1984 P Cr (PLP)

S.307--Attempt to murder--Conviction--Sentence--Accused facing trial since long and remaining in custody as an under-trial--Sentence of imprisonment reduced to one already undergone.--[Sentence]. A.A. Qureshi for Applicant. Makhdoom Abdul for the State. Date of hearing: 22nd March, 1983. Applicant abovenamed, being aggrieved by judgment, dated 8th January, 1980, of the learned Sessions Judge, Nawabshah, passed in Criminal Appeal No. 29/79, by which the judgment, dated 30th October, 1978 of Assistant Sessions Judge, Moro, in Sessions Case No. 292/78 was confirmed, by which applicant has been convicted under section 307, P.P.C. and sentenced to suffer R.I. for 3 years and to pay fine of Rs. 2,000 or in default to suffer further R.I. for 6 months has prefer, the above petition, on the facts and grounds mentioned in the memo above petition. The learned Advocate for the applicant in support of the above petition submitted, that in view of the admitted enmity between the complainant and applicant over family properties, the statement of injured p.w. Mir Muhammad, who is the only eye-witness of the incident ought not to have been relied upon, without independent corroboration, specially as the pistol alleged to have been recovered from the possession of the applicant was not sent to the Ballistic Expert, so as to connect the same with the crime in question. The learned Advocate for the applicant further submitted, that reliance on the statement of P.W. Muhammad Ramzan for purposes of corroboration was also not justified, as he is a cousin of the complainant and, therefore, his statement also required independent corroboration. As far as recovery of the pistol is concerned, the learned Advocate for the applicant submitted, that P.W. Shah Nawaz, the Mashir of the alleged recovery, is brother of P.W. Muhammad Ramzan and as such his statement also required independent corroboration. The learned Advocate appearing for the State on the other hand submitted, that he was fully supporting the impugned judgment as both parties are closely related and the statement of P.W. Mir Muhammad injured has been supported by P.W. Muhammad Ramzan, who is cousin of both the parties and against whom no specific enmity is alleged by the applicant in addition to this, the statement of P.W. Mir Muhammad has been corroborated by medical evidence on record and the defence of the applicant, that P.W. Mir Muhammad received the injuries in question somewhere else, while committing theft is belied by statement of P.W. Shah Nawaz the Mashir of the Vardat, that there was blood at the Vardat and has been corroborated by I.O. No doubt P.W. Shah Nawaz is also relation of the complainant, but he is also related to the applicant and no specific enmity is alleged against him and, therefore, prosecution has established its case beyond reasonable doubt. I have carefully considered the above submissions made by the learned Advocates before me and have gone through both the impugned judgments as well as Record and Proceedings of the learned trial Court. No doubt there existed enmity between P.W. Mir Muhammad (injured) and the present applicant, on account of dispute over family lands anal as such the statement of P.W. Mir Muhammad required independent corro boration as urged by the learned Advocate for the applicant. However, in my opinion such corroboration is available by the statement of P.W, Muhammad Ramzan, who is related to both the parties and no specific enmity is alleged against him and this witness, who was attracted to the Vardat on hearing shots saw the complainant lying injured and further saw the present applicant running away with the pistol in his hand. In addition to this the statement of P.W. Mir Muhammad has been fully corroborated by the medical evidence on record. The plea of the applicant, that the incident did not take place at the Vardat in question is also belied by the statement of P.W. Shah Nawaz and I.O. as well as P.W. Muhammad Ramzan. I see no reason to interfere with both the impugned judgments, as the same are based on cogent reasons and the learned Advocate for the applicant has been unable to point out any illegality and/or material irregularity in the said impugned judgments. As far as alleged recovery of the pistol from the possession of the applicant is concerned, the same cannot be connected with the crime in question, in the absence of the Ballistic Expert Report and consequently the said recovery cannot be used as a piece of corroborative evidence. Therefore, I find no merits in the above application. However, the incident is dated 12th April, 1975 and the applicant has faced the trial right from 1975 till today and in addition to this the injuries received by C P.W. Mir Muhammad, according to medical certificate are simple and keeping in view these facts as well as the fact, that the applicant did not fire other shot after his second shot had hit the injured P.W. the question whether applicant had intention to kill him is not free from doubt. I further find, that the applicant remained in custody from 29th March,; 1975 till 9th December, 1975 as undertrial prisoner and after conviction he remained in judicial custody from 30th October, 1978 till 8th March 1979, when he was released on bail by this Court. Therefore while dismissing the above petition on merits, I alter the conviction of the applicant under section 307, P.P.C. to one under section 324, P.P.C. and consequently reduce sentence of imprisonment awarded to him from 3 years to one already undergone by him and maintain the fine of Rs. 2,000 imposed on him, by the impugned judgments and in default of payment of sad fine to suffer further R.I. for 6 months. Since the applicant is on bail, I grant him 2 weeks time from today to pay the fine imposed on him by both the learned lower Courts, failing which his bail bonds shall stand cancelled and the learned trial Court is directed to issue non-bailable warrants for his arrest and to remand him back to judicial custody to serve out the sentence in lieu of fine, imposed by the impugned judgments of both the lower Courts. M. Y. H . Petition dismissed.