(a) Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 304, Part II/149, 323/149 & 148‑‑Accused did not challenge their conviction but pressed strenuously that since matter was pretty old and parties had compromised accused be let off with sentences already undergone‑‑Nothing on record existing to show that convictions were recorded incorrectly‑‑Conviction maintained in circumstances.
(b) Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 304, Part II/149 & 323/148‑‑Sentence‑‑Conviction passed nineteen years ago‑‑Accused remained in jail during trial and were released from jail after order of suspension of their sentence‑‑Parties, apart from having compromised were also related inter se‑‑Accused suffered agony of remaining in jail and trial for a long time‑‑Sentence of accused reduced to one already undergone.
Naveed Shaharyar for Appellant.
Imtiaz Ahmad A.‑A.G. for Respondent.
Date of hearing: 12th April, 1989.
GHULAM QADIR VS STATE1989 M L D 4190[Lahore]Before Sardar Muhammad Dogar, JGHULAM QADIR and others‑‑AppellantVersusTHE STATE‑‑RespondentCriminal Appeal No. 245 of 1972, heard on 12/04/1989.
(a) Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 304, Part II/149, 323/149 & 148‑‑Accused did not challenge their conviction but pressed strenuously that since matter was pretty old and parties had compromised accused be let off with sentences already undergone‑‑Nothing on record existing to show that convictions were recorded incorrectly‑‑Conviction maintained in circumstances.
(b) Penal Code (XLV of 1860)‑‑
‑‑‑Ss. 304, Part II/149 & 323/148‑‑Sentence‑‑Conviction passed nineteen years ago‑‑Accused remained in jail during trial and were released from jail after order of suspension of their sentence‑‑Parties, apart from having compromised were also related inter se‑‑Accused suffered agony of remaining in jail and trial for a long time‑‑Sentence of accused reduced to one already undergone.
Naveed Shaharyar for Appellant.
Imtiaz Ahmad A.‑A.G. for Respondent.
Date of hearing: 12th April, 1989.
JUDGMENT
Bashir Ahmad son of Muhammad Khan, resident of village Bagola, Police Station, Sardar, Gujrat, District Gujrat had lodged FIR against Ghulam Qadir, Muhammad Akram, Ali Muhammad, Rehmat Ali and Safdar, for the murder of his father and for injuries caused to him and his brother Ghulam Nabi. Ghulam Qadir, Muhammad Akram, Ali Muhammad and Rehmat Ali were tried by the Sessions Judge, Gujrat under Section 302/323/148/149 PPC. Safdar, their co‑accused was not tried along with them as he had absconded. Learned Sessions Judge, Gujrat vide judgment dated 7‑3‑1972 convicted all four of them under Ss. 304, Part II/149, 323/149 & 148 PPC. They were sentenced as follows:‑‑
(a)U/s. 304‑II/149 PPC‑‑to undergo R.I. for 3 years each.
(b)U/s. 323/149 PPC‑‑to undergo R.I. for six months each..
(c)U/s. 148 PPC‑‑to undergo R.I. for 6 months each. Sentences have been ordered to run concurrently.
2. The convicts have filed Crl. A. No. 245/72.
3. Safdar, their co‑accused was arrested on 19‑5‑1974. He was also tried by the Sessions Judge, Gujrat who vide judgment dated 18‑10‑1978 convicted him under Section 304‑11/149 323/149 and 148 PPC and sentenced him as under:‑‑
(a)U/s. 304‑11/149 PPC‑‑to undergo R.I. for 4 years plus to pay a fine of Rs. 1,000 in default whereof to suffer further R.I. for one year. The fine on recovery, has been directed to be paid as compensation to the legal heirs of the deceased.
(b)U/s. 323/149 PPC‑‑to undergo R.I. for one year.
(c)U/s. 148 PPC‑‑to undergo R.I. for one year.
The sentences have been ordered to run concurrently.
He has filed CA Appeal No. 972/78. Since the convictions of the appellants in both the appeals have arisen from the same case, they are being disposed of together.
4. It may be noted here that Rehmat Ali appellant in Crl. Appeal No. 245/72 died after the filing of appeal. The appeal filed by him stands abated.
5. The occurrence in this case had taken place on 7‑3‑1970. FIR No. 52/70 was registered at Police Station, Sadar, Gujrat on the same day.
