P L D 1959 (W (PLP)

(Sd.) Sher Khan". The words, "I accept the above writing", are written by Amanullah. The words between (A) to (A) are alleged now by Amanullah to be a later interpolation by Mushtaq. Later in the day, it is alleged, Amanullah's father, Saadullah, came to the village Isa Khel and at about 3 p.m. a further altercation took place regarding the construction of the wall. Thereupon Saadullah told his son Amanullah to go and fetch the gun and from the adjoining house Amanullah fired four shots, two at Ghulam Akbar and two at Mushtaq; of these only one hit Ghulam Akbar causing 11 pellet injuries (from which the doctor extracted three pellets), extending from the left shoulder down to the toe. This occurrence was witnessed by both Ghulam Akbar and his brother Mushtaq Ahmad and also Saifullah (P. W. 4), Ghulam Muhammad (P. W. 5), Muhammad Rafiq (P. W. 6), Ahmad Din (P. W. 7) and Abdullah (P. W. 9). Of these, three were masons occupied in erecting the wall, namely, Ghulam Muhammad, Ahmad Din and Abdullah, while Muhammad Rafiq was a neighbour and Saifullah was also a resident of Isa Khel. The occurrence is alleged to have taken place at 3 p.m. and the first information was lodged in the police station, one furlong distant at 3‑30 p.m. and contains the above account. Saadullah pleaded alibi at Sultan Khel. Two defence witnesses who are residents of Sultan Khel support this alibi stating that Saadullah was occupied in girdawari at Sultan Khel and Amanullah came to this village at degarwela to report to his father Saadullah. The first witness Gulrang does not state what Amanullah reported to his father, but the second witness Mehr Zaman states that Amanullah had told his father that there was a dispute over a wall. Amanullah's defence was that he had not fired the shots and that the case against him was false. In arguments Pir Masoom Shah's plea was that Amanullah, if he did fire, did so in exercise of the right of private defence of property. An important witness in this case is Sher Khan, who is the officiating Lambardar of Isa Khel village. His sister was married to the deceased brother of Saadullah and his niece is the wife of a son of Saadullah, while on the other side he is related to Ghulam Akbar and Mushtaq, as Mushtaq is his son‑in‑law and he is their maternal uncle. From the tact that he brought about a compromise and also from the fact that no allegation of previous enmity against Saadullah and Amanullah has been made against him, he appears to be a person whose evidence should be relied upon. No question was put to him regarding the inter polation in the compromise which he witnessed and it appears to us on inspection of the compromise that there is no indication of interpolation. We reject, therefore, the defence of Amanullah that he had not entered into any agreement that the construction of the wall should continue. A further reasoning supporting this view is that the first information which was lodged at a very short time after the occurrence itself recites the compromise and refers to this provision. Another fact arising from the evidence of Sher Khan is that) he attested the recovery memo. of the licensed gun produced by Saadullah and this recovery is dated 10‑3‑1956, a fact which destroys the alibi of Saadullah, for the gun was recovered at Isa Khel, 15 miles away from Sultan Khel. The only criticism of this witness that we can find in the judgment under appeal is that the brother of Saadullah had died 15 or 16 years ago. As regards the recovery of the gun on the 10th March, 1956, the Magistrate considers that this is doubtful, since Amanullah was not arrested until the 11th March, while Saadullah was not arrested till tile 4th April, 1956. The explanation of the late arrest of Saadullall is that his department had to be informed before his arrest. The argument that Saadullah being a Patwari could not have been absent from his village without permission does not appeal to us, for it is well‑known that Patwaris do absent themselves from their villages especially at the week‑ends, the 10th March being a Saturday. The learned Magistrate attacked the medical evidence. The learned Magistrate gives the substance of the evidence of the doctor, but contrary to the opinion of the doctor he considers that the wounds found might have been fabricated, by which we presume the learned Magistrate means that the injured Ghulam Akbar either inflicted these wounds himself or allowed somebody else to inflict them. This opinion of the learned Magistrate appears to us little short of ridiculous. In fact we are surprised to find throughout the judgment of the Magistrate empowered, though he is under section 30, a failure to grasp the main points of the case and on the other hand the assertion of flimsy reasons: An instance of such reasoning is that the gun was not examined by the forensic laboratory. What useful purpose could have been obtained by the examination of the gun by the forensic laboratory passes our comprehension and the Magistrate does not attempt to show any such purpose. Again the Magistrate considered that the fact that the injured man was not examined upto the 11th March, 1956, casts doubt upon his examination: it is in evidence, however, that there was no medical officer at Isa Khel, and that the injured person had to be sent to Kalabagh. We should also point out that the Magistrate has failed to frame points for decision as required by section 367, Criminal Procedure Code. We have therefore as established facts that Ghulam Akbar was shot: that a wall was under construction: that a quarrel had taken place regarding its construction. The presence of the three masons is thus natural they are not related to either side, and we do not consider their employment as masons by the brothers involves any conclusion that they would be prepared to involve the respondents falsely. The trivial discrepancies seized upon by the Magistrate do not cast any doubt upon their veracity. We see therefore no reason why their evidence that Amanullah fired should be rejected. As regards the complicity of Saadullah, since it is established that Amanullah had been ready to enter into the compromise and it was only after the arrival of his father Saadullah that the trouble started, it appears that it was Saadullah who objected to the continuance of the compromise reached in his absence and we think, therefore, that the prosecution story deposed to by several