' The above titled appeals have been directed against the judgment of District Court of Criminal Jurisdiction Kotli dated 31.08.2006, whereby the said Court reduced the sentence of convict- appellant, Muhammad Shabbir and awarded him sentence of one year R.I under Section 307, APC and fine of Rs,20,000/- as Hakumat-Adal under Section 15, IPL and till payment of fine shall not be released from custody.
2. Precise facts forming the background of the instant appeal are that complainant, Muhammad Siddique lodged a written report on 19.09.1989 at 8:00, p.m. At Police Station Kotli stating therein that on 19.09.1989 at 6:00, p.m. He alongwith his brother Muhammad Khalil were coming back from their land after cutting grass. His brother loaded with grass was in front of him. On the way, accused- persons namely Tanveer, Bashir and Shabbir sons of Nawab r/o Chowki Tainda having common intention armed with Axes stopped them. Accused Bashir attacked upon his brother with axe on the right side of his leg and he fell down. In the meantime, accused Tanveer hit an axe blow on the head of brother Khalil. Accused, Shabbir also hit an axe blow on his head. Accused, Bashir again hit a blow on the arm of his brother with axe. Thereafter, all the three accused-persons tied the neck of his brother with rope and then started beating him with stones and handle of axe. The motive behind the occurrence is stated to be a quarrel took place between the sons of his brother, Khalil and accused Tanveer. The occurrence was witnessed by Arif s/o Ali Muhammad, Fazal Hussain s/o Imam Din Caste Malik r/o Chowki.
3. On this report, a case under Sections 341/307, 34, APC and 15, IPL was registered against the accused-persons. After usual investigation, a challan was presented before the Court of competent jurisdiction on 1989. The learned Tehsil Court of Criminal Jurisdiction Kotli after hearing the parties convicted the accused-persons namely Muhammad Bashir, Muhammad Tanveer and Muhammad Shabbir and awarded them 7/7 years R.I under Section 307/34, APC and the complaint was dismissed to the extent of Section 341, APC and they were also not sentenced under Section 15, IPL vide its judgment dated 5.8.2000. Feeling aggrieved and dissatisfied with the aforesaid judgment of the trial Court all the convict preferred an appeal before District Court of Criminal Jurisdiction Kotli on 07.08.2000 for setting aside the judgment of the trial Court. Injured, Haji Muhammad Khalil also filed an appeal for enhancement of sentence on 02.09.2000. During the pendency of appeal before 1st appellate Court, convict-appellants, Muhammad Tanveer and Muhammad Bashir absented themselves, as such appeal to their extent was dismissed on 15.06.2005 and 15.08.2005 respectively. The learned District Court of Criminal Jurisdiction after hearing the appeal to the extent of convict, Shabbir reduced the sentence to one year R.I under Section 307, APC and order payment of Rs,20,000/- as Hukamat-Adal under Section 15, IPL to the injured person, till the payment of which convict would be detained in jail vide its judgment dated 31.08.2006, hence these appeals. One appeal filed by convict-appellant, Muhammad Shabbir for setting aside the impugned judgment of the 1st appellate Court and second appeal filed by Haji Muhammad Khalil for enhancement of sentence. As both the appeals arise out of single judgment, therefore, these are being disposed of through this common judgment/order.
4. Malik Muhammad Saleem, the learned Advocate appearing for convict-appellant, Muhammad Shabbir argued that trial Court as well as 1st appellate Court committed grave illegality while awarding sentence to appellant. The learned Advocate further contented that prosecution has failed to prove case against the convict-appellant through cogent and convincing evidence. There is lot of contradictions among the statement of prosecution witnesses. It has been further argued that no purgation of witness has been conducted, hence the credibility of witness is doubtful. The learned Advocate further maintained that case of the prosecution is full of material discrepancies, as such the convict-appellant is entitled to get the benefit of same. The learned counsel submitted that the injury attributed to the convict-appellant, Muhammad Shabbir is that hit an axe blow on the head of injured, Muhammad Khalil, but according to the report of Doctor, the injuries were caused by blunt weapon. The learned Advocate argued that convict-appellant has already undergone the sentence i.e he remained detained in jail from 21.09.1989 to 11.09.1990 and thereafter from 05.08.2000 to 13.09.2000. Finally, the learned counsel prayed that by accepting the Appeal No, 38/2006, convict-appellant, Muhammad Shabbir may be acquitted of the charge and also prayed for dismissal of cross appeal.
5. On the other hand, Malik Muhammad Zarriat, the learned Advocate appearing for the appellant, Haji Muhammad Khalil argued that the convict-respondent, Muhammad Shabbir and other convicts have committed heinous offence and they attacked upon the appellant-injured with lethal weapons with intention to kill. The learned counsel further submitted that convict- respondents learned 1st appellate Court committed grave illegality while reducing the sentence awarded by the trial Court. He further argued that the prosecution has proved his case by producing cogent and convincing evidence, but the trial Court as well as 1st appellate Court failed to appreciate the same in its true perspective. The learned counsel forcefully argued that the convict, committed the offence in a brutal manner by repeating injuries by sharp edge weapon, wherefrom "mens rea" and clear intentional to kill is obvious. The learned counsel seriously agitated that other convicts named Bashir and Tanveer after filling appeal have absconded and the injured Haji Muhammad Khalil has become disabled forever and waiting for justice for last quarter century.
The learned counsel further contended that the prosecution has proved its case beyond any shadow of doubt and explained that the opinion of Doctor pertaining to kind of weapon of offence in an eye-witnessed occurrence is not fatal to prosecution. The learned counsel vehemently contended that the absconded convicts are real brothers of appellant Mohammad Shabir, hence, it is obvious that the whereabouts of absconders are in the knowledge of the appellant rather he is key to absconsion of other accused persons, so he is not entitled to any concession by this Court and may be awarded the maximum punishment for the offences. Finally, the learned counsel prayed that by accepting the Appeal No, 40/2006, the impugned judgment of the 1st appellate Court may be set aside and the convict-respondents may he awarded capital sentence.
