KAFAYATULLAH Versus STATE

The petitioners have filed this revision petition against the judgment of the learned Sessions Judge, Khushab, dated 9‑10‑1988 whereby while dismissing their appeal against their conviction and sentence passed by the learned trial Court dated 16-4‑1988 the learned Sessions Judge on the revision petition of enhancement filed by the complainant recalled the benefit of section 382‑B, Cr.P.C. earlier given by the trial Court. He has also enhanced the fine to Rs.5,000 from Rs.500.

2. The facts of this case are that F.I.R. No. 57 was recorded at Police Station Gunjial on 19‑5‑1987 under section 325/34,‑P.RC. at the instance of one Abdul Aziz for injuring his brother Fateh Muhammad by the petitioners and one Sultan acquitted accused.

3. The motive according to the complainant was that Allah Ditta petitioner filed a suit for dissolution of marriage of his daughter and the present complainant Abdul Aziz was witness from the other side. The accused tried to persuade Abdul Aziz complainant not to give evidence but failed. Being aggrieved of that the accused in furtherance of their common intention injured the complainant's brother Fateh Muhammad.

4. During the course of investigation though Sultan was found innocent and was placed in column No.2 yet he too was summoned before the trial Court. The prosecution examined 6 witnesses to establish its case. The accused pleaded not guilty and attributed the case to enmity and litigation between the parties. The learned trial Magistrate vide his order, dated 16‑4‑1988 acquitted Sultan accused by giving him benefit of doubt and convicted both the petitioners and sentenced them to undergo R.I. for one year and fine of Rs.500 each or in default to undergo further R.I. for 6 months. The learned trial Magistrate also granted the concession of section 382‑B, Cr.P.C. to the petitioners.

The complainant filed revision petition for the enhancement of sentence and the present petitioners filed an appeal against their conviction and sentence passed by the trial Magistrate. The earned Sessions Judge vide his judgment, dated 9‑10‑1988 dismissed the appeal of the petitioners and allowed the revision petition to the extent that the benefit of section 382‑B, Cr.P.C. was recalled and further ordered the petitioners to deposit a sum of Rs.5,000 each to be given as compensation in to the injured failing which the petitioners were ordered to undergo 6 months R.I.

5. Learned counsel appearing for the petitioners has argued that it was the sole discretion of the trial Magistrate to pass any order respecting the concession of section 382‑B, Cr.P.C. and the appellate Court had not any jurisdiction whatsoever to interfere with the discretion so exercised. He has also challenged the conviction on the ground that the prosecution evidence is full of contradiction and the motive is very weak as according to the prosecution the petitioners did not have any motive whatsoever against Fateh Muhammad.

6. I have gone through the record and its perusal shows that the petitioners had a motive against Abdul Aziz complainant and not against Fateh Muhammad. The learned counsel in the circumstances has argued that the presence of the complainant becomes very doubtful. Had he been present there he would have A been certainly the main target of the accused Furthermore, his conduct at the occurrence is highly unnatural. From this the learned counsel has argued that the present petitioners who are father and son have been involved falsely because of enmity.

7. I do not agree with the contentions raised by the learned counsel respecting their false involvement. The prosecution has established its case against the petitioner and no exception can be taken to the conviction of the present petitioner. I also do not agree with the learned counsel for the petitioners that the appellate Court cannot interfere with the order of the trial Court respecting the exercise of power under section 382‑B, Cr.P.C. However, in the facts of the present case the learned trial Magistrate exercised the discretion by allowing the concession of section 382‑B, Cr.P.C. to the petitioner. This provision being a beneficial one shall not have been interfered lightly by the first appellate Court. Accordingly the revision petition is accepted to the extent that the concession of section 382‑B, Cr.P.C. already granted to the petitioners is restored. In view of this I maintain the conviction of the petitioner but restore them the benefit of section 382‑B, Cr.P.C. earlier granted by the trial Magistrate. I do not interfere with the amount of compensation enhanced by the Sessions Judge. With these observations this revision petition is disposed of.

M.Y.H./A‑722/1 ????????

Order accordingly.