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Criminal Revision No. 630 of 1982, decided on 2^nd November, 1983

-- S. 27-Penal Code (XLV of 1860), S. 307/148/149-Recovery ---Neither empties nor gun sent to Arms Expert and no evidence available to suggest that gun recovered from accused was in any manner connected with offence-Recovery held, of no consequence.-

[Recovery].

-- S. 439-Penal Code (XLV of 1860), S. 307/148/149-Revision ---Finding of fact-Finding of fact recorded by Courts below that injuries received by victim were caused at hands of accused-Inter ference declined by High Court with such finding being of fact. [Finding of fact].

---S. 307/148/149-Criminal Procedure Code (V of 1898), S. 439---- Attempt to murder-- Injuries declared by medical report to be simple as a result of shots fired from ineffective range-Injuries, held cannot be inferred to have been caused by assailants to victims with intention to cause their death.-[Intention].

-- S. 307/148/149-Criminal Procedure Code (V of 1898),. S. 439 --Attempt to murder- Accused firing from long distance resulting into minor simple injuries on non-vital parts of bodies of injured-- Conviction altered from one under S. 307 to S. 324, P. P. C. and sentence reduced.

M. B. Zaman and Ghulam Nabi Awan for Petitioners.

S. Zulfiqar Haider for the State.

Kh. Sultan Ahmad for the Complainant.

Date of hearing: 2nd November, 1983.

Khaliq Dad (45) ; Noor Khan (40) ; Ghulam Muhammad (55) ; Shah Muhammad (55) ; Muhammad Akram (27) and Muhammad Ashraf (24) alongwith one Muhammad Nawaz and four others, not named in the F. I. R., were accused in the F. I. R. Exh. P. G. of having committed the offences punishable under sections 307 and 148, P. P. C. read with section 149, P. P. C.

2. Khaliq Dad, Noor Khan, Ghulam Muhammad, Shah Muhammad, Muhammad Akram and Muhammad Ashraf, aforesaid, after the trial were convicted by the learned Magistrate Section 30, Jauharabad, vide his judgment dated 29th May, 1982 under Sections 148 and 307, P. P. C. read with section 149, P. P. C. He sentenced each of them to 4 years' R. I. and a fine of Rs. 4,000 (Rs. Four Thousand only) or in default to further R. I. for one year under section 307/149, P. P. C. and to one year R. I. under section 148/149, P. P. C. The substantive sentences awarded to the convicts were ordered to run concurrently.

3. The convicts appealed against their conviction and sentence before learned Sessions Judge, Jauharabad, but their appeals were dismissed on 1st September, 1982. They have thus filed the present Criminal Revi sion Petition.

4. The occurrence took place on 8th of September, 1979 at degarwela in the area of village Ghongewala at a distance of 12 miles from Police Station, Noshera. It is alleged that Rab Nawaz (P. W. 6) accompanied by Sher Afzal (P. W. 4), Atta Muhammad (P. W. 5), Said Khan, Noor Muhammad, Muhammad Amir and Muhammad Taqi, after appearing in the Court of Rai Muhammad Amin, Magistrate Section 30, Jaubarabad, was going back to his village, Madowal, in a Suzuki Van and when they reached in the area of village Ghongewala, at Jooraywala bridge, 11 persons including the aforementioned convicts/petitioners emerged at the scene from behind bushes and trees. Rab Nawaz and his companions got alarmed. Rab Nawaz jumped out of the Suzuki Van. During the course of his exit from Suzuki Van, he suffered an injury with pellet on the lower. portion of his .left leg. He took shelter behind a Pacca wall built around a nearby field. Atta Muhammad, who came out from the front seat of the Suzuki Van also suffered two pellet wounds. Rab Nawaz and his companions had also licensed guns with them. They fired back at the assailants. After exchange of fire for some time, the assailants made good their escape. Rab Nawaz and his companions left the Suzuki Van at the spot. They came to Noshera Hospital, where Rab Nawaz and Atta Muhammad were medically examined and on the following day i.e. on 9th September, 1981 at 9-15 a. m. Rab Nawaz lodged report Exh. P. G. at Police Station, Noshera.

5. Four empties on 12 bore gun P. 1/1-4 alongwith an empty P. 2 of rifle were recovered from the spot on 10th September, 1979, vide memo. Exh. P. E., which was attested by P. W. 6 Rab Nawaz and P. W. 2 Sher Ali, the Investigating Officer. These empties were allegedly recovered from the place where the accused were standing at the time of occurrence. Six empties of 12 bore gun P. 3/1-6 were recovered vide memo. Exh. P. F. attested by the aforementioned witnesses on 10th September, 1979 from the spot where the P. Ws. were present at the time of occurrence.

