' SHAHID HAMEED DAR, J.---This judgment shall dispose of criminal appeal No,192 of 2005, instituted by Fateh Muhammad and Muhammad Arif (appellants), who had been held guilty of the charge, they were indicted for and sentenced to various terms of imprisonment and other pecuniary punishments, vide judgment dated 25.1.2005, pronounced by learned additional sessions judge, camp at Malakwal, district Mandi Baha-ud-Din, on conclusion of their trial in respect of case-FIR No,180/2001, dated 25.6.2001, under sections 324, 337-A(ii), 337-F(ii), 337-F(iv), 337-F(vi)/34, 109, P.P.C., registered at police station Malakwal (Mandi Baha-ud-Din). The detail of sentence awarded to the appellants read as under:-- I) FATEH MUHAMMAD: a) Under section 337-A(ii) P.P.C. To rigorous imprisonment for three years with payment of Daman, Rs, 15,000/- and till its payment to remain in jail as a convict serving simple imprisonment.
' Under section 337-L(2), P.P.C: to rigorous imprisonment for two years each for causing two injuries.
II) MUHAMMAD ARIF: ' Under section 336 read with section 337-Q, P.P.C: to rigorous imprisonment for five years with payment of Arsh equal to Diyat amount, Rs,3,00,000/- to Muhammad Ashraf injured PW and till its payment to remain in jail as a convict serving simple imprisonment.
' Their sentence of imprisonment was ordered to run concurrently and benefit of section 382-B Cr.P.C. Was also extended to them.
' Their co-accused Mst.Razia Bibi was, however acquitted of the charge through the same judgment.
' And this judgment shall also deal with Criminal Revision No,459 of 2005 filed by the complainant for enhancement of the sentence of respondents Nos.1 and 2, Muhammad Arif and Fateh Muhammad. Not to be forgotten, it has not been admitted to regular hearing as yet.
2. The prosecution case as narrated by Muhammad Aslam (complainant/P.W.6) in FIR (Exh.PC/1) is that his paternal nephew Muhammad Ashraf (P. W.1) went to irrigate the paddy-crop at about 6.00 a.m. On 25.6.2001; he along with Ijaz Ahmad (P.W.5) and Safdar lqbal PW (not produced), a guest, worked at his dera then; when his paternal nephew reached near the dera of Muhammad Azam, he was ambushed by Fateh Muhammad (appellant), armed with hatchet, Muhammad Arif (appellant), armed with hatchet and Mst.Razia Bibi (since acquitted); armed with hatchet; Muhammad Arif accused felled Muhammad Ashraf by holding his legs; Fateh Muhammad accused sat on his neck and Muhammad Arif accused gave hatchet blows, one each at his right and left calves; Muhammad Ashraf screamed out of pain still lying on the ground; all the three armed persons collectively gave hatchet blows, which landed at different parts of his body; on hearing the alarm, he (complainant) along with his companions rushed to the spot while looking at the incident; the attackers saw the on-rushing complainant-party and fled the spot.
' The motive behind the occurrence was that Muhammad Ashraf injured had lent a sum of Rs,800/- to the mother of Muhammad Arif accused, who died without repaying the said amount; Muhammad Ashraf demanded it from Muhammad Arif accused, who took it ill and it led to exchange of abuses between them; Muhammad Ashraf was attacked by Muhammad Arif and others due to said grudge.
' Muhammad Aslam (complainant/P.W.6) reported the matter to Gulzar Ahmad ASI at 7.45 a.m. On 25.6.2001 at Miani Chowk Malakwal, when he was on way to the police station Malakwal, Mandi Baha-ud-Din. Gulzar Ahmad ASI (P.W.8) scribed complaint (Exh.PC) on the statement of Muhammad Aslam and despatched it to police station Malakwal through Javed Iqbal 592/C.
Which led to registration of formal FIR No,180/2001, supra (Exh.PC/1). He prepared injury statement (Exh.PG) qua Muhammad Ashraf injured and sent him to RHC Malakwal under the escort of Muhammad Iqbal 407/C PW (not produced) for medical examination and treatment of his injuries.
' Thereafter, he (P.W.8) reached the place of occurrence and started investigating the matter. He inspected the place of occurrence and prepared visual site plan (Exh.PH); collected blood stained earth vide memo of recovery (Exh.PD); recorded statements of the witnesses under section 161, Cr.P.C.; he collected blood stained clothes (P1 to P3) of the injured on 25.6.2001 vide memo of recovery (Exh.PA), courtesy Muhammad lqbal 407 PW (not produced). He moved an application (Exh.PJ) before the medical officer for recording statement of the injured on 12.7.2001 and by knowing that he was fit enough to talk, recorded his statement under section 161, Cr.P.C., the same day; he arrested the accused/appellants on 25.6.2001 and interrogated them; Muhammad Arif accused/appellant got recovered hatchet (P4) on 28.6.2001 vide seizure-memo (Exh.PB); he prepared site plan (Exh.PB/1) of the place of the said recovery; he despatched both the accused to judicial lock-up on 29.6.2001; he finalized the investigation and submitted the relevant record before the SHO for preparation of report under section 173, Cr.P.C., who did it accordingly.
