1984 P Cr (PLP)

(c) Penal Code (XLV of 1860)- --Ss. 307/34-Sentence-Age-Accused persons aged 18 and 13 years at time of commission of offence-Taking into consideration their ages and other facts sentence reduced from 7 years to 4 years in circumstances of case. Sardar Muhammad Latif Khan Khosa for Appellants. Mian Mushtaq Hussain for the State. Date of hearing : 29th September, 1981. Allah Ditta and his three sons Khalid Farooq, Mahmood Akhtar and Mahmood Asghar were tried by Syed Anwar Hussain, Magistrate Section 30, Faisalabad, under sections 307, 325, 326, 34, P. P. C. for causing injuries to and making attempt on the lives of Ghulam Rasool, Muhammad Afzal and Muhammad Aslam P. Ws. The learned trial Magistrate, by his judgment dated 30th November, 1980, convicted all the accused under section 307/34, P. P. C., Mahmood Akhtar, Mahmood Asghar and Khalid Farooq accused under section 326/ 34, P. P. C. and sentenced Allah Ditta accused to six months' rigorous imprisonment. Mahmood Akhtar and Mahmood Asghar accused to seven years'-R. I. each and Khalid Farooq accused to four years' R. I. under section 307/34, P. P. C. and Mahmood Akhtar and Mahmood Asghar accused to six years' R. I. each and Khalid Farooq accused to four years' R. I. under section 326/34, P.P.C. Mahmood Akhtar and Mahmood Asghar were directed to pay Rs. 1,500 each as compensation under section 544-A, Cr. P. C. to the three injured P. Ws. or their heirs or in default thereof to suffer six' months' R. I. each and Khalid Farooq was directed to pay Rs. 900 as compensation under the same section to the same three injured witnesses or their heirs or in default thereof to suffer four months' R, I. The period of detention suffered by the four convicts in jail was ordered to be treated as period of detention spent by them as convicts. Since the convictions were not ordered to run concur rently, under section 35, Cr. P.C. it must be assumed' that they were ordered to run consecutively. The joint appeal of the convicts is now before me for disposal.

2. The brief facts of the case are that on 1st May, 1979 at 11-00 a.m. in the area of Chak No. 468/GB, Tehsil Sammundri, District Faisalabad, Ghulam Rasool, alongwith Muhammad Afzal and Muhammad Asian, was present for harvesting the wheat crop in his field, when suddenly, the above accused came over there. Allah Ditta was armed with a .i2 bore gun, Khalid Farooq had kassi with him, whereas Mahmood Akhtar and Mahmood Asghar were holding hatchets in their hands Allah Ditta raised a lalkara that Ghulam Rasool should not escape today. The other accused in the meantime attacked Ghulam Rasool. Mahmood Akhtar and Mahmood Asghar gave repeated, hatchet blows with blunt sides of their hatchets on the head of Ghulam Rasool. He tried to save himself and in doing so he received injuries on, his left hand and arm. Asghar Mahmood gave a hatchet blow on the back of Ghulam Rasool with its sharp-edge, Ghulam Rasool fell on the ground and when he was so on the ground, Khalid Farooq accused pave kassi blows on his left ankle, on the back of the left foot acid chest. Muhammad Afzal tried to save Ghulam Rasool and he was given hatchet blows on his head by Mahmood Akhtar and Mahmood Asghar with blunt sides. He was struck in the left shoulder with sharp side of the hatchets also. He fell on the ground and he was injured by Khalid Farooq by kassi and received injuries on his left leg and right foot. He was given ruthless blows on chest, right and left arms, stomach and left leg. When Muhammad Aslam tried to save others, he received hatchets blows at the hands of Mahmood Asghar and Mahmood Akhtar with blunt side of their hatchets on the head. When he tried to save himself, both the accused gave sharp-edged blows with their hatchets on his left hand. He fell on the ground and whilst on the ground he was attacked by Khalid Farooq with kassi, who gave him blows on his left leg, etc. At the same time, he was given hatchet blows by Mahmood Asghar and Mahmood Akhtar on the right leg. Allah Ditta accused constantly raised lalkaras at that time. The occurrence was witnessed by Ahmad Hussain and Abdul Aziz. The motive for the occurrence was a case of theft registered by Ghulam Rasool against accused and litigation in respect of acre No. 5 of Square No.

