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Criminal Appeal No. 187 of 1976 and Criminal Suo Motu Revision No. 120 of 1977, decided on 6th May 1977.

S. 307‑Attempt to murder‑Essence of offence under S. 307 Act itself sufficient to cause death and presence of intention or knowledge thereof‑Act, in order to fall within purview of S. 307, must be ordinarily capable of causing death in natural and ordinary course of events‑Intention of accused to be judged from act itself and attending circumstances‑Cases of shooting from a point‑blank range must be distinguished from cases of shooting at random.‑[Intention].

An act which falls within the purview of section 307, P. P. C. is an act by which itself must be ordinarily capable of causing death in the natural and ordinary course of events.

The essence of offence under section 307, P. P. C. is the doing of an act which by itself must be ordinarily sufficient to cause death and the presence of the necessary intention or knowledge that death should be caused by that act. The burden of intention could be proved by inference from the circumstances. Where the circumstances are such that but for some intervening fact death would have resulted in natural course of events, then the offence would be one under section 307.

No hard and fast rule can be laid down and the intention is to be judged from the act itself and the attending circumstances. If from circumstances the intention to cause death can be inferred then accused can be held guilty under section 307 ; but where there is no evidence of surrounding circumstances or motive then the intention is to be gathered from the nature of the injury actually caused and the probability of such injury ordinarily causing death of the victim. Where the conclusion regarding intention to cause death cannot be reached, then the conviction can be one under section 324 and not under section 307, P. P. C. The nature of the injuries and the probability of the object to cause death can be considered as indications of the intention. The benefit of doubt in this respect would go to the accused rather than to prosecution.

For constituting an attempt to murder, there must be some overt act combined with evidence of mens rea. The burden is always on the prosecution to prove, first, the actus reus, i.e., the accused had done something which in point of law marked the commission of the offence, and second, the mens rea, that is, in taking this step he was inspired by the intention to go on to reach a definite object which would constitute a specific offence.

When a man uses a deadly weapon like a pistol in such a fashion, the presumption against him is that he intended to cause death. Thus cases of shooting from a point‑blank range have to be distinguished from the other category of cases of shooting at random for the purpose of frightening the pursuers.

Nawab Ali v. The State P L D 1962 Kar. 269 ; Ghulam Sabir Amir Khan v. Emperor A I R 1942 Posh. 21 ; Fateh v. Emperor A I R 1931 Lah. 63 ; Martuvithopa v. Emperor 14 Cr. L J 641 ; Dhani Bux v. State P L D 1964 Kar. 264 ; Mansuri Nizamuddin v. The State A I R 1955 Pat. 330 ; Abdul Rahman v. State P L D 1964 B J 10 ; Sudheendrakurnar Ray v. Emperor A I R 1933 Cal. 3541 Dhanwantri v. Emperor A I R 1933 Lah. 852; and R. v. Hufflett (1919) 84 J P 24 ref.

Intention‑Thought of man not triable‑Intention to be gathered or inferred only from external acts‑Accused to be punished for what he actually has done and not for what he might have done.‑[Intention].

The thought of man is not triable because even the devil himself knoweth not the thought of man. Intention then is to be gathered or inferred only from external acts, and therefore, for this purpose it is very necessary to examine the act itself of the accused. The accused is to be punished for what he has actually done and not for what he might have done.

Taj Mohammed v. The State P L D 1963 Kar. 118 ref.

Nooruddin Sarki for Appellant.

Abdul Karim Lakhan for the State.

Date of hearing: 6th April 1977.