3. Learned trial court indicted the appellants on 3.10.2001, who pleaded not guilty to the charge and claimed a trial, whereon prosecution was directed to lead evidence against them. They produced eight witnesses in all, including Muhammad Ashraf injured (P.W.1), Riaz Ahmad 172/C (P.W.2), Muhammad Akbar 199/C (P.W.3), Sikandar Hayat AS1 (P.W.4), Ijaz Ahmad (P.W.5), Muhammad Aslam (complainant/P.W.6), Dr.Manzoor Rasool Awan (P.W.7) and Gulzar Ahmad SI/I0 (P.W. 8) to prove the charge against the accused. Learned deputy district attorney pronounced the case closed on 14.9.2004.
4. On his turn to make statement under section 342, Cr.P.C., Muhammad Arif (appellant) denied all the allegations against him as false and raised specific plea of having acted under grave and sudden provocation, when he saw Muhammad Ashraf (injured) attempting to commit zina-bil- jabr with his sister and acquitted co-accused Mst.Razia Bibi in the nearby field. He refuted the allegation of having attacked and injured Muhammad Ashraf and rendered the defence plea in answer to question No,2, in following words:- "It is correct. I was looking after my cattle at the "Bahk" in the fields and hatchet was with me.
When I heard hue and cry of Mst.Razia Bibi from the nearby crop, he reached there and saw that Muhammad Ashraf was attempting to commit Zina Haram with my sister and on sudden provocation, I gave the hatchet blows to the legs of Muhammad Ashraf victim to save the honour of my sister. Fateh Muhammad my co-accused was not present at that time and he reached the spot after the occurrence. "
' While answering the question as to why this case against him and why the PWs had deposed against him, he contended that he had been involved in a baseless case and prosecution witnesses had deposed falsely against him being related inter-se. To another question (No,5), had he anything else to say, he came up with the answer that "my act was out of Ghairat and sudden provocation. I am innocent." He did not depose under section 340(2), Cr.P.C. But he tendered documentary evidence Exh.DC and Exh.DD in defence.
' Fateh Muhammad accused (appellant) professed his absolute innocence in the matter and denied all the charges against him being false. He neither led the defence evidence nor he deposed under section 340(2), Cr.P.C.
5. Learned trial court found both the appellants guilty of the offences, they had been charged for and sentenced them accordingly, the details furnished as before.
6. Learned counsel for the appellants has submitted that the learned trial court categorically observed in the impugned judgment that the occurrence had taken place due to outrageousness and excesses of Muhammad Ashraf injured against Mst.Razia Bibi, real sister of Muhammad Arif (appellant) and real paternal niece of Fateh Muhammad (appellant), still it handed down the impugned verdict of guilt against them, which militated against the settled norms of justice; the circumstances of the case warranted a quick action by Muhammad Arif (appellant), otherwise his sister might have been ravished and ruined by the injured; the appellant, Muhammad Arif exercised right of private defence lawfully and committed no crime by inflicting injuries on the person of the transgressor; the other appellant Fateh Muhammad did not participate in the occurrence and he had been falsely involved in this case being real uncle of Muhammad Arif (appellant). In a sudden volte face, after he smelt it otherwise, the learned counsel rearranged his card; and submitted that the appellants would not challenge their conviction and instead, pay the Arsh-amount and the Daman-amount to the injured instantaneously, if the sentence of imprisonment served by them so far was deemed sufficient and not objected to, on any score by the prosecution and that they should not be further prosecuted by them in this context.
7. Learned counsel for the complainant agreed to the idea, as advanced by the other side, with the contention that the offer made was acceptable to the complainant and the injured, if payment of the Arshamount and the Daman-amount was made to the injured forthwith. The complainant Muhammad Aslam (P.W.6) and the injured Muhammad .Ashraf (P.W.1), who were in attendance, endorsed the submission of their learned counsel in unison and submitted that the amounts of Arsh and Daman should be paid to them before the court. They tendered their sworn affidavits (Mark 'A' & Mark '13') in support of their verbal assertions. Besides the other factors as contained in his sworn affidavit (Mark 'A'), the complainant also deposed about the factum of withdrawing the revision petition, which he had filed for enhancement of sentence of the respondents.
8. Learned Deputy Prosecutor General Punjab, who watched the proceedings silently, opened the lips at last and said that he had no objection as to the consensus developed by the parties in mentioned terms.
