1984 P Cr (PLP)

S. 307-Murderous assault--Sentence, reduction in-Accused facing trial for last 10 years-Accused also remained in custody for nearly 2 years and 8/9 months both as undertrial prisoner and after conviction-Held: Improper to send accused back to judicial custody after lapse of nearly 7 years-Sentence of 6 years' R. I. reduced to imprisonment already undergone by accused, in circumstances. [Sentence]. Nemo for the State. Complainant Khamoon and his brother injured Nasir were working as haris of Abdul Rehman. The appellant are related to complainant Khamoon. Appellant Thoohar used to flood the land which was being cultivated by complainant Khamoon and his brother Nasir by diverting water towards it. They complained to appellant Ali and this annoyed appellant Thoohar who gave threats of dire consequences. On 25th January, 1973, at about 6 p. m., complainant Khamoon was present in his house while Nasir had proceeded to the lands. After a short while, com plainant Khamoon heard cries of his brother Nasir and he went running towards that spot. Loung, Ramoon and Sikhi Ladho also went there running. They saw appellant Khamiso, holding was it and appellant Thoohar, giving hatchet blows to him. Appellant Ali instigated the co -accused to finish Nasir. Nasir sustained hatchet injuries on his head. He fell down unconscious. The injuries were so serious, that his brain matter was visible. Complainant Khamoon then went to P. P. Kadhan and lodged the F. I. R. which was recorded in station diary. A copy of it was sent to S. H. O. Badin P. S. for incorporating it in 154, Cr. P. C. Jiando Khan A. S, I. P. recorded the F. I. R. He then proceeded to the scene of offence and inspected it during night time on petromax light. He found injured Nasir, lying there unconscious. His cap had the corresponding cut marks. The blood-stained articles were recovered from the vardat, and the injured was referred to Medical Officer, Badin for examination, treat ment and certificate. On 26th. January, 1973, the Police Officer examined Sikhi Ladho, Ramoon and Lounge. Appellant Thoohar then appeared before him. He was interrogated and arrested in presence of mashir Photo and Pathai. His blood-stained shirt, which he was wearing was also secur ed in presence of same mashirs. Appellant Thoohar while in police custody, then led the Police Officer and mashirs to his house and from beneath the cot, he produced the hatchet which was found blood-stained, it was secured and such mashirnamas was prepared, Appellant Ali was then arrested in presence of same mashirs. On 28th January, 1973, appellant Khamiso appeared at Badin P. S. and was arrested. The injured was not able to speak during all this period and on 25th February, 1973, his statement was recorded by means of gestures. After completing the investigation, the appellants were challaned in the Court of Civil Judge and F. C. I., Badin, who committed them to trial Court, to stand their trial for the offence under section 307/34, P. P. C. The appellant pleaded not guilty to the charge when was read out to them in Court. They alleged dispute with complainant Khamoon and his father-in-law Lahno, over matrimonial affairs. The prosecution examined Khamoon (P. W. 1), Ramoon (P. W. 2), Lounge (P. W. 3). Pathai (P. W. 4), and Jiando Khan, A. I. (P. W. 6). The evidence of injured Nasir recorded before the Enquiry Court, was trans ferred to the file of trial Court by consent, under section 33 of the Evidence Act, as he was not able to speak properly vide (Exh. 10). The evidence of Dr. Jamilur-Rehman recorded before the Enquiry Court was transferred to the file of trial Court under section 509, Cr. P. C: vide (Exh. 24). The appellant examined Photo (D. W. 1) and Abdul Karim (D. W. 2) in their defence. The learned trial Court taking into consideration the evidence adduced before it, while acquitting co-accused Ali and Khamiso, convicted and sentenced the appellant abovenamed, as hereinbefore mentioned and con sequently appellant has filed the above appeal, on the grounds mentioned (n the memo. of above appeal. (a) Statement of P. Ws. Khamoon, Ramoo. Lounge and Nasir (injured) required independent corroboration, in view of alleged enmity between the parties, but such independent corroborative evidence is not at all available in present case. (b) Statement of P. W. Nasir was illegally brought on record of the learned trial Court under section 33 of the Evidence Act, without cogent reasons and as such ought to have been discarded by the