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Criminal Revision No. 380 of 1968, decided on 7th April 1969.

Order admitting Revision petition on question of sentence only‑Such order, neither a judgment nor a final order within meaning of S. 369‑Held, trot a bar to examining case on merits in view of very wide powers under S. 439.

Mohibullah v. Usman Khan and others P L D 1967 Pesh. 311; Kh. Muhammad Rafiq v. The State P L D 1967 Lah. 833 and Mangilal v. Emperor A I R 1945 All. 98 rel.

Evidence of witnesses accepted by two Courts below and nothing shown to hold such witnesses untruthful‑Presence of two of witnesses proved by injuries found on their persons‑Conviction, held, proper.

Sentence‑Accused with pre-meditation causing pistol shot injuries on vital parts of body of complainant who survived by sheer luck‑Sentence of 3 years, held, cannot be said to be excessive, in circumstances of case.

Abdul Majid Khan for Petitioners.

Ziauddin Qureshi and Dilawar Mahmood, Assistant Advocate -General for the State.

The above petition was directed against the judgment dated the 7th of March 1968 of the learned Additional Sessions Judge, Gujrat, who had dismissed the appeal of the applicants. The applicants along with two others, namely, Ashraf Shah and Gulzar Shah, were tried of an offence under section 307 read with section 34, P. P. C. for having fired pistol shots at P. Ws. Adil Shah and Sher Shah. They were convicted of the offence under section 307 read with section 34 by the learned Additional District Magistrate, Gujrat by his judgment dated 31st October 1967. He had, however, acquitted Ashraf Shah and Gulzar Shah. The applicants therefore preferred an appeal against their conviction and sentence which was dismissed as aforestated.

2. This revision came up for admission before my learned brother Kadri, J. who by an order dated 26th April 1968 held that there was no case for admission on merits but ordered the issuance of notice on the question of sentence only. This revision application came up for hearing before me on 25th March 1969 when the learned counsel for the applicants contended that even though the petition was admitted on the question of sentence yet he could assail the conviction on merits as well. He, however, wanted time to argue this point. Consequently adjourned the matter to 1^st April 1969. On that date the learned counsel for the petitioners cited several authorities in support of the proposition that I could go behind the order of admission as it was neither a judgment nor a final order in the nature of a judgment within. the meaning of section 369, Cr. P. C. and can examine the case on merits with a view to finding as to whether the conviction was proper.

3. The learned counsel for the State Mr. 7iauddin Khan was not able to give me the necessary assistance and I, therefore, adjourned the matter and issued notice to the learned Advocate -General for 3rd April 1969. Mr. Dilawar Mahmud, Assistant Advocate‑General, appeared on that date in pursuance of the notice, issued by me. The learned counsel for the applicants had in support of his contention cited before me decisions as reported in P 1., D 1967 Pesh. 311, P L D 1967 Lab. 833 and A. I. R 1945 A11. 98. In P L D 1967 Pesh. 311, one of two questions raised was as under :‑‑

"Whether in exercise of the revisional powers, the applicant can be permitted to assail the impugned order on grounds other than those on which the Application Judge had admitted the revision petition."

My learned brother Faizullah Khan, J. while dealing with this question in para. 5 of the judgment has summed up as under :‑

"It follows from the above discussion that once the record of the case is summoned under section 435, Cr. P. C., the High Court has unlimited powers under section 439 to pages any appropriate order notwithstanding the fact that the application was admitted on one particular point.

Although section 369, Cr. P. C. was not considered in this judgment yet in view of the wide powers as conferred by sec tion 439, Cr. P. C. on the High Court to examine the correctness legality or propriety of any finding sentence or order, my learned brother was of the view that the bar at the time of the admission of the revision would not come in the way of passing any appropriate order. Similarly, in A I R 1945 All. 98, ii has been held that even if an application for revision by the applicants was admitted by the High Court only on the question of sentence the High Court is not prevented from considering the case as a whole and holding that there is illegality in the trial and the sentence imposed on the accused.