The appellants have been convicted by the 1st Additional Sessions Judge, Jacobabad for offence under section 307/34, P. P. C. and they have been sentenced to R. I. for 7 years and fine of Rs. 1,000 each or in default R. 1. for one year more. They have also been convicted for offence under section 332/34, P. P. C. and sentenced to R. I. for one year and for offence under section 13‑D of the Arms Act and sentenced to R. I. for 2 years and fine of Rs. 300 each or in default R. T. for 6 months more. The substantive sentences of imprisonment for all these offences have been ordered to run concurrently., 'the prosecution case Ins brief is that one Muhammad Saleh left village Panhwar for going to his own village Hayat Khan Gopang on 25‑10‑1972 at about 5‑00 p.m. in a jeep borrowed from his friend Wadero Muhammad Ali. The jeep was being driven by driver Wali Mohammad and one Ghulam Haider was also taken in as a co‑passenger. After the party had driven the jeep for about half an hour the jeep was stopped on the way by four armed robbers. One had a rifle and the rest had guns. The person with the rifle robbed Muhammad Saleh of the revolver which stood against the licence of his uncle Alam Khan, he having been shown in the licence as 'retainer'. The robber with the rifle also snatched the watch from the person of complainant Muhammad Saleh. The robbers took the key of the jeep from the driver and drove away the said jeep, leaving Muhammad Saleh and his party on the road. The victims then ran up to a nearby village. where they borrowed a motor‑cycle from one Hakim Inayataullah. Muhammad Saleh went on that motorcycle to his uncle Alain Khan who advised him to lodge report with the police. He accordingly came to Ratodero Police Station and lodged his F. I. R. On receipt of his report Writer Head Constable Shahdadkot sent a telephone message to Garhi Khairo Police Station in Jacobabad District, that jeep No. HD 9770 had been robbed from the jurisdiction of Ratodero Police Station and that jeep was being brought by the robbers and was likely to pass via Shabdadkot Garhi Khairo Road and, therefore, Nakabandi should be conducted on that road. On receiving such information S. H. O. Garhi Khairo along with H/C Eid Muhammad and a party of constables proceeded to Eedan Minor on the Kutcha Shabdadkot Road. At 5‑15 p.m. they found the jeep in question coming by the road. The Police party ordered the jeep to stop. The jeep stopped and one person sitting on the front right hand side, armed with a double‑barrelled gun got down. He fired the gun at the police party and some more shots were also fired from the jeep. The Police party fired in return. Three gunshot pellets hit Head Constable Bid Mohammad on his knee, shoulder and right ear. The shot fired by the police party hit the driver of the jeep on his right band in which he was holding the revolver. The pistol fell down from the hand of the driver and the driver also fell down. He was apprehended. The remaining culprits started running away and they were pursued by Inspector Zafar Ali who had also by that time reacted the spot and joined the others. After covering a distance of 3 miles one of the culprits raised up his hands and threw down his rifle. He was also arrested. This accused had been hit by the shot fired by the police, on the finger of his right hand. The police party who were also joined in the meantime by S. H. O., Shahdadkot went after the robbers but by that time it became dark and the robbers disappeared in the forest. The two culprits who were caught along with their weapons. namely. revolver and rifle and the jeep, were brought to Shahdadkot Police Station where Writer Head Constable Muhammad Sulaiman lodged this report. The accused arrested with revolver gave his name as appellant Ghulam Shabbir son of Allah Warayo by caste Langah, resident of Shahdadkot. The revolver was smelling of gun‑powder and had been recently fired. It was Wehley Scot Bringham London '32 bore. The other culprit who was caught with the rifle gave his name as Mohib son of Muhammad Ameen by caste Somari Baledi resident of Partab, Taluka Garhi Khairo. His rifle was also smelling of gun‑powder and it was 7, J. M. Rifle No. 77843. The rifle bore the bullet mark on the butt. Apart from damage the rifle was otherwise in working cider. It was made in England. Mashirnamas of the recovery of these weapons were prepared.

2. .Injured Head Constable Eid Mohammad and the two appellants had been sent to Dr, Habibur Rahman Medical Officer, Garhi Khairo on the same day at 6‑00 p. m. He found the following injuries on the person of Bid Mohammad:

(1) Wound of entrance 1 /4' in diameter on the anterior surface right knee‑joint.

(2) A wound of entrance 1/4' In diameter on the left scapular region;

(3) A wound of entrance 1/4' in diameter on the anterior surface of the lobule of the right ear.

(4) A wound of exit 1/4' in diameter on the posterior surface of the lobule of the right ear.

(5) A wound of exit on the posterior surface at the left shoulder.

