This is an appeal against the judgment of Ex Officio Additional Sessions Judge, Karachi dated 4January, 1975 where he convicted the present appellant under sections 307 and 364, P. P. C. And sentenced him to suffer R. I. For 3 years under each count but the sentences were to run concurrently.
2. The story disclosed in F. I. R. Exh. 11 by Jamalul Haq P. W. 9 was that on 15th April, 1967 he was called from telegraph office by P. W. 10 Chamman, who was Police Constable on the plea that S. I Mohammad Ishaque Farooqi was waiting for him in the General Post Office but in the G. P. O. It was accused who met him and told him that he was to be arrested and then he was to be externed from Karachi. Jamalul Haq resisted that attempt but he was pushed by the accused and P. W.
Chamman and taken to road where he was forced to sit in a Taxi and then taken to a place near Landhi Jail where they have alighted from Taxi and the accused stopped a truck, tied the hands of Jamalul Haq and took him along with the Police Constable beyond railway crossing near Ghaggar and from there the complainant was taken about 1/4 miles inside bushes and away from the road and was made to sit under bushes, in view of the scorching beat as it was 10 a.m. The accused made the complainant understand that he was to be handed over to Thatta Police, there the accusers tried to obtain blank signature of Jamalul Haq but he refused and thereupon the accused fired 6 revolver shots upon the complainant which hit him in cheek, shoulder and abdomen.
Thereafter accused and P. W.-- Chamman went away and the complainant crawled to the road and was picked up by a taxi and he lodged his report with Malir Police Station at 1.45 p.m. On the same day.th
3. The Foot Constable got himself separated from the accused in Karachi and went to report the matter to the higher authorities and he was taken by a police officer to Malir Police Station. The accused was found absent from his duty on 15th April, 1967 from the Estate Office of the K. P. T.
Where he was posted. P. W. Chamman Foot-Constable was also posted along with accused and was found missing on the same day. The investigation was made by P. W. Mula Jan whose statement in the committal Court was transferred to the Sessions Court as Exh.
17. He was the S. H.
O., Malir at that time and the only investigation that he has made was that he has made a mashirnama of wardat Exh. 29 in the presence of Mashir Abdullah P. W. 11 and recovered 3 empty shells from the spot of -455 bore. The wardat was about 3.45 paves from. Pakka road on Hyderabad about 27 miles from Karachi.
4. Later on investigation was entrusted to Mohammad Khan Bajwa who was S. H. O., Aram Bagh on account of the original offence of abduction having taken place within Aram Bagh Police Station jurisdiction. Mohammad Khan Bajwa P. W. 22 made the necessary investigation and examined a number of witnesses including P. W. Chamman. The witnesses are in respect of marriage of the accused with Mst. Khursheed and the absconsion of the accused from his duty between 15th April, 1967 to 21st July, 196 7 as well as on the point, of the details of the attempt at abduction for the purposes of corroborating the statement of Jamalul Had.
After transfer of Mohammad Khan Bajwa the investigation was con--ducted by Noor Khan P. W. 18 and he arrested the accused on 21st July, 1967 from a hotel of Mohammad Soomar at Dhabji in the presence of Mohammad Jumman mashir, P. W. 17 who was a partner in the said hotel. On personal search of the accused a number of articles were recovered from him but the relevant recovery was of service revolver No. K. P. 402 bore -455 which was loaded with 6 live rounds. The 3 fired cartridges recovered from the scene of offence as well as the revolver recovered from the accused were sent to the Ballistic Expert on 31st July, 1967 and the report of the Ballistic Expert was made on 31st October, 1967 and the same has been proved by Mukhtar Ahmed P. W. 20 Ballistic Expert, who clearly stated that the fared cartridges had been fired front the revolver that bad' been sent to him.
5. The injuries upon the complainant Jamalul Haq here examined Dr. R. A. Naqvi who gave certificate Exh. 33 which was proved by Razi Hussain P. W. 14 as Dr. Naqvi's presence could not be procured without unreasonable delay. The Medical certificate showed three wounds of entry upon cheek, abdomen and shoulder and 2 wounds of exit.
6. The learned counsel Mr. Azizullah K. Shaikh for the appellant had taken me in detail through the evidence of prosecution witnesses. There are 2 witnesses of the incident, namely Jamalul Haq and P. W. Chamman. The evidence of Jamalul Haq is quite consistent in respect of the incident that he was fired at by the accused in presence of P.W, Chamman and there is no reason to disbelieve him as it was daylight and the identification could not be in doubt and there is no reason as to why he should have substituted a false person in place of the real culprit The incident is also deposed to by P. W. Chamman and although Chamman, appears to be an accomplice in the action of the accused, but still I find that the statement is sufficiently corroborated from the statement of Jamalul Haq and also from the factum of the recovery of 3 fired cartridges, from the wardat on the same day of incident plus the factum of recovery of the service revolver from the possession of the accused on 21st July, 1967 and the further fact that the fired cartridges have been found to be matching with -the revolver by the Ballistic Expert. It would not be necessary for me to go into details of the absconsion and motive but suffice it to say that the marriage of the accused with Mst. Khursheed have been clearly proved by the statement of Jamalul Haq complainant. Karim Jan P. W. 3, Muhammad Ishaque Farooqi who is a police officer and was a witness to the marriage, Mst.
Khursheed whose statement in the committal Court was transferred to the Sessions Court as Exh.
65 and who had clearly stated that she had been married to the accused Statement of Mst. Kamal Fatima who is the sister of the complainant and had arranged marriage of accused Mst.
