2014 Y L R 1473
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
ABDUL QUDOOS and 3 others---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.69 and Criminal Revi sion No.163 of 2012, deci ded on 7th March, 2014.
(a) Penal Code (XLV of 1860)---
----Ss. 324, 337-A(i), 337-F(iii)(vi)(v), 337-L(2) , 149 & 337-N(2)---Attem pt to commit qatl-e-
amd, causing Shajjah-i-Khafifah, Mutalahimah, Madihah, Hashimah, hurt, payment of Arsh,
awarding tazir---Common intention---Objections, rais ed that Trial Court di d not frame the charge
in accordance with law; and conviction was reco rded without alteration of charge, were not
supported by law---Contention about non-readi ng and mis-reading of evidence, was not
impressive; and conclusion drawn by the Trial Court was according to principles of appreciation
of evidence---Number of persons were nominated to wards the commission of offence, but role of
firearm injury sustained by one injured prosecuti on witness was attributed to one accused only---
Role of inflicting a dagger bl ow sustained by the injured witn ess, was assigned to absconding
accused---Injuries sustained by complainant and tw o prosecution witnesses, to the extent of
abrasion and pain, except naming all accused pers ons, no role was assigned to any one of them---
Allegation of constituting unlawful assembly in furtherance of their common object, was levelled against accused and absconding accused---Role causi ng fracture of 'tibia'/shinbone, could not be
attributed to any one as the witness himself was silent about the injury---Absconding accused,
who was alleged to have caused injuries, was not arrested---Injuries caused under Ss.337-A(1),
337-L(2) and 337-F(v), P.P.C., were proved to be caused by accused---Accused after constituting
an unlawful assembly in furtherance of thei r common object having made a violent attack upon
the complainant party, they were rightly held responsible towards the co mmission of offence---
Offender who had travelled beyond the object of unl awful assembly, would be dealt separately---
Case of accused persons was covered by subs ection (2) of S.337-N, P.P.C.---Accused persons,
were not previous convicts, harden ed or habitual, desperate or da ngerous criminals---Sentence of
rigorous imprisonment of two y ears under S.337-F(iii) and 4 year s under S.337-F(v), P.P.C., was
set aside---One of accused persons remained c onvicted under S.337-F(v), P.P.C.---Three accused
persons, who were convicted und er Ss.337-A(i) & 149, P.P.C. were sentenced to pay Daman.
Haji Maa Din v. The State 1998 SCMR 1528 ref.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 537, 238, 227, 225, 232 & 535---Alteration of charge---Error, correction of---When
accused was charged for a major offence which entailed a longer term of punishment, but a
minor offence was proved, which en tailed a shorter term of punish ment, he could be convicted of
minor offence; but an accused charged for minor offence, coul d not be convicted of a major
offence, subject to the limitation of S.227, Cr .P.C.---Every conceivable type of error and
irregularity referable to a charge that could possibly arise, could be cured---Whatever the
irregularity could be it was not to be regarded as fatal, unless there was prejudice.
(c) Penal Code (XLV of 1860)---
----S. 149---Unlawful assembly---Common intention---Scope. Imran Ashraf's case 2001 SCMR 424 ref.
Abdullah Baloch for Appellants (in Criminal Appeal No.69 of 2012).
Ahmadullah for the Complainant (i n Criminal Appeal No.69 of 2012).
Ahmadullah for Petitioner (in Cr iminal Petition No.163 of 2012).
Abdullah Baloch for Respondent (in Criminal Petition No.163 of 2012).
Liaquat Ali for the State.
Date of hearing: 8th November, 2013.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- This judgment will dispose of
Criminal Appeal No.69 of 2012 and Criminal Revision Petition No.163 of 2012, as both have
arisen out of a common judgment.
2. The present appeal is directed against the judgment dated 28th September, 2012 passed
by the learned Sessions Judge, Ka lat at Mastung, whereby, the a ppellants were convicted under
section 337-F(iii) read with section 149 of the Pakistan Penal Code, 1860 ("P.P.C.") and
sentenced for two (2) years rigorous imprisonmen t (RI) as Ta'zir with payment of Daman of
Rs.10,000 each, and convicted under section 337-F(vi) read with section 149 of the P.P.C. with sentence of four (4) years rigorous imprisonm ent as Ta'zir and payment of Daman of Rs.10,000
each, in both counts they are dire cted to pay the amount of Daman to the each injured in lump
sum. Benefit of section 382-B Criminal Proced ure Code, 1898 ("Cr.P.C.") was extended to the
appellants.
