' Muhammad Aslam (34) son on Muhammad Shafi, Muhammad Shafi (70), Barkat (60) sons of Ikhlas Khan, Javid (20) son of Abdul Ghani, Muhammad Tufail (40) son of Mirza Khan and Muhammad Akbar (50) son of Hakim Khan, were tried by the learned Sessions Judge, Gujrat, under sections 148, 302 and 323/149, P.P.C. By judgment, dated 9-12-1975 all of them were convicted under section 148, P.P.C. And sentenced to R.I. For one year each. Muhammad Tufail and Muhammad Shafi were also convicted under section 325, P.P.C. And sentenced to R.I. For three years each and a fine of Rs,100 or in default in the payment thereof to undergo further R.I. For one month each. They were further ordered to pay Rs,2,000 each to the legal heirs of Ghulam Nabi deceased as compensation or in default to suffer further R.I. For six months each. The remaining accused, namely, Barkat, Aslam, Akbar and Javid were convicted under section 323, P.P.C. And sentenced to R.I. For six months each. They were also directed to pay Rs,100 each as compensation to Ghulam Haider and Safdar or in default in the payment thereof to undergo R.I. For one month each. The convicts have appealed.
2. The F.I.R. Version of the occurrence is that the land of the accused was adjacent to the land of Ghulam Nabi deceased. The accused party used to leave their goats in the wheat crop of the deceased. On 22-11-1971, at about Degarwela, the goats of Shafi accused and Ghani were grazing in the field of the deceased. His son Umar Hayat and Safdar son of Ghulam Haider went towards that side to drive away the goats, upon which Barkat and Javed appellants grappled with them. On hearing the alarm, Ghulam Nabi deceased and his brother Ghulam Haider P.W. Rushed to the spot.
In the meantime, Akbar, Shafi, Tufail, all empty handed, and Aslam armed with a Sota also reached there and slapped Umar Hayat and Safdar. Ghulam Nabi deceased and Ghulam Haider tried to intervene, upon which Tufail picked up a brick-bat (Rorra) and hurled it on the deceased hitting his face. Then Aslam gave him a Sota blow on the back of right shoulder. Thereafter, Shafi threw a brick-bat (Rorra) on his abdomen. Then all the accused started throwing brick-bats on the complainant party. Akbar threw a brick-bat hitting Ghulam Haider on the finger of his right hand.
Javid threw a brick-bat on Safdar hitting his left cheek. In the meantime, Mth.Affar and Muhammad P.Ws came there and rescued the members of the complainant party. Ghulam Nabi deceased was removed to Civil Hospital, Kunjah.
' On 24th November 1971, a case under section 325, P.P.C. Was registered on the report of Ghulam Nabi deceased. He succumbed to his injuries on the same day and section 304, P.P.C. Was added.
After the usual investigation, the accused persons were challaned.
2. On 23rd November 1971, Dr. Raza Noor, Medical Officer, Civil Dispensary, Kunjah, examined Ghulam Nabi deceased, when alive, and found the following injuries on his person:
(1) A contused wound I" x 1" x 1" on the right outer side of the lower lip.
(2) Right incisor tooth was missing with tear on the edifice.
(3) Complained of pain in the lower abdomen.
' Injury No, 1 was simple, No,2 grievous and No,3 was kept under observation.
' On the same day, the same doctor examined Safdar Ali P.W. And found a cresent shaped contused wound 2/3" x 1" x skin deep on the left side of face. It was simple in nature, caused by a blunt weapon.
' On the same day he also examined Ghulam Haider P.W. And found a swelling on the outer side of left leg and left thigh and a contused wound on the tip of right ring finger. The injuries were simple in nature, caused by blunt weapon.
' On 25-11-1971, Dr. Abdul Razzaq, Medical Officer, A .B.S. Hospital, Gujrat, conducted the autopsy on the dead body of Ghulam Nabi deceased and found five injuries on it. In his opinion, death was due to injury on the abdomen (injury No,5) causing rupture of small intestines resulting in peritonitis.
The injury was sufficient to cause death in the ordinary course of nature.
3. In support of its case the prosecution examined four eye-witnesses, namely, Safdar, Umar Hayat, Muzaffar and Ghulam Haider.
4. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. They maintained that they have been falsely implicated due to enmity. No evidence was led in defence.
5. The learned counsel for the appellants does not challenge the conviction but vehemently contends that in the circumstances of the case the sentence awarded to the appellants is excessive. He submits that admittedly all the accused except Muhammad Aslam were empty handed and it is in evidence that both the parties hurled brick-bats on each other, therefore, a very lenient view in the matter of sentence was called for.
6. Safdar, Umar Hayat, Muzaffar and Ghulam Haider P.Ws have supported the prosecution version.
Admittedly, all the appellants except Muhammad Aslam were empty handed and are alleged to have hurled brick-bats on the members of the complainant party including the deceased.
Statement of Safdar P.W.8 shows that there was a fight between the parties which continued for about one hour and both the parties hurled Rorras on each other. The ocular evidence clearly shows that Javid and Barkat accused left their goats/sheep in the field of the deceased to which Safdar and Umar Hayat P.Ws took exception and there was grappling/exchange of hot words. On hearing the alarm, supporters of both the parties rushed to the spot. It was a sudden flare up.
Except Muhammad Aslam all the accused were empty handed. These facts lead to the conclusion that they had acted on the spur of the moment without their being any common object. In a situation like this, section 148, P.P.C. Is not attracted. The conviction and sentence on that charge is set aside.
Grievous injuries were attributed to Muhammad Shafi and Tufail and the rest of the injuries to the remaining accused. Muhammad Shafi and Muhammad Tufail were convicted under section 325, P.P.C. And the remaining accused under section 323, P.P.C. The State or the complainant has not filed any revision against the finding of the trial Court. After going through the evidence I am satisfied that the conviction of Muhammad Shafi and Muhammad Tufail under section 325, P.P.C.
And of the other accused under section 323, P.P.C. Is well founded.
7. The question of sentence, however, requires consideration. The occurrence took place on 22-11- 1971. Muhammad Tufail, Muhammad Aslam, Barkat Ali and Javid were arrested on 28-11-1971. The appellants were convicted by the trial Court on 9-12-1975. The learned counsel submits that they also remained in jail as under trials but the period of their detention is not available on the record.
The sentence was suspended by this Court on 27-1-1976. In this way, besides facing the agony of prolonged trial for four years, they have undergone R.I. For one month and 20 days each.
Unfortunately, this appeal is being heard more than nine and a half years after its institution. During all this period the appellants suffered mental torture with the fear of imprisonment hanging over their heads which by itself is a punishment. The injury on the abdomen ultimately resulted in the death of the deceased. It is attributed to Muhammad Shafi accused. In the impugned judgment his age is given as 70 years. Keeping in view all the facts and circumstances of the case I am of the view that it would not be proper to again send the appellants to jail for serving out the unexpired portions of their sentences. Accordingly, the sentence of Muhammad Shafi and Muhammad Tufail is reduced to the term of imprisonment already undergone by them plus a fine of Rs, 2000 each. In default of payment of fine they will undergo R.I. For three months each. They will pay compensation to the heirs of the deceased as ordered by the trial Court. The sentence of the remaining accused is reduced to the term of imprisonment already undergone by them. They will also pay compensation to the injured P.Ws. As ordered by the trial Court. The appeal stands disposed of accordingly.