' Khushi Muhammad appellant was tried alongwith Muhammad Yamin under section 307/452/34, P.P.C. by Magistrate Section 30, Faisalabad, for having trespassed into the house of Sher Muhammad complainant and for having fired with his gun at Muhammad Ramzan and Muhammad Akram P.Ws. during the night between 1/2-6-1981 in village Chak No.452/G.B. within the area of Police Station Samundari, District Faisalabad. Learned Magistrate vide judgment, dated 2- 6-1981 convicted Khushi Muhammad under sections 452 and 307, P.P.C. and sentenced him as under:-- Under section 307, P.P.CR.I. for seven years plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. for six months.
Under section 452, P.P.C.R.I. for three years plus to pay a fine of Rs.5,000 in default whereof to undergo R.I. for six months.
' The fine, on recovery, has been directed to be paid in equal shares to P.Ws. Sher Muhammad and Muhammad Akram.
' Muhammad Yamin, his co-accused, was acquitted vide the same judgment. .
2. The convict has filed appeal.
3. The prosecution case at the trial was that the appellant armed with a gun accompanied by Yamin also armed with a gun had criminally trespassed into the house of the complainant and had fired shot at him in order to commit his murder and that on the complainant and other P.Ws. being woken up, he had started running and while running had fired shots at Muhammad Akram and Ramzan P.Ws. in the street when they had affronted him being on watch.
4. The complainant in whose house the accused had forcibly entered and fired with the intention to commit murder and Muhammad Akram who had been inflicted injuries, also appeared at the trial alongwith other P.Ws. Eye-witnesses of the occurrence as well as witness of Wajtakkar alongwith the Investigating Officer and the doctor were also examined at the trial.
5. The appellant during statement under section 342, Cr.P.C. had denied the prosecution case and pleaded innocence. He had, however, not produced any evidence in defence.
6. Learned counsel for the appellant at the very outset submitted that he would not challenge the conviction of the appellant on both the counts. He has, however, prayed for reduction of the sentence of imprisonment to that already undergone. In that, he has submitted that Muhammad Ramzan P.W. who was alleged to have suffered injury during the occurrence had not appeared at the trial while Muhammad Akram P.W. who was found to have suffered injuries during the occurrence had sworn a favourable affidavit which is on the file (the affidavit was produced at the time of suspension of sentence of the appellant); that a period of almost ten years has already passed since the occurrence had taken place; that the appellant had remained in jail during trial for more than 1--1/2 years and had suffered R.I. for two years' R.I. as well, before being released on bail after suspension of sentence.
7. Notwithstanding the fact that the learned counsel for the appellant has not challenged the conviction of the appellant, I have gone through the evidence and I am convinced that there is reliable and independent evidence on record to connect the appellant with the crime. The conviction recorded by the trial Court, therefore, does not call for any interference. The same is, maintained.
8. As submitted by the learned counsel for the appellant, the occurrence had taken place 10 years ago. It is a fact that the appellant had remained in jail during trial for one year and about seven months. His sentence was suspended after he had completed the statutory period of two years' R.I.
He thus appears to have remained in jail as undertrial/convict for more than 3-1/2 years. He might have earned some remission as well on having undergone R.I. for two years. There is every justification to allow alteration to run the sentence concurrently. In that case, the appellant would be deemed to have undergone more than half sentence of imprisonment. Keeping all the facts in view, I am inclined to reduce the sentence of imprisonment to that already undergone. The sentence of fine of Rs.5,000 on each count is reduced to Rs.3,000 on each count in default whereof he will undergo six months' R.I. on each count. Half of the fine, on realization, shall be paid as compensation to Sher Muhammad and Muhammad Akram P.Ws.
9. The appellant shall deposit the fine within 45 days. In case of failure, he shall be caused to be arrested through non-bailable warrants and lodged in jail to undergo the sentence awarded in lieu of non-payment of fine. Learned counsel for the appellant has undertaken to inform the appellant to deposit the fine. Office shall, however, also send him intimation.