6. Khaliq Dad petitioner was arrested on 28th November, 1979. While in police custody, he led to the recovery of 12 bore gun P. 1 from his house on 9th December, 1979 alongwith two live cartridges P. 2/ 1-2, vide recovery memo. Exh. P. H. This recovery memo. had been attested by Muhammad Sher (P. W. 7) and Atta Muhammad (P. W. 3). Third recovery in this case is of Suzuki Van bearing No. R. I. E./9848 which was secured by the police into its possession, vide memo. Exh. P. E. on 10th September, 1979 in the presence of Rab Nawaz (P. W. 6) and Sher .Ali (P. W. 2).

7. Rab Nawaz and Atta Muhammad was medically examined by P. W. 1 Dr. Asad-ud-Din Butt, the then Medical Officer, Civil Hospital, Noshera, who noticed " x " x skin deep firearm wound with tattooing on the junction of the lower 2/3^rd and upper 1/3^rd of the left chin. This injury was opined to have been caused with firearm and was declared as grievous. He also medically examined Atta Muhammad and noticed two firearm wounds 1/2 x 1/8 x muscle deep and 1 ' x ' situated on the back of upper and on left thigh. One of these injuries was declared as grievous. Pellets were also removed from the wounds. These injuries were subsequently again examined by the Police Surgeon vide memo. Exhs. P. J. and P. J. Both the injuries were declared as simple with no tattooing or blackening marks and to have been caused as a result of pellets fired from an ineffective range. Exh. P. J. is medical report in respect of Atta Muhammad while P. K. is the report in respect of Rab Nawaz.

8. Regarding motive it is alleged that a year prior to the occurrence ear of Khaliq Dad was chopped of. A case under section 326, P. P. C. was registered against Rab Nawaz, Atta Muhammad, Sher Afzal and others which was still pending. On the day of occurrence, Rab Nawaz etc. had appeared before Magistrate Section 30, Jauharabad, in the same case and while on the return journey to their village, they were attacked by the petitioners.

9. Sher Afzal (P. W. 4), Atta Muhammad (P. W. 5) and Rab Nawaz (P. W. 6) appeared at the trial as eye-witnesses. Muhammad Amir, Noor Muhammad, and Sahib Khan have not been produced. The learned trial Magistrate as also the learned Sessions Judge, have believed the testimonies of these eye-witnesses, and have convicted the petitioners as indicated above.

10. Recoveries in this case of course are of not much consequence because neither the empties nor the gun were sent to the Arms Expert and there is no evidence to suggest that the gun recovered from Khaliq Dad was in any manner connected with this offence.

11. While dealing with Revision Petition there does not appear to be any valid reason to interfere with the findings of fact recorded by the learned Courts below to the effect that Rab Nawaz and Atta Muhammad received injuries at the hand of the petitioners.

12. It is, however, noteworthy that the injuries as per medical reports Exhs. P. J. and P. K. have been declared to be simple and to be the result of the shots fired from an ineffective range. In such circumstance it cannot be inferred that these injuries were caused by the assailants to the victims with an intention to cause their death.

13. In Abdur Rehman v. The State (P L D 1964 B J 10), shot was fired from a distance of 100 yards and the pellet caused fracture of the bone of inter finger, it was held that the offence did not fall under section 307 and was the one punishable under section 326, P. P. C. In State v. Aman Ullah (P L D 1959 Pesh. 128), the accused fired gun from long range causing eleven trivial pellets injuries spreading from left shoulder down to the of the complainant, it was held that the accused could not be credited with knowledge that there was likelihood of causing death. He was, therefore, convicted under section 324, P. P. C.

14. In the circumstances of the present case also, as already observed, the petitioners allegedly fired from a long distance resulting into minor simple injuries on non-vital parts of the bodies of the injured P. W. They cannot, therefore, be convicted under section 307, P. P. C. Their convic tion, in this view of the matter is altered to the one under section 324, P. P. C. instead of 307, P. P. C.

15. In the light of the above conclusion, the Revision Petition is allowed to this extent that the conviction of the petitioners is altered t E 324/149, P. P. C. instead of 307/149, P. P. C. While the conviction under section 148, P. P. C. is maintained. Their sentence, however, under both the charges is reduced to what they have already undergone.

M. Y. H. Petition allowed.

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