Ashiq (50), Sadiq (30) and Kamala (65) appellants were convicted by the learned Addl. Sessions Judge, Sahiwal, vide judgment dated 4-3-1981 for an offence under section 304, Part 11, P.P.C. And sentenced each to 10 years' R.I. And a fine of Rs.2,000 or in default thereof one year's R.I. The fine, if realised, was ordered to be paid to the heirs of Nawab (60) and Yasin (a young one), the two deceased, as compensation. They have appealed.
2. The occurrence look place at Degarwela on 21-7-1979. Abdul Ghani complainant (P.W.3), the son of Nawab deceased made statement (Exh.P.A) to (0htilam Muhammad S.I. (P.W.8) m Civil hospital Sahiwal, on 22-7-1979 al 2-00 p.m. It was sent to the Police Station Depalpur where formal F.I.R.
(Exh.P.A./1) was registered at 4-30 p.m. By Asghar Ali, Moharrar Head Constable (P.W.1)
3. Mst. Barkatay, the were and Yasin deceased, the son, of Abdul Ghani (P.W.3) had a dispute with Ashiq appellant some days before the occurrence while selling bangles. Akber Soofi (P.W.4) was the elder of the brotherhood of the parties. He called the parties for settlement on the day of occurrence at 5-00 p.m. In the meeting when the Biradari were present there was exchange of abuses between the parties. The appellants were armed with Sotas. Ashiq and Sadiq each gave one Sota blow on the temple of Yasin while Kamala gave two blows in the head of Nawab.
4. Yasin expired on 22-7-1979 and Nawab on 27-7-1979.
5. At the close of the trial Ashiq pleaded that the occurrence had taken place between the complainant party on the one side and Muhammad Hussain, Hidayat, Muhammad Yahya and Muhammad Mansha on the other. He claimed that he and his co-accused were not present in the occurrence. Sadiq appellant pleaded that he was falsely involved by Soofi Akber (P.W.4) who demanded Rs.10,000 from him and that he had divorced a daughter of Ashiq appellant before the occurrence, so could not be a participant alongwith Ashiq in the occurrence. Kamala appellant also claimed innocence and asserted that prior to the occurrence he had divorced a sister of Ashiq and so could not join hand in the occurrence. However no evidence was led in defence.
6. Abdul Ghani, Soofi Akber and Muhammad Iqbal (P.Ws. 3, 4 and 5) are the eye-witnesses. They have consistently supported the case of the prosecution. Dr. Safdar Ali (P.W.6) medically examined Nawab deceased and then performed post-mortem examination on the dead body. Dr. Riaz Ahmed (P.W.10) medically examined Yasin deceased and then performed post-mortem examination. Yasin had two injuries while Nawab had one. The case was investigated by Ghulam Muhammad and Muhammad Sher S.Is. (P.Ws. 8 and 9).
7. Learned counsel for the appellants could not level any criticism against the conclusion reached by the learned trial Judge. His plea was that Ashiq and Kamala would now be more than 60 and 70 years, thus again sending them to jail would be rather cruel. The learned trial Judge concluded the occurrence to be a sudden one. In view of the motive part of the story and the statements of the eye--witnesses, the conclusion seems to be correct. Ashiq and Sadiq each gave one Sota blow to Yasin and according to the medical evidence even Nawab had only one injury, which is ascribed to Kamala. The affair being sudden one had no undue advantage having been taken there is force in the submissions made by the learned counsel for the appellants.
8. The appellants were arrested on 27-7-1979 and remained behind the bars till they were convicted and their sentences suspended by this Court on 28-3-1983. They have been thus behind the bars for 3 years and 8 months and ages of Ashiq and Kamala now being about 60 and 70 years respectively, again sending them to jail would not advance the cause of justice. Maintaining their conviction the sentences already undergone and fine of Rs.15,000 each or in default thereof 2 years' R.I. Would meet the ends of justice. Order accordingly. The fine would be deposited in the learned lower Court within 2 months otherwise they would be taken into custody and sent to jail to serve out the sentence. The fine, if realised, shall to paid to the heirs of Yasin and Nawab deceased in equal shares as compensation. The appeal of Sadiq is dismissed. He is on bail and shall be taken into custody and sent to jail to serve out the sentence. Ashiq and Kamala are also on bail. Their bail bonds stand discharged.