1. Brief facts giving rise to the present appeal are that on 16-2-1997 at 12-00 noon complainant Kamaluddin alongwith Muhammad Bux, P.W. Amir Bux was returning to their village when they reached near the house of Dadio Katpar he saw P.W. injured Azizullah going on the path, 15-20 paces ahead to them. They saw appellant Nindo, Haban and Khuda Dino armed with hatchets and appellant Ali Nawaz and Murad armed with Lathi reached near P.W. Azizullah. The appellant Ali Nawaz instigated other accused not to spare Azizullah therefore appellant Nindo, Haban caused hatcher injuries to Azizullah whereas appellants Ali Nawaz and Murad gave Lathi injuries to him.
2. They raised cries on which the accused ran away towards their houses. The police after usual investigation challaned the appellants in the Court of law.
3. The learned 1st Addl. Sessions Judge Sukkur tried the appellants, convicted them for offences, punishable under Sections 324, 337-A(ii) read with Section 149, P.P.C. and sentenced each of them to various terms of imprisonment with benefit of Section 382-B, Cr.P.C. However the learned trial Judge acquitted the appellants for offence punishable under Section 337-F(i), P.P.C. in respect of injuries caused by hard and blunt substance on the person of injured P.W. Azizullah on the ground that when the injured first appeared before the investigating officer and medical officer such injuries were not available on his person but the said injuries were known subsequently when the injured was admitted in Civil Hospital Nawab Shah, under the impugned judgment dated 20-10- 1996.
4. 'I have heard the advocate for the appellant, A.A.-G. for the State and perused the record of this case very carefully. The case of the prosecution rests upon ocular testimony which consists of two eye-witnesses viz. P.W. complainant Kamaluddin and injured Azizullah. They gave the same details of the incident as mentioned in the earlier part of the judgment therefore need not to be repeated.
5. However the injured added the name of appellant Khuda Dino of causing hatchet injuries to him, but the said fact has not been supported and corroborated by the complainant. Therefore his case is distinguishable from the case of appellant Ali Nawaz, Nindo and Haban. Both the witnesses were unanimous that appellant All Nawaz instigated the remaining accused on which Nindo and Haban caused hatchet injuries to the injured. The said fact has been fully supported and corroborated by the medical evidence.
6. 'As regards the Lathi injuries caused by appellants Ali Nawaz and Murad on the person of injured P.W.2 the learned trial Judge found the said injuries doubtful therefore acquitted the appellants from the said charge as clear from the impugned judgment. Therefore we are left with the injuries caused by appellants Nindo and Haban and instigation of Ali Nawaz. The said allegation has been proved from the evidence of above mentioned witnesses. The learned trial Judge after scrutinizing the. evidence has held them guilty of the offence therefore rightly convicted and sentenced them.
7. 'As regards the case of Khuda Dino, his case is doubtful therefore he cannot be convicted for the said offence hence he is liable to be acquitted from the said charges. From the facts of the case it appears that each accused is responsible for causing the injuries to the injured. As no part of causing injury to the injured from the hands of appellant Murad has been established and is clear from the impugned judgment therefore he is also liable to be acquitted from the said charge. After scrutinizing the evidence available on record I am of the considered view that no case has been made out against appellants Khuda Dino and Murad therefore the impugned judgment is set aside in respect of their involvement.
8. 'As regards the punishment to Ali Nawaz, Nindo and Haban. The learned advocate for the appellant has argued that the appellants have suffered agony of protracted trial of nine years and they are first offenders therefore the appellant may be sent on, probation. Learned A.A.-G. has no objection to the above proposal.
9. 'One of the concept of punishment is to reform an offender so that after serving out the sentence he should become a beneficial member of the society. It is open secret that the present state of affairs in the jail are such where a person once entered into it then instead of coming out as a reformed person, he would come out as a hardened criminal. No adequate training, facility, atmosphere, association of right persons are available in jail premises to make a person realize that he had committed a wrong against individual and society for that he should repent and reform himself so that he may not commit such offence and become burden on the society. The basic and main idea of the punishment is reformation which apparently is not available in the jails.
10. Therefore keeping in view the basic principle of punishment the legislature has enacted Probation of Offenders Ordinance, 1960 with a view to instead of sentencing offenders at once after proving them guilty they should be sent on probation keeping in view the offence and its punishment, for that Section 5 of the said Ordinance provides certain categories of the offences for which a convict cannot be sent on probation and for offence which carry .punishment of imprisonment for life or death. As such a bar has been created under.. Section 5 in exercise of the powers under the said act. The appellants had been convicted for offence punishable under Section 324 and other minor offences. The said offences do not carry punishment of imprisonment for life and death. They also do not come within the bar of offences specified in it, therefore the case is fit where question of sending the appellants on probation can be considered.
11. 'The appellants have already suffered agony of trial of nine years, they must have suffered financially and physically for long nine years. If the appellants are sent to jail custody then instead of reforming themselves possibility of coming out as hardened criminal cannot be ruled out because of association with the hardened criminals in the jail. As such when the appellants come out from the prison, after serving out the sentence' they instead of becoming valuable members of the society, would become danger to it therefore it will not be conducive for the society to accept such type of person amongst it. If the appellants are sent on probation they would conduct themselves within the parameters mentioned in the bond by which they would not commit any offence during the period of bond which may be up to thfee years therefore the society would feel safe in the hands of appellants during the said period. The appellants would conduct themselves in such a manner that they would not violate the conditions mentioned in the bond knowing fully well that if they violate any condition they would be sent to jail to serve out the sentence. This double check is provided under the Ordinance about the conduct and behaviour of the appellants.
12. 'In these circumstances I find it is a fit case for sending the appellants on probation.
13. 'Above are the reasons of my short order dated 8-9-2006 by which I had disposed of the appeal in the following manner: 'For reasons to be recorded separately, conviction and sentence awarded, to the appellants Murad and Khuda Dino under the impugned judgment are set aside. They are acquitted and set-at liberty.
14. Their appeal is allowed. Whereas the conviction and sentence awarded to appellants Nindo, Ali Nawaz and Haban are maintained. The appellants Nindo, Ali Nawaz and Haban are sent on probation for a period of three years subject to furnishing surety in the sum of Rs. One lac each and execution of bond as provided under Section 5 of the Probation of Offenders Ordinance, 1960. All the required documents should be furnished before the trial Court. The trial Court on execution of required documents should hand over the custody of the appellants to the Probation Officer for doing the needful. The appellants are present on bail. They are directed to appear before the trial Court on 22-9-2006, till that time they are allowed to remain on same bail and bonds.