2008 PLP 524 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This appeal is directed against the judgment, dated 30-9-2004 passed by the learned Additional Sessions Judge, Khushab, whereby, after having tried the appellants, they were convicted and sentenced which convictions and sentences, at page 33 of the impugned judgment are reproduced asunder:

(i) All the appellants were convicted under section 148, P.P.C. and sentenced to R.I. for one year each; (ii) All the appellants were further convicted under sections 324/149, P.P.C. and sentenced to R.I. for five years and a fine of Rs.10,000 each in default whereof to undergo S.I. for two months; (iii) Appellant Khyzar Hayat was convicted under section 337-F(ii), P.P.C. and sentenced to R.I. for 1-1/2 years as Tazir with daman of Rs.1,000; (iv) Appellant Umar Draz was convicted under section 337-A(i), P.P.C. and sentenced to R.I. for one year as Tazir with Daman of Rs.1,000; (v) Appellant Imtiaz was convicted under sections 337-A(i) and 337-A(ii), P.P.C. and sentenced to R.I. for one year as Tazir with Daman of Rs.1,000 and to pay Arsh of 5% of the Diyat amount and imprisonment for 2-1/2 years R.I. as Tazir; (vi) Appellant Muhammad Fayyaz was convicted under sections 337-A(ii) and 337-L(ii), P.P.C. and sentenced to pay Arsh of 5% of the Diyat amount and imprisonment for 2-1/2 years' R.I. as Tazir with Daman of Rs.1,000 and R.I. for one year respectively; (vii) Appellant Muhammad Charagh was convicted under sections 337-A(ii) and 337-F(vi), P.P.C. and sentenced to pay Arsh of 5% of the Diyat amount and imprisonment for 2-1/2 year' R.I. as Tazir with Daman of Rs.1,000 and imprison ment for 3-1/2 years. Tazir while under section 337-L(ii), P.P.C. He was sentenced to pay Daman of Rs.1,000 and R.I. for one year as Tazir; (viii) Appellant Muhammad Hayat was convicted under section 337-A(ii), P.P.C. and sentenced to pay Arsh of 5% of the Diyat amount and imprisonment for 2-1/2 years' R.I. as Tazir, under section 337-F(vi), P.P.C. and 337-L(ii), P.P.C. to pay Daman of Rs.1,000 and imprisonment for 3-1/2 years Tazir and R.I. for one years as Tazir respectively; (ix) Appellant Muhammad Hussain was convicted under sections 337-A(i), P.P.C. 337-A(ii), P.P.C., 337-L(ii) and 337-F(i), P.P.C. and sentenced to pay Arsh of 5% of the Diyat amount and imprisonment for 2-1/2 years' R.I. as Tazir, Daman of Rs.1,000 and imprisonment for one year each injury under section 337-A(i), P.P.C. Daman of Rs.1,000 and imprisonment for one years R.I. under section 337-L(ii), P.P.C. to pay a Daman of Rs.1,000 and imprisonment for six months' R.I. under section 337-F(i), P.P.C. respectively; (x) Appellants Khyzar Hayat, Zafar Hayat and Muhammad Sarfraz were convicted under section 302(c), P.P.C. and Khyzar Hayat and Muhammad Sarfraz appellants were sentenced to imprisonment for fourteen years' R.I. each while Zafar Hayat appellant to R.I. for ten years with a fine of Rs.50,000 each in default whereof to further S.I. for six months' S.I. each; (xi) All the sentences were directed, to run concurrently and benefit of section 382-B Cr.P.C. was extended to them.

2. Brief facts of the case, as given by the complainant Muhammad Riaz in the private complaint are that both the parties are closely related with each other, complainant had installed an electric meter at the Dera of one Noor Muhammad from where both the parties had taken connections of electricity, on 1-10-2001 the WAPDA cut both the connections, on 2-10-2001 his connection was restored but not of accused party who tried to get it restored on 3-10-2001, an altercation took place, on 3-10-2001 at about Degarwela he along with Muhammad Hussain etc. were present at the Dera of Muhammad Hussain where the accused emerged while armed with Sotas and hatches, attacked them and caused injuries, fired to get the case registered but of no avail because Khaliq Dad lost his life.