9. After hearing the learned counsel for the parties and perusing the record, it is straightaway observed that it remained no more an issue, as to conviction of the appellants recorded by the learned trial court through the impugned judgment, since Offer made by the appellants in mentioned terms had been found reasonably acceptable to the all important person, the injured PW Muhammad Ashraf, besides the complainant Muhammad Aslam (P.W.6). The testimonies of the complainant (P.W.6) and that of the injured (P.W.1) are no more needed to be looked into inquisitively and these would be believed in the same way, as having been so done by the learned trial court through the impugned judgment, wherein it has been categorically observed that the accused Muhammad Arif and Fateh Muhammad, who were real paternal nephew and uncle inter- se, had exceeded their right of private defence, when they attempted to save Mst. Razia Bibi from the excesses of the injured. The statements of the prosecution witnesses and the defence plea taken up by the accused categorically established that Muhammad Ashraf (P.W.1) had been injured by the accused (appellants), but they did so by having lost self-control, as they found their kin Mst. Razia Bibi struggling against his lecherous advances. Their conviction, as recorded by the learned trial court, in view of the submissions made by both the sides is liable to be sustained.
Sustained accordingly.
10. Midway through the proceedings of the day, Muhammad Arif (appellant) and Fateh Muhammad (appellant) informed the court that they had brought the amount of Arsh, i.e, Rs,3,00,000/- and amount of Daman, Rs,15,000/- with them so as to pay it to the injured Muhammad Ashraf, who appeared before the court on a wheelchair and looked prepared to receive the said amounts of money from them. His statement as to the offer made by the appellants and accepted by him in mentioned terms has been separately recorded, whereby he contended that on receipt of Arsh and Daman amounts, as fixed by the learned trial court through the impugned judgment, he would not stretch the issue any longer and he would go by the order/judgment of this court whatever might it be, without any intention to agitate the matter before any other judicial forum.
11. It was at this stage, when Muhammad Arif appellant paid the Arsh amount of Rs,3,00,000/- through the learned counsel for the complainant, to Muhammad Ashraf injured within the view of the court, whereafter Fateh Muhammad appellant paid Daman amount of Rs,15,000/- to him again through the learned counsel within the view of the court. The injured, the complainant, the appellants and their learned counsel all looked satisfied with the process of offer and acceptance of the parties and action taken in line therewith.
12. Now a few words about the quantum of sentence of the appellants, as to how should it be adjusted in accord with the mentioned events. The record reveals that Muhammad Arif appellant was arrested in this case on 25.6.2001 and he continuously remained is jail till he was released on bail by way of suspension of sentence as ordered by this court on 13.7.2005. In the meanwhile, the superintendent, district jail, Mandi Baha-ud-Din submitted a report before this court to the effect, that Muhammad Arif accused (appellant) had already served sentence of four years; one month and thirteen (13) days as on 29.4.2005. By taking into account,. The date of suspension of his sentence, i.e, 13.7.2005, it could easily be calculated that he had served another 2-1/2 months in jail, since submission of the said report by the superintendent-jail. He had thus served sentence of four years and four months when he was released on bail. Another eight months in jail, lo! Would have served the entire sentence of five years' RI, as inflicted on him by the learned trial court through the impugned judgment.
' Fateh Muhammad appellant was also arrested on 25.6.2001 and he, as per report of the superintendent of the said jail, remained incarcerated as under trial-prisoner till 11.12.2001, when he was granted bail and set free. He was arrested again on 25:1.2005, when he was pronounced guilty by the learned trial court. He served another three months and seven days in jail, before his sentence was suspended by this court on 30.3.2005 and he was released on bail in consequence thereof. The above-said report of the superintendent jail would reveal that he had totally served about 9-1/4 months in jail. The prosecution did not burden him with any specific injury on the person of the injured in complaint (Exh.PC)/FIR (Exh.PC/1), rather a collective and joint role had been assign to him and that too, after infliction of grievous injuries on both the legs of the injured by his co-convict Muhammad Aril. Learned trial court observed in concluding paragraph of the impugned judgment that the injuries inflicted by Fateh Muhammad appellant fell within the mischief of section 337-A(ii) & 337-L(2) P.P.C. The incapacitation of the injured had nothing to do with the said injuries.
13. Keeping in view the circumstances enumerated hereinabove, it may be adjudged that the parties had probably decided to bring an end to their years long hostility and it could prove to be a lasting truce between them, as aforesaid offer made by the appellants had readily been accepted by the complainant side without any sign of hiccups. The sentence already served by the appellants in jail, before they were set at liberty on bail under section 426, Cr.P.C., ought to be sufficient to make it even with the accommodative approach of the parties, as shown above. Their newly developed softness for each other may usher in an era of permanent peace between them.
The incumbent situation envisages the need that they should go back to their homes with something constructive in their minds as to their future relationship. It is, therefore concluded that the period of sentence already served by the appellants in jail needed not to be stretched any further, as it was sufficient, by all means, to meet the ends of justice.
14. The appeal in hand is dismissed with a modification of the sentence of the appellants, in mentioned terms.
15. The preparedness of the complainant to withdraw Criminal Revision No,459 of 2005, in view of the obliging gestures of the two sides, as shown in paragraph 7 hereof, warrants dismissal thereof as withdrawn. Done accordingly.