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Criminal Appeal No. 107 of 1983, decided on 11th March, 1984.

--- S. 307/34-Attempt to murder-Prosecution case supported by recoveries and medical evidence-Recovery witnesses independent and nothing available to discredit their testimony-Occurrence though taking place at night yet no case of mistaken identity made out since assailant knew victim before, caused him chhuri blow and first information report lodged without delay-Motive also strongly proved-Nature of injury, seat of injury and weapon used showing that accused intended to make a murderous assault on victim-Con viction and sentence maintained.

-- S. 307/34-Attempt to murder-Co-accused empty handed and causing no injury-Case against him not free from doubt-Con viction set aside.

Ehtisham Qadri and Iqbal Bhatti for Appellants.

Muhammad Irshad Khan for the State.

Date of hearing: 11th March, 1984.

Karamat and his brother Salamat were prosecuted alongwith Khushi Muhammad for making murderous assault on Abdul Ghafoor P. W. 4 under section 307/34, P. P. C. and sentenced to seven years' R. I. and a fine of Rs. 2,000 or in default one year's R. I. vide judgment dated 14th January, 1983 by Kh. Farooq Haider, Magistrate Section 30, Sheikhu pura.

2. Before hearing of the appeal I issued notice to the appellants to show cause why they should not be made to pay compensation under sec tion 544-A, Cr. P. C. in case the appeal is dismissed. This notice was accepted by the learned counsel for the appellants.

3. The facts of the case are that Abdul Ghafoor P. W. 4 and the two appellants knew each other since long. Karamat appellant had received Rs. 4,000 as loan from Abdul Ghafoor P. W. about 7/8 years before the occurrence. Ghafoor P. W. 4 who is a Foot Constable was returning from Faisalabad when he met Karamat accused at the Bus Stand. He demanded back his money. Karamat who accompanied by Salamat accused, told Abdul Ghafoor P. W. 4 that he should accompany them to Muhammad Hanif P. W. 1 from whom he will get at least Rs. 2,000 and pay the same to him. Abdul Ghafoor P. W. 4 accompanied them. On the way they were standing by the seim nala at about 10 p. m. on 6th August, 1981, when suddenly Salamat accused who was empty handed got hold of Abdul Ghafoor P. W. 4 and Karamat accused inflicted knife injuries to Abdul Ghafoor. The medical officer found three injuries on his person. Two on his hand and one on the neck which was found grievous.

4. The occurrence was witnessed by Muhammad Hanif P. W. 1 and Mahboob Ahmad (given up as having been won over). The alarm also attracted Walayat Ali P. W. 2.

5. After registration of the case the accused were arrested on 9th August, 1981. Karamat accused at the time of his arrest produced his blood-stained shirt P. 1 which was taken in possession vide memo. P. D. in the presence of Younas P. W. 3, Inayat Ali P. W. 5 and A. S. I. Muhammad Siddiq P. W. 7. Karamat also led the police to the recovery of chhuri P. 2 on the same day in the presence of same witnesses on 9th August, 1981.

6. The case was registered on the statement Exh. P. A. of Muhammad Hanif P. W. I on 7th August, 1981 at 5 a. m. The occurrence had taken place at 10 a. m. on 6th August, 1981. The formal F. I. R. was recorded at 7.30 a. m. on 7th August, 1981. Khushi Muhammad acquitted accused was implicated by Ghafoor P. W. 4 in his statement before the police and from his possession bag P. 3, identity card P. 4 were recovered on 30th August, 1981 vide memo. P. F. This recovery need not be discussed as Khushi Muhammad has already been acquitted. From the spot after the registration of the case the police took in possession a stick, chappal and turban belonging to Karamat accused vide memo. P. C. dated 7th August, 1981 in the presence of Muhammad Hanif P. W. 1 and A. S. I. Muhammad Siddiq P. W. 7

The prosecution examined P. W. 1 Muhammad Hanif as an eye-witness. Although in the F. I. R. he claimed to be an eye-witness but during his statement in the Court he stated that he had reached the spot after Ghafoor P. W. had already been injured. P. W. 2 Walayat Ali reached after the occurrence and did not witness the same. Thus, the prosecution is based on the evidence of Ghafoor P. W. 4 who is injured and various recoveries made from the accused and the spot.

8. I have heard the learned counsel for the appellants at great length. I am of the opinion that Ghafoor P. W. 4 and no enmity with Karamat or Salamat appellants. No enmity has even been suggested during the cross-examination. He is supported by circumstantial evidence which comprised of the recovery of blood-stained shirt P-1 belonging to Karamat A accused, recovery of chhuri P. 2 at the instance of Karamat accused and recovery of stick, chappal and safa belonging to Karamat accused from the spot. Besides this there is the evidence of medical officer who found grievous injury on the neck of Ghafoor Hussain P. W. 4 and two other injuries on his hand. The recovery witnesses are also independent and there is nothing to discredit the testimony.

9. It was argued by the learned counsel that the occurrence took place during night and the assailants could not be identified. In this case the injury was caused by chhurri which means that the assailant was close to the victim, secondly Karamat was known to Ghafoor since long and thirdly the F. I. R. was lodged without any delay. It is not a case of mistaken identity. There was a strong motive with Karamat accused to make a murderous assault on Ghafoor Hussain P. W. 4. In this view of the matter I find that the case against Karamat accused is fully estab lished. The nature of injury, the seat of injury and the weapon used by Karamat clearly proved that he intended to make a murderous assault on B Ghafoor P. W. 4. He has, therefore, been rightly convicted under sec tion 307, P. P. C. In the circumstances as stated above, the sentence is also proper. His appeal is dismissed. The conviction of Karamat appel lant is maintained. He is sentenced to seven years' R. I. and a fine of Rs, 500 or in default six months' further R. 1. He is also directed to pay compensation of Rs. 1,500 to Ghafoor P. W.4 udder section 544-A, Cr. P. C. He will be given the benefit of section 382-B, Cr. P. C. while computing the sentence being served by him in jail.

10. So far as the case of Salamat appellant is concerned, he was empty handed. He did not cause any injury to Ghafoor P. W. The case against him is not free from doubt. Accordingly giving him the benefit of doubt he is acquitted. He be released forthwith if not required in any other case.

M. Y. H. Appeal partly accepted.

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