3. The complainant in this cas e being aggrieved by the impugne d judgment to the extent of
quantum of sentences, filed a connected criminal revision petition under section 435, 439,
Cr.P.C. for enhancing the punishment of impr isonment awarded to the petitioners/convicts
(appellants/accused hereinafter).
4. Precisely, the relevant facts are that the appellants/accused along with absconding
accused were alleged to have launched an assault upon the complainant and his companions. Resultantly, an F.I.R. No.5 of 2011 was regist ered by the complainan t under sections 324,337-
ADF read with sections 148/149 P.P.C., with Levies Thana, Dasht on 11th February, 2011,
averring therein that he along with his other companions after atte nding the Court of the Judicial
Magistrate, Dasht, were having tea at nearby hotel, when the appella nts/accused along with
absconding accused came in two vehicles and made a violent attack upon them, in consequence
whereof, the complainant and his companions su stained various grievous and serious injuries,
allegedly by means of firearm, dagger; iron rods and Lathis. The appellant accused were arrested
on various dates and challan against them was submitted before the trial Court. The prosecution in order to substantiate the char ge produced as many as nine witne sses. On conclusion of the trial
the statements under section 342, Cr.P.C. were recorded, wherein, they once again professed
their innocence. None of them entered in hi s defence on oath. However, the accused Abdul
Quddoos and Ali Jan produced two defence witnesse s regarding their absen ce from the place of
occurrence. The learned trial Court on conclu sion of trial convicted and sentenced the
appellants/accused in th e above stated terms.
5. Mr. Abdullah Baloch, learned counsel for the appellants/accused, while assailing the
impugned judgment pointed out that initially charge was framed against the appellants/accused
under section 324 of the P.P.C. (attempt to Qa tl-e-Amd) but in the impugned judgment without
any prior notice, the lear ned trial Court drew the conclusion th at the section 324 of the P.P.C. did
not attract, but a conviction was recorded a nd appellants/accused we re sentenced without
alteration of charge. He stated that the manne r and procedure adopted by the trial Court has
caused a serious prejudice to the appellants/ac cused, when they were misled by the charge
framed against them, which is against the settled norms of administration of criminal justice. He
referred to a medical certificat e Exh.P/2-D of the injured Nas eer Ahmed (P.W.5), which shows
the fracture of right leg by mean s of blunt weapon but the witne ss himself was silent about any
such injury. He added th at the whole family members of the appellants/accused were nominated
but none was assigned any specific role. He stated that the alleged occurrence was shown to have taken place at a hotel but nobody has come forw ard to support the allegation. He finally
submitted that the ocular account was not in line w ith medical evidence. Therefore, the benefit of
doubt should have been extended to the appellants/accused, whic h was withheld by the learned
trial Court against the principles of natural justice. He urged for acquittal of the
appellants/accused by setting aside the impugned judgment.
6. Mr. Ahmadullah, Advocate while opposing the contentions stated that once the learned
trial Court drew the conclusion that prosecution has proved its case to the hilt, then no occasion
was available to the court to pass a lesser puni shment without giving a ny reasons and without
discussing mitigating circumstances for not aw arding the punishment as prescribed under the
law. He finally submitted that the conviction and sentence recorded ag ainst the appellants/
accused may be enhanced to the maximum term and the appeal may he dismissed after accepting
the criminal revision petition for enhancement.
7. Mr. Liaquat Ali, learned counsel appear ing for the State has supported the impugned
judgments and did not say anything about the e nhancement of sentence. He was of the stance
that the conviction and sentence passed against the appellants/accused is sufficient and the same
does not require any interference. He finally requested for dismi ssal of both the petition and the
appeal.
8. I have heard the learned counsel for the part ies and have carefully examined the record.
First, I will take up the legal aspect of the cas e. The learned counsel for the appellants/convicts
has urged that firstly, the tria l Court did not frame the charge in accordance with law and
secondly, without alteration of charge the convict ion was recorded. The objections of the learned
counsel for the appellants/ convicts are not suppo rted by law. The provision of subsection (2) of
section 238, Cr.P.C. applies, which bei ng relevant is reproduced here under:--
"238. When offence proved included in offence charged.
2. When a person is charged with an offence and facts are proved, which reduce it to a
minor offence, he may be convicted of the minor offence, although he is not charged with it."
