This appeal is directed against the judgment of learned Additional Ses--sions Judge, Vehari, dated 30-1-1979, whereby Falak Sher and his brother Ghulam Jafar appellants were convicted under section 302/34, P. P. C. And sentenced to life imprisonment and a fine of Rs. 3,000 each or in default in payment of fine to undergo further rigorous imprisonment for one year. The amount of fine, if recovered, was ordered to be paid to the legal heirs of the deceased by way of compensation under section 544, Cr. P. C.
2. On 28-8-1975, in the evening, Muhammad Iqbal, deceased was returning to his house from the tube-well of Ramzan Lambardar. When he reached near the sugarcane field of the appellants, the appellants came out of the sugarcane field and caught hold of the decreed. Falak Sher appellant put the turban around the neck of the deceased and pressed it while Ghulam Jafar appellant felled him on the ground with the result that the deceased sustained injuries on the back side of neck and the back. Khurshid Ahmad (P. W. 10) and Ghulam Muhammad (P. W. 11) were attracted to the spot on the noise raised by the deceased. They rescue the deceased from the appellants. After the occurrence, the appellants left for their houses. Khursbid Ahmad, P. W. Informed Muhammad Fazil com--plainant (father of the deceased) at his house. He returned to the spot in the company of said Khurshid Ahmad and Muhammad Zaman. The deceased narrated the entire occurrence to his father Muhammad Fazil complainant. Thereafter, the deceased was carried to his house as the deceased could not move his legs and arms. The complainant took the deceased to Civil Hospital, where he was medically examined.
3. Motive in the case was that some days before the present occurrence, the deceased had given beating to Muhammad Ishaq, a brother of the two appellants and the appellants bore grudge on that account and avenged that beating.
4. Muhammad Fazil lodged F. I. R. At Police Station, Luddan, on the following day at 12-30 p.m. The case was registered under section 307/34, P. P. C. The case was investigated and challan submitted under section 307/34, P. P. C. Muhammad Iqbal expired on 25-4-1976, i.e., after about eight months of the occurrence. An incomplete statement of Muhammad Iqbal had been recorded by Magistrate, Section 30, Vehari, on 14-4-1976. The deceased was under cross-examination when he became senseless. He was sent to the hospital.
5. The prosecution examined eleven witnesses at the trial. The two eye-witnesses, namely, Khurshid Ahmad and Ghulam Muhammad fully supported the prosecution case. They were disinterested witnesses. They had no grouse or ill-will against the appellants. Their statements could not be smashed inspite of lengthy cross-examination. I have no reason to dis--believe them. The learned counsel for the appellants feeling the difficulty did not challenge those statements.
6. It was contended by the learned counsel for the appellants that the learned Additional Sessions Judge was not justified in recording the conviction under section 302/34, P. P. C. According to the learned counsel for the appellants, the case of the appellants was covered under Exception 1V of sec--petition 300, P. P. C. It was also submitted that there was no previous enmity between the appellants and the deceased and the only motive was that some days prior to the occurrence, the deceased had given beating to Muhammad Ishaq and it could not furnish a motive to the appellants to commit his murder, and the only intention was to teach him a lesson by giving him beating and had it been the intention of the appellants to commit murder, they would have gone armed with some lethal weapons. It was further contended that the only part attributed was that Falak Sher pressed the neck with turban while Ghutam Jafar felled him on the ground and by these acts, it could not be legitimately held that the intention was to commit murder.
7. The deceased was medically examined on 29-8-1975 at mid-day and the following injuries were found on his person :--
(1) A swelling measuring 5' x 4' on the back neck.
(2) An oblique bruise measuring 3" x 1' with swelling on lumber region of verteberal column.
Both lower legs and pareses of both upper arms were completely paralysed. The doctor did not find any ligature mark round the neck of the deceased. The deceased was referred to Nishtar Hospital, on 3-11-1975. Dr. Muhammad Zubari X-Rayed the injuries. Dislocation of sixth cervical vertebra was seen in the X-Ray films. Post-mortem examination was conducted by Dr. Wasim Akhtar, on 26-4-1976. The doctor noticed nineteen old necrotic ulcers on the body of the deceased.
The deceased was long bed-ridden and on that account, necrotic ulcers had been caused. The doctor also found dislocation of sixth cervical vertebrae which was projecting backward with fibrous adhe--sions formed around. The dislocated vertebrae was firmly fixed a the dislocated place. The posteriorly projecting sixth cervical vertebrae was pressing the spinal card below head.
Fibrous adhesions were formed all around the area.
8. Now remains the question of sentence. By a recent amendment of section 382-B, the word `may' has been substituted by the word `shall'. In view of this amendment, the period of detention for an offence has to be take into consideration. The appellants are in Jail for the last five years. Keep-- ing this fact in view, I reduce the sentence of imprisonment of the appellant to already undergone.
The sentence of fine is, however. Maintained. In default of, payment of fine, the appellants shall suffer imprisonment as ordered by the trial Court and it shall be paid to the heirs of the deceased as comp6n--sation, if recovered.