P L D 1964 (W (PLP)

Dates of hearing : 13th and 14th February 1963. Dhani Bux son of Safar aged 18 years has been convicted under section 307, P. P. C. and sentenced to 7 years' rigorous imprisonment and a fine of Rs. 500 by the Sub‑Judge and First Class Magistrate with section 30 Powers, Gambat. He has also been convicted under section 19‑E of the Arms Act and has been sentenced to undergo rigorous imprisonment for one year. Both the substantive sentences have been ordered to run concurrently. He has appealed.

2. The prosecution case briefly stated is that on 23‑2‑62, while the injured Abdul Majid was sitting with one Varyam at Somahni time at the Nagar Wari well on the lands of Pir Haji Muhammad Shah, Taluka Gambat, the appellant came there and fired a pistol at Majid who fell down as a result of the injuries received by him. The appellant then attempted to run but he was given several lathi blows by Varyam and he also fell down. Two other persons promptly arrived on the scene after hearing the gunshot and these are Khawindino, P. W. 3, and Ghulam Akbar, P. W.

4. These two persons found the appellant still in possession of the pistol and saw the beating inflicted on him for the purpose of overpowering him. They assisted in tying down the appellant after the Varyam, P. W. 1 went and lodged the report at Gambat police station which is one mile away from the scene of occurrence. The first information report was recorded at 11‑15 p.m. The story given in the F. I. R. by Varyam was that this boy Dhani Bux used to visit Majid and was on friendly terms with him and the cause of the assault was stated to be that people used to taunt him that he was kept by Majid as a "Lownda" (boy friend). Then the rest of the story in the F. I. R. is more or less the same as has been set out above. When the police arrived at the scene and that was soon after the F. I. R. was made, the Sub‑Inspector Abdul Rub, P. W. 8, found the appellant on the spot with injured and tied up. The injured Abdul Majid was sent to the hospital where multiple lacerated wounds of small size were found in the region of his neck and jaw. The injuries were simple but he was kept under observations for 3 days in the hospital which he left of his own accord. Dr. Abdul Kabir Khan, Civil Surgeon, who was medical officer at the material time at Khairpur Civil Hospital, examined Abdul Majid on 24‑2‑62, and found the following injuries on his person :‑

1. Lacerated multiple countless lacerated wounds of small size but practically of the same size on the skin 4 IM. M. in diameter with the difference of depth, extending right from the lower half of the left ear above and the claricle below, and from the left angle of the jaw in front and middle of the neck posteriorly. The doctor gave his opinion that these injuries were caused by the discharge of a fiream. The learned Magistrate trying the case found that the three pellets which had been taken out by the doctor from the body of Abdul Majid appeared to be of the size of No. 8 shots.

3. The appellant was also examined by the medical officer, Gambat on 24‑2‑62 who found the following 5 injuries upon his person. These are all contusions and injuries 3 and 4 consist of 3 contusions each :‑ "

1. A contused wound " x 1/6" x scalp over the out aspect of right eye‑brow with echimosir of right eye.

2. A contusion 3 " x " x over the inner aspect of left forearm middle 1/3rd colour red.

3. Three contusions each 4" x 1" over the left side back upper part, colour red.

4. Three contusions each 4" x 1" over the right side back upper part, colour red.

5. A contusion " x " behind the left ear muster region, colour red."

4. At the trial Abdul Majid did not support the prosecution case and stated that accused Dhani Bux had come there to call Varyam who was wanted by Pir Pineal Shah. Varyam told him to wait and that he would accompany him after he had taken his meals. I he boy then sat down along with Majid. He went on to say that meanwhile 3 or 4 persons came from the eastern direction and one of them fired a pistol at him and caused him the injuries in question. He thus more or less gave the same version which was given by the accused eventually in his statement under section 342, Cr. P. C. Abdul Majid was declared hostile and cross‑examined by the P P. He admitted that he was in jail (evidently to connection with some other case) and had come that day from jail to give evidence in Court. He also admitted that accused Dhani Bux was also in the same jail with him. This left the three witnesses named above, namely P. Ws. 1, 3 and

4. Amongst them Varyam is the one who lodged the first informa tion report and there can be no doubt that he was present at the time when this firing took place. The other two witnesses Khawindino and Ghulam Akbar also arrived at the scene almost immediately after the firing and they found accused Dhani Bux still holding the pistol in his hand. They also supported the case that Dhani Bux was given a thrashing by Varyam and overpowered as he was trying to escape.

