1976 P Cr (PLP)

Muhammad Umar alongwith Ghulam Muhammad, Baqir and Liaquat were tried under sections 452 and 324 read with section 34, P. P. C. by the learned Sub Divisional Magistrate, Okara who vide his judgment dated 20th of December, 1965, while acquitting Liaquat co‑accused convicted and sentenced the remaining three to one year's R.I. under section 452 each and to six months' R. I. under section 324, P. P. C. each with the direction that both the sentences to run concurrently. Aggrieved against their conviction and sentences, the convicts filed appeal before the learned Additional Sessions Judge who vide his judgment dated 4th of March, 1966, while maintaining their conviction under both the charges, and also sentence under sec tion 324/34, P. P. C. reduced their sentence under section 452, P. P. C. from one year to six months' R. I. and dismissed their appeal. A revision was filed in this Court which was admitted on 14th of March, 1966 on the follow ing points:‑ (i) that Hashim (P. W. 5) and Jan Muhammad (P. W. 6) were not mentioned in the F. I. R. and although the learned trial Magistrate mentioned this fact in his judgment, yet he placed reliance on their testimony; (ii) that one injury received by Meraj Din (P. W. 1) on his eye‑brow has not been explained; (iii) that all the P. Ws are interested and inter‑related; (iv) that the prosecution failed to explain the five injuries sustained by Muhammad Umar petitioner. The petitioner was released on bail on that very day i. e. 10 years earlier.

2. The brief facts of the case are that on 10th of May, 1965, at about 4 p.m. Meraj Din was found sharpening a knife on some Pakka brick by Umar petitioner. On his enquiry as to what was he doing, he told him that he was going to tear his belly. On this an altercation took place between Umar and Meraj Din. Umar throw pebbles on Meraj Din who in return gave him a blow with a stick on his head which resulted into bleeding. According to the prosecution it was some time after this occurrence that Meraj Din was preparing fodder for his cattle when Baqir scaled the wall of his house and entered his haveli while the other three broke open the door of the haveli and came in. Ghulam Muhammad accused was armed with a stick and Umar with a knife, although Liaquat was empty‑handed. Accord ing to the prosecution version, Meraj Din received five injuries on his person out of which two were caused with blunt and three with sharp‑edged weapon.

3. The learned counsel appearing on behalf of the petitioners while reiterating the points raised by him ten years earlier before the learned Judge who admitted this case, submitted that he would not go into the merits of the case after the lapse of this long period but would try to make out a case in which the sentence already undergone by the petitioners would meet the ends of justice. In this regard, he submitted that Muhammad Umar peti tioner who was only fifteen years of age as well as a student, himself received four injuries on his person out of which one was on his head. According to the learned counsel this will clearly show that this teen‑ages boy who was minor at the time of this incident, would not make a concerted attack as shown by the prosecution in this case, but actually the incident took place at one time i. e. when Umar was given a lathi blow on his head and multiple injuries on his person and in retaliation he caused the injuries on the person of his assailant i. e. Meraj Din P. W. It was argued that the positive efforts on the part of the prosecution to conceal the real facts of the case as well as the injuries suffered by the petitioner, Muhammad Umar, will show that the prosecution did not come with clean hands in this case and twisted the story to attain their object. In this context it was further pointed out that two more witnesses were added to supplement the prosecution case at a belated stage but it was found out that their names did not figure in the F. I. R. This according to the learned counsel was an act of padding on behalf of the prosecution. As regards the two blunt weapon injuries suf fered by Meraj Din on his person, it was submitted that they were nothing but bruises while the incised injuries on the person of Meraj Din could be caused by throwing of sharp‑edged atones as was apparent from the statement of the witnesses during the course of their examination. While referring to defence evidence in this case, the learned counsel pointed out that the peti tioner has clearly accepted the factum of fight but has stuck to this fact that it was only one fight and not two as described by the prosecution witnesses. He has relied on Mukhtar Ahmad v. The State (P L D 1963 Lah. 451) to show that if the case of the prosecution was a case mingled with lies and truth then under such circumstances the benefit of doubt is always given to the accused and not to the prosecution.

4. I have given my anxious thought to all these contentions raised by the learned counsel and the only thing which persuades me to reduce the sentence of the petitioners to already undergone is an admitted fact on the record that Muhammad Umar was only fifteen years of age (a minor) as well as a school‑going boy. This aspect of the case has escaped the notice of both the trial Court as well as the lower appellate court, otherwise they would have certainly mentioned that the delinquent with whom they were dealing was a minor. Under the law for such like offenders the proper courts were juvenile courts and if at all in the absence of juvenile court, he was to be tried by regular courts, the sentence should have been in the nature of probation than that of substantive sentence of six months' R. I. The petitioners in this case have already suffered agony of protracted trial and almost a month in jail, which to my mind fully meets the ends of justice in view of the peculiar circumstances of the age of Muhammad Umar peti tioner. As far as the other two petitioners are concerned, it is pertinent to note that the injuries attributed to them are with hatchets but the medical evidence only discloses that Meraj Din suffered two injuries caused by blunt weapon on hit person besides those attributed to Muhammad Umar, peti tioner. It seems that they have been held constructively liable under section 34, P. P. C. both by the learned trial Court as well as by the learned appellate Court. If the major offender is going to take advantage of his age and educational background, there is no reason why the same advantage should not be extended to these two petitioners.

5. In the light of the above, I am of the considered opinion that it would not be against the canon of justice, keeping in view the age of Muhammad Umar and the part played by his compatriots, to reduce their sentences to that already undergone. However their petition is dismissed on merits. The petitioners are on bail. They shall stand discharged of their bail bonds. Order accordingly.