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Criminal Appeal No. 212 of 1981, decided on 21st November, 1982.

-----S. 307/326--Attempt to murder-No evidence or any reference of any Lalkara having been raised by accused or acquitted co-accused to state unequivocally that he had intention or knowledge as was necessary to constitute offence under S. 307 available-Two out of four stab wounds found on person of complainant declared by doctor as grievous and no reference in his evidence suggesting that said injuries likely to result in death of complainant in usual course of nature or so imminently dangerous as likely to cause death-Accused, held, guilty under S. 326 and not 307, Penal Code in circumstances-Convic tion altered accordingly and sentence of imprisonment reduced.

Ch. Muhammad Anwar Samma's case 1976 S C M R 168 eel.

Malik Shaukat Ali for Appellant.

Muhammad An war Bhour for A.-G. for the State.

Date of haring : 21st November, 1982.

This is an appeal by Muhammad Yasin, appellant, against his conviction and sentence under section 307, P. P. C. for making an attempt on the life of Sardar Muhammad P. W. 2. He has been convicted by a section 30 Magistrate of Toba Tek Singh and sentenced to 7 years' R.I. with a fine of Rs. 2,000 or in default thereof to further rigorous imprisonment for 6 months.

2. The only submission made by the learned counsel for the appellant during arguments is that the appellant was wrongly convicted under sec tion 307, P. P. C. and that his case at best falls under section 326, P. P. C. Arguments of the learned counsel for the appellant and the State have been beard in this connection. It is true that neither in the F. I. R. nor in the evidence of Sardar Muhammad P. W. 2, Ibrahim P. W.3 and Muhammad Sardar P. W. 4, the eye-witnesses, there is any reference to any Lalkara having been raised by Muhammad Yasin, appellant, or his two co-accused, Muhammad Hussain and Ghulam Nabi, who were acquitted, that they had come to take the life of Sardar Muhammad P. W. 2. Further, though two of the four stab wounds found on the person of Sardar Muhammad P.W. 2 have been declared by Dr. Ghulam Ahmad P.W.1 as grievous, there is no reference in his evidence to suggest that the said injuries were likely to result in the death of the com plainant in the usual course of nature or were so imminently dangerous as were A likely to cause his death. Since there is no evidence as regards any Lalkar having been raised in the present case, it cannot be unequivocally stated that the appellant had the intention or knowledge as was necessary to constitute the offence under section 307, P. P. C. In the absence of any evidence to disclose that any of the injuries on the complainant was either such as was likely to result in his death in the usual course of nature or such as was so imminently dangerous as to be likely to cause death, according to the principle laid down by the Supreme Court in Ch. Muhammad Anwar Samma's case (1976 S C M R 168) it is difficult to bring the present case under section 307 P. P. C. In these circumstances, it would appear that the appellant is guilt under section 326, P. P. C. and not under 307, P. P. C.

3. For the foregoing reasons, the conviction of the appellant is altered from one under section 307, P. P. C. to that under section 326, P. P. C. and the appellant is sentenced to three years' rigorous imprisonment with fine of Rupees Two Thousand (Rs. 2,000) or in default thereof to further rigorous imprisonment for six months. Fine, if recovered from the appellant, shall be paid to Sardar Muhammad P. W. 2 as compensation under section 544-A, Cr. P. C. This appeal stands partly accepted, in terms of alteration of conviction and reduction of sentence, as stated above.

Appeal partly accepted.

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