Through this criminal revision under Sections 435 & 439, Cr.P.C. petitioner Shaukat Ali has challenged the vires of judgments dated 19.06.2017 & 25.03.2017 passed by the learned Additional Sessions Judge and the learned Magistrate Section-30, Khanewal in case FIR No, 386 dated 28.08.2011, in respect of offences under Sections 324, 337-A (ii) & 34, PPC registered at Police Station, Saddar Khanewal.
2. The petitioner along with his co-accused Muhammad Aslam and Muhammad Imran was booked in the aforesaid case for causing injuries to Muhammad Yar (PW-2), a brother of the complainant, at the upper place of his right ear on the head on 27.08.2011 at about 6:00 a.m. near his house During investigation conducted by Muhammad Zafar, SI (PW-6), petitioner was arrested on 21.12.2011 and he led to the recovery of weapon of offence i,e, hatchet and after completion of investigation the Station House Officer concerned had prepared report under Section 173, Cr.P.C.
3. The appellant was charged, tried, convicted and sentenced by the learned Magistrate Section 30, Khanewal as under:-- Under Section 324, PPC Rigorous imprisonment for five years and also to pay the fine-of Rs. 25,000/- to injured Muhammad Yar and in default to of payment of fine to further undergo simple imprisonment for two months.
Under Section 337-A(ii), PPC Simple imprisonment for one year and to pay Arsh to injured Muhammad Yar i,e, 5% of Diyat for year 2011-12.
He was held entitled to the benefit of Section 382-B, Cr.P.C. and all the aforesaid sentences were directed to run concurrently.
3. The petitioner had assailed his conviction and sentence by filing criminal appeal, which was partly allowed and the sentence of imprisonment awarded under Section PPC was set aside whereas the same was dismissed to the extent of remaining sentence of imprisonment under Section 324, PPC and sentence of Arsh under Section 337-A(ii), PPC vide impugned judgment dated 19.06.2017.
4. At the very outset learned counsel for the petitioner does not press this petition to the extent of the petitioner's conviction and sentence- as awarded by the learned Appellate Court, however he has prayed for the reduction of sentence under Section 324, PPC to the imprisonment already undergone by the petitioner as according to the report dated 01.02.2018 submitted by the Superintendent District Jail, Layyah, the petitioner has served out more than half of his substantial sentence including the remissions, which has served the very purpose of his prosecution. Learned counsel for the petitioner has made prayer for payment of Arsh in instalments.
5. On the other hand, learned Law Officer has no objection on maintaining the petitioner's conviction with the submission that the quantum of sentence is always prerogative of the Court.
6. I have heard learned counsel for the petitioner, learned Deputy District Public Prosecutor appearing for the State and have perused the record with their able assistance.
7. This occurrence had taken place on 27.08.2011 at about 6:00 a.m. when the petitioner while armed with a hatchet along with his co-accused Muhammad Aslam and Muhammad Imran, had launched murderous assault upon Muhammad Yar (PW-2) in presence of his brother/complainant Ishtiaq (PW-1) and one Muhammad Iqbal (PW-3). All the aforesaid eye-witnesses t including the injured witness , had appeared in the dock in the trial Court and corroborated each other on all material particulars of the occurrence. They remained consistent and firm inter-se and had specifically attributed the role of giving hatchet blow at the head of injured Muhammad Yar none else A but the petitioner. Their deposition was further supported by the medical evidence furnished by Dr. Muhammad Zafar Shah ( PW-5 ) as well as Muhammad Zafar, SI/IO (PW-6). Learned trial Court had rightly appraised the evidence available on record and the learned Appellate Court had also reached at the just and right conclusion with regard to the conviction of the petitioner. The prosecution has successfully proved its case against the petitioner beyond shadow of reasonable doubt through cogent, convincing and confidence inspiring evidence. I do not find any loophole in the prosecution evidence and have no legitimate exception to differ with the concurrent conclusion arrived at by both the learned Courts below qua the conviction of the petitioner.
Learned counsel for the petitioner has also not challenged the petitioner's conviction awarded/modified by the learned Appellate Court. So far as the quantum of sentence is concerned, I have observed that the petitioner had faced the agony of trial since his arrest i,e, 21.12.2011 he remained in jail till the grant of post arrest and was again lodged in the jail to serve out the remaining portion of sentence on 25.03.2017 and is behind the bars till-date, which has served the very purpose of prosecuting him as well as the ends of justice. Nothing is available on record to show that the petitioner has any criminal antecedent of such like cases, as such we deem it 'appropriate to maintain conviction of the petitioner with the modification of his sentence to already undergone.
8. In view of what has been discussed above, the appeal in hand is without force, the same stands dismissed and the conviction of the petitioner recorded by both the learned Courts below under Section 324, PPC is maintained, however his sentence is reduced to the imprisonment already undergone including the sentence to be served out in lieu of default in the payment of fine.
It is, however, directed that the petitioner shall pay Diyat of Rs. 1,57,777/- in thee instalments. The petitioner is directed to be released from jail forthwith on the payment of first instalment of Rs.
57,777/-, if not required to be detained in connection with any other criminal case. The remaining two instalments of Rs. 50,000/ each shall be paid exactly within two months i,e, next 30/30-days of his release from the jail and in case of failure in payment of a single instalment, the petitioner shall be taken into custody and remain in jail as simple imprisonment till the payment of the remaining amount of Arsh in lump-sum.