2020 PLP 1006 (YLR)

MUHAMMAD WAHEED KHAN, J- This judgment shall dispose of Cr. Revision No.173 of 2017 filed by the petitioner (against his conviction and sentence) and Cr. Misc. No.5119-M of 2017 filed by Amjad Abbas complainant for enhancement of sentence of respondents Nos.2 to

5. As both the matters have arisen out of a same judgment dated 18.02.2016 passed by the learned trial Court in case FIR No.121 dated 05.04.2012 offences under sections 324/ 109/ 337-D/ 337-F(i), F(iii)/34, P.P.C. registered at Police Station Bhera, Tehsil Bhalwal District Sargodha, whereby the petitioner was convicted and sentenced as under;-- (i) Under section 324/34, P.P.C. awarded six years rigorous imprisonment and fine of Rs.40,000/-, in default thereof, he was ordered to further undergo one month simple imprisonment. (ii) Under section 337-D/34, P.P.C. ordered to pay Arsh Rs.2,80,045/- (half of one third of Diyyat amount) to be paid to injured Muhammad Iqbal and he was ordered to be kept in jail till its payment. He was also awarded four years rigorous imprisonment as Ta'zir. (iii) Under section 337-F(iii)/34, P.P.C. ordered to pay Daman Rs.50,000/- to be paid to injured Muhammad Iqbal and he was ordered to be kept in jail till its payment. He was also awarded two years rigorous imprisonment as Ta'zir. (iv) Under section 337-F(i)/34, P.P.C. ordered to pay Daman Rs.20,000/- to be paid to injured Muhammad Iqbal and he was ordered to be kept in jail till its payment. He was also awarded one year rigorous imprisonment as Ta'zir. All sentences were ordered to be run concurrently and benefit of section 382-B, Cr.P.C. was also extended to him. Co-accused, namely, Muhammad Ramzan was also convicted and sentenced by the learned trial Court, however, co-accused Muhammad Ijaz and Maqsoodan Bibi were acquitted of the charge by the learned trial Court by giving them benefit of doubt.

2. The petitioner/convict challenged his conviction and sentences before the learned appellate Court/Addl. Sessions Judge, Bhalwal through criminal appeal, which was dismissed vide judgment dated 20.12.2016 by maintaining his conviction and sentences. Whereas criminal revision filed by the complainant for enhancement of sentence of the appellant and his co-accused was dismissed by the learned Addl. Sessions Judge, Bhalwal vide same judgment.

3. Feeling aggrieved by the judgments passed by both the Courts below, petitioner assailed his conviction and sentences by filing the instant criminal revision petition.

4. Prosecution story as narrated by complainant Amjad Iqbal in FIR is as under;- "That he was resident of Mouza Kot Miana and was a cultivator and that on 05.04.2012 at 09:00 a.m., he along with his father Muhammad Iqbal was coming back to his home after fetching the milk from Dera Movesheian and when reached near the house of Muhammad Riaz son of Muhammad Ameer, Maqsoodan Bibi daughter of Muhammad Ameer (since acquitted), Muhammad Riaz equipped with pistol, Muhammad Ijaz (since acquitted) equipped with .12 bore gun sons of Muhammad Ameer, Muhammad Ramzan son of Muhammad Nawaz equipped with pistol 30 bore came there and Maqsoodan Bibi held a "Japha" to his father Muhammad Iqbal and Muhammad Riaz made fire with 30 bore pistol which hit his father on front of the abdomen on left side. Then Muhammad Ramzan made fire with .30 bore pistol which hit his father on the right buttock. Then Muhammad Ijaz (since acquitted) made a fire with 12 bore gun which also hit on the front of abdomen of his father and his father fell down and he raised hue and cry, Muhammad Bashir and Bati were attracted there and witnessed the occurrence. That Muhammad Riaz etc. also took away licensed 12 bore gun of his father BT-440. That motive behind the occurrence was that Muhammad Riaz etc. had stopped their way 4-5 days prior to this occurrence. His father forbade them to do this upon which hot words were exchanged between the parties due to which grudge, the occurrence took place on the abetment of Haqnawaz, Muhammad Shehbaz sons of Muhammad Ameer and Muhammad Ismail son of Ghulam Muhammad."

5. After registration of case, police investigated the case but the complainant being dissatisfied the same, filed a private complaint before the learned trial Court. So, proceedings were conducted in private complaint and formal charge was framed, to which petitioner and his co-accused pleaded not guilty and claimed trial.

6. Prosecution got examined Amjad Iqbal complainant of the case as PW-1, Muhammad Iqbal injured of the case as PW-2 and Muhammad Bashir an eye-witness as PW-3. Dr. Noor ul Amin and Dr. Ahmed Hassan Khan examined as PW-4 and PW-5. Ahmad Sher SI and Mazhar Ali SI both Investigating Officers appeared as PW-8 and PW-9, whereas remaining witnesses were formal in nature. After producing certain documents, prosecution closed its evidence.

7. Thereafter, statement of petitioner was recorded under section 342, Cr.P.C., wherein he denied the prosecution evidence while stating that the story of the prosecution was false. He neither opted to appear as witness under section 340(2), Cr.P.C., nor produced any evidence in defence.

8. During the pendency of this revision petition, a report was called from the Superintendent District Jail, Rawalpindi regarding served and unserved sentence of the petitioner, who submitted the same vide letter No.23521 dated 04.07.2019. According to said report, the petitioner has almost served out his entire sentence and he is going to be released on 01.09.2019 subject to payment of fine, Arsh and Daman. Under the circumstances, learned counsel for the petitioner wishes not to press this petition on merits but makes a request that petitioner may be allowed to pay the amounts of Arsh and Daman in equal installments as mandated under sections 337-X and 337-Y, P.P.C.

9. As noted above the petitioner has also been awarded fine of Rs.40,000/- under section 324/34, P.P.C., which sentence is harsh one in the peculiar circumstances of the instant case. As the petitioner has also been awarded the punishment of Arsh and Daman, so, sentence of fine Rs.40,000/- awarded under section 324/34, P.P.C. is set aside.

10. As far as punishment of Arsh Rs. 2,80,045/- awarded under sections 337-D/34, P.P.C. shall be treated in accordance with section 337-X, P.P.C., which deals and gives the scheme of payment of Arsh. Subsection (1) of Section 337-X, P.P.C. reads as under;- "The arsh may be made payable in a lump sum or in installments spread over a period of [five] years from the date of the final judgment. Whereas, punishment of Daman Rs.50,000/- and Rs.20,000/- awarded under sections 337-F(iii) and 337-F(i), P.P.C., shall be treated in accordance with section 337-Y, P.P.C., which deals and gives the scheme of payment of Daman. Subsection (1a) of Section 337-Y, P.P.C. reads as under;-- "The daman may be made payable in a lump sum or in installments spread over a period of five years from the date of the final judgment."

11. This petition is dismissed with the above modifications being not pressed, after serving out sentence i.e. on 01.09.2019, the petitioner shall be released on bail subject to his furnishing security/surety equal to the amount of Arsh and Daman to the satisfaction of learned trial Court. The learned trial Court will grant him two year time for payment of Arsh and Daman which shall be payable in equal installments. Time and amount of intallments shall be fixed by the learned trial Court. In case of single default, he shall be taken into custody and dealt with in accordance with law.

12. Whereas Cr. Misc. No.5119-M of 2017 filed by the complainant for enhancement of sentences is concerned, as respondent No.2/accused has almost served out the entire sentence, therefore, there is no occasion to enhance the sentences of respondents Nos.2 and 3, so, this petition is dismissed. MH/M-165/L Order accordingly.