' Instant appeal is directed against the judgment, dated 29-10-1998 whereby the trial Court has convicted the appellant to different sentences mentioned therein.
2. Briefly stated the facts are that on 19-7-1997 the complainant Muhammad Zulfiqar alongwith his brother Waris were going to their house On their car. When they reached Bus Adda Jhal Chak No,116/North Muhammad Sharif son of Hadayat, Asghar alias Achhu, Muhammad Aslam alias Toti sons of Muhammad Sharif armed with iron rod and Imtiaz armed with .12 bore gun emerged and Muhammad Sharif raised Lalkara and instigated his companions that the complainant and his brother be not allowed to go alive. Muhammad Sharif, Muhammad Asghar alias Achhu and Muhammad Aslam alias Toti accused inflicted injuries with their respective weapons on Khalid Nawaz whereas Imtiaz Ahmed accused fired with his .12 bore gun hitting Muhammad Waris on his face, chest, abdomen and right arm. On their hue and cry Muhammad Rafique and Javed were attracted and seeing them coming the assailants left from the place of occurrence. The motive behind this occurrence is stated to be that on 18-7-1997 Muhammad Waris alongwith Muhammad Javed had approached Imtiaz Ahmed accused for the return of price of motor-cycle upon which hot words were exchanged between them. In order to take revenge of that dispute instant occurrence has taken place. After usual investigation the case was sent up in the Court for trial.
3. A charge under section 324/34, P.P.C. Was framed against the accused to which they pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused prosecution examined P.W.1 Muhammad Zulfiqar, P.W.2 Muhammad Waris, P.W.3 Khalid Nawaz, P.W.4 Dr. Abdur Rehman, P.W.5 Muhammad Arshad, A.S.-I., P.W.6 Dr. Capt. Muhammad Aslam Javed and thereafter closed its evidence.
5. When examined under section 342, Cr.P.C. The accused Muhammad Sharif, Imtiaz Ahmed, Muhammad Aslam alias Toti, and Muhammad Asghar alias Achhu denied the prosecution version and stated that they have been implicated in this case falsely. In defence the accused examined Ali Raza D.W.1, Muhammad Ismail D.W.2 and Rana Muhammad Riaz D.W.3
6. After going through the evidence produced by the parties the trial Court convicted the accused Imtiaz Ahmed under section 324/34, P.P.C. And sentenced him to undergo R.I. For seven years and a fine of Rs,10,000, or in default thereof to undergo S.I. For six months. He further ordered that he shall pay Daman amounting to Rs,5,000 which shall be paid to the injured P.Ws. In equal share. The accused Muhammad Asghar alias Achhu was convicted under section 324/34, P.P.C. And sentenced to R.I. For 4 years and fine of Rs,5,000 or in default thereof to undergo S.I. For six months.
He was further convicted under section 337-A(ii), P.P.C. And sentenced to undergo R.I. For 4 years and to pay Arsh of Rs,46,400 (5% of Diyat) to be paid to the injured P.Ws. In equal shares. Both the sentences were ordered to run concurrently. Muhammad Sharif accused was convicted under section 324/34, P.P.C. And sentenced to undergo R.I. For 4 years and a fine of Rs,5,000 or in default thereof to undergo S.I. For six months. He was further convicted under section 337-A(i), P.P.C. And sentenced to undergo R.I. For 4 years. He was also ordered to pay Arsh amounting to Rs,46,400 (5% of Diyat) to be paid in equal shares to the injured P.Ws. Both the sentences were ordered to run concurrently. Muhammad Aslam accused was convicted wider section 324/34, P.P.C. And sentenced to R.I. For 4 years and fine of Rs,5,000 or in default thereof to undergo S.I. For 6 months.
He was also convicted under section 337-F(i), P.P.C. And sentenced to undergo R.I. For one year and to pay Daman of Rs,5,000 to be paid to the injured P.Ws. In equal shares. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C. Was also extended to all the accused/appellants.