6. Statements of ten prosecution witnesses were recorded at the trial against Ghulam Qadir etc. (four persons). At the trial, Bashir Ahmad PW 8 and Ghulam Nabi PW 9 sons of the deceased who also suffered injuries during the occurrence had deposed the ocular account. The testimonies of the other witnesses, apart from the doctor who had performed autopsy, and had also examined the other witnesses, are more or less of a formal nature. The prosecution case at the trial was that Safdar appellant (then absconder) armed with a Vahaula accompanied by the other four accused (appellants in this appeal) armed with Sotas had launched attack on the complainant party on the lalkara raised by Ghulam Qadir, appellant. Safdar had inflicted a Vahaula blow on the head of Muhammad Khan deceased while Muhammad Akram and Muhammad Ali had caused injuries to Bashir Ahmad. Ghulam Nabi PW was given injuries by Ghulam Qadir and Rehmat Ali. It was also conceded that Ghulam Nabi who was carrying a sickle, had caused injuries in self‑defence, to Muhammad Akram appellant.
7. Motive for the occurrence was the incident which had taken place‑on the same day early in the morning, wherein Ali Muhammad appellant was given injuries by the complainant party, and the fact that the deceased had not acceded to the request of the accused to dissuade Ghulam Nabi and Mian Khan from deposing against Ghulam Qadir in the case registered against him and others under Section 324 PPC, 8‑9 months prior to the present occurrence.
8. At the time of trial of Safdar appellant in Crl. Appeal No. 972/78, sixteen P.Ws. were examined. At that time, apart from Bashir Ahmad and Ghulam Nabi, one Muhammad Ramzan also was examined for ocular account. Some P.Ws were also examined with regard to the abscondence of Safdar.
9. Both the sets of the accused, at the time of their trials had, while making statements under Section 342 Cr.P.C. denied the prosecution case and pleaded innocence.
10. In this case the parties have compromised. Statements of the four sons of the deceased, including the one who had lodged the F.I.R. and the ones who had suffered injuries during the occurrence, have been recorded. All of them have stated that they have compromised with the appellants in both the Crl. Appeals and have prayed for their acquittal. They have vouchsafed that except Mst. Ghulam Fatima their sister, no heir of their father is alive. They have produced the affidavit of Mst. Ghulam‑Fatima, thumb marked and duly attested.
11. Learned counsel for the appellants in both the appeals has not challenged the convictions in both the appeals. He has, however, pressed strenuously that since the matter is pretty old and the parties have compromised, the appellants be let off with the sentences already undergone.
12. Notwithstanding the fact that learned counsel for the appellants has no challenged the convictions of the appellants in both the appeals, I have gone through the record and I am convinced that even otherwise there is nothing on record to consider that the convictions were recorded incorrectly. The same are, therefore, maintained.
13. The occurrence out of which both the appeals have arisen, had take place in March, 1970, i.e. about 19 years ago. The appellants in this appeal were arrested in the second week of March, 1970. They had remained in jail during the trial. They were released from jail after the order of suspension of their sentences was passed on 18‑4‑1972, which means that they had also undergone R.I. for one month.
14. Safdar appellant in Crl. Appeal No. 972/78 was arrested on 19‑5‑1974. He was released on bail a year thereafter. He remained in jail as convict for about one month after his convictions on 18‑10‑1978.
15. The parties apart from having compromised, are also stated to be related inter se. Quite a long period has already passed. The appellants, as noted above, also suffered ‑the agonies of jail and trial as well for a pretty long time.
In the circumstances, there are enough mitigating circumstances to reduce the sentence of the appellants to that already undergone. Order accordingly. The sentence of fine of Rs. 1,000 awarded to Safdar appellant for E conviction under Sec. 304‑I1 P.P.C. is reduced to Rs. 200, which he will deposit within fifteen days. In case he fails to deposit the fine, he shall undergo one month's S.I.
M.Y.H./G-258/L
Bashir Ahmad son of Muhammad Khan, resident of village Bagola, Police Station, Sardar, Gujrat, District Gujrat had lodged FIR against Ghulam Qadir, Muhammad Akram, Ali Muhammad, Rehmat Ali and Safdar, for the murder of his father and for injuries caused to him and his brother Ghulam Nabi. Ghulam Qadir, Muhammad Akram, Ali Muhammad and Rehmat Ali were tried by the Sessions Judge, Gujrat under Section 302/323/148/149 PPC. Safdar, their co‑accused was not tried along with them as he had absconded. Learned Sessions Judge, Gujrat vide judgment dated 7‑3‑1972 convicted all four of them under Ss. 304, Part II/149, 323/149 & 148 PPC. They were sentenced as follows:‑‑
(a)U/s. 304‑II/149 PPC‑‑to undergo R.I. for 3 years each.
(b)U/s. 323/149 PPC‑‑to undergo R.I. for six months each..
(c)U/s. 148 PPC‑‑to undergo R.I. for 6 months each. Sentences have been ordered to run concurrently.
2. The convicts have filed Crl. A. No. 245/72.
3. Safdar, their co‑accused was arrested on 19‑5‑1974. He was also tried by the Sessions Judge, Gujrat who vide judgment dated 18‑10‑1978 convicted him under Section 304‑11/149 323/149 and 148 PPC and sentenced him as under:‑‑
(a)U/s. 304‑11/149 PPC‑‑to undergo R.I. for 4 years plus to pay a fine of Rs. 1,000 in default whereof to suffer further R.I. for one year. The fine on recovery, has been directed to be paid as compensation to the legal heirs of the deceased.
