This Criminal Appeal No.230 of 1985, filed by the State and Criminal Revision No.719 of 1984 filed by Naseer and Javed petitioners arise from the judgment of learned Additional Sessions Judge, Gujranwala, whereby he while maintaining the conviction of Naseer and Javed under section 307, P.P.C. Recorded by the trial Court, acquitted 15 co-accused Sardar Muhammad and 14 others, respondents (in Criminal Appeal No.230 of 1985) of the charge under section 325/148/324/307/149, P.P.C. I propose to dispose of them through single judgment.
2. Naseer and Javed petitioners (in Criminal Revision No.719 of 1984) and Sardar Muhammad and 14 others the respondents (in Criminal Revision No.230 of 1985) were tried under section 307/148/149/324/325, P.P.C. By Judicial Magistrate, Gujranwala, Camp at Wazirabad, for murderous assault and causing simple and grievous injuries with various weapons to Arshad Ali, Imtiaz, Ghulam Qadir, Safdar, Ghazanfar, Javed lqbal, Mst. Ghazala and Ashraf P.W s. They denied the charge and claimed to be tried.
3. To prove its case, prosecution produced 18 witnesses in all. The injured accused raised the plea of self-defence and the remaining denied all the incriminating circumstances. In defence two witnesses were produced.
4. The trial Court convicted all the 17 accused under section 148/307/149, P.P.C. And sentenced them as under: Under section 148, P.P.Cto one year's R.I. And a fine of Rs.5,000 in default thereof 6 months'
R.I. Each.
Under section 307, P.P.Cto 4 years' R.I. And a fine of Rs.5,000 in default thereof 6 months' R.I. Each with the direction that the fine if realized be paid Rs.1,000 to each injured P.W s. The sentences were to run concurrently. On appeal, the learned Additional Sessions Judge, Gujranwala, acquitted Sardar Muhammad and 14 others, the respondents (in Criminal Appeal No.230 of 1985), and while acquitting Naseer and Javed of the charge under section 148, P.P.C.
Maintained their conviction and sentence under section 307, P.P.C.
5. Learned Assistant Advocate-General appearing for State in Criminal Appeal No.230 of 1985 contended that in view of his findings that it was a case of free fight in which each accused was responsible for his own act, the learned Additional Sessions Judge could not have acquitted Sardar Muhammad and 14 others, respondents, inasmuch as Boota had caused grievous injury with Sota to Ashraf Ali P.W.3. Sardar Muhammad had caused simple fire-arm injury to Mst. Ghazala, Nasrullah, respondent No.l5 had given Kassi blow to Ghulam Qadir and rest of the respondents had given simple injuries with their Sotas to Arshad, Imliaz, Ghulam Qadir, Ghazanfar, Javed Iqbal, Muhammad Ashraf and Sardar Ali P.W s. Kh. Sultan Ahmad, the learned counsel for the respondent has frankly conceded to the contention of the learned Assistant Advocate-General and rightly so.
However, he prayed for leniency in the matter of sentence.
6. Sardar Muhammad respondent has died, so the appeal to his extent stands abated. As for the rest of the respondents, in view of the findings of the learned Appellate Court, which have not been challenged, the respondents should have been convicted for their individual acts. Therefore, there is no option but to accept this appeal against acquittal. Nasrullah respondent had caused simple injury with Kassi. He is, therefore, convicted under section 324, P.P.C. No doubt injury caused by Muhammad Boota,, respondent to Muhammad Arshad P.W. Has been declared grievous by the doctor, yet, he cannot be connected under section 325, P.P.C. Because no Radiologist was produced to prove X-Ray examination. So, he has to be convicted under section 323, P.P.C. The rest of the respondents had caused simple injuries with blunt weapons therefore they are also convicted under section 32.3. P.P.C.
7. This brings me to the question of sentences. I have carefully attended to this question. I find that the respondents other than Sardar Muhammad have remained for sufficient long time in jail as under-trial prisoners. Some of the respondents had received injuries during the occurrence. The occurrence took place in the year, 1979 as such, it may not be proper to send them back to jail after 10 years of the occurrence. So, the period of their imprisonment as under --trial prisoners and convict will meet the case.
8. Naseer and Javed appellants have been convicted under section 307! P.P.C. And sentenced to 4 years' R.I. And fine of Rs.5,000 in default thereof 6 months' R.I. Each, the learned counsel has not challenged the evidence produced by the prosecution against them. Challenging the nature of crime committed by' them, the learned counsel argued that since they had not repeated the blow and no Radiologist was examined, therefore, they could not have been convicted under section 307, P.P.C. And the offence committed by them was punishable under section 324/323, P.P.C. The learned A.A.-G. Has not been able to controvert him. I do not see any reason to disagree with the learned counsel for the petitioner. The injury inflicted by Naseer with hatchet on Arshad was found grievous and the injury caused with Dang by Javed appellant on the person of Muhammad Ashraf was also declared grievous. No Radiologist was produced to prove X-Ray examination of the injury of Muhammad Arshad, so, he has to be convicted under section 324, P.P.C. As for Javed, the prosecution has produced Neuro Surgeon, who during the operation had found fracture of skull, therefore, there is no alternative but to convict Javed under section 325, P.P.C. Coming to the question of sentence of Naseer and Javed, I rind that they have remained in jail as under-. Trial prisoners and as a convict for more than 1-1/2 years, I feel that the sentence already suffered by them will meet the case. So their sentence is reduced to one already undergone by them. Order accordingly.