7. The appellants have felt aggrieved and filed the instant appeal.
8. Alongwith this appeal Criminal Revision No,118 of 1999 has also been filed for the enhancement of sentence awarded to the appellants.
9. As both the criminal appeals as well as criminal revision arise out of the same judgment so these are being disposed of by this single judgment.
10. Arguments have been heard and record perused.
11. It is submitted by the learned counsel for the appellants that the injured Muhammad Zulfiqar, Khalid Nawaz and Muhammad Waris have effected compromise with the appellants Muhammad Asghar alias Achhu, Muhammad Sharif and Muhammad Aslam, so the appeal to the extent of aforementioned appellants be disposed of on the basis of said compromise.
12. This contention of the learned counsel for the appellants also stands admitted by the learned counsel appearing for the complainant.
13. So far as the sentence awarded to Imtiaz Ahmed appellant is concerned, learned counsel for the appellants submitted that Imtiaz Ahmed has already been in jail for about 4 years as is evident from the bail granting order, dated 6-5-1999, so the sentence awarded to Imtiaz Ahmed appellant be modified to one which he has already undergone. He further submits that the sentence of fine as well as amount of Daman imposed upon Imtiaz Ahmed be also modified.
14. So far as the sentenced awarded to Muhammad Sharif under section 337-A(i), P.P.C is concerned, he submitted that is not in accordance with law as the maximum sentence provided under section 337-A(i), P.P.C. Is 2 years whereas Muhammad Sharif appellant has been awarded sentence of 4 years. He further contended that the amount of Arsh as calculated by the trial Court and ordered to be paid by Muhammad Asghar and Muhammad Sharif is also not in accordance with law as the amount of Daman (5% of Diyat) will come to Rs,10,007.90 and not Rs,46,400 as determined by the trial Court. He further contended that under section 337-A(i), P.P.C. Arsh cannot be awarded and only Daman can be awarded, as such order of payment of Arsh to the extent of Muhammad Sharif is also liable to be modified/corrected.
15. Conversely the sentence awarded to the accused/appellant Imtiaz Ahmed has not only been supported by the learned counsel for the complainant but has prayed for its enhancement, keeping in view the part attributed to him.
16. It is evident from the facts stated above that injured Khalid Nawaz and Muhammad Waris have effected compromise with the accused Muhammad Asghar alias Achhu, Muhammad Sharif and Muhammad Aslam. Similar is the stand of Muhammad Zulfiqar complainant who has also entered into compromise with the aforementioned accused/appellants. Now there remains the case of Imtiaz Ahmed accused/appellant. He has been assigned the role of causing injuries to the injured and has been sentenced to undergo R.I. For 7 years and fine of Rs,10,000 or in default thereof to S.I.
For six months. He has also been ordered to pay Daman of Rs,5,000 which is to be paid to the injured witnesses in equal share. The impugned judgment was passed on A 29-10-1998 and even during the trial the said accused/appellant has been in jail. It was in this perspective that his sentence was suspended on 6-5-1999 as by that time he had been in jail for about 4 years.
17. Since the injured as well as the complainant have entered into compromise with 3 accused/appellants and the appellant Imtiaz Ahmed has been in jail for 4 years, so it is held that he has adequately been punished for the offence proved against him. Accordingly the period of sentence already undergone by him shall meet the ends of justice. Consequently the sentence awarded to him is reduced to the period already undergone by him. With this modification in the sentence, the instant appeal as well as Criminal Revision No,118 of 1999 stand disposed of. The amount of Daman and fine imposed upon Imtiaz Ahmed appellant is, however, maintained and he is granted one montlf time for making its payment, failing which law shall take its own course.
18. Since the injured and the complainant have effected compromise with Muhammad Asghar, Muhammad Sharif and Muhammad Aslam appellants, so there is no need of making any amendment in the amount of Arsh which has been imposed upon them.
19. The appellants Muhammad Asghar alias Achhu, Muhammad Sharif and Muhammad Aslam are on bail hence their bail bonds stand discharged.