Penal Code (XLV of 1860)--
---Ss. 325 & 324--Criminal Procedure Code (V of 1898), S.439--Accused alone caused injuries with right and wrong side of Toka to victim- Accused, held, could be convicted only under S.324, P.P.C. and not separately under S.325, Penal Code as minor offence merged in major offence--Conviction of accused under S.325, Penal Code, set aside but maintained under S.324, Penal Code, and his sentence of imprisonment reduced.
Malik Amjad Pervaiz for Petitioner.
Ashfaq Bokhari for the State.
Date of hearing: 8th July, 1987.
NAZIR AHMAD VS The STATE1987 M L D 1122[Lahore]Before Khizar Hayat, JNAZIR AHMAD--PetitionerVersusThe STATE--RespondentCriminal of.247 of 1987, heard on 08/01/.
---Ss. 325 & 324--Criminal Procedure Code (V of 1898), S.439--Accused alone caused injuries with right and wrong side of Toka to victim- Accused, held, could be convicted only under S.324, P.P.C. and not separately under S.325, Penal Code as minor offence merged in major offence--Conviction of accused under S.325, Penal Code, set aside but maintained under S.324, Penal Code, and his sentence of imprisonment reduced.
Malik Amjad Pervaiz for Petitioner.
Ashfaq Bokhari for the State.
Date of hearing: 8th July, 1987.
JUDGMENT
This revision petition has been filed by Nazir Ahmad s/o Nawab Din, caste Rajput, No Qila Shabdev, district Sheikhupura, challenging the legality, correctness and propriety of Additional Sessions Judge's order dated 17-5-1987, dismissing his appeal filed against his conviction and sentence recorded under sections 325 and 324 PPC by Judicial
Magistrate Sheikhupura, vide order dated 30-11-1986.
2. According to prosecution, Nazir Ahmad petitioner, developed illicit relations with Mst. Rashida Bibi, wife of Barkat Ali. Her husband refrained the petitioner to visit Mst. Rashida Bibi but he threatened Barkat Ali with dire consequences. On 28-10-1984 at about 6.30 a.m. Barkat Ali was returning home after Fajar prayer from the mosque. When he reached near the house of Wali Muhammad Rajput, the petitioner armed with Toka attacked him and inflicted him four injuries, two on the left arm, one at the back of left hand and one on the right buttock. The occurrence was witnessed by Mst. Anwar Bibi, Mukhtar Ahmad and Inayat. Barkat Ali was medically examined at Civil Hospital Shahkot by Dr.Muhammad Ishaq Kambu (PW 5). The occurrence was reported at Police Station Mananwala on 29-10-1984 at about 4.30 p.m. by Mst. Anwar Bibi with delay of one day because the accused party had been trying for compromise. The case was
investigated by Bashir Ahmad ASI (PW 6), who arrested the petitioner and having completed the investigation challaned him to Court.
3. The prosecution relied on the evidence of Mst. Anwar Bibi (PW1), the complainant, Inayat Shah (PW 2) and Barkat Ali, the injured witness (PW4). They supported the prosecution case whole heartedly, Dr. Muhammad Ishaq (PW 5) proved the injuries which he had noted on the person of Barkat Ali injured PW. According to him, the injury on the left hand was found to be grievous.
4. The petitioner in his statement under section 342, Cr.P.C. denied the allegation levelled against him. He explained that he has been falsely implicated in a cooked up story due to previous enmity. However, he did not produce any evidence in defence.
5. Learned trial Court on detailed examination of the evidence on record found the testimony of the eye-witnesses, -namely, Mst. Anwar Bibi, Inayat Shah and the injured witness Barkat Ali worthy of reliance and truthful and convicted him under sections 325 and 324 PPC and sentenced him to undergo two years' R.I. and a fine of Rs.2,000 or in default of payment of fine to undergo 6 months' R.I. under section 325 PPC, and to R.I. for one year and a fine of Rs.3,000 or in default to undergo further R.I. for three months under section 324, P.P.C. and ordered that both the sentences shall run concurrently, and half of the fine, if recovered, shall be paid to Barkat Ali injured.
6. An appeal against the conviction and sentence was preferred to Sessions Judge Sheikhupura, which was decided by learned Additional Sessions Judge, vide order dated 17-5-1987, whereby he altered the conviction under section 325 to one under section 323 PPC for the reason that Radiologist had not appeared to prove the fracture underneath the injury found by him in the X-ray and consequently he reduced the sentence to one year R.I. However, he maintained the conviction and sentence under section 324, P.P.C., directing that both the sentences shall run concurrently. Feeling aggrieved the instant petition has been filed.