learned trial Court. (c) That alleged recovery of blood-stained hatchet and clothes froth the person of the appellant cannot be used as corroborative evidence against the appellant, as the said articles were not sent for chemical examination for its report and as such cannot be connected with the crime in question. (d) That if alleged recoveries as for as above appellant is discarded, then the case of the present appellant will be on all fours with that of two acquitters accused. (e) That D. W. 4 Photo alleged second mashir of recoveries from above appellant was not examined by prosecution and as such was examined by appellant as defence witnesses and he did not support the alleged recoveries at all. In spite of this the learned trial Court did not consider his statement at all. In view of above submissions the learned Advocate for the appellant submitted, that the prosecution has filed to establish its case against the appellant abovenamed beyond reasonable doubt. The learned counsel for his contentions relied upon case reported in P L D 1975 Kar. 84, 1977 P Cr. L J P 1078 and P L D 1958 Lah. 468. The learned Advocate appearing for the State on the other hand sub mitted, that he was fully supporting the impugned judgment as prosecu tion has established its case against the present appellant beyond reason able doubt, by statements of P. Ws. Khamoon, Ramoo and Lounge even if recoveries are discarded and statement of P. W. Nasir, is also not taken into consideration, as appellant has alleged no personal enmity at all against these P. Ws since these P. Ws corroborate each other fully, their statements fully establish prosecution case against the appellant, for which no other independent corroboration is necessary. I have carefully considered the above submissions made by the learned Advocates before me and have gone through R & P of the learned trial Court as well as impugned judgment and cases cited by the learned Advocate for the appellant. I have carefully gone through the statements of P. Ws Khamoo. Ramzan alias Ramoo and Loving, who are no doubt related to the injured P. W. Nasir, but no personal enmity at all alleged against these P. Ws. by the appellant. In view of this their statements, in my opinion, do not require independent corroboration at all. I find statement of P. W. 2 Ramoo, very straightforward and convincing, so also the statement of P. W. 3 Lounge, who have fully corroborated the statement of P. W. I on all material points. Statements of these P. Ws. also corroborate statement of P. W. 1, Khamoon (complainant), that appellant give hatchet blows to P. W. Nasir. Furthermore statements of these 3 P. Ws. have been corro borated by medical evidence brought on record. Even if alleged recoveries are discarded and statement of P. W. Nasir is not taken into consideration, still I find that prosecution by statements of above-mentioned three P. Ws. has established its case against appellant abovenamed beyond reasonable doubt and as such I see no reason to disagree with the conclusions and findings of the learned trial court in this connection. However, I find that incident is of 25th January, 1973, appellant has been facing trial since then. Furthermore appellant was released on bail by this Court on or about 10th March, 1975. I also find that appellant has remained in custody for nearly 2 years and 8/9 months both as under-trial prisoner and after conviction. In view of these facts, it would be improper to send appellant back to judicial custody after laps of nearly 7 years. Therefore, while dismissing above appeal on merits and maintaining conviction of the appellant, I reduce the sentence of imprisonment awarded to him from 6 years to one already undergone by him, but maintain the fine of Rs. 5,000 imposed on him by impugned judgment and in default of payment of said fine to suffer further R. I. for 2 years. In case the fine is paid by the appellant, a sum of Rs. 4,000 out of the said fine be paid as compensation to P. W. Nasir (injured) under section 544-A, Cr. P. C. Since appellant is on bail, I give three weeks time from today to pay the fine of Rs. 5,000 failing which his bail shall stand cancelled and the learned trial Court is directed in such a case to issue non-bailable warrants for the arrest of the appellant and on his arrest to remand him back to judicial custody to serve out sentence of imprisonment, in lieu of fine imposed by the impugned judgment dated 8th January, 1975 of the learned trial Court. S. G. D. Order accordi