The injuries appeared to have been caused by discharge of a fire‑arm such as gun. Injuries were simple in nature. The Head Constable was treated as outdoor patient for 12 days and was discharged cured.

3. Appellant Mohib Ali had the following injuries:

(1) A grazing wound 1'‑2' on right Index finger.

(2) Haemorrhage in the right eye.

(3) Abrasion on the right knee joint. Appellant Ghulam Shabbir had the following injuries:

(1) An incised wound 2' x 1/6' x skin deep on right index finger.

(2) Abrasion 1/4'x 1/8' x skin deep on the dorsum of the right thumb.

The two appellants were sent up separately in the main robbery case and in the case which was result of the encounter with the police. The main robbery case was sent up by Ratodero Police in the Court of Civil Judge and F. C. M., Ratodero (Mr. Naseeruddin A. Abro) on 24‑11‑1972. Two more accused Bhaji and Mehon had been shown as absconders. P. W. Ghulam Haider was available at the bearings of this case. but he was not examined as the defence counsel wanted to cross‑examine all the witnesses together. The learned Civil Judge & F. C. M.. Ratodero Mr. Abro then discharged the two appellants in the main case without examining even a single witness by passing the following order‑

....... the case has considerably grown up old and the accused had remained in custody for about one year without any progress in the proceedings. I think it was the sufficient punishment for accused persons and now when the prosecution has no interest to produce the witnesses it will not be justified to give more mental torture to the accused persons and waste brae, for the uninterested witnesses. 1, therefore. discharge the accused Nos. 1 and 2 above for 'non. prosecution' under section 253(2), Cr. P. C. They are on bail and their bail bonds shall stand cancelled. The case against the remaining accused be kept on dormant file."

Thus the accused were let off on the main charge of robbery with the use of deadly weapons, an offence under section 392 read with section 397. P. P C. triable exclusively by the Court of Session by the said learned Civil Judge & F. C. M., Ratodero for 'non‑prosecution' because no progress could be made in the case for one year.

4. The other ease relating to the incident of recovery of the stolen jeep and arrest of the two appellants armed with revolver without licence proceeded in the Court of the [at Additional Sessions Judge. Jacobabad, who found the appellants guilty and convicted and sentenced them as above. Against this conviction the present appeal has been preferred.

5. The learned Advocate on behalf of the appellants has not pressed the appeal on merits since the appellants were caught under the circumstances described above, sitting in the stolen jeep almost immediately, after the alleged robbery and armed with fire‑arms without licence. They' had resisted the arrest and fired the gunshots which had hit Head Constable Eid Mohammed. They were caught with the weapons, one on the spot and the other on pursuit for a distance of 3 miles and they were arrested. With regard to this fact the prosecution examined Mr. Abdul Fahim. S. H. O., Garhi Yasin Police Station, Police Constable Gulzar Ali Shah, Police Constable Shah Sharf who were with the police party during the encounter. Writer H. C. Muhammad Sulaiman who had registered the cast was also examined. The prosecution then examined Nasir Mohammad Lashari who on hearing the gunshots had gone on horse back to the scene and found the two appellants with their weapons in custody of the police after the encounter. He had also seen the stolen property including the jeep standing on the Kutcha road. Some damage had been caused to the jeep on account of gun fire. Inspector Zafar Ali of Garhi Khairo who had taken part in the arrest of the culprits was also examined. Lastly 1P. W. Salimullah S. I. P., S. H. O. Shahdadkot Police Station and Head Constable Eid Mohammed of Garhi Khairo Police Station have also been examined. The medical evidence of Dr. Habibur Rahman was recorded. All the Police Officers and the Mashirs being disinterested witnesses have been rightly relied upon by the learned Additional Sessions Judge, Garhi Khairo and Shahdadkot were divided by 17 miles only and the information was lodged with the police without any loss of time with the result that the culprits were caught along with the jeep before they could got away. The police had acted very promptly and it was due to their efforts that two of the culprits were actually caught with unlicensed fire‑arms.