3. A private complaint was filed in which report under section 202, Cr.P.C. was submitted, charge was framed upon which accused denied 'the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced 9 'prosecution witnesses during the trial.

4. Learned counsel for the appellants in support of this appeal submits that the offence was not committed with pre-concert or pre-meditation, occurrence took place at the spur of the moment over installation of an electric meter and its wire, it was not an intentional murder, that the appellants having fire-arms and hatchets ,did not use them, both the parties suffered loss, four from the appellant side while eight from the complainant side were injured appellant Zafar Hayat was convicted under sec tion 302(c), P.P.C. to ten years' R.I. while no justification was with the learned Trial Court to convict Khyzar Hayat and Sarfraz to fourteen years' R.I. under the same section and that it would be in the interest of justice if sentence of Khyzar Hayat and Sarfraz is reduced to ten years' R.I. while to the extent of the remaining appellants is undergone while conviction of the appellants under section 324, P.P.C. is not warranted under the law.

5. On the other hand complainant's learned counsel submits that it is a case of promptly lodged F.I.R. there was no reason for false implication, the appellant party was found to be the aggressor one, the ocular account in this case is corroborated by the medical evidence which was further supported from the recovery of weapons of offence, the appellants were rightly convicted and sentenced but conceded that if this Court reduces the sentence of Khyzar Hayat and Sarfraz to ten years' R.I. to make it parallel with Zafar Hayat while maintaining it under section 302(c), P.P.C. and is undergone to the extent of the others, he would have no objection to the same.

6. I have heard learned Counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the, bar by the learned counsel for the parties.

7. The occurrence had taken place on 4-10-2001 at 3-00 a.m. at night, distance between the place of occurrence and the police station is 23 Kilometers, deceased is Khaliq Dad along with eight injured.

8. Appellants party had a cross-version qua injuries on their four persons whose injuries were not explained either in the F.I.R. or before the learned Trial Court because it was only mentioned in the F.I.R. that four persons from the appellants' party also received injuries.

9. The learned Trial Court has found it a "case of free fight", so, appellant Zafar Hayat was convicted under section 302(c), P.P.C. to ten years' R.I. while Khyzar Hayat and Sarfraz were sentenced to fourteen years' R.I. under the same section while the remaining appellants were convicted and sentenced under different counts.

10. There are three sharp-edged weapon injuries on the person of the deceased while four are with blunt weapons as per P.W.11, the doctor who had conducted the post-mortem examination. Although no distinction is apparent, but the learned Trial Court has awarded fourteen years' R.I. to Khyzar Hayat and Sarfraz while ten years' R.I. to Zafar Hayat with a fine of Rs.50,000 each to the said three appellants/convicts, therefore, I am in agreement with the argument of the learned counsel for the appellants that the sentence of Khyzar Hayat and Sarfraz; which is rather harsh, be reduced to ten years R.I. to make it parallel with the case of Zarfar Hayat appellant coupled with reduction in the amount of fine. Therefore, the sentence of fourteen years' R.I. of Khizar Hayat and Sarfraz appellants is reduced to ten years R.I. while amount of fine of Rs.50,000 is reduced to Rs.25,000 to the extent of the said three appellants each. Apart from above, the remaining conviction and sentences awarded to the said three convicts shall remain intact with benefit of section 382-B, Cr.P.C. and shall run concurrently.

11. So far as case of remaining appellants is concerned, their convictions and sentences are treated to be undergone, which is not seriously opposed by the learned counsel for the complainant. Their sentences in the form of Daman, Arsh and Diyat etc., or fine shall remain intact and it is directed that those appellants who are already on bail shall pay the same within a period of one month otherwise they shall be taken into custody to realize the same. The appellants who are in jail shall be released subject to realization of the amounts of Daman, Arsh and Diyat etc. This appeal stands disposed of in, the above-noted terms while Criminal Revision No.984/2004 filed for enhancement of sentence of the appellants is dismissed in view of the observation made above. H.B.T./K-37/L Order accordingly.