1990 P Cr (PLP)

The appellant Nasir Ahmad alias Nasri son of Sher Baz resident of Sambrial was tried by a Judicial Magistrate at Daska, on a charge under section 307, P.P.C. for having committed murderous assault on the person of Ashiq Mahmood complainant with a carbine. The learned Magistrate vide his judgment, dated 8-4-1987 found the appellant guilty on the aforesaid charge and thus, the appellant was convicted and sentenced to undergo R.I. for a term of seven years and pay a fine of Rs.10,000 or in default to suffer R.I. for another term of one year. Under section 544-A, Cr.P.C. the appellant was directed to pay Rs.10,000 as compensation to the complainant Ashiq Mahmood, or in default to suffer R.I. for a term of six months. The appellant was also given the benefit of section 382(b), Cr.P.C.

2. Aggrieved of his conviction the appellant has filed this appeal. This judgment shall dispose of the same.

3. The occurrence took place on 22-4-1985 at 4-45 p.m. near a worship place in Sambrial. The F.I.R. Exh. PA. made by complainant Ashiq Mahmood in the Hospital was recorded by Rehmat Khan A.S.I. P.W.5 at 6 p.m. The formal F.I.R. Exh.P.A./1 was drawn at the police station at 6-15 p.m. by Muhammad Akram Moharrar.

4. In brief, the complainant Ashiq Mahmood P.W.1 stated that on 22-4-1985 at about 4-45 p.m. he alongwith his nephew Abid were proceeding to the place of worship in order to offer prayer. When they reached near their place of worship, the appellant armed with a carbine emerged and fired a shot which hit the right leg of Ashiq complainant. The appellant fired a second shot, which hit on his right eye-brow, chest and right wrist. The motive for the commission of the offence as stated by the complainant was that on the day of the previous election of the Local Bodies, one Arif Nawaz alias Guddi was murdered and the complainant Ashiq Mahmood was challaned and after trial was acquitted. Ch. Muhammad Nawaz father of Arif Nawaz deceased and their relatives had grudge against the complainant and thus, the appellant who is the real nephew of Muhammad Nawaz Ghuman committed the murderous assault on the complainant.

5. Complainant Ashiq Mahmood was removed to the Civil Hospital Sambrial, where he was medically examined by Dr. Muhammad lqbal, who found the following injuries on his person: (i) A fire-arm entrance wound 1-1/2 x 1-1/2 c.m. with inverted margin on the upper 1/4th of the back of the right leg. (ii) Fire-arm exit wound 2 x 2 c.m. on the front of the upper 1/3rd of the right leg Corresponding holes on the Shalwar present. (iii) Two fire-arm wounds, each with a diameter of 1 x 1 and 1 x 1 c.m. on the right forearm on its front side. (iv) Fire-arm wound 1 x 1 c.m. on the right chest front side. (v) Fire-arm wound 1 x 1 c.m. on the right forehead above the right eye. All the injuries were declared simple.

6. On 25-5-1985, the appellant was arrested and no recovery could be effected from him. In order to prove at the trial, the prosecution placed reliance upon the ocular testimony furnished by P.W.1 Ashiq Mahmood P.W.2 Habib and Abid P.W.3 a nephew of the complainant. The appellant Nasir Ahmad denied the charge against him in his statement recorded under section 342, Cr.P.C. and stated that he has been falsely involved on the party faction in the village. The appellant declined to appear in the witness-box under section 340, Cr.P.C.

7. With the assistance of the learned counsel for the appellant and the State, I have carefully perused the entire record of this case and contentions raised by the learned counsel have also been examined. The record reveals that an attempt was made to shift the blame on one Ilyas Kashmiri. It was asserted that the complainant was not injured by the appellant but by Ilyas Kashmiri. I have carefully examined this aspect of the case and find that there is nothing on the record to show as to who is Ilyas Kashmiri and why he injured the complainant. The learned counsel has also drawn the attention of this Court to some discrepancies in the statements of the eye-witnesses but no material discrepancy was pointed out. On the other hand, Habib P.W.2 is an independent witness and he has no axe of his own to grind. He was cross-examined at length but nothing could be drawn from him as to cause doubt upon the veracity of the prosecution case. Habib P.W.2 has fully corroborated with the complainant as well as his nephew Abid P.W.3. In this view of the matter I hold that the prosecution has proved its case beyond any shadow of doubt. However, it was attempted by the learned counsel to bring the case within the purview of section 325, P.P.C. It was alleged that the case is not covered under section 307, P.P.C. I am afraid that the contention has no force because the appellant was armed with fire-arm and had fired twice on the complainant. The second shot had hit the B complainant on the chest, eyebrow, right wrist and forehead. All these arc vital parts of the body. It is, therefore, obvious that had the complainant been killed the offence would have been murder falling within the purview of section

302. P.P.C.

8. I agree with the learned counsel for the appellant that the quantum of the sentence in this case needs interference. The appellant has been sentenced to undergo seven years' R.I. and to pay a fine of Rs.10,000 and also to pay another sum of Rs.10,000 as compensation. Considering all the facts of the case, I reduce the same to five years' R.I. The sentence of fine is also reduced to Rs.5,

000. In default of payment of fine the appellant shall suffer R.I. for a term of six months. The direction to' pay the compensation is set aside. The appellant shall be entitled to the benefit under section 382-B, Cr.P.C. With these observations the appeal is dismissed. The appellant is on bail. He shall be taken into custody to serve out the un expired portion of his sentence. SA./N-329/L Appeal dismissed.