Ali Sher, Chews. Nur, Jassal and Amir, alongwith fifteen others, were tried under sections 148 and 307/149, P.P.C. By Magistrate Section 30, Faisalabad, who, by his judgment, dated 8th August, 1983, convicted the above-named five accused on the said charges and sentenced them to rigorous imprisonment for three months each under section 148, P.P.C. And R.I. For four years and a fine of Rs.
1,000 each under section 307, P.P.C., with the direction that both the sentences shall run concurrently. Their co-accused were, however, acquitted of the charges. The aforementioned convicts challenged their conviction and sentence in the Sessions Court, Faisalabad, but their appeal was dismissed by the learned Additional Sessions. Judge on 13th October, 1983. They have come up in revision to question the correctness and propriety of the aforesaid orders.
2. The brief facts of the prosecution case are that one Salahon owned six Acres of land in Square No. 44 of Chak No. 436/G.B. This land was cultivated by his nephews Muhammad and Sikandar, sons of Sadad. Salahon was issueless. He used to live with Wali Muhammad. He transferred the said land to Mali Muhammad in lieu of services rendered by him. The aforementioned nephews of Salahon challenged this transfer through a civil suit and obtained a stay order. Mali Muhammad further alienated the said land to Muhammad son of Lehna but possession remained with the complainant-party. On 31st August, 1980 at 1-00 p.m. Ali Sher, Chawa, Jassal, Amir and Nur petitioners armed with guns, acquitted co-accused Wilayat and Bashir also armed with guns and the remaining acquitted accused armed with Lathis attacked the complainant party in order to take forcible possession of the disputed land. Ali, Sher, Chawa, Jassal, Nur, Amir petitioners and acquitted accused Bashir fired their weapons causing injuries to Muhammad son of Lehna, Nur, Sikandar and Muhammad son of Sadad. The occurrence was reported by Abhol complainant at Police Station Bahlak on 1st September, 1980 at 10-15 a.m.
3. The case was investigated by Sher Muhammad, Sub-Inspector. During the investigation, acquitted co-accused Bashir was found innocent. After the usual investigation, the accused persons were challaned.
4. On 31st August, 1980, Dr. Mumtaz Ahmad Bajwa examined the injured P.Ws. He found one simple gunshot injury on Nur P.W.; one gunshot wound on Muhammad son of Lehna, grievous in nature; three gunshot wounds on Muhammad son of Sadad, simple in nature; and two gunshot wounds on Sikandar son of Lehna, simple in nature.
5. In support of its case the prosecution examined six eye-witnesses, including the four injured P.Ws.
It also relied on the evidence, relating to motive the recoveries and medical evidence.
6. The accused persons pleaded not guilty to the charge and examined two witnesses in defence.
Akbar (D.W.1) stated that he pleaded innocence for acquitted accused Bashir before the police by taking oath on Holy Quran. Wali Muhammad (D.W.2) stated that he had transferred the disputed land to Amir accused and had also delivered its possession to him.
7. After examining the evidence on the record, the trial Magistrate came to the conclusion that the prosecution had brought home the charge against the petitioners. He, therefore, convicted and sentenced them as mentioned above. The remaining accused, were, however, acquitted on the benefit of doubt.
8. The learned counsel for the petitioners contended that the ocular evidence was not accepted against fifteen accused out of twenty, therefore, the same could not be accepted against the petitioners without corroboration from an independent source but the same was lacking in this case. In the alternative, he submitted that in the circumstances of the case the sentences awarded by the trial Court are excessive.
9. The prosecution version of the occurrence is supported by as many as six eye-witnesses namely, Muhammad sons of Lehna, Sikandar, Muhammad son of Sadad, Nur, Ali Muhammad and Abhol.
Out of these four are injured eye-witnesses. The ocular account has been accepted by two Courts below. The evidence of the eye-witnesses against the petitioners finds material corroboration from the medical evidence. Out of the acquitted accused, thirteen were armed with Dangs. There is no allegation that they caused any injury to any of the members of the complainant-party. Acquitted accused Wilayat was armed with a gun and he, too, is not alleged, to have accused any injury to any member p of the complainant-party. Thus, the case of aforementioned acquitted accused stands on a different footing than that of the present petitioners. Acquitted co-accused Bashir was also armed with a gun. While dealing with his case, the trial Magistrate observed that he was found innocent by the Investigating Officer and two defence witnesses supported his defence version before the Court. The finding of the Investigating Officer was not binding on the Court and it is also not correct that two defence witnesses had supported his defence version before the trial Court. Be that as it may, his acquittal cannot be pressed as a ground to contend that the ocular evidence should be rejected against the petitioner. The findings of the Courts below against the petitioners are based on good and sufficient reason and I am satisfied that they were rightly convicted.
10. The question of sentence, however, requires consideration. The petitioners were arrested on 19- 9-1980. Ali Sher petitioner was released on bail on 9-9-1981 and the remaining petitioners on 28-5- 1981. They were convicted by the trial Court on 8-8-1983. In this way, besides facing the agony of prolonged trial, Ali Sher petitioner remained in jail as an under-trial for about one year and the remaining petitioners for more than eight months each. Ever since the date of their conviction, they are in jail and have undergone R.I. For over a year each. The injuries attributed to Chawa, Nur, Jassal and Amir petitioners were simple in nature. Keeping in view all the circumstances of the case, including the period of their detention as under-trials, I feel that the sentence of imprisonment already undergone by them and fine of Rs.1,000 imposed by the trial Court would be sufficient to meet the ends of justice. Accordingly, I reduce the sentence of aforementioned petitioners, namely, Chawa, Nur, Jassal and Amir to the term of imprisonment already undergone by them and a fine of Rs. 1,000 each. In default of payment of fine, they would undergo R.I. For six months each.
Ali Sher petitioner fired at Muhammad son of Lehna causing a grievous injury in the chest which is a vital part of the body. He remained in jail as an under-trial for about one year. Keeping in view the provisions of section 382-B, Cr.P.C., his sentences under section 307, P.P.C. Is reduced to R.I. For three years and a fine of Rs.1,000. In default of payment of fine he will undergo further R.I. For six months.
His sentence under section 148, P.P.C. Is maintained. Both the sentences shall, however, run concurrently. The petition stands disposed of accordingly.