The provision quoted supra leaves no ambigu ity to understand a true aspect of the
proposition. It manifests that when the accused is charged for a major offence which entails a
longer term of punishment, but a minor offence was proved which entails a shorter term of
punishment, he can be convicted of minor offen ce but an accused charged for a minor offence
cannot be convicted of a major offence, subject to the limitations of sect ion 227 as contained in
Chapter XIX of Cr.P.C. Moreove r, a perusal of sections 225 , 232, 535 and 537, of Cr.P.C. show
that every conceivable type of error and irregulari ty referable to a charge that can possibly arise
can be cured. The Code of Criminal Procedure is emphatic that whatever the irregularity may be
is id not to be regarded as fatal unless there is prejudice. Reference is made to the Imran Ashraf's
case 2001 SCMR 424, Nadir Shah's case 1980 SCMR 402.
9. In this case initially the cognizance was ta ken under section 324 read with sections 147,
148 and 149, P.P.C. The learned tr ial Court after evaluating the evidence on record concluded
that the section 324, P.P.C. does not attract because the evidence so brought was neither
suggesting nor establishing the offence of attemp t to Qatl-e-Amd punishable under section 324,
P.P.C., which was discussed elaborately, ther efore, the contention about non-reading and
misreading of evidence is not impressive and conc lusion drawn by the trial Court is according to
principles of appreciation of evidence.
10. Yet, the provision of section 149, P.P.C. hi nged as a counter product of the main offence
and the same is required to be pondered in view of dictum laid down by the Hon'ble Apex Court.
Keeping in view the well-settled principle of appreciation of evidence known as 'sifting
grains from chaff' I have obs erved that a number of persons were nominated towards the
commission of offence but a role of firearm in jury sustained by injured Muhammad Din (P.W.6)
was attributed to the appellant Muhammad Yunu s only. The role of inflicting a dagger blow
sustained by the injured witness Nasir Ahme d was assigned to absconding accused Mehboob Ali,
while in respect of the injuries sustained by complainant Abdul Quddoos and injured P.Ws.
(Qutab Khan and Ismail) to the extent of abrasion and pain, except naming all the accused persons no role was assigned to any one of them. In addition, the allegation of constituting
unlawful assembly in furtherance of their comm on object is levelled against the appellants/
accused and the absconding accused. The deposition of Dr. Muhammad Jafer (P.W.2) is relevant for determining the liability of each accused accord ing to a role played by him, which would or
would not bring his case within the ambit of sec ond part of section 149, P.P.C. The P.W.2
describes the injuries of witn ess Muhammad Din as follows:--
"1. Gun shot wound entrance on right Arm latterly.
1. # right Humerus and swelling.
2. Abrasion on left cheek.
3. Lacerated wound on left cheek. 2-1/2 cm Deep lower eye.
X-Ray of right humerus shows fracture. The patient was referred to orthopedic ward but
he was declared lamba i.e. he left the ward against the medical advice.
Nature of injuries : Grievous.
Duration : Fresh
Kind of weapon : Gun shot and Blunt"
Whereas the injuries stated to have sustaine d by witness Nasir Ahmed are described as under:
"1. Complaint of pain (COP) on left shoulder joint.
2. Complaint of pain (COP) on left hand.
3. Abrasion on left thigh.
4. Lacerated wound on parietal region.
5. Swelling on left posterior chest.
6. Swelling on left leg.
X-Ray fracture seen in Tibia Fibula.
No fracture seen in left hand and shoulder.
Nature of injuries : Grievous.
Duration : Fresh.
Kind of weapon : Blunt."
The witness (P.W.6) Muhammad Din was shown to have injured due to bullet shot made
by the appellant Muhammad Yunus, resulted into fracture of his right arm 'Humerus "(a bone
extended from the shoulder to the elbow) thus, he al one could be held respons ible for this injury,
while, rest of his injuries come with in first part of section 149, P.P.C.
The witness Nasir Ahmed was shown to have sustained injuries, wherein, the fracture of
'tibia'/shinbone (The inner and thicker of the two bones of the human leg) and 'fibula'/calf bone (the outer and thinner of the two bones of human leg, between the knee and ankle) is stated to
have been caused by means of blunt weapon. Th e role for causing the said injury cannot be
attributed to anyone, as the witness himself is silent about the injury. The lacerated wound on his
temporal region (the side of the skull behind th e orbit) could not be caused by means of dagger
blow, but the absconding accused viz Mehboob Ahmed, who was alleged to have caused injuries
was not arrested. In view of the second part of section 149, P.P.C., none else but the person
responsible for causing that injury can only be held responsible, the rest of the injuries caused to
the said witness would fall within the ambit of first part of section 149, P.P.C. Thus, the
appellants Abdul Qudoos, Ali Jan and Muhamma d Farooq could not be held responsible for
injuries sustained by means of firearm and dagger blow, however injuries of abrasion and bruises
caused to injured witnesses are alt hough minor in nature bu t these injuries can be considered as a
counter product of unlawful assembly constitute d in furtherance of unlawful object, therefore,
every member of the unlawful assembly coul d be held responsible for these injuries.
