' Jahana 70, Rasula 24 son of Muradi and Dari 27 son of Muradi have come up in appeal against their conviction by learned Sessions Judge, Gujrat vide judgment, dated 14-6-1984 by which they were sentenced to two years' R.I. Under section 148, P.P.C. And to imprisonment for life each under section 302/149, P.P.C.
2. The facts, in brief, are that the complainant was proceeding from his house towards his Dera. He, from near the house of Shahabal saw Salehon deceased coming from the side of the Dera towards his house with a pitcher on his head followed by Akbar at a distance of about 15/20 Karams. In the meanwhile, he noticed Shera 26, Anara 17 son of Dari and Anara 27 son of Jahana, Rasula and Dari sons of Muradi and Jahana armed with spears emerging from the building of the Primary School.
They raised Lalkara and ran towards Salehon. Shera son of Dari gave a spear blow on the right side of the chest of Salehon. Anara caused another blow to Salehon on the left side of chest. Salehon fell down where after Rasula gave spear blow on his abdomen. Dari son of Muradi, Jahana and Anara son of Dari inflicted spear blows on the person of Salehon who succumbed to his injuries. The occurrence was witnessed by the complainant as well as Akbar and Muhammad P.Ws. They raised alarm. The accused went away proclaiming that they had avenged the murder of Dari. The motive imputed was that 10/12 years before the present incident Salehon deceased and his other relatives Ghulam, Nawab and Sardara had murdered Dari but were acquitted. The occurrence in this case took place on 29-3-1968 at Degarwela. The complainant Muhammad Akram (P.W.9) lodged F.I.R.
Exh.P.G. On the same day at 10-30 p.m. At Police Station Malikwal, about 10 miles from the place of occurrence in village Dafar, which was recorded by S.I. Muhammad Yousaf (P.W.12).
3. In all six accused Shera, Anara son of Dari, Anara son of Jahana, Jahana, Rasula and Dari were prosecuted and tried in the Court of Additional Sessions Judge, Gujrat, who vide the judgment, dated 29-7-1970 sentenced Shera and Anara son of Jahana to death under section 302/34, P.P.C.
He sentenced Anara son of Dari to transportation for life under section 302/34, P.P.C. The remaining 3 accused Jahana, Rasula and Dail were acquitted by the same judgment. The 3 convicted accused filed Criminal Appeal No,452 of 1970 in this Court. The complainant Muhammad Akram filed Criminal Revision No,237 of 1971 against the acquittal of the 3 above-named accused. The appeal and the revision were disposed of alongwith the Murder Reference No,191 of 1970 by a Division Bench of this Court vide judgment, dated 27-5-1973. The appeal of the 3 convicted accused was dismissed. The Criminal Revision against acquittal of the 3 accused was accepted.
The case against them was remanded back to the Sessions Judge, Gujrat, for retrial according to law. The 3 convicted accused filed Criminal Appeal No,27 of 1977 by special leave in the Supreme Court which was dismissed on 13-11-1977. The 3 acquitted accused also filed a petition for special leave to appeal (Cr.P.S.L.A. No,247 of 1973) which was dismissed by the Supreme Court on 10-5-1974.
' Jahana, Rasula and Dari, the 3 acquitted accused faced a retrial before the learned Sessions Judge, Gujrat who vide the impugned judgment, dated 14-6-1984 convicted them under sections 148 and 302/149, P.P.C. As given in detail above.
4. The prosecution, during this trial, examined 12 witnesses in all. P.W.9 Muhammad Akram supported the prosecution story as given by him in the F.I.R. Muhammad Akbar (P.W.10) and Muhammad (P.W.11) also supported the prosecution. The post-mortem was conducted by Dr. Ghulam Ahmad (P.W.1) on the dead body of Salehon deceased on 29-3-1968 at 3-00 p.m.
5. I have gone through the entire evidence of this case with the assistance of learned counsel for the appellant and find that the eye-witnesses were rightly believed against the appellants. It is correct that Muhammad Akram (P.W.9) and Muhammad Akbar (P.W.10) are closely related to the deceased but mere relationship is no ground to discard their evidence. Muhammad P.W. Is not related to the deceased. The 3 eye-witnesses furnished reasonable explanation of their presence at the spot at the time of occurrence. They have also been supported by the evidence of motive, which in the instant case, assumes significance. The accused/appellants and their co-accused had motive against Salehon deceased. The medical evidence lends corroboration to the ocular account. In my view, therefore, "it was a witnessed crime and the ocular testimony was of a quality to inspire confidence which found support from the motive and the medical evidence as the number of injuries on the deceased assured the participation of the appellants". The learned counsel for the appellants in view of the judgment by the Supreme Court, dated 13-11-1977 in Criminal Appeal No, 27 of 1977 was not able to argue that the witnesses could not be relied upon, or that they were not present at the spot at the time of occurrence. It was, however, contended by him that; firstly, the sentence of imprisonment should not have been awarded because at the time of occurrence, the provisions of section 302, P.P.C. Provided the sentence of transportation for life; and secondly, that the appellants have already undergone imprisonment and should therefore, not be sent back to prison to serve their unexpired sentence. The precise argument of the learned counsel was that the 3 appellants were arrested on 1-4-1968. They were acquitted on 29-7-1970 which means that they remained in judicial lock up for about 2 years and 4 months during the first trial.
After remand of the case, they were sentenced on 14-6-1974 vide the impugned judgment and were allowed bail by suspension of sentence by this Court on 9-5-1979 which means that they served imprisonment for about 4 years and 11 months. If this period is added to the period of 2 years and 4 months mentioned above, then it would mean that the appellants remained in prison for about 7 years and 3 months.
6. I have considered the above points of the learned counsel for the appellants.
' I am, on perusal of the evidence on record of this case, of the view that the 3 appellants were rightly convicted by the learned Sessions Judge vide the impugned judgment, dated 14-6-1974. The 3 eye-witnesses were present at the spot. They witnessed the occurrence. They have been supported by the evidence on motive and the medical evidence. The conviction of the 3 appellants under sections 148, P.P.C. And 302/149, P.P.C. Is, therefore, maintained.
The occurrence took place on 29-3-1968 when the punishment provided in section 302, P.P.C. Was transportation for life and not imprisonment for life. They could, therefore, have not been sentenced to imprisonment for life. In view of this, Jahana, Rasula and Dari appellants are sentenced to transportation for life under section 302/149, P.P.C. And to 2 years' R.I. Under section 148, P.P.C. Both these sentences shall run concurrently. The appellants are not allowed the benefit of section 382-B, Cr.P.C. Even otherwise, this section did not exist at the time of the present occurrence. With the above modification, the appeal is dismissed.
7. The 3 appellants are on bail. They will surrender to the authorities concerned to serve the unexpired sentence.