6. The only point that has been urged by Mr. Nooruddin Sarki on behalf of the appellants is that simple injuries were caused to Head Constable Eid Mohammed for which the two appellants have been held constructively liable under section 307 read with section 34, P. P. C. That the intention to cause death on the part of the two appellants cannot, therefore, be inferred and the mere fact that gunshot injuries were caused would not necessarily show that the intention of the culprits was to kill an' of the police officers. The learned counsel has cited a decision of this Court in Taj Mohammed v. The State (P L D 1963 Kar. 118). It was observed in that case by Raymond. J. that intention is a state of mind which is not ordinarily ascertainable. The thought of man, therefore, is not triable because even the devil himself knoweth not the thought of man. Intention then is to be gathered or inferred only from external acts, and therefore, for this purpose it is very necessary to examine the act itself of the accused. The appellant is to be punished for what he has actually done and not for what he might have done. Reliance was placed on a decision of Sir G. B. Constantine, J. in the case of Nawab Ali' v. The State (P L D 1962 Kar. 269). In that case only one blow was caused with a knife on the abdomen. It was argued that a person is presumed to have intended the natural and probable consequences of his act. But his Lordship held that such a presumption does not extend to consequences which have not occurred. In the words of Constantine, J :‑

'Here the man having recovered, the injury wee not sufficient in the ordinary course of nature to cause death, and I see no reason in this case to presume that he intended anything beyond inflicting the injury which in fact he did inflict‑namely era injury which was not sufficient in the ordinary course of nature to cause death."

The conviction was accordingly altered in that case from section 307, P. P. C. to sections 326 and 324, P. P. C. Same view was taken in Ghulam Sabir Amir Khan v. Emperor (A I R 1942 Pesh. 21 ) and in Fateh v. Emperor (A I R 1931 Lah. 63) following an earlier decision of Bombay High Court reported in Martuvithopa v. Emperor (14 Cr. L J 641). The ratio decided in all these decisions is, that an act which falls within the purview of section 307 is an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of events. A case of firing of pistol under some circumstances has been discussed in Dhani Bux v. State (P L D 1964 Kar. 264) by Faruqui, J. It was observed in that case that :

"from the mere fact that the pistol shot was fired it cannot be said that the only inference which follows is that the intention was to kill. We cannot, from the nature of the injuries themselves, reach the only conclusion, namely, that there was an intention to kill. It is possible that the accused had intended to cause the injuries which he m fact caused. One cannot upon the basis of the evidence reach a conclusion beyond a reasonable doubt that Dhani Bux had intended to cause death of Majid. The injuries in this case were simple. The offence would, therefore fall under section 324, P. P. C. I would, therefore, alter his conviction under section 307, to one under section 324, P. P. C."

7. Thus the essence of offence under section 307, P. P. C. is the doing of an act which by itself must be ordinarily sufficient to cause death and the presence of the necessary intention or knowledge that death should be caused by that act. The burden of intention could be proved by inference from the C circumstances. Where the circumstances are such that but for some intervening fact death would have resulted in natural course of events, then the offence would be one under section 307. In the present case gunshots appear to have been fired from a distance and only 3 stray pellets have caused simple injuries to P. W. Head Constable Eid Mohammed. The party was armed with rifle also. If they had intended to cause death they could not have missed the target, as the dacoits in this part of the country are considered good‑shots. Possibly these shots were fired at random to create terror in the minds of the pursuers in order to facilitate their escape. Therefore, from the nature of the injuries actually caused under the circumstances, it cannot be definitely stated, that the object of the person firing the gunshots was to cause death. In a similar case reported in A I R 1955 Pat. 330, where the accused was shooting at random for the purpose of frightening his pursuers and would be captors, it was observed that it was not possible to hold that he had the mens rea, that is, he had intended to cause death, or know that, in the circumstances, his act of firing was going to cause death, to any of his pursuers. In another case where the accused fired a small pellet shot on the victim from a distance of 100 yards and caused fracture of his index finger, it was held that his intention was to be deduced from his choice of the cartridge, and the distance from which the gun was fired, that he could not have intended to kill by a small shot fired from such distance. (P L D 1964 B J 10). Thus no hard and fast rule can be laid down and the intention is to be judged from the act itself and the attending circumstances. If from circumstances the intention to cause death can D be inferred then accused can be held guilty under section 307; but where there is no evidence of surrounding circumstances or motive then the intention is to be gathered from the nature of the injury actually caused and the probability of such injury ordinarily causing death of the victim. Where the conclusion regarding intention to cause death cannot be reached, then the conviction can be one under section 324 and not under section 307, P. P. C. The nature of the injuries and the probability of the object to cause death can be considered as indications of the intention. The benefit of doubt in this respect would go to the accused ratter than to prosecution.