Khursheed and Mohammad Bashir P. W. 21 who was the witness of the memo of Nikah.
6. P. W. 6 Muhammad Ishaque Khan was also a witness of memo of Nikah. Jamal and Mst. Kamal Fatima bad clearly stated that the accused suspected Mst. Khursheed to be in toe with Jamal and, therefore, he had motive to punish Jamal. The absconsion of the accused had been proved by Mohammad Khan and Noor Khan, two Investigating Officers who found the accused missing till 21st July, 1967.
7. The prosecution has proved the guilt of the accused without any doubt and I particularly found that there is hardly any cross-examination directed against P. W. Mohammad Jumman in whose presence the revolver was recovered or P. W. Abdullah in whose presence the 3 empties had been recovered. In fact the learned counsel for the appellant Mr. Azizullah Shaikh who had argued the matter had fairly conceded that it was a difficult case for the defence and, therefore, he had submitted that he would press the case only on the point of sentence. I find a great deal of justification in the attitude adopted by learned counsel for the appellant, as the case has been proved beyond any doubt. I may note there that the appellant in his statement under section 342, Cr. P. C. Had made a clean denial of every thing and his main answer was that the question does not arise". The appellant had also produced 7 P. Ws. But none of them was relevant in respect of the incident in question. One of them proved seniority of the accused in the service and Sain Badshah who had come to prove Exh. 61 stated that it was a forgery and similarly Riasatullah D. W. 7 who had come prove the plea alibi of the accused failed to substantiate the same. The D. Ws. Had also tried to prove that the accused had sent his revolver to the police authority on 15April, 1967 but the same could not be proved by him and in any case the proof of the recovery of the revolver from the possession of the accused as deposed to by P. W. Jumman and P. W, 4 Noor Khan is beyond doubt.
8. Coming to the question of sentence raised by Mr. Azizullah Shaikh, he submits that the offence took place in 1967 and the appellant has been undergoing the torture of the prosecution as well as the respect of the possibility of the dismissal of the appeal and his further detention in Jail and be therefore submits that the appellant should be shown leniency. Mr. Azizullah Shaikh has submitted that in many cases where the prosecution had been going on against certain accused particularly in corruption cases for more than 8 or 9 years, these accused person, have in many cases been discharged and some time the proceedings have been quashed by the High Court. That may be so in respect of pending cases but in respect of a conviction which is justified from evidence the proceed--ings cannot be quashed.
9. The learned counsel further submitted that the appellant remained as an under trial prisoner from 21st June, 1967 to 4th April, 1969 which means 1 year 8 months and 20 days. He was granted bail between 4th April, 1968 and 10th April, 1969 but after committal of the case he was remanded to the custody by the Additional Sessions Judge on 10May, 1969 and he remained in jail till 7th October, 1969 when he was bailed out. That again accounts for 4 months and 27 days which means that the appellant remained in Jail as an under trial prisoner for 2 years 2 months and 13 days. He has also remained in Jail after conviction and 4th January, 1975 till 7th February, 1975 when he was bailed out by the High Court, which comes to a period of one month and 3 days.
10. Mr. Azizullan Shaikh, therefore, submitted that the period of detention before trial amounting to 2 years 2 months and 13 days should be treated as the period of sentence undergone by the appellant/accused and further considering the detention of the appellant for one month and 3 days after conviction, the whole period should be counted as 2 years 3 months and 16 days having been undergone by the appellant as the period of sentence and the sentence may be reduced from 3 years' R. I. To 2 years and 3 months' R. I. So that the appellant who is an old man and having retired from service is not further disgraced and put to the rigorous of imprisonment.th th
11. Mr. Azizullah Shaikh had submitted after consulting his client who was present before me that in order to meet the ends of justice, the appellant is prepared to pay a sum of Rs. 5,000 as compensation to Jamalul Haq under the provision of under section 544-A, Cr. P. C. I find that this is a reasonable attitude on the part of the appellant and I see that he is an old man. Of course he had committed an offence and for that he has been going in the Jail and coming out, of and as, therefore, he has received reasonable punishment for the same and the ends of justice would be met if I allow under section 382-B of Cr. P. C. For the period of detention of the appellant before the conviction amounting to 2 years, 2 months and 13 days as the period of sentence having been undergone by him. I accept that plea. The period of 2 years and 2 months, when the appellant remained as under-trial prisoner, would be counted towards the period of sentence raving been undergone by him. I further reduce the sentence of the appellant under both the Courts under section 307 and 364, P. P. C. To 2 years and 3 months' R. I. Each. It is obvious that after adding the amount of 2 years 2 months and 13 days to the period of detention of I month and 3 days after the conviction the appellant has by now served the sentence of 2 years and 3 months which I have now reduced under botch counts. The two sentences were ordered to run con-currently by the trial Court.
But I direct the appellant to pay a sum of Rs. 5.000 in Court as compensation for Jamalul Haq under section 544-A, Cr. P. C. In case the appellant does not deposit the said amount of Rs. 5,000 within a week of this order then be shall further undergo R. I. For one year. This order has been passed at the instance of the appellant and his counsel and to obviate formality I had orally given a notice of enhancement of sentence to the appellant to the extent of compensation, which was waived, by the appellant and his counsel. In case the appellant deposited the amount of compensation in Court notice be issued to Jamalul Haq complainant for receiving the payment, The appeal is, therefore, dismissed with the modification of sentence.