara and gave him injuries with sticks. The occurrence was witnessed by Munawar Ali, Muhammad Akram and Suleman P.Ws. After the occurrence Muhammad Hanif was taken to Joharabad Hospital for treatment and examination. He thereafter made written report Ex.PA to police through his department on the basis of which this case was registered on 27‑6‑1985 at 4‑30 p.m. vide F.I.R. Ex.PA/1.

3. The police after registration of case undertook investigation. All the four accused‑appellants appeared before the police on 9‑7‑1985 and produced their respective sticks P.1 to P.4. These were not stained with blood. These recoveries were witnessed only by two Foot Constables P.W. 4 Khuda Bakhsh and P.W. 5 Riaz Ahmad. These are, therefore, of no consequence in this case.

4. In support of this case prosecution examined seven witnesses in all. Muhammad Hanif P.W. 1 is the injured complainant. P.W. 2 Munawar Ali and P.W. 3 Muhammad Suleman were examined as eye‑witnesses. The case was investigated by P.W. 6 S.I. Muhammad Aslam. The medical officer who had examined Muhammad Hanif P.W. died. The medico‑legal report Ex. PF was, therefore, proved by P.W. 7 Ghulam Hussain. The accused in their statements after close of prosecution evidence denied the charge and pleaded innocence. They did not produce any evidence in defence.

5. I have heard the learned counsel for the appellants and have carefully gone through the record.

6. A perusal of the complaint Ex.PA would show that the name of Muhammad Nawaz accused was inserted by interpolation of some other name. He is aged about 80 years. I, therefore, give him benefit of doubt and acquit him from both the charges. He is on bail by suspension of his sentence during this appeal. His bail and surety; bonds shall stand discharged. .

7. The prosecution case is supported by P.W. 1 Mohammad Hanif who received about 41 injuries by blunt weapon on his person. These injuries were on his head, back of chest, buttocks and arms. He had no enmity to falsely implicate Zulfiqar Ali, Ata Muhammad and Ghaus Muhammad accused. Munawar Ali P.W. 2 is an independent witness. He belonged to the village of the complainant but was not related to him. He had no enmity with the accused. It was stated by him that after his duty in the mills he went to make purchases in the bazar and was returning home when he saw this occurrence. He was, therefore, a natural witness. Muhammad Suleman P.W. 3 is maternal uncle of Muhammad Hanif complainant. A persual of the complaint Ex.PA would show that his name was added subsequently in the said complaint. It was stated by him that he was returning on cart when he saw the occurrence. He was a chance witness. I am not, therefore, prepared to place any reliance on his evidence. In my view the prosecution case is fully proved against Zulfiqar Ali, Ata Muhammad and Ghaus Muhammad accused.

8. There are however two matters which require consideration. Firstly, there is no evidence that Muhammad Hanif P.W. 1 was on duty at the time of occurrence which took place at about 6 p.m. The accused, therefore, could not be held guilty under section 353/34, P.P.C. These three appellants are accordingly acquitted for this charge.

Muhammad Hanif complainant received 41 injuries on his person, These were simple in nature and mostly on non‑vital parts of the body. Only two injuries No.1 and No.2 were on head. It could, therefore, not be said that these injuries were caused in an attempt to murder Muhammad Hanif. The injuries being simple in nature, Zulfiqar Ali, Ata Muhammad and Ghaus Muhammad could be held guilty D only under section 323/34, P.P.C. They are accordingly acquitted from the charge under section 307/34, P.P.C. and instead sentences under section 323/ 34, P. P. C. These three appellants were convicted: and sentenced by the learned trial Magistrate vide judgment dated 15‑4‑1987. They are serving imprisonment under the impugned judgment in prison. They were not allowed bail by suspension of their sentence. This means that they have already served about 8 months imprisonment in jail. I accordingly sentence Zulfiqar Ali, Ata Muhammad and Ghaus Muhammad accused to imprisonment already undergone by them under section 323/34, P.P.C. The sentence of fine is reduced to Rs.200 each or in default 7 days simple imprisonment.

This appeal is accepted on behalf of Muhammad Nawaz accused and dismissed on behalf of other three appellants subject to above modification.

S. A. /N‑384L Sentence altered.