11. The reappraisal of the evidence made herein above brings me to the conclusion that
injuries relating to hurts without exposing bone of the victim are 'Shajjah-i-Khafifah', which are
punishable under section 337-A(i), P.P.C. The hurt, like abrasion and bruises fall within the
ambit of 'other hurts', punishable under subsecti on (2) of section 337-L, P.P.C. The like fracture
of 'Humerus' (a bone ex tending from the shoulder to the elbow of the human arm) is 'Ghair-
Jaifah-hushimah', which is punishable under s ection 337-F(v) P.P.C. The appellants/accused
after constituting an unlawful assembly in furt herance of their common object made a violent
attack upon the complainant party, therefore, th ey were rightly held responsible towards the
commission of offence. The perusal of sectio n 149, P.P.C. manifests that an accused, who is
found to be a member of an unlawful assembly can be convicted of lesser offence if under the
second part, it is clear that he was aware that su ch a lesser offence is likely to be committed in
furtherance of their common object , although some members of the assembly may have travelled
beyond that object and committed a grave offence. T hus a distinction shall necessary be kept in
mind and an offender who has travelled beyond the object of unlawful assembly will be dealt
separately as according to part played by him.
12. When adverting to the question of sentence awarded to the appellant s/convicts the dictum
laid down by the Hon'ble Apex Court in the case of Haji Maa Din v. The State 1998 SCMR 1528
is helpful, wherein the Hon'ble Apex Court ha s laid down the guidelin es and factors to be
considered for awarding Ta'zir in hurt cases, it leads me to the conclusion that the case of appellants is covered by subsection (2) of se ction 337-N, P.P.C. Thus, keeping in view the
principles enunciated in the judgment supra I am, of the considered view that there is nothing
available on the record of this case to establish that the appellant s/convicts had any credentials or
antecedents of being "a previous convict, ha rdened or habitual, desperate or dangerous
criminals", thus, their case falls within the ambit of sectio n 337-N(2), P.P.C.
The occurrence in this case had take n place about three years ago and the
appellants/accused have been faci ng the agony and anguish of a trial. They have repeatedly been
in and out of the prison during all this while.
Therefore, the criminal revision filed by th e complainant for enhancement of sentence,
cannot be entertained unless otherwis e established that the case falls within the proviso to section
337-N(2), P.P.C. As the conditions for awarding Ta 'zir in case of hurt are not available on
record, the contention of the lear ned counsel for the complainant that once the case is proved, the
accused shall necessarily be awarded a punishment of imprisonment for maximum term, does not
find any space in law. Hence, does not carry any weight.
Consequently, this appeal is partly allo wed and the sentences of rigorous imprisonment
of two years under section 337-F(iii) and 4 year s under section 337-F(vi) P.P.C. are set aside,
however, the appellant Muhammad Yunus shall remain convicted under section 337-F(v), P.P.C.
and sentenced to pay an amount of Rs.30,000 (R upees thirty thousand only) to the injured
Muhammad Din as Daman and in default he shall suffer Simple Imprisonment of six months. In
addition, the appellant Muhamm ad Yunus, Abdul Qudoos, Ali Jan and Muhammad Farooq are
convicted under section 337-A(i) read with section 149 P.P.C. and sentenced to pay Daman of
Rs.5000 each (total amounting to Rs.20,000), which sh all be distributed between the injured
witnesses. In default, they shall suffer Simp le Imprisonment for one month. The appellants are
further convicted under section 337-L(2) read with section 149, P.P.C. and sentenced to pay
Daman of Rs.5000 each (total amounting to Rs. 20,000), which shall be distributed between the
injured witnesses. In default, they shall suffer Simple Imprisonment for one month.
The appellants are on bail, they are direct ed to pay the amount of Daman prescribed
hereinabove to the injured witnesses within a peri od of one month. Copy of this judgment is to
be transmitted to the learned trial Court with di rections to the appellants/accused to deposit the
amount of Daman in the trial Court, which shal l summon the injured witnesses and pay the same
to them. Till payment of Daman the bail bonds of the appellants shall remain intact.
For the foregoing reasons, the Criminal A ppeal No.69 of 2012 is partly accepted with
above modification, while the Criminal Revision No.163 of 2012 for enhancement of sentence is
dismissed accordingly.
HBT/16/Bal Order accordingly.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.