(b)U/s. 323/149 PPC‑‑to undergo R.I. for one year.
(c)U/s. 148 PPC‑‑to undergo R.I. for one year.
The sentences have been ordered to run concurrently.
He has filed CA Appeal No. 972/78. Since the convictions of the appellants in both the appeals have arisen from the same case, they are being disposed of together.
4. It may be noted here that Rehmat Ali appellant in Crl. Appeal No. 245/72 died after the filing of appeal. The appeal filed by him stands abated.
5. The occurrence in this case had taken place on 7‑3‑1970. FIR No. 52/70 was registered at Police Station, Sadar, Gujrat on the same day.
6. Statements of ten prosecution witnesses were recorded at the trial against Ghulam Qadir etc. (four persons). At the trial, Bashir Ahmad PW 8 and Ghulam Nabi PW 9 sons of the deceased who also suffered injuries during the occurrence had deposed the ocular account. The testimonies of the other witnesses, apart from the doctor who had performed autopsy, and had also examined the other witnesses, are more or less of a formal nature. The prosecution case at the trial was that Safdar appellant (then absconder) armed with a Vahaula accompanied by the other four accused (appellants in this appeal) armed with Sotas had launched attack on the complainant party on the lalkara raised by Ghulam Qadir, appellant. Safdar had inflicted a Vahaula blow on the head of Muhammad Khan deceased while Muhammad Akram and Muhammad Ali had caused injuries to Bashir Ahmad. Ghulam Nabi PW was given injuries by Ghulam Qadir and Rehmat Ali. It was also conceded that Ghulam Nabi who was carrying a sickle, had caused injuries in self‑defence, to Muhammad Akram appellant.
7. Motive for the occurrence was the incident which had taken place‑on the same day early in the morning, wherein Ali Muhammad appellant was given injuries by the complainant party, and the fact that the deceased had not acceded to the request of the accused to dissuade Ghulam Nabi and Mian Khan from deposing against Ghulam Qadir in the case registered against him and others under Section 324 PPC, 8‑9 months prior to the present occurrence.
8. At the time of trial of Safdar appellant in Crl. Appeal No. 972/78, sixteen P.Ws. were examined. At that time, apart from Bashir Ahmad and Ghulam Nabi, one Muhammad Ramzan also was examined for ocular account. Some P.Ws were also examined with regard to the abscondence of Safdar.
9. Both the sets of the accused, at the time of their trials had, while making statements under Section 342 Cr.P.C. denied the prosecution case and pleaded innocence.
10. In this case the parties have compromised. Statements of the four sons of the deceased, including the one who had lodged the F.I.R. and the ones who had suffered injuries during the occurrence, have been recorded. All of them have stated that they have compromised with the appellants in both the Crl. Appeals and have prayed for their acquittal. They have vouchsafed that except Mst. Ghulam Fatima their sister, no heir of their father is alive. They have produced the affidavit of Mst. Ghulam‑Fatima, thumb marked and duly attested.
11. Learned counsel for the appellants in both the appeals has not challenged the convictions in both the appeals. He has, however, pressed strenuously that since the matter is pretty old and the parties have compromised, the appellants be let off with the sentences already undergone.
12. Notwithstanding the fact that learned counsel for the appellants has no challenged the convictions of the appellants in both the appeals, I have gone through the record and I am convinced that even otherwise there is nothing on record to consider that the convictions were recorded incorrectly. The same are, therefore, maintained.
13. The occurrence out of which both the appeals have arisen, had take place in March, 1970, i.e. about 19 years ago. The appellants in this appeal were arrested in the second week of March, 1970. They had remained in jail during the trial. They were released from jail after the order of suspension of their sentences was passed on 18‑4‑1972, which means that they had also undergone R.I. for one month.
14. Safdar appellant in Crl. Appeal No. 972/78 was arrested on 19‑5‑1974. He was released on bail a year thereafter. He remained in jail as convict for about one month after his convictions on 18‑10‑1978.
15. The parties apart from having compromised, are also stated to be related inter se. Quite a long period has already passed. The appellants, as noted above, also suffered ‑the agonies of jail and trial as well for a pretty long time.
In the circumstances, there are enough mitigating circumstances to reduce the sentence of the appellants to that already undergone. Order accordingly. The sentence of fine of Rs. 1,000 awarded to Safdar appellant for E conviction under Sec. 304‑I1 P.P.C. is reduced to Rs. 200, which he will deposit within fifteen days. In case he fails to deposit the fine, he shall undergo one month's S.I.
M.Y.H./G-258/L
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