1994 P Cr (PLP)

2. Briefly the prosecution case is that P.W.1 Muhammad Amin lodged F.I.R. No.127/87 Exh.P.A. on 18-5-1987 to the effect that on 18-5-1987 at about 6-45 a.m. he was present in his land Killa No.11 of Square No.422, when suddenly appellants Khan Muhammad and Muhammad Iqbal armed with Kassi and Khanjer respectively alongwith Manzoor, Ayub armed with knife and pistol (both since acquitted), residents of the village, made murderous assault on P.W.1 Muhammad Amin. Ayub (.acquitted co-accused) who was armed with a pistol started raising Lalkara and Muhammad Iqbal appellant inflicted a Khanjar blow in the complainant's abdomen, Khan Muhammad appellant inflicted Kassi blow on the back of the complainant; who was injured and fell down, whereupon Manzoor, acquitted co-accused, started injuring P.W.1 with the knife. On the hue and cry of the complainant, Noor Hassan (P.W.3) and Bashir Ahmad (P.W.2), residents of the village reached, witnessed the occurrence and saved P.W.1 from the accused.

3. The motive was that Killa No.11 was owned by P.W.1 and half of the same was being cultivated by appellant Muhammad Iqbal. Muhammad Iqbal etc. wanted to take illegal possession of half share of Killa No.11 of P.W.1 Appellants Muhammad Iqbal, Khan Muhammad and the other co-accused on the abetment of Yaqub and Maqbool had made murderous assault on P.W.1. F.I.R. Exh.P.A. was recorded by P.W.6 Shaukat Murtaza, Inspector/S.H.O. The accused were challaned and sent up for trial. A charge under sections 307, 324, 109, 148/149, P.P.C. was framed against the accused, to which they denied and claimed trial.

4. The prosecution examined 6 P.Ws. in all to substantiate its case. P.W.1 Muhammad Amin complainant supported the contents of F.I.R. Exh.P.A. recorded on his statement. P.W.2 Bashir Ahmad corroborated the statement of P.W.1 and had stated that he had witnessed Ayub, acquitted co-accused armed with a pistol, raising Lalkara, Muhammad Iqbal appellant had inflicted Khanjar blow on the abdomen of P.W.1, Khan Muhammad appellant had given Kassi blow on P.W.1, who fell down. Then Manzoor acquitted co-accused had given him knife blows in the abdomen and on the back. P.W.2 Bashir Ahmad alongwith P.W.3 Noor Hassan beseeched the accused and saved P.W.1. P.W.3 Noor Hassan corroborated the statements of P.Ws.l and

2. P.W.4 Ghulam Muhammad stated that while passing from near the house of Imam Ali he had witnessed the appellants alongwith the acquitted co-accused sitting and they were hatching a conspiracy. Muhammad Yaqoob and Maqbool, acquitted co-accused had asked Muhammad Iqbal applicant to take illegal possession of Killa No.11 and if some arms or persons were needed, they were prepared to provide. P.W.4 Ghulam Muhammad had asked them not to do so.

5. P.W.5 Dr. Muhammad Amjad Abid on 18-5-1987 had medically examined P.W.1 Muhammad Amin and had found 6 injuries on his person. Injuries Nos.1, 3 and 4 were dangerous to life, whereas injuries Nos.2, 5 and 6 were simple. All the injuries were caused with sharp-edged weapons. Exh.P.E. is the M.L.R.

6. P.W.6 Shaukat Murtaza, Inspector/S.H.O. recorded the formal F.I.R. Exh.P.A. and had secured Khanjar P.4 at the instance of Muhammad Iqbal appellant vide memo. Exh.P.H. and appellant Khan Muhammad led to the recovery of blood-stained Kassi P.1, which was secured by P.W.6 vide memo. Exh.P.C. After completion of the investigation he challaned the accused and sent up for trial.

7. The accused when examined under section 342, Cr.P.C. denied the prosecution evidence against them and also the recovery of incriminating articles Muhammad Iqbal appellant had also made statement on oath as envisaged under section 340(2), Cr.P.C. and had stated about his innocence. He also stated that Muhammad Iqbal, brother of P.W.1 had injured him and only to gab the property he had been falsely involved in the case.

8. The Magistrate Section 30, Bahawalnagar vide his judgment, dated 7-9-1988 had convicted and sentenced the appellants and Manzoor, acquitted co-accused under section 307/34, P.P.C. to undergo 4 years' R.I. each and a fine of Rs.5,000 each, in default whereof to suffer further R.I. for 6 months. They were directed to pay the amount of fine to P.W.1 Muhammad Amin injured. The appellants and Manzoor, acquitted co-accused filed an appeal against their conviction and the complainant had preferred a criminal revision against the same judgment. The learned Additional Sessions Judge II, Bahawalnagar vide his judgment, dated 9-9-1989 had remanded the case back for recording statements of the accused under section 342, Cr.P.C. afresh and if any of the accused person wanted to get recorded the statement under section 340(2), Cr.P.C., that should also be recorded, as also the opportunity to the accused to lead defence evidence be afforded. By the same judgment, the revision of the complainant was dismissed.

