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Criminal Appeal No. 98 of 1977, decided on 15th June, 1982.

(On appeal from two judgment dated 18‑2‑1974 of the Lahore High Court, Lahore

in Criminal Appeal No. 307 of 1972 and Murder Reference No. 118/72.

Criminal Procedure Code (V of 1898)‑

--S. 382‑B read with Constitution of Pakistan (1973), Art. 185(3) Sentence, reduction of One appellant having only nine months left to serve and other two appellant's having hardly two months more to serve‑Appellants remaining in detention during trial concluding on 6‑4‑1972 and arrested on 4‑11‑1969 and consequently all appellants to be deemed to have already served full period of their sentence if benefit of S. 382‑B given to them‑Submission made by appellant's counsel that if sentence already undergone considered sufficient he would not press for appeal to be heard on merits‑State counsel having no objection to appeal, sentence of appellants reduced to that already undergone.‑(Sentence).

Shaukat Ali, Advocate Supreme Court and Rana Maybool Ahmad, Advo cate‑on‑Record for Appellants.

Shajahuddin Qureshi, Advocate Supreme Court and Ijaz Ali, Advocate‑on Record for the State.

Date of hearing : 15th June, 1982.

JUDGMENT

NASIM HASAN SHAH,

J.‑This appeal by leave of this Court is directed against the judgment of the Lahore High Court, Lahore dated 18‑2‑1974 passed in Criminal Appeal No. 307 of 1972/Murder Reference No. 118 of 1972.

On 4‑11‑1969 in Thata Vaina, situate within the jurisdiction of P. S. Sharaqpur District Sheikhupura at about Degarwala Shah Muhammad (deceased) and his brother‑in‑law Ramzan, P. W., the first informant, were returning to the village with their cattle, who strayed in the munji field of Nawab (appellant No. 1 herein). Arif son of Nawab, who was present in the field abused Shah Muhammad for the cattle tress pass. Shah Muhammad returned the abuse and drove away the cattle. After tethering the cattle, Shah Muhammad, Ramzan were going to the dera when they were attacked by the three appellants, who are brothers, namely, Nawab, Yasin and Muhammad Ali and allegedly also by their father, Ali Muhammad. Nawab had a gun with which he fired two shots at the deceased hitting in the abdomen and the flask. He fired a third shot which hit Ramzan in the abdomen. Both the injured fell down and given dang blows by Yasin and Muhammad Ali. The two injured were carried to the hospital and a case under sections 302, 307 and 323., P. P. C., was registered on a statement made by Ramzan in the hospital. The medical examination of Shah Muhammad and Ramzan showed that both had suffered gunshot injuries, besides injuries by blunt weapons. Shah Muhammad died later in the hospital.

In the F. I. R. apart from the cattle tresspass followed by exchange of abuses, no other motive for the incident was ascribed.

Ramzan, the informant appeared before the Enquiry Magistrate, but died later on and his statement before Enquiry Magistrate, accordingly was read in evidence under section 33 of the Evidence Act. At the trial, Shah abal, P. W. 3, Shah Muhammad son of Sultan P. W. 10 And Hakim Ali, P. W. 11 were examined.

Nawab denied his participation in the incident and pleaded alibi. Yasin, who had suffered injuries on his head, on the other hand made the following statement in the defence at the trial :‑

"What actually happened was that I and my father accused Ali Muhammad were present in our paddy field when 14 to 15 buffaloes of Shah Muhammad and Ramzan P. W. tresspass in our field and caused damage to our crop over which I and my father Ali Muhammad protested. to them but the deceased and P. W. Ramzan abused us and started to assault us. In the meantime, P. W. Shahabal also came there and joined in the attack. I was given blows by P. W. Shahabal on my head as a result of which I suffered grievious injury resulting in fracture of my head bone .

The trial Court in his judgment dated 6‑4‑1972 held that there was quarrel without any reconvert between the three appellants herein. Tberefore, the learned trial Judge held

Yasin and Muhammad Ali appellants. who had caused simple injuries to Shahabal and Ramzan to be guilty only of their individual acts and were convicted under section 323, P. P. C. and sentenced them to one years R. I. on two counts. The learned trial Judge, however, believed the prosecution evidence charging Nawab appellant with having caused gun‑shot injuries to Shah Muhammad deceased and Ramzan P. W. resulting in the death of the former and con victed Nawab both under sections 302 and 407, P. P. C., sentencing him to death and transportation for life respectively. The father of the appellants, Ali Muhammad was given the benefit of doubt and acquitted.

On a joint appeal preferred by the convicts and a reference, a Division Bench of the Lahore High Court generally agreed that there was a sudden fight as a sequel to the cattle tresspass and came to the conclusion that the offence against Nawab in relation to the death of Shah Muhammad deceased would fall under exception 12 of section 303, P. P. C. and on that finding did not confirm his death sentence and altered the conviction of Nawab to that under section 304, Part I, P. P. C, and sentenced him to 10 years' R. I. However, his conviction under section 307, P. P. C. for causing gun‑shot injuries to Ramzan P. W. was maintained, though the sentence was reduced to five years' R. I. Similarly, the sentences of Yasin and Muhammad Ali appellant were reduced to six months' R. I. The learned Judges, however, did not address themselves to the plea of self‑defence raised by the appellant Yasin. This judgment passed on 18‑2‑1974.

Leave to appeal was granted by the Court vide its order dated 24‑6‑1974 to consider whether in the light of the facts that Yasin had suffered serious injuries on the head and that the immediate cause of the incident was straying of the buffaloes of Shah Muhammad deceased the plea of self defence had received due consideration by the Courts below. In this order Yasin and Muhammad Ali appellants were also granted bail, as they had already served more than three months out of the sentence of six months awarded to them.

This appeal, however, could not unfortunately be heard for quite some time. Consequently, a miscellaneous application (Cr. M. P. No. 21/78) for release of Nawab appellant on bail was moved wherein it was urged that after deducting the remission that the said appellant had earned so far, he had only for about nine months further imprisonment to undergo and if be was not released on bail, the appeal would soon become infructuous. As there was merit in this plea, Nawab was enlarged on bail by the order of this Court on 6‑7‑1978.

This appeal has now come up for hearing and the learned counsel urge before us that as pointed out already by him Nawab appellant had only nine months left to serve, out of the sentence awarded to him, and the other two appellants also had hardly two months more sentence to serve. He further pointed out that the appellants had remained in detention during the trial which concluded on 6‑4‑1972 and they had been arrested on 4‑11‑1959. Consequently, if the benefit of section 382‑B of the Criminal Procedure Code was allowed to them, all the appellants had already served the full period of their sentence. He submitted that if the appeal was accepted to the extent that the sentence already undergone by the appellants was considered sufficient he would not press the appeal on they merits. The learned counsel for the State. in the circumstances noted above', submitted that he had no objection if the appeal was decided in the above terms.

The result is that we would dismiss this appeal so far as it is directed against the order of the High Court convicting the appellants for the offence found against them but would accept it to the extent that the sentence of the appellants will be reduced to that already undergone by them.

This appeal stands disposed of on the above terms.

Order accordingly.

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