MUHAMMAD NAWAZ Versus DEPUTY ADMINISTRATOR (RESIDUAL PROPERTIES)
The petitioners, Nazir and Bashir, are real brothers; they were tried and convicted under sections 379 and 324 of the P.P.C. by a judgment of the Magistrate 1st Class, Jaranwala, dated 29‑11‑1975, and sentenced to three months' R.I. each on each count. They were also sentenced to pay a fine of Rs.300 or in default to suffer one month's S.I. each under section 324 of the P.P.C. On appeal, the learned Sessions Judge, Faisalabad, maintained the conviction and sentence under section 379 of the P.P.C. of Bashir, altered the conviction under section 324 of the P.P.C. of both the petitioners into one under section 325 of the P.P.C., however, the sentence was not enhanced. The conviction and sentence of Nazir petitioner under section 379, P.P.C. were set aside.
2. The prosecution case was that on 13‑2‑1974 at about sunset time. Muhammad Shah P.W. was on his way back to his house in Chak No. 206/R.B. when he was attacked by the petitioners and their co‑accused Yaseen. Nazir was armed with a hatchet and Bashir and Yaseen were armed with Sotas. They caused him injuries with their respective weapons, he was rescued by Siddique and Mubarak Ali P.Ws. During the occurrence, a wrist watch of Muhammad Shafi tell and it was taken away by Bashir petitioner.
3. It was said that six months earlier, Bashir, petitioner, and Muhammad Shafi, P.W. had quarrelled over the digging of a watercourse. Muhammad Shafi P.W. was medically examined at 9‑30 a.m. on the next day; he vas found to have seven injuries on his person. One was a sharp‑edged weapon injury and the others were blunt weapon injuries. The incident was reported at 10‑00 a.m. on 15‑2‑1974.
4. Siddique and Mubarak Ali were independent persons. They supported Muhammad Shafi P.W. in all material particulars. There is a concurrent finding of fact by the Courts below that the petitioners had waylaid Muhammad Shafi P.W. and caused him injuries and there appears no reason why their testimony that the petitioners had caused injuries to Muhammad Shafi P.W. should not be I believed.
5. The injury, for which the learned Sessions Judge convicts the petitioners under section 325 of the P.P.C. was a blunt weapon injury on the little finger of the left hand Dr. Abdul Hameed Sabir (P.W.8), who had taken the X‑Ray photographs of tile injury, said that there was a crack in the bone was not fractured through and through. The injury could not, therefore, be described as a grievous injury. It follows, therefore, that the offence that the petitioners had committed was an offence against section 324 of the P.P .C. only and that the petitioners were rightly convicted under that section by‑the learned Magistrate.
6. Muhammad Siddique, Mubarak Ali and Muhammad Shaft P.Ws, also gave evidence that the wrist watch of Muhammad Shah. P.W. had been taken away by Basher, petitioner. The petitioners led defence evidence to prove that the wrist watch belonged to Basher but that evidence was not believed by the learned Courts below and in my view for goad reasons. The conviction of the petitioner Bashir under section 379 of the P.P.C., is, however, not sustainable on the ground that no question as to the recovery of the watch was put to Basher, petitioner, in his statement under section 342 of the Cr.P.C.
7. For these reasons, I would set aside the petitioners conviction under sections 379 and 325 of the P.P.C. and convict them under section 324 read with section 34 of the P.P.C. The petitioners were arrested on 3‑3‑1974. Besides the period they spent in jail during the trial, they remained in jail from 26‑2‑1978 when their appeal was dismissed by the learned Sessions Judge till 6‑4‑1978 when they were allowed bail by this Court. I would, therefore, reduce, their sentence to imprisonment already undergone. The sentence of fine is set aside.
SA./N‑184/L Conviction and sentence altered.