1984 P Cr (PLP)

Fayyaz Ahmad for the State. Date of hearing: 4th April, 1984. Khan Muhammad son of Shah Wali was prosecuted and charged under section 305 Part-I, P.P.C. for having committed the murder of Ashiq Hussain deceased with a gun. He was tried by the learned Sessions Judge, Sargodha, who vide order dated 13th May, 1968, convicted him under section 304, Part-I, P.P.C. and sentenced him to R.I. for eight years.

2. The brief facts of the prosecution case are that Khan Muhammad accused had been turned out of his Chak about one year prior to the occurrence by the citizens of the village on the ground that he had developed illicit relations with a daughter of Fazal Din P.W. She got pregnant and had an abortion. After having been turned out of the village, the accused started living in Basti Sherwali. It is alleged that on 14th July, 1966, at about 8-00 a.m., the accused was coming towards Sargodha and when reached near the Dera of Jahan Khan he found Ashiq Hussain deceased alongwith Fazal Din P.W. coming from his opposite direction. On seeing them the accused Khan Muhammad allegedly complained about his externment from the village at their instance. At this Ashiq Hussain deceased abused the accused whereupon the accused got enraged and loaded his gun. On seeing this, both Ashiq Hussain deceased and Fazal Din P.W. ran in different directions. When Ashiq Hussain was about 35 Karams away, he turned back and pleaded for his life. The accused fired a shot at him as a result of which Ashiq Hussain died.

3. After registration of the case, the police investigated and challaned the accused. He was tried by the learned Sessions Judge, Sargodha who came to the conclusion that the accused had exceed his right of private defence in causing the death of Ashiq Hussain. He was accordingly convicted under section 304 Part-1, P.P.C. and sentenced to eight years' R.I.

4. The learned counsel Mr. Muhammad Asif Jan, Advocate, has not challenged the conviction of Khan Muhammad appellant. He has pleaded only two points. Firstly, that at the time of occurrence which took place on 14th July, 1966, Khan Muhammad appellant was aged 55 years and at the moment he is aged about 70 years. Secondly, the appeal was instituted on 27th May, 1968 i.e. about fifteen years earlier and as such, it will not be in the interest of justice to send the appellant back to prison to serve the unexpired portion of his sentence. Reliance is placed on Shahu and another v. State, P L D 1980 Lah. 568 and Munir lqbal and another v. State 1982 P Cr. L J

347. In the first cited case, the criminal revision had come up for hearing and disposal after a lapse of thirteen years considering which fact the sentence of that case was reduced to six weeks' imprisonment which they had already undergone. In the second case, the revision was taken up for final disposal after almost eight years of their last conviction. Considering this aspect of that case, their sentences were reduced to the period already undergone by them.

5. In the present case, the impugned judgment was passed on 13th May, 1968. Thus, the appeal has been listed for final disposal after a lapse of nearly sixteen years. Khan Muhammad appellant who was admittedly aged 55 years at the time of occurrence is now aged about 70 years. In the circumstances of this case it is not desirable that he could be sent back to prison to serve the unexpired portion of his sentence:

6. The conviction of Khan Muhammad appellant is maintained. However, the sentence is reduced to one already undergone by-him.

7. With the above modification in sentence, the appeal is dismissed. M. Y. H. Order accordingly.