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Criminal Appeal No. 28 of 1985, decided on 27th October,1986.

‑‑‑S. 307‑‑Sentence, reduction in‑‑Accused facing trial for about seven years besides remaining in custody for 7 months‑‑Sentence reduced to one already undergone, in circumstances.

Appellant in person.

Imam Bux Sheikh for the State.

Date of hearing: 27th October, 1986.

This appeal is directed against the conviction and sentence recorded by an Additional Sessions Judge, Karachi whereby the appellant was found guilty under section 307, P.P.C. and sentenced to suffer R.I. for 2 years and fine of Rs.1,000 and in default of payment of fine to undergo R.I. for one month more.

2. The facts in brief are that the report of the incident was lodged by Muhammad Ashraf wherein he has stated that he and constable Muhammad Sabir were detailed for patrol duty at Regal Bus Stop and Regal Cinema and the appellant and Muhammad Zaman were detailed for patrolling on Garden Road and Victoria Road. During patrolling they came at Regal Cinema at about 8‑45 p.m. where accused Habibur Rehman and P.W. Muhammad Zaman were found present. Muhammad Sabir asked Habibur Rehman and Muhammad Zaman as to why they had come there on which accused picked up quarrel with Sabir as to who he was to ask them as to why they had come there and he immediately loaded his rifle and declared to kill Sabir. Muhammad Sabir then caught Habibur Rehman by his neck whereas complainant Muhammad Ashraf with help of Abdul Rashid attempted to catch hold of accused Habibur Rehman alongwith his rifle but the appellant fired rifle which hit the ground and the bullets hit on the finger and leg of passerby Muhammad Hashim. The appellant was apprehended and brought to the police station and report was lodged. The injured was sent to the hospital for treatment. The case against the appellant rests on the ocular testimony of P.Ws. Muhammad Ashraf, Muhammad Zaman, Muhammad Sabir and Muhammad Hashim. The medical evidence has corroborated the ocular testimony. All these witnesses have implicated the present appellant. They have corroborated the prosecution allegations as contained in the F.I.R. The case of the accused was of total denial and he has stated that he was, arrested due to the enmity with the I.O. He did not produce any defence. In the grounds of appeal it is stated that the alleged shot has not hit Muhammad Sabir, therefore, the case under section 307 has not been established. No doubt the intention of the appellant was to fire at Muhammad Sabir but the injury was caused to a passerby. The intention is to be deduced from the facts and circumstances. All the witnesses have established the case against the appellant beyond all reasonable doubt. It is further stated that the case falls under sections 322 and 323, P.P.C. This contention has no force. The accused was armed with service rifle and he had fired at Muhammad Sabir but as he was apprehended by the witnesses present at the site, therefore, Sabir did not receive any injury. Thus, the conviction recorded against the appellant is based on the material on record and the defence has not been able to show that the appellant has been involved due to enmity. On proper assessment of the evidence the appellant has been convicted under section. 307. As regards sentence though the learned trial Judge has observed that he is taking the lenient view but the fact remains that the incident had occurred on 26‑1‑1975 and the conviction was recorded on 17‑1‑1985. Thus, he has to face the trial for about 10' years and this protracted trial in a way amounts to the abuse of the process of the Court The appellant was arrested on 26‑1‑1975. He was released on bail on 16‑7‑1975, his sentence was suspended on 12‑2‑1985. It means that he remained in custody for about 7 months but the long delay in disposing of the case remained unexplained. He has suffered a lot.

Therefore, keeping in view of the said circumstances while dismissing the appeal. I reduce the sentence to one already undergone and fine of Rs.300 in default to undergo R.I. for 1 month. With this modification in sentence the appeal is dismissed. The fine is to be deposited within one week.

S. G. D. Order accordingly.

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