witnesses that Saadullah restarted the quarrel and incited Amanullah to fire is true. We do not propose to go into the question whether the land upon which the wall was being built belonged to Saadullah. No evidence to that effect was led by Saadullah, but even assuming that h: had such a right over the land, yet there was ample time for him to have recourse to the authorities. He could have gone to the police station to ask for proceedings to be started under section 107, Criminal Procedure Code. This is not a case of movable property which could have been taken away. It is a case of the construction of a wall which was 23 feet long and had ached a height of 8 feet, 3 inches. The charge was under section 307, P. P. C. but it is in evidence from the site plan that the distance from which Amanullah fired was long and the fact that the pellet injuries were so scattered also shows the same. It is quite possible that tire intention of firing was to scare away the two brothers and tile masons from proceeding with the construction: of the wall and that Amanullah considered that the distance was so great that there was no likelihood of causing death or an injury likely to cause death. Three other shots were fired which struck nobody and it is very doubtful that Amanullah can be said to have aimed two shots at Mushtaq and two shots at Ghulam Akbar, since in fact Ghulam Akbar was shot only once. We think, therefore, that the correct section to apply is section 324, P. P. C. Considering the distance of the range and the trivial nature of the injuries inflicted, we think that the ends of justice would be served in this case by the imposition of heavy fines. We, therefore, accept this appeal set aside the acquittal of the respondents and convict Amanullah respondent under section 324 P. P C., and Saadullah respondent tinder section 324/114 P. P. C and sentence each accused to a fine of Rs. 1,000, in default six months' R. I. HABIBULLAH KHAN, J.‑The judgment under appeal betrays a desperate attempt to magnify the so‑called discrepancies in the P. Ws. statements, though they were too minor to have any bearing on the material points of the case. To condemn investigating agency on the alleged ground of partiality, the learned Magistrate found an easy argument in the fact that the complainant and his brother were in police service. It was conveniently forgotten that Saadullah accused, who is a Patwari. is also in Government service. Further, a good deal of pain was taken to show, though somewhat obliquely, that the injuries on the complainant were self‑inflicted, and in order to reinforce tire conclusion effort was made to cast doubt even on the integrity of the Doctor. As against the prosecution evidence, the plea of alibi set up by the accused found such a ready favour with the Magistrate that he felt no difficulty at all in accepting it as true, without subjecting it to a rational scrutiny. He simply contended himself with the assumption that Saadullah being a Patwari could not absent himself from duty on the working day. With this approach to the question of alibi, which was manifestly wrong and un-reasonable, the learned Magistrate found it perfectly easy reach tire conclusion that father and son both were in another village at the time of occurrence. Much caplwl has been made of the provision A to the A in the compromise deed although its bare perusal is sufficient to convince one's intelligence that without this provision the com promise was meaningless and could not carry the parties any‑where. The learned Magistrate did not concern himself with the determination of the issue which necessarily arose out of the conflicting versions of the parties, that if they had agreed to refer the matter to arbitration and there remained no longer any dispute between them, then why the complainant all of a sudden took it into his head without any rhyme or reason to inflict injuries on his body and to involve falsely father and son, both of whom were at the relevant time in another village many miles away from the spot. The Doctor found no less than 11 injuries on the com plainant, all caused with pellets. 3 pellets were actually removed from the wounds. The mere fact that pellets could not be found in the remaining wounds did not justify the inference that the injuries were self‑inflicted, much less the implied suggestion that the injuries were the result of a conspiracy between the com plainant, the police, the Doctor and the witnesses. The occurrence took place in broad day‑light in the heart of the village in the presence of a number of disinterested witnesses, such as masons, and the complainant was injured with a number of pellets. The matter was reported to police promptly within half an hour, arid yet in the face of this over‑whelming and reliable evidence, both direct and circumstantial, the learned Magistrate found it possible to give the verdict, that both father and son were innocent, being away in another village at the time of occurrence, and that the injuries had been fabricated to involve them falsely a conclusion, which is based on very poor and flimsy grounds. As to the question what offence has been committed, I agree with my learned brother that in the particular circumstances of the present case the act of Amanullah accused would amount to an offence under section 324, P. P. C. The fact that the pellets had scattered so widely as to cover almost the entire body of the complainant from shoulder to his toe. would clearly indicate that the shot was fired from a very long range. Some of the pellets had lost their velocity, and thus could not cause any serious injury. The nature and size of the injuries also reveal that the cartridge used in the crime contained very small pellets. On full consideration of these facts, I am inclined to hold that the shot fired by Amanullah could not have possibly caused the death of the complainant, and therefore, his act does not amount to attempted murder. He will, however, be guilty of an offence under section 324, P. P. C., because he has caused a simple hurt to the complainant with a firearm. The role attributed to his father Saadullah will render him liable under section 324, P. P. C., read with section

114. I also concur in the imposition of the fine of Rs. 1,000 each, or in default 6 months R. I. Upon furnishing one surety each of Rs. 1,000 a fortnight's time to pay the fine is given to each convict. A. H. Respondents convicted.