6. The learned A.A.G, appearing on behalf of the State supported the arguments raised by the learned counsel for the appellant, Muhammad Khalil.
7. 1 have heard the learned counsel for the parties and scrutinized the record of the case.
8. First of all, I will take up appeal No, 38/2006 filed by the convict-appellant, Muhammad Shabbir for setting aside the impugned judgment. Of 1st appellate Court, wherein the said Court awarded one year R.I alongwith order of payment of Rs,20,000/- as Hukumat Adal. The objection raised by the learned counsel for appellate regarding Tazkea-e-shahood needs not to discuss in the case for the reason that no punishment of Qisas or Hadd has been awarded and also in view of the proposed conclusion of the case.
9. According to the F.I.R, the role attributed to the aforesaid convict is that he hit an axe blow on the head of injured, Muhammad Khalil when he was already fallen down on the ground due to an injury by accused Muhammad Bashir by an axe on his right leg and then by infliction of another injury on his head by axe alleged to convict/accused Tanveer. It is also added that occurrence took place on 19.09.1989 and recovery of alleged axe was made from appellant, Sliabir after 10 days, which is stated recovered as blood stained from front side. The axe recovered from the appellant was sent to chemical examiner along with other axes allegedly recovered from the other convicts and other blood stained items for chemical examination.The report of chemical examiner reveals about the items examined (including the axe recovered from the appellant) as stained with bold and the report of Serologist was sought for origin of bold as human bold or otherwise and for kind of bold group etc, which has neither been tendered nor exhibited in evidence. In this eventuality when the kind of weapon reported by CMO in MLC as "blunt" is seen with the ocular versions of the prosecution regarding infliction of head injuries by sharp edge weapon as well kind of injuries as "lacerated injuries" in MLC instead of incised wounds coupled with the fact of injuries on head in close distance and almost of the same size alleged two different accused persons, with an addition of pelting of stones on injured prosecution witness (I PW) casts a reasonable doubt on the story of prosecution also in the back ground of past enmity and naming of three real brothers in one line too. According to medical report, injured, Muhammad Khalil received multiple injuries by blunt weapon. However, it is important to note here that all the three convicts allegedly having axes in their hands, therefore it could not be ascertained that due to which blow the appellant was injured, because as discussed above, injured, Muhammad Khalil, which was already on the ground when Muhammad Shabbir hit blow on his head. It will not be out of place to mention here that only lacerated wounds were found on the head of injured, Muhammad Khalil. The 1st appellate Court after appreciating the evidence awarded lesser punishment. The findings in the above para suggest a re-appreciation of whole of the prosecution oral account, but being a Court of second appeal coupled with the fact that the appellant/ convict has remained behind the bars for an aggregated period of about one year and one month, I am persuaded to avoid the re- appreciation of evidence and concur with the findings of the 1st Appellate Court to the extent that it is a case of lesser punishment in view of overall circumstances of the instant case. However, more reduction in the punishment is warranted in these circumstances.
9-A. The convict-appellant remained detained in jail from 21.09.1989 to 11.09.1990 and thereafter from 5.8.2000 to 13.9.2000, which shows that he had already undergone sentence of more than one year. So as the fine of Rs,20,000/- as Hakumat-Adal is concerned, it may be stated that the convict-appellant is facing the trial from the year, 1989, therefore, in my view in the back ground of protracted trial with the exchequer history of the case spreading over a quarter centaury. It may also not go un-attended that each and every day of human life is very precious and 28 additional days of custody of the appellant are sufficient to write off the amount of fine/ Hakumat Adal worth Rs, 20,000/- rather 28 days of human liberty are more costly than this amount. In this view of the mater undergone sentence is sufficient to met the ends of justice.
10. So far as the appeal No, 40/2006, filed by the injured, Muhammad Khalil for enhancement of sentence is concerned. In this regard, it is relevant to mention here that as the convict-Respondent No, 1 has completed his period of imprisonment, moreover, as a consequence of acceptance of appeal of convict/appellant, Mohammad Shabir the appeal to his extent stands dismissed. It appears from the record that convict-respondents filed an appeal before 1st appellate Court, but the same was dismissed by the said Court for want of prosecution. However during the pendency of the instant appeal one of the convict-respondent, Muhammad Tanveer filed a revision petition before this Court on 22.12.2014 for restoration of appeal dismissed by the 1st appellate Court. The Honorable Chief Justice of the Court accepted the same and restored the appeal titled "Muhammad Bashir & others v. The State" before the 1st appellate Court, therefore no order can be passed with regard to enhancement of convict-Respondents No, 2, thus the present appeal to his extent has become infrastructure, therefore, the same . Stands dismissed, whereas, the respondent, Mohammad Bashir who is an absconder, hence, the case to his extent is consigned to record tilt his arrest. Warrant of arrest against Mohammad Bashir shall be issued forthwith.
11. Thus, in view of the above the Appeal No, 38/2006, against the impugned conviction order dated 13.08.2006 passed by the learned District Court of Criminal Jurisdiction Kotli merits modified, hence the punishment of imprisonment of one year rigorous imprisonment (RI) as well Rs, 20,000/- as Hakumat-e-Adal stands converted into the imprisonment of one year and 28 days in the offences Section 307, APC and 15 IPL, which has already undergone by the appellant/convict Mohammad Shabir.
' With the above modifications, both the appeals stand disposed off accordingly.
' Order announced.