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Criminal Appeal No. 39 of 1984, heard on 2nd April, 1985.

‑‑S. 307/34‑‑Common intention‑‑Omission by oversight of S. 34, Penal Code, in the charge not fatal‑‑Held, if by oversight or otherwise specific mention of S. 34, Penal Code was not made in the charge that defect by itself would not be fatal if otherwise Court could come to conclusion that accused had sufficient notice that they would be liable under S. 34, P.P.C. for provision of S. 34, P.P.C. was merely explanatory and did not create any separate offence itself.

‑‑‑Ss. 34 & 307‑‑Common intention‑‑Both accused brothers, sitting together at a Pully armed with hatchets waiting for their victim and then actually attacked him on his arrival‑‑Such circumstances, held, were sufficient to spell out common intention of both accused‑to make murderous assault on victim.

‑‑‑S. 307‑‑Murderous assault‑‑Accused can be held guilty of murderous assault only if injury caused by him is grievous in nature‑‑Weapon used, seat of injury and then extent of damage caused by such injury, held, were relevant facts for consideration to reach conclusion whether accused intended to kill victim of assault or not.

‑‑‑S. 307‑‑Murderous assault‑‑Ingredients‑‑Injury caused by accused with hatchet, seated on a vital part of body (head) of victim‑‑Injury was 7 inches long gapping wound with depth upto brain‑‑Such acts clearly indicating that accused had intention and knowledge that if their act in these circumstances had resulted in death of victim then they would have been guilty of murder‑‑Ingredients of S. 307, P.P.C., held, were fulfilled.

‑‑‑S. 307/34‑‑Murderous assault‑‑Accused causing injury with hatchet on head of victim with 7 inches long gapping wound and depth upto brain‑‑ Testimony of injured prosecution witness and other prosecution witnesses implicating accused, reliable‑‑Conviction maintained.

---‑S. 307/34‑‑Sentence‑‑Sentence of seven years awarded to accused but same appearing harsh and excessive in view of number and nature of injuries‑‑Sentence reduced to four years' imprisonment.

Rai Muhammad Alam for Appellants.

Ch. M. Ashraf Akhtar for the State.

Date of hearing: 2nd April, 1985.

Muhammad Aslam and Muhammad Ashraf' who are brothers inter se have been tried and convicted by Magistrate Section 30, Bahawalnagar; vide judgment, dated 1‑4‑1984, under section 307, P.P.C. and sentenced them to 7 years' R.I. and fine of Rs. 25,000 each or in default to undergo 6 months' R.I., each for making attempt at the life of Muhammad Shafi P.W. The appellants have challenged their conviction and sentence through filing of this joint appeal.

2. The incident took place at 7 p.m. on 14‑3‑1981 in the vicinity of Chak No. 171/7‑R, at a distance of 15 miles from Police Station Fort Abbas. The report Exh. P.C. was lodged by Abdul Majid P.W. 3, real brother of Muhammad Shafi, the injured P.W., with A.S.I. Manzoor Ahmad P.W.9 near Bus‑stand Khichiwala at 11‑30 p.m., the same night. On the basis of Exh.P.C. formal F.I.R. Exh.P.C./1 was drawn up by H.C. Navid Iqbal P.W. 7 at Police Station Fort Abbas.

3. The prosecution case as disclosed at the trial is that on the fateful day at Maghribwela Muhammad Shafi, injured P.W. was returning home from his land with his cattle. When he reached near Pully (small bridge) close to Abadi of the Chak, both the appellants armed with hatchets attacked him. Muhammad Ashraf gave him first hatchet blow on his head and Muhammad Aslam followed suit. The occurrence was witnessed by Abdul Majid P.W. 3 brother of the injured witness and Muhammad Hanif P.W.2, his brother‑in‑law. Muhammad Shafi became unconscious. He was removed to the hospital. The motive behind the attack was stated to be that both the appellants had committed theft of crops of the complainant party to which Muhammad Shafi took an exception. The appellants got annoyed and slapped him a day before the occurrence and then attacked him on the day of occurrence. The matter was reported by Abdul Majid P.W.3 to the police and Muhammad Shafi was removed to the hospital. A.S.I. Manzoor Ahmad P.W. 9 investigated the case. Both the appellants were arrested and on 15‑3‑1981 at their pointation A.S.I. Manzoor Ahmad recovered a hatchet each and then after completing the investigation challaned them.

4. Dr. Wahid Bakhsh Bhatti P.W. 6 medically examined Muhammad Shafi P.W. on 14‑3‑1981 and found following injuries on his person:‑‑---

(1) Incised wound 7' x 1/2" x brain deep on right side of head.

(2) Incised wound 3" x 1/2" x muscle deep on middle part of right forearm.

(3) Incised wound 2" x 1/4" x muscle deep on back right wrist joint.

