1983 P Cr (PLP)

The patient was unable to move his left leg and did not feel any touch of pin prick on left leg. The injury was caused by fire-arm within the duration of six hours. On 31-7-1975 Abdur Rehman expired at 9-30 p.m. The same doctor performed post-mortem examination and found the same injury as stated above on his person. On dissection under injury No.1 the underlying lumbar vertebrae was fractured and the fractured pieces we-e depressed causing compression and injury to spinal cord underneath. The death in his opinion was due to injury No.1 causing injury to vertebral column and spinal cord resulting in para. pleagia and progressive deterioration of health. The injury was sufficient to cause death in the ordinary course of nature. On 6-7-1977 the same doctor examined Ghulam Farid P. W. 5 and found 5 injuries on his person simple in nature out of which two were caused with sharp-edged weapon and the remaining with blunt weapon. On the same day the same doctor examined Sultan P. W. 7 and found 3 injuries caused with sharp-edged weapon and simple in nature on his person. The same doctor on the same day examined War Iqbal P. W. 6 and found two injuries caused with blunt weapon and simple in nature on .his person. On 7-7-1977 Dr. Syed Shamshad Hussain C. W. 1, examined Muhammad Ashraf acquitted co-accused and found as many as 4 injuries on his person three simple in nature and one grievous, out of these injuries 2 were caused with sharp-edged weapon. On the same day the same doctor examined Ghulam Hussain acquitted co-accused and found as many as 4 injuries on his person simple in nature caused with blunt weapon.

7. The appellant when examined under section 342, Cr. P. C. denied all the incriminating circumstances. Ziaul Hassan appellant pleaded the right of self-defence and stated follows :- I have been falsely implicated in this case due to enmity. The P. Ws. have deposed falsely because they are accused in a cross-case. On the day of occurrence at about the time of occurrence Zafar P. W. borrowed a cigarette from Ashraf accused in the fair. Ashraf accused refused to give cigarette to Zafar P. W. whereupon afar P. W. snatched the cigarette from Ashraf accused. At this Ashraf and Ghulam Hussain accused gave beating to Zafar P. W. Zafar P. W. informed about his beating to the injured P. Ws. and the deceased. After learning about the beating given to Zafar P. W. they came armed to the fair and launched attack on Ashraf accused and when Ghulam Hussain alias Mumma son of Kazim accused tried to rescue Ashraf accused they also assaulted Mumma son of Kazim accused and in the meanwhile I was attracted to the spot from the fair and I in order to save the lives of Muhammad Ashraf and Mumma son of Kazim accused fired with my gun in the exercise of the right of self-defence of Ashraf and Mumma son of Kazim accused. My co-accused Muhammad Latif, Mumma son of Ahmad Khan, Safdar and Habib were not present at the spot at the time of occurrence. The other co-accused Ghulam Hussain and Muhammad Ashraf adopted the same statement while others denied their presence at the place of occurrence.

8. Learned counsel for the appellant has not challenged the conviction of the appellant and has simply requested for the reduction of the sentence. As against this the learned counsel for the State assisted by Mian Zafar Yasin learned counsel for the complainant has supported the impugned judgment. Mian Zafar Yasin, learned counsel for the complainant has submitted that the co-accused were wrongly acquitted and the sentence awarded to the appellant is also inadequate.

9. After hearing the learned counsel for the parties and going through the record I find that there is sufficient evidence against the appellant. The learned trial Court has properly appreciated the case and has come to the right conclusion. He has given sound and cogent reasons in support of his decision and as such no exception can be taken to the same. To my mind, the learned counsel for the appellant has very rightly not challenged the conviction.

10. I have considered the question of sentence with great care and I am inclined to reduce the sentence awarded to the appellant for the following reasons (i) That both the parties received in injuries. The acquitted co-accused also received injuries with sharp and blunt weapons including one grievous: injury on the head of Muhammad Ashraf acquitted co -accused. (ii) That the deceased died after 23 days of the occurrence, the patient had of both the legs. (iii) That the appellant fired once at the apparently non-vital part of the body. (iv) That the appellant remained in jail for more than two years as an under-trial prisoner and this period was not taken into consideration while awarding sentence to him.

11. For all these reasons while maintaining the conviction of the appellant under section 304, Part I of the Pakistan Penal Code I reduce the sentence from 10 years' R. I. to 5 years' R. I. The fine of Rs. 5,000 imposed on him by the learned trial Court is also reduced to Rs. 3,000 in default thereof he would undergo further R. I. for one year. With this modification the appeal is dismissed. Order accordingly.