HUBDAR HUSSAIN SHAH Versus THE STATE
Hubdar Hussain Shah, aged 23 years and his brother Bakht Bedar Hussain Shah, aged about 28 years, were convicted by an Additional Sessions Judge of Chakwal, vide judgment/order, dated 15th of January, 1992, under section 304/34 of P.P.C. and also under section 323 of P.P.C. The appellants were sentenced to 10 years' rigorous imprisonment under section 304/34 of P.P.C. A fine of Rs.10,000 was also imposed and in case of default in payment of fine, the appellants were ordered to undergo further R.I. for one year. The appellants were sentenced to one year's R.I. under section 323 of P.P.C. Both sentences were ordered to run concurrently. The line if realised was ordered to be paid to the legal heirs of Liaqat Hussain Shah, deceased. However, the benefit of section 382-B of Cr.P.C. was given by the trial Court to the appellants.
2. Co-accused Dildar Hussain Shah, the third brother of the appellants, alongwith their father Munir Hussain Shah and a relative, namely, Qarar Hussain Shah, were acquitted by the trial Court.
3. The occurrence took place on the 15th of August, 1986 at "Peshi Waila" (about 2-00 p.m.) in the area of village Sayedan Rahna which is about 9 miles from Police Station Kalar Sayedan of District Chakwal. The First Information Report (Exh.P.A.) was lodged after about 56 hours on the 17th of August, 1986 at 11-45 p.m., under sections 307, 147/148 of P.P.C.
4. Liaqat Hussain Shah, deceased, a young lad of about 14 or 15 years and a first cousin of the appellants died on the 17th of August, 1986 at 6-50 p.m. in the District Headquarters Hospital of Rawalpindi. Subsequent to the death of Liaqat Hussain Shah, section 302 of P.P.C. was added in the F.I.R. the next morning i.e. on the 18th of August, 1986. The F.I.R. was lodged by Amir Hussain Shah (P.W.1) father of Liaqat Hussain Shah deceased and was recorded by A.S. -I. Manzoor Hussain (P.W.17).
5. The occurrence was witnessed by Amir Hussain Shah (P. W.1) father of Liaqat Hussain Shah, deceased, Dilawar Hussain Shah (P.W.2) brother of the deceased and 1Vluhammad.Akhtar (P.W.3) also related but the exact relationship is not in evidence. Besides, two other persons, namely, Sigbatul Hassan and Inam-ul-Hassan also saw the occurrence but were not produced at the trial and were given up by the prosecution as being "unnecessary".
6. Hubdar Hussain Shah appellant was arrested on the 19th of August, 1986 and a, club "Danda" P.4 was recovered at his instance vide recovery memorandum Exh. P.F. on the 26th of August, 1986. The said recovery was witnessed by Anwar Hussain Shah (P.W.11) and Inspector Muhammad Aslam Khan (P.W.18) besides one Naseem who was given up as being "unnecessary" by the prosecution.
7. Bakht Bedar Shah appellant was arrested on the 28th of September, 1986 and a club "Danda" was recovered vile recovery memorandum Exh. P.H. The club "Danda" was not produced in Court by the prosecution during the trial. However, the recovery memorandum Exh. P. H. was signed by Syed Nazir Hussain Shah (P.W.13) and Inspector Muhammad Aslam Khan (P.W.18) besides one Syed Shujat Hussain Shah who was given up by the prosecution as being "unnecessary".
8. The motive for the occurrence was stated to be an old enmity between the -two families resulting in bloodfued. Dilruba Hussain Shah son of complainant Amir Hussain Shah (P.W.1) appeared as a prosecution witness against the uncles of the present appellants. However, the motive asserted by the prosecution has been disbelieved by the trial Court. .
9. The recoveries have also been held to be of no significance by the trial Court
10. There is a delay of about 56 hours in lodging the F.I.R. for which there seems to be no plausible explanation and therefore, the trial Court has not believed the explanation given by the prosecution. It seems that the F.I.R. was lodged after the death of Liaqat Hussain Shah deceased.
11. The accused persons pleaded total denial except Bakht Bedar Shah appellant who admitted having caused injuries to Liaqat Hussain Shah, deceased, as a result of which two teeth of Liaqat Hussain Shah were broken.
12. It is in evidence that a compromise between the families was arrived at on the next day of the occurrence i.e. on the 16th of August, 1986 and on the same day, two similar teeth of appellant Bakht Bedar Shah were extracted by Dr. Qazi Abdul Raouf (P.W.4). It is also in evidence that Dr. Qazi Abdul Raouf (P.W.4) was hesitant to carry out the extraction and was persuaded to do so by Muhammad Irshad (P.W.14). Thus, according to the family compromise, the Qisas has already been executed.
13. The appellants have already undergone 4 years and 3 months' R.I. and with remission, the sentences already served by the appellants would work out to be about 6 years. Keeping in view, the facts and attendant circumstances of this case, the ends of justice would be secured if the sentence of the appellants is reduced to that which they have already undergone.
14. Resultantly, this appeal is partly accepted. The sentence of the appellants is reduced to that which they had already undergone. The sentence of fine is set aside. The appellants are on bail their bail bonds are discharged.
N.H.Q./H-10/L ??????????????????????????????????????????????????????????????????????????????????? Sentence reduced