7. At the outset I find that since the petitioner alone caused injuries with right and wrong side of Toka to Barkat Ali, therefore, 'he could be convicted only under section 324, P.P.C. and not A separately under section 325, P.P.C. because the minor offence merges into the major offence. Consequently, I would set aside the conviction under section 325, P.P.C. and maintain the conviction under section 324, P.P.C.
8. This brings me to the question of sentence. Keeping in view all the circumstances of the case, I find that 6 months' R.I. and a fine of Rs.2,000 on in default in the payment thereof to three months' B R.I. for the offence under section 324, P.P.C. would be enough to meet the ends of justice. Benefit of the provision of sections 382-B, Cr.P.C shall also be given to him. Revision petition is partly accepted in terms indicated above.
M.Y.H/N-65/L.Petition partly accepted.
This revision petition has been filed by Nazir Ahmad s/o Nawab Din, caste Rajput, No Qila Shabdev, district Sheikhupura, challenging the legality, correctness and propriety of Additional Sessions Judge's order dated 17-5-1987, dismissing his appeal filed against his conviction and sentence recorded under sections 325 and 324 PPC by Judicial
Magistrate Sheikhupura, vide order dated 30-11-1986.
2. According to prosecution, Nazir Ahmad petitioner, developed illicit relations with Mst. Rashida Bibi, wife of Barkat Ali. Her husband refrained the petitioner to visit Mst. Rashida Bibi but he threatened Barkat Ali with dire consequences. On 28-10-1984 at about 6.30 a.m. Barkat Ali was returning home after Fajar prayer from the mosque. When he reached near the house of Wali Muhammad Rajput, the petitioner armed with Toka attacked him and inflicted him four injuries, two on the left arm, one at the back of left hand and one on the right buttock. The occurrence was witnessed by Mst. Anwar Bibi, Mukhtar Ahmad and Inayat. Barkat Ali was medically examined at Civil Hospital Shahkot by Dr.Muhammad Ishaq Kambu (PW 5). The occurrence was reported at Police Station Mananwala on 29-10-1984 at about 4.30 p.m. by Mst. Anwar Bibi with delay of one day because the accused party had been trying for compromise. The case was
investigated by Bashir Ahmad ASI (PW 6), who arrested the petitioner and having completed the investigation challaned him to Court.
3. The prosecution relied on the evidence of Mst. Anwar Bibi (PW1), the complainant, Inayat Shah (PW 2) and Barkat Ali, the injured witness (PW4). They supported the prosecution case whole heartedly, Dr. Muhammad Ishaq (PW 5) proved the injuries which he had noted on the person of Barkat Ali injured PW. According to him, the injury on the left hand was found to be grievous.
4. The petitioner in his statement under section 342, Cr.P.C. denied the allegation levelled against him. He explained that he has been falsely implicated in a cooked up story due to previous enmity. However, he did not produce any evidence in defence.
5. Learned trial Court on detailed examination of the evidence on record found the testimony of the eye-witnesses, -namely, Mst. Anwar Bibi, Inayat Shah and the injured witness Barkat Ali worthy of reliance and truthful and convicted him under sections 325 and 324 PPC and sentenced him to undergo two years' R.I. and a fine of Rs.2,000 or in default of payment of fine to undergo 6 months' R.I. under section 325 PPC, and to R.I. for one year and a fine of Rs.3,000 or in default to undergo further R.I. for three months under section 324, P.P.C. and ordered that both the sentences shall run concurrently, and half of the fine, if recovered, shall be paid to Barkat Ali injured.
6. An appeal against the conviction and sentence was preferred to Sessions Judge Sheikhupura, which was decided by learned Additional Sessions Judge, vide order dated 17-5-1987, whereby he altered the conviction under section 325 to one under section 323 PPC for the reason that Radiologist had not appeared to prove the fracture underneath the injury found by him in the X-ray and consequently he reduced the sentence to one year R.I. However, he maintained the conviction and sentence under section 324, P.P.C., directing that both the sentences shall run concurrently. Feeling aggrieved the instant petition has been filed.
7. At the outset I find that since the petitioner alone caused injuries with right and wrong side of Toka to Barkat Ali, therefore, 'he could be convicted only under section 324, P.P.C. and not A separately under section 325, P.P.C. because the minor offence merges into the major offence. Consequently, I would set aside the conviction under section 325, P.P.C. and maintain the conviction under section 324, P.P.C.
8. This brings me to the question of sentence. Keeping in view all the circumstances of the case, I find that 6 months' R.I. and a fine of Rs.2,000 on in default in the payment thereof to three months' B R.I. for the offence under section 324, P.P.C. would be enough to meet the ends of justice. Benefit of the provision of sections 382-B, Cr.P.C shall also be given to him. Revision petition is partly accepted in terms indicated above.
M.Y.H/N-65/L.Petition partly accepted.
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