5. The explanation of the accused was that at the material time he had been sent by Pir Pineal Shah to Varyam to bring him and Varyam told him. to wait so that he could take his food. Meanwhile Pir Muhammad Shah arrived who got him beaten up and foisted the pistol and the cartridge on him. In fact three other persons had injured Majid by the use of the pistol which they had thrown and run away.

6. Mr. Mesawa, the learned Advocate for the appellant, contended that the evidence in this case was interested and was not worthy of acceptance, particularly when the injured person Majid had not supported the prosecution case. However, it appears to me that apart from the oral evidence there are several compelling circumstances which are present in this case which point unmis takably to Dhani Bux having been the assailant of Abdul Majid that evening. Dhani Bux was apprehended on the spot and was so found when the Sub‑Inspector arrived on the scene. In fact he admits that position. He had several injuries on his person caused by some hard substance such as lathi. The situation of the injuries suggests that these were given when Dhani Bux was attempting to escape. Apart from the statement of Majid, which I do not find to be reliable there is no other material to support the suggestion that some other person had come and shot Abdul Majid. If this had been so there seems no adequate reason why the charge should have been foisted on Dhani Bux. Dhani Bux was found with the pistol and with five cartridges still in it. His statement that tine real assailant after firing the pistol at Majid had thrown it away and run away, does not appear to be worthy of credit. No motive really has been proved, nor has any material been brought on record to show that Pir Muhammad Shah seas interested in a getting Dhani Bux beaten up. Therefore, the fact that Dhani Bux was apprehended on the spot, that he had received injuries when he was trying to escape, that the report was promptly made and the Sub‑Inspector came and arrested him on the spot, leaves no room for doubt that it was he who had fired the pistol and had injured Abdul Majid.

7. The next question which falls for consideration is as to what offence was committed by the appellant. The learned Magistrate in his judgment has dealt with this question under head No.

3. He first went on to examine the question of motive and he obviously found difficulty in the way of holding that what was suggested in the F. I. R. had been established. This was due to the fact that Varyam denied any knowledge of any relationship between Abdul Majid and Dhani Bux and so all that was left was the statement in the F. I. R. which obviously could not be treated as substantive evidence. The learned Magistrate, however, went, on to say that this had little meaning as the accused had used al pistol of 12‑bore caliber and had voluntarily fired at Majid at his neck and below the left ear which are vital parts of the body, from which the only intention to be inferred was that he had intended to cause his death. It appears to me that the learned Magistrate has reached this conclusion much to easily. The reasons which he has given for inferring the requisite intention cannot be said, it is true, to be wholly unreasonable but the case has to be examined in the entire perspective. There is no evidence in this case to show why Dhani Bux inflicted this injury on Abdul Majid. From the mere fact that a pistol shot was fired it cannot be said that the only inference which follows is that the intention was to kill. Such a shot can be fired in a fit of temper J it can also be used in the same way for causing merely hurt ; it may even be used in self‑defence without any intention to kill and so on. There is, no doubt, there is the evidence of Varyam to the effect that this boy came and fired the pistol at Majid who was bit by it and fell down as a result of the injuries. But C considering that Varyam disowned several important statements contained in the F. I. R. which were made by him, his evidence cannot safely be treated as wholly true. It has to be noted that the shot used in this case was of No. 8 which is more or less the smallest size in a 12‑bore cartridge. There is no evidence to show as to what was the distance between Dhani Bux and Abdul Majid when the former fired the pistol The medical evidence does not show that there was any charring ,mark nor has the doctor said about the distance from which the shot was fired, Three pellets of No. 8 size were recovered from the body of Majid but there was multiple injury of the nature of a lacerated wound near his left ear and the neck. We cannot from the nature of the injuries themselves reach the only conclusion, namely that there was an intention to kill in this case. There is no other p circumstance such as the motive which would suggest the necessary intention. It is possible to take the view which was taken by the learned Magistrate but it is equally possible to take the view that the accused had intended to cause the injuries which he in fact caused. If these views are possible the one in favour of the accused must be adopted. One cannot, upon the basis of the evidence in this case, reach a conclusion without a reasonable doubt that Dhani Bux had intended to cause the death of Majid. The injuries in this case were simple. The offence would, there fore, fall under section 324, P. P. C. I would, therefore, alter his conviction under section 307 to one under section 324, P. P. C. F and impose the sentence of 3 years' rigorous imprisonment on the appellant. This is a fit case in which the maximum sentence under that section should be imposed considering the use of the firearm. His conviction and sentence under section 19‑E of the Arms Act is maintained. The two sentences shall run con currently. The sentence of the fine of Rs. 500 is set aside. I order accordingly. S. Q. Order accordingly.