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Criminal Appeal No. 54 of 1981, decided on 7th March, 1982.

--S. 304, Part I-Sentence, reduction in-Both parties receiving injuries during occurrence and accused firing only once at apparently non vital part of body and deceased died after 23 days of occurrence after developing parapleagia of both legs-Accused also remaining in Jail for more than 2 years as an under trial prisoner but such period not taken into consideration by trial Court while awarding sentence to accused-Sentence of 10 years' R. I. reduced to 5 years' R. I. in circum stances.-[Sentence].

Murtaza Ali Zaidi for Petitioner.

Khalid Ali for the State.

Date of hearing : 7th March, 1982.

This appeal arises from the judgment of the learned Additional Sessions Judge, Sahiwal, whereby, he on 10-3-1981 while acquitting the six co-accused convicted Ziaul Hassan, aged 40 years, appellant under section 304, Part I of the Pakistan Penal Code for causing the death of Abdur Rehman and sentenced him to 10 years' R. I. and a fine of Rs. 5,000 or in default thereof to further R. I. for two years with the direction that the fine if realised to be paid to the heirs of the deceased as compensation under section 544-A, Cr. P. C.

2. The occurrence took place at 3-00 p.m. on 6-7-1977 in the area of Chak No. 114/12-L of Police Station, Kassowal. The distance between the place of occurrence and the Police Station is 4 miles.

3. The F. I. R. Exh. P. Q. was lodged by Ghulam Farid P. W. under section 148/307/324/147, P. P. C. at 6-30 a.m. on 7-7-1977. Abdur Rehman died on 31-7-1977 at 9-30 p.m. and as such the offence was altered from section 307, P. P. C. to section 302, P. P. C.

4. Motive.-Three/four months prior to the occurrence the deceased was present near the house of Muhammad Hussain alias Mumma acquitted co-accused. Kazim, Mumma acquitted co-accused and Ziaul Hassan appellant told him to go away but the deceased refused and the parties exchanged abuses. Shameera (given up) intervened. Kazim acquitted co-accused and other threatened that they would teach lesson of their insult to the deceased.

5. Occurrence.-At the fateful time the deceased, Ghulaai Farid P. W. 5, Sultan P. W. 7 and Zafar Iqbal P. W. 6 were coming back to their house after enjoying maila of Peer Bahadur Shah when Zia-ul-Hassan, appellant armed with .12 bore gun, Habib armed with hatchet, Safdar armed with .12 bore gun and the remaining co-accused except Latif armed with sotas came out from behind. On the lalkara raised by Latif that Abdur Rehman should not escape alive, the deceased started running to save his life, whereupon, the appellant fired at him, the shot hit on his left loin and he fell down. Habib co-accused injured Sultan P. W. with hatchet; Mumma inflicted sola blows on the person of Zafar P. W. Ashraf co-accused inflicted injuries with sota on the person of Ghulam Farid P. W. 5 complainant. The alarm attracted Muhammad Sadiq and Shameera to the spot but Safdar co-accused fired in the air to frighten them and, thereafter, all the accused persons ran away alongwith their respective weapons.

6. Medical.-Dr. Muhammad Amin P. W. 4 examined Abdur Rehman on 6-7-1977 at 8-55 p.m. and found the following injury on his person :-

A circular wound 1 in diameter deep going on the lower part of left loin at the posterior part of left iliac crest just to the left of the spinal column. The margins were inverted. The patient was in severe state of shock.

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.

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