9. The prosecutor made statement for withdrawal of the case against the accused Manzoor, Maqbool, Yaqoob and Ayub, on which on 17-11-1992 they were acquitted.

10. The learned Senior Civil Judge/Magistrate Section 30, Bahawalnagar vide his impugned judgment convicted and sentenced the appellants. It is pertinent to mention here that the complainant had himself moved the District Magistrate, BahawaInagar for withdrawal of the case against acquitted co -accused, but due to his non-appearance, the same was dismissed by the District Magistrate, Bahawalnagar on 17-11-1990. Copy of the order is on the file.

11. I have heard the learned counsel for the parties and have perused the record. P.Ws. 1, 2 and 3 have specifically stated that Muhammad Iqbal appellant had given a Khanjar blow to P.W.1 and Khan Muhammad appellant had inflicted a Kassi blow to P.W.1, whereas P.W.4 Ghulam Muhammad had stated that appellant Khan Muhammad had led to the recovery of Kassi P.1 and Manzoor acquitted co-accused had led to the reco,-ery of the knife. P.W.6 Shaukat Murtaza, S.H.O./I.O. stated that Muhammad Iqbal appellant led to the recovery of Khanjar P.4 secured by him vide memo. Exh.P.H. and Khan Muhammad appellant led to the recovery of Kassi P.1 secured by him vide memo. Exh.P.C. whereas Manzoor acquitted co-accused had led to the recovery of knife P.2 secured by him vide memo. Exh.P.D. P.W.3 stated about the recovery of Kassi P.1 at the instance of Muhammad Iqbal appellant. P.W.6 S.H.O./I.O. who secured Khanjar P.4 from Muhammad Iqbal appellant has no motive to falsely involve him in the present case. Recoveries of Khanjar P.4 at the instance of Muhammad Iqbal appellant and Kassi P.1 at the instance of Khan Muhammad appellant have been proved on record. F.I.R. Exh.P.A. contains the names of the accused, weapons carried by them, the names of the prosecution witnesses and the manner in which the occurrence took place, all are given in the F.I.R. The statements made by the eye-witnesses P.Ws.l, 2 and 3 are in consonance with the medical evidence furnished on record by the statement of P.W.5. P.Ws.l, 2 and 3 have no motive whatsoever to falsely involve the appellants in the present case. The learned counsel appearing for the appellants has not been able to point out the material discrepancies or dishonest improvements made by the P.Ws. in their statements, except minor contradictions here and there. The ocular testimony furnished on record by the statements of P.Ws.l, 2 and 3 is in consonance with the medical evidence furnished by the statement of P.W.5 Dr. Muhammad Amjad Abid.

12. The recovery of Khanjar P.4 and Kassi P.1 at the instance of Muhammad Iqbal and Khan Muhammad appellants respectively has been proved on record. The report of the Chemical Examiner Exh.P.I. in respect of the same is positive. No exception can be taken to the conviction and sentence of tire appellants. They were rightly convicted and sentenced by tile trial Court. The learned counsel appearing for the appellants has frankly conceded the legality of the impugned judgment and has prayed for leniency in the matter of sentence.

13. The appellants were released on bail after one year of their arrest by the trial Court. Thereafter they were firstly convicted and sentenced on 7-9-1988 and their case was remanded by the learned Additional Session; Judge on 9-9-1989. The complainant had moved, the District Magistrate for withdrawal of the case against the acquitted co-accused, but due to his absence his withdrawal application was dismissed. Later the prosecutor had withdrawn the prosecution of the acquitted co-accused. The appellants remained in jail as under-trial and convicts for about 1-1/2 years. The conviction and sentence of the appellants has been maintained. In my opinion, as the appellants have spent 1-1/2 years in jail and have suffered the agony of long protracted trial, they are entitled to some leniency in their sentence. The sentence of l Muhammad Iqbal appellant under section 307, P.P.C. is reduced from 5 years' R.I. to 3 years' R.I. with a fine of Rs.10,000 and in default of payment of fine to suffer further R.I6 months, and appellant Khan Muhammad's sentence under section 324, P.P.C. is altered to one already undergone, but the fine of C Rs5,000 is maintained and in case of default in its payment, he shall suffer R.I. for 3 months. The fine, if realized, shall be paid to P.W.1 Muhammad Amin as compensation. With this modification in the sentence of the appellants the appeal is dismissed. Appellant Muhammad Iqbal shall also be extended the benefit of section 382-B, Cr.P.C. N.H.Q./M.-1411/L Sentence reduced