4. The decision more directly in point is as reported in P L D 1967 Lah. 833. My learned brother Shaukat Ali, J. while considering the question as to whether the provisions of section 369, Cr. P. C., were applicable to an interlocutory order so as to prevent it from being reviewed, held that it only applies to final orders which are in the nature of judgments, I and in respectful agreement with the view as taken in the above decisions. Since the admitting note was not in the nature of al final order as it was not passed after hearing both the sides, it cannot be either a judgment or a final order within the meaning of section 369, Cr. P. C. Once this bar is removed there is no. impediment in my way to examine the case on merits in view of the very wide powers given to tile High Court under sec tion 439, Cr. P. C. to examine the correctness, legality or propriety) of any finding sentence or order. Mr. Dilawar Mahmud (learned Assistant Advocate‑General also frankly conceded and rightly so that the admitting note was not a bar to my examining the case on merits in view of the very wide powers as given by section 439, Cr. P. C. I, therefore, allowed the learned counsel for the applicants to address the on merits.

5. One of the two contentions raised by the learned counsel for the applicants was that since tile credibility of the witness was not divisible the trial Court could not have convicted tits: applicants on the same evidence after having acquitted Ashraf Shah and Gulzar Shah. In para (7) of the judgment, the triat Court while dealing with this aspect of the case has held that the mere presence on tile spot cannot make Ashraf Shah and Gulzar Shah liable for the commission of an offence committed by others. They were only assigned the part of being armed with sotas and nothing beyond that was alleged against them. The trial Court distinguished their case qua their participa tion with reference to the application of section 34 and gave them the benefit of doubt. The learned trial Court while acquitting Ashraf Shah and Gulzar Shah has not correctly interpreted sec tion 34. No distinction could have been made merely on the ground that they had not inflicted any injury with the weapons with which they Were armed. There was premeditation and all the four had come in a body and had waited for the complainant party to pass that way. I, therefore, feel that their acquittal was not proper on the evidence as laid before him. However, since no acquittal appeal has been filed by the State against their acquittal the matter ends there. There is no finding that Ashraf Shah and Gulzar Shah were falsely implicated in the case and accordingly it cannot be said that the conviction of the applicants was not proper on the same evidence as here it is not a case where the witnesses have been believed with regard to one set of persons and disbelieved with regard to another set of persons. I am of the view that this contention has no force.

6. The learned counsel also urged that tile ocular evidence as furnished by P. Ws. Adil Shah, Sher Shah, Malik Sultan and Akbar Shah should be disbelieved on the same grounds as for the rejection of the ocular evidence of Anwar Shah by the Appellate Court. I do not see any reason why I should do so when the two Courts below have accepted their evidence and nothing has been urged to enable me to hold that the witnesses a were untruthful. Moreover, two of the witnesses, namely, Adil Shah and Sher Shah are injured and their presence at the spot cannot be denied by any stretch of imagination. I, therefore, agree with the assessment of the evidence of the Courts below and hold that the conviction of the applicants was proper and cannot be assailed in the light of the contention urged by the applicants' counsel.

7. Lastly, the learned counsel for the applicants has urged for the reduction of the sentence on the ground that the nature of the injuries on Sher Shah was simple and that no opinion was expressed on the injury received by Adil Shah. The learned counsel for the applicants has lost sight of the fact that the injuries were caused by pistol shots and were on the vital part of the bodies of both the injured. It is by sheer luck that they have survived. The intention could not but be of intending to kill them. Moreover, there was also premeditation as they lay in wait for) the complainant party to pass that way and fired at them with pistols. Three years sentence cannot be said to be excessive in the circumstances of the case. Moreover section 307, P. P. C. C merely refers to hurt. In cannot be disputed that the injuries caused P. Ws., Adil Shah and Sher Shah do come within the definition of hurt as given in section 319, P. P. C. The word hurt would also include grievous as well as simple hurt. It is, there fore, immaterial whether the injuries were simple or grievous so long as hurt is caused, with such requisite intention as is mentioned in that section.

8. For the reasons given above, I do not see any force in this revision application and I dismiss it accordingly.

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