(4) Incised cut 2" x 1/4" x skin deep on back of right elbow joint.

At the time of examination Muhammad Shafi was unconscious. His blood pressure was 60/40. His pulse was weak and his pupils were dialated. Injury No. 1 was declared to be dangerous to life.

5. The same doctor examined both the appellants on 15‑3‑1981 and found five abrasions on the person of Muhammad Ashraf and three on the person of Muhammad Aslam, caused with blunt weapon which were found simple in nature.

6. At the trial, prosecution in support of its case examined 9 witnesses in all. The appellants when examined under section 342, Cr.P.C., denied the allegations of prosecution and professed innocence. They stated that they were implicated due to enmity. They examined two witnesses in their defence, namely, Nemat Ali D.W. 1 and Muhammad Sarwar D.W. 2. Nemat Ali D.W. 1 stated that he saw Abdul Majid and other P.Ws. causing injuries to the appellants but he did not see anybody causing injuries to Muhammad Shafi P.W. Muhammad Sarwar D.W. 2 stated that Majid, Mushtaq, Hanif P.Ws. had caused injuries to Muhammad Shafi P.W.

7. The prosecution story was supported in all material particulars by the eye‑witnesses, besides the inured witness Muhammad Shafi. Dr. Wahid Bakhsh Bhatti P.W. 6 proved the injuries of Muhammad Shafi and stated that his head injury was brain deep and dangerous to life.

8. Learned trial Court discarded the defence plea and believing the motive, the ocular testimony and the medical evidence convicted both the appellants under section 307, P.P.C. and sentenced them as indicated above. Being aggrieved the appellants have filed the instant appeal.

9. I have heard learned counsel for the appellants as well as for the State and also perused the record.

10. It is argued on behalf of the appellants that section 34, P.P.C. has not been mentioned in the charge, therefore, Muhammad Aslam, appellant, who did not cause head injury could not be said to be sharing the common intention with his co‑accused Muhammad Ashraf, therefore, his conviction under section 307, P.P.C. cannot be sustained. Learned counsel has failed to show that omission to mention section 34, P.P.C. in the charge has in any way prejudiced the case of the appellants. It is well settled that if by oversight or otherwise specific mention of section 34 is not made in the charge, that defect by itself would not be fatal, if otherwise the Court can come to the conclusion that the accused had sufficient notice that they would be liable under section 34, because this provision is merely explanatory and does not create any separate offence itself. It is in evidence that both the appellants who are brothers sat together at the Pully armed with hatchets obviously waiting for Muhammad Shafi P.W. and then actually attacked him. These circumstances are sufficient to spell out the common intention of both the appellants to make murderous assault on Muhammad Shafi of which they had full notice. This objection, therefore, is repelled.

11. It is next argued that the head injury of Muhammad Shafi P.W. was neither X‑Rayed nor declared as grievous and, therefore, it could not be termed as dangerous to life, consequently it cannot be said that the appellants had intention to take his life. It is not correct that an accused can be held guilty of murderous assault only if the injury caused by him is grievous in nature. The weapon used, the seat of injury and then of course the extent of damage caused by such injury are the relevant facts for consideration to reach the conclusion if the accused intended to kill the victim of assault or not. In the instant case the injury is seated on a vital part of body like head, which was caused with a hatchet and the injury was 7" long gapping wound with depth upto the brain. These facts clearly indicate that the appellants had intention and the knowledge that if their act in these circumstances had resulted in death of Muhammad Shafi P.W. then they would have been guilty of murder. Therefore, to my mind the ingredients of section 307, P.P.C. are fulfilled.

12. Learned counsel further argued that Muhammad Shafi P.W. who is brother‑in‑law of the injured P.W. is resident of Chak No. 272 which is at a distance of 7 miles from the place of occurrence and as such his presence at the spot appears to be doubtful. There is force in this contention. Evidence of this witness is, therefore, ruled out of consideration but testimony of Muhammad Shafi, the inured P.W. and Abdul Majid, his brother implicating both the appellants is reliable and can be safely acted upon, and, therefore, I am satisfied that trial Court had rightly convicted them under section 307, P.P.C.

13. This brings me to the question of sentence. Keeping in view the number and nature of injuries I am of the view that the sentence awarded to the appellants is somewhat harsh and excessive. It would amply meet the ends of justice if the appellants' sentence of imprisonment is reduced from 7 years' R.I. each to 4 years' R.I. each and the sentence of fine is reduced from Rs. 25,000 each to Rs. 3,000 each or in default to undergo R.I. for 3 months each. The fine if realised shall be paid to the injured witness. It is further directed that the period for which the appellants had remained in jail before the order of conviction was passed shall be counted towards their substantive sentence of imprisonment under section 382‑8, Cr.P.C. Ordered accordingly.

M.X.H./M‑78/L Appeal partly accepted.

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