1. The appellant above named, being aggrieved by judgment dated 13th June, 1977 of the learned Additional Sessions Judge, Dadu, in Sessions case No. 61/74, by which he has been convicted under section 307, P. P. C. And sentenced to suffer R. I. For 3 years and to pay fine of Rs. 500 or in default to undergo R. I. For 6 months and has further been directed to pay compensation of Rs. 500 to the injured under section 544-A, Cr. P. C., failing which he has been sentenced to suffer further R. I. For 6 months, has preferred the above appeal, on the following facts and grounds :- It is the case of the prosecution, that appellant Kauro suspected P. W. Ali Nawaz to be on illicit relations with his wife Mst. Dur Naz and on account of this impression in his mind, he fired gunshot at Ali Nawaz on the material day at about 11 p.m., when he alongwith his father P. W. Karim Bux was returning from the lands alongwith bundles of grass. P. Ws. Qassim and Ali Khan happened to be present near the place of incident and they witnessed the occurrence. It is said that while returning from their lands Ali Nawaz Karim Bux stayed for a short while at village Karam Khan Lighari for taking rest and after keeping aside the bundle of the grass Ali Nawaz gave a call at the house of Minhoon for a glass of water, when the appellant emerged from his house duly armed with a gun and with an intention to do away the life of Ali Nawaz, he fired a gun shot at him.
2. Report of the incident was lodged by the father of the victim namely Karim Bux at 3 p.m., the same day at Johi police station, the distance being about 12 miles.
3. After recording the F. I. R., A. S. I. P. Ali Khan visited the wardat, saw injuries on the person of Ali Khan, who was unconscious and unable to make any statement. Fee was referred to Civil Hospital, Dada for necessary treatment and certificate. The A. S. I. P. Secured blood-stained earth and prepared a memo. Of wardat in presence of Mashirs Alim and Allah Warrayo, and on the arrival of the S. H. O.
4. Muhammad Hassan Jamali, the investigation was taken up by the latter.
5. The S. H. O. Verified the investigation done by the A. S. I. P. And recorded the statement of P. Ws.
6. Muhammad Qassim, Ali Khan and Mst. Dur Naz. On the same day appellant kauro was arrested from his village and on interrogation he led the S. H. O. And the Mashirs to his house and produce a licensed gun alongwith one empty cartridge, which were secured and sealed at the spot. On the next day i.e. 16th March, 1973 the appellant was produced before the Mukhtiarkar and F. C. M., Jobi, where P. W, Ahmad Bux Qureshi recorded his judicial confession.
7. According to the Medical Officer injuries Nos. 1 and 2 were dangerous and grievous, while injuries Nos. 3 and 4 were simple in nature. These were caused by a firm-arm.
8. On completion of investigation the appellant was challaned in the lower court and subsequently committed to court for his trial.
9. At the commencement of the trial appellant Kauro pleaded not guilty to the charge, while prosecution examined Karim Bux, P. W. I, Ali Nawaz, P. W. 2, Qassim P. W. 3, Ali Khan P. W. 4 Allah Warayo P. W. 5, A. S. 1. P. Ali Khan P. W. 6, Ahmad Bux Mukhtiarkar P. W. 7 and Muhammad Hassain Jamali P. W.8. The deposition of Dr. Sher Muhammad recorded in the lower court was tendered in evidence under section 509, Cr. P. C.
10. In the court of enquiry the appellant denied the commission of the offence and alleged that the confession` made by him was the result of threat and coercion by police. About the production of licensed gun and empty, he bad stated in the committal court, that police bad taken the same of their own accord and he did not produce the same. However after the conclusion of the trial in the court, he has admitted the commission of offence, the production of licensed gun and empty and even the making of a confession. He has however explained his position in the following words: "On the material day when I returned from my land I saw my wife Mst. Dur Naz sitting by the side of Ali Nawaz in my house. On account of provocation I picked up my gun and fired at him, when I returned back I found that my wife had run away to the house of her parents."
11. The learned trial Court taking into consideration the evidence adduced before it; as well as statement of the appellant under section 342, Cr. P. C. Convicted and sentenced the appellant above named as hereinbefore mentioned and consequently the appellant has filed the above appeal on the grounds mentioned in the memo. Of appeal.
12. The learned Advocate for the appellant at the outset submitted, that in view of statement of the appellant under section 342, Cr. P. C., he was not pressing the above appeal on merits, but only in respect of the sentences awarded to the appellant, in spite of his statement under section 342, Cr.
13. P. C., which ought to have been accepted as a whole.
14. The learned Advocate for the appellant submitted, that appellant remained in custody as under- trial prisoner for five months and even after conviction he remained in jail for about 3 weeks and since the offence is of 1973 and the appellant is on bail since 4th July, 1977 and has faced the prolonged trial, the ends of justice will be met, if the sentences of the appellant is reduced to the one already undergone by him.
15. The learned Advocate appearing for the State rightly conceded, that he agrees with the suggestion of the learned Advocate for the appellant in view of the fact, that this is an old offence of 1973 and the appellant was released on bail in July, 1977 and in view of the statement of the appellant under section 342, Cr. P. C.
16. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as impugned judgment.
17. In my opinion prosecution by the statement of the prosecution eye--witnesses, together with the statement of the appellant under section 342, Cr. P. C. Has conclusively proved, that the appellant with the intention o murdering the injured did fire shots at him, which resulted in injuries to P. W. Ali Nawaz, who received two grievous injuries and two simple injuries o account of said firing. In view of this I agree with the conclusions and findings of the learned trial Court, that appellant has committed offence under section 307, P. P. C., on his own admission and on the basis of the statements of the prosecution witnesses.
18. However, as far as the sentence of imprisonment awarded to the appellant is concerned, I see great force in the contentions urged by the learned Advocate for the appellant, as appellant has been facing this trial right from 1973 and has remained in custody for nearly six months and further he has been on bail right from July, 1977 till today and as such it would not be justified, in view of the appellant's own statement under section 343; Cr. P. C., which ought to be accepted as a whole, that he should be remanded back to the judicial custody now, after lapse of 5 years.
19. Therefore, while dismissing the above appeal on merits and maintaining the conviction of the appellant under section 307, P. P. C., I reduce the sentence of imprisonment awarded to the appellant to period already under-- gone by him, and maintain the fine of Rs. 500 imposed on him and, the compensation of Rs. 500, which he was directed to pay under section 544-A, Cr. P. C. To the injured P. W. Ali Nawaz and in case of default in payment of fine as well as compensation, I maintain the imprisonment awarded to him by impugned judgment in lieu thereof. Since appellant is on bail I would give 4 weeks time to the appellant from today to deposit the fine and compensation in the learned trial Court, failing which the learned trial Court is directed to issue non-bailable warrants for the arrest of the appellant and on his arrest .To remand him back to judicial custody to serve out sentences awarded to him by impugned judgment, in lieu of fine and compensation awarded to injured P. W.
20. The above appeal stands dismissed in terms of the above order.