1. ' Abdul Lateef, Muhammad Amin and Muhammad Siddique have impugned the judgment dated 4-7-2001 whereby they have been convicted by learned Additional Sessions Judge, Kandhkot for an offence under section 337-A(iii), P.P.C. And sentenced to suffer R.I. For seven years as Tazir and to pay compensation of Rs.15,000 each. They have been allowed benefit of section 382-B, Cr .P.0 .
2. ' Brief facts of the case are that there was family dispute between the parties as Muhammad Ameen was `Ghar Damad' of Karim Bux (the deceased); his wife was detained and he demanded return of his wife which was being declined. It is alleged that on 5-1-1983 Karim Bux, Ghulam Qadir and complainant Abdul Karim were going together alongwith Mst. Jaindul when accused Muhammad Ameen, Muhammad Siddique and Abdul Lateef armed with Lathis showered Lathi blows upon Karim Bux and went away. Report was lodged at Police Station, Kandhkot which was recorded in Roznamcha. Karim Bux was removed to hospital where he was examined but looking to serious injuries he was referred to Civil Hospital, Jacobabad where he died. Post-mortem examination was conducted there. After completion of the investigation the case was challaned.
3. ' On completion of trial learned 1st Additional Sessions Judge, Kandhkot passed judgment dated 29-11-1987 convicting the appellants for an offence under section 325, P.P.C. Read with section 34, P.P.C. And sentenced them to suffer R.I. For four years and to pay fine of Rs.1,000. The appellants challenged their conviction and sentence but by judgment dated 15-1-2000 in Criminal Appeal No.S-12 of 1987, this Court remanded the case to the trial Court considering the fact that the statements under section 342, Cr.P.C. Were not signed by the accused person nor their LTI was obtained. On remand the learned Additional Sessions Judge, Kandhkot recorded the statements of the appellants once again under section 342, Cr.P.C. And also examined them on oath and passed the impugned judgment on 4-7-2001 convicting them for offence under section 337-A(iii), P.P.C. In view of the amended provisions of P.P.C.
4. ' I have heard Mr. Shamsuddin Kobhar learned counsel for appellants and Mr. Muhammad Ismail Bhutto learned State Counsel.
5. ' At the outset it may be .Observed that the offence had taken place on 5-1-1983 i.e. To say much before the introduction of the amendments made in Chapter XVI of P.P.C. In the year 1990 through Pakistan Criminal Law Amendment Ordinance, 1990. These amendments continued to be on statute book, as successive Ordinances were promulgated and ultimately in the year 1997 by way of an Act the amendments were finally incorporated in P.P.C. Since these amendments were made in substantive law they had no retrospective effect. Even otherwise punishment under new Penal Provision would be against the spirit of Article 12 of the Constitution of Islamic Republic of Pakistan.
6. ' A similar situation came up before the Honourable Supreme Court in the case reported as Ali Muhammad v. Ali Muhammad PLD 1996 Supreme Court 274, wherein the trial Court had awarded sentence on the basis of repealed law although the offence had taken place during the period the amended provisions of P.P.C. Were in force. The Honourable Supreme Court on the basis of the evidence recorded in the case, decided the same without remanding it back to the trial Court and passed . The accused was convicted under section 302, P.P.C. And ultimately the sentence was reduced to what the accused has already undergone. I am therefore, of the considered view that although the conviction for the offence and the sentence under section 337-A, P.P.C. Cannot be sustained and the judgment is liable to be set aside to that extent but ends of justice would meet by deciding the case at this stage and not remanding it back to the trial Court since it is a matter of 1983 i.e. To say more than 21 years back.
7. ' Mr. Shamsuddin Kobhar learned counsel for the appellants submits that he would not press this appeal on merits if leniency is shown keeping in view the prolonged agony faced by the accused persons continuously for twenty one years.
8. ' Mr. Muhammad Ismail Bhutto learned State Counsel concedes to this has fully supported the case by saying that the appellant showered Lathi blows on deceased. Mr. Shamsuddin Kobhar, however, attempted to point out that the complainant and Mst. Jaindul the other witness have not supported the case. Nevertheless in this respect I would agree with the trial Court that the evidence of one prosecution witness if it inspires confidence and it is established that he had witnessed the occurrence, is enough to warrant conviction. In this case, indeed, Ghulam Qadier's evidence is trustworthy and shall not be rejected, as such I would agree with the trial Court to the extent of finding of conviction, but as already pointed out the appellant is guilty of the offenCe under section 325, P.P.C. Read with section 34, P.P.C. As it stood before promulgation of Criminal Law Amendment Ordinance, 1990.
9. ' The medical evidence also supports the prosecution as the first Medical Officer at Tangwani had found injuries on the head of deceased Karim Bux and the second Medical Officer, Dr. Ghulam Muhammad Channa who conducted post-mortem examination at Jacobabad had also noted fatal injury on head and in this way the medical evidence lends support to the ocular version of Ghulam Qadir that Karim Bux died due to Lathi blow received on head.
10. ' I am conscious of legal position that even if appeal is not pressed it is to be decided on merits to ensure if the conviction could be sustained and only in that event, when the Court is satisfied that the accused persons committed an offence, the sentence can be reduced and modified. Instantly, the trial Court has relied upon on the evidence of P.W., Ghulam Qadir who ' At this stage it may be noted that the only injury on head proved to be fatal, therefore, it is difficult to ascertain who caused it but in view of the earlier judgment of the trial Court it can be concluded that in furtherance of their common intention, the accused/appellants attempted to inflict blows.
11. The conviction under section 325 read with 34, P.P.C. Is as such proper.
12. On perusal of the case diaries it is noted that except accused Abdul Latif the other two remained in jail for a period of more than two years and on conviction all of them were remanded to custody.
13. Appellant Abdul Lateef has also remained in custody for quite some time. In view of the afore- stated circumstances while maintaining conviction for an offence under section 325/34, P.P.C., the sentence is reduced to what the appellants have already undergone, specially keeping in view the prolonged agony sustained by them during the last twenty one years in facing the trial. The appeal stands disposed of in above terms.
14. Sentence reduced accordingly.