26. Ahmad Hussain gave his statement to the police with regard to this occurrence and a case vide F. I. R. No. 93 dated Ist May, 1979 under sections 325, 326, 307/34, P.P.C. was registered at P. S. Sammundri. After necessary investigation, the accused were challaned and sent up for trial.

3. Ghulam Rasool P. W. 2, Muhammad Afzal P. W. 3 and Muhammad Adam P. W. 4, who were severally injured, were medically examined by Dr. Ghulam Rasool P. W. 8 on 1st May, 1979 at 2-00 p. m. Ghulam Rasool P. W. 2 had seven contused wounds and four incised wounds on various parts of his body. Two of the incised wounds were grievous and one contused wound was grievous. Muhammad Afzal P. W. 3 had eight contused wounds and four incised wounds on various parts of his body of which one incised and one contused wound were grievous. Muhammad Aslam P. W. 4 had four contused wounds and eight incised wounds on various parts of his body, of which one contused wound and six incised wounds were grievous.

4. It is not necessary to detail further facts as the learned counsel for the appellants does not challenge the participation and liability of Mahmood Akhtar, Mahmood Asghar and Khalid Farooq, appellants with regard to the injuries caused, but only presses for the acquittal of Allah Ditta, appellant, as he was old and aged and was not attributed any overt act in the incident except a lalkara, and the alteration and reduction of the sentences of the remaining three appellants. In view of the state ment made by the learned counsel for the appellants in the said connec tion, I will only deal with the contentions raised by the learned counsel in this respect. From the ocular testimony of eye-witnesses, it is clear that Allah Ditta, appellant, is only imputed to have raised lalkara exhorting his sons to injure Ghulam Rasool P. W. 2, etc. He is alleged to be present with a .12 bore gun. However, nobody has stated that he even fired the said gun in the air in order to frighten or keep away Ghulam Rasool's nephews or other eye-witnesses when they tried to rescue Ghulam Rasool P. W. 2, who was the initial target of attack. If he had come with his sons to settle old scores existing between him and Ghulam Rasool P. W. 2, he would most assuredly have fired at or injure Ghulam Rasool P. W. 2, if not anybody else. Allah Ditta appellant, who was about 59 years old at the time of incident, appears to have been falsely roped in. His presence at the spot appears to be doubtful. For the purpose of safe dispensation of justice, he is entitled to the benefit of doubt. His conviction and sentence under section 307/34, P. P. C. are not proper and are therefore, set aside. As regards the convictions of Mahmood Akhtar, Mahmood Asghar and Khalid Farooq, appellants, under sections 307/34 and 326134, P. P. C., the same, both together, cannot sustained, by virtue of section 71 of the Pakistan Penal Code The Conviction of the three appellants, therefore, under section 307/34, P. P. C is maintained, whereas that under section 326, 34, P.P.C. and the sentences awarded in respect thereof are set aside. As regards the sentences award ed to Mahmood Asghar and Mahmood Akhtar, appellants, under section 307/34, P. P. C.; the same appear to be rather excessive. As the time of the incident, Mahmood Akhtar; appellant, was 18 years old and Mahmood Asghar, appellant, was 13 years old. Taking into con sideration their ages and other factors, the ends of justice would be C met if the sentences of Mahmood Akhtar and Mahmood Asghar, appel lants, are reduced to four years rigorous imprisonment each. The compensation imposed on Mahmood Akhtar, Mahmood Asghar and Khalid Farooq, appellants, by the trial Magistrate shall stand and be payable to the three injured prosecution witnesses or their heirs, as already ordered.

5. In view of the above, the appeal of-Allah Ditta, appellant, is accepted. His conviction and sentences under section 307/34, P. P. C. are hereby set aside. Allah Ditta, appellant, is on bail. His bail bond shall stand discharged. The appeals of Mahmood Akhtar, Mahmood Asghar and Khalid Farooq, appellants, are partly accepted. Their convic tion and sentence under section 326, 34, P. P. C., set aside but their conviction under section 307, 34, P. P. C. is maintained and whilst the sen tences of Mahmood Akhtar and Mahmood Asghar, appellants stand reduced to four years' rigorous imprisonment each, the sentence of four years' rigorous imprisonment imposed on Khalid Farooq, appellant, by the trial Magistrate, is maintained. In view of section 382-B, Cr. P. C. the periods of detention undergone by Mahmood Akhtar, Mahmood Asghar, and Khalid Farooq, appellants, as under-trial prisoners, shall be treated as detention undergone by them as convicts. M. Y. H. Order accordingly.