8. There are a number of decisions covering cases of firing from guns or pistols, and in order to reach the right conclusion, it would not be out of place to quota some of these contrary decisions in order to bring out certain fine distinctions regarding the question of mens rea so as to bring the case under section 307, P. P. C. For constituting an attempt to murder, there must be some overt act combined with evidence of mens rea. The burden is always on the prosecution to prove, first, the actuz reus, i.e. the accused had done something which in point of law marked the commission of the offence, and second, the mens rea, that is, in taking this step he was inspired by the intention to go on to reach a definite object which would constitute a specific offence. In Sudheendrakumar Ray v. Emperor (A I R 1933 Cal. 354) certain persons in fear of being apprehended by the police turned round and fired at the constables though they did not hit anybody. It was held that the circumstances that they did not succeed in hitting any body was no reason for supposing that the cartridges were blank. That apparently it was conceded that the exchange of fire was within the range, and both the constables could be wounded by the bullets ejected from the revolver used by the appellants. Their Lordships accordingly held that the act of the accused amounted to an offence under section 307, P. P: C. In Dhanwantri v. Emperor (A I R 1933 Lah. 852) the appellant turned round and fired the pistol at the constable chasing him the bullet struck the whistle that the constable had in his pocket and, then, passing through the side, the bullet remained lodged inside. His Lordship Dalip Singh, J., observed that on merits the appellant had been rightly convicted under section 307, 1. P. C., for, it is obvious from the place where the bullet struck that the shot was aimed with the intention of seriously injuring the police constable who was chasing the appellant and in reckless disregard as to whether his life was or was not in danger by doing so. When a man uses a deadly weapon like a pistol in such a fashion, the presumption against him is that he intended to cause death. Thus cases of shooting from a point‑blank range have to tie distinguished from the other category of cases of shooting at random for the purpose of frightening the pursuers. In an English case R. v. Hufflett ((1919) 84 J P 24), referred in Russell on Crime, 10th Edition, Vol. 1, pages 680‑681, the indictment was for shooting at a police constable with intent to murder him. The defence was that the accused purposely shot wide in order to frighten the constable. The jury were directed that if they believed this, they should find the accused guilty only of resisting or obstructing the police constable in the execution of his duty.

9. Considering all the facts and circumstances of this case, in the light of the above reasoning, I am of opinion that the person who fired these shots with small pellets, from a distance, must have done so to frighten the police party and to effect his escape and the intention to kill cannot be inferred from the nature of the injuries which were simple and of no consequence. The offence would, therefore, fall not wider section 307 but under section 324, P. P. C. The appellants however, deserve the maximum punishment prescribed for offence under that section.

10. In the result the conviction is altered from one under section 307/34, P. P. C. to that under section 324/34, P. P. C. and the sentence is reduced from 7 years to 3 years and fine of Rs. 1,000 each or in default R. I. for 9 months more. But for this modification, the convictions and sentences on all the other counts are maintained and the appeal is otherwise dis missed.

11. It has also been observed on perusal of the record, that the discharge of the appellants for the substantive offence under section 392/397, P. P. C. may not have been proper or legal and farther examination of tire case for this purpose appears to be necessary. Suo Motu Revision proceedings may accordingly be registered, and' notices may be issued to the two appellants and to Advocate‑General for hearing of this matter. The R & P. of Case No. 172/72 (State v. Mohib and 3 others) may be called from the .Court of Civil Judge and F. C. M., Ratodero.

S. Q. Order accordingly.

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