P L D 1969 Peshawar 347 (PLP)

22. Syed Nadir Hussain, Director, Forensic Science Laboratory, Lahore (P. W. 19) examined pistol (Exh. P. 1), 12 cartridges of 9 MM bore and a Kanath. According to him, the pistol was an imitation of 9 MM German Pistol "Lugar", which could fire for sufficient distance. The 12 cartridges according to the witness could be fired from the pistol and the hole in the Kanath which was caused by blunt means could be caused by a bullet.

23. Anwarul Haq Bajwa, Examiner Fire‑arms (P. W. 20) according to him received the pistol (Exh. P. 1) along with two empties for examination. After preparing a test empty with the help of the pistol he compared the test empty with the two empties received for examination and found that the two empties had been fired from the pistol in question.

24. Syed Ale Ahmad, Magistrate 1st Class (P. W. 21) recorded the confession of the accused in his Court room during Court hours after observing all the formalities. The gist of the confession is that the accused failed in his First Year Examination and wanted to commit suicide, but then thought of killing the President so as to facilitate the coming into power of Mr. Bhuto, whom he liked very much after haring his speech. That he took a pistol from one Shakirullah of village Najjar on some pretext and came to the meeting at Jinnah Park on 10‑11‑1968 and fired two shots with the pistol at the President from a distance of 30 to 40 yards while standing in the gathering at the meeting.

25. Mir Azam, D. S. P. (P. W. 22) according, to him was at the place of the meeting when Gul Alam Khan, D. S. P. brought a copy of the F. I. R. from the Police Station and handed it over to him, whereupon he started investigation in the case. He inspected the spot and prepared the site plan. He found an empty shell and a button on the spot and took these into possession along with some tents and Kanaths, etc. out of which one Kanath had a bullet hole in it. He also took into possession the clothes of the accused, which he was wearing and prepared the injury sheets of the accused. Gul Alam Khan, D. S. P. Mushtaq‑un‑Nabi and Sufaid Shah. He then packed and sealed the pistol and two empty shells, out of which one had been recovered from the spot and another from the pistol.

26. Gul Said Khan, Inspector (P. W. 23) according to him searched the hujra of Naseer Khan in village Naijar and recovered a bandolier, eight live cartridges and a charger contain ing four live cartridges from an almirah of one of the rooms which was locked and the lock of which was opened with a key, produced by Zahir Khan, a cousin of Shakir Khan. Abdul Karim (P. W. 24) is a witness to the memo., whereby the Inspector recovered the bandolier etc., mentioned above from the hujra of Naseer Khan. Abdul Aziz, Inspector (P. W. 25) partly investigated the case and recovered the statements of some witnesses, including that of Col. Muhammad Amir Khan P. W.

27. Banaras Khan, Inspector (P. W. 26) according to him was on duty at the meeting when he saw a young man getting up in the gathering at a distance of about 30 paces from him and firing two shots with a pistol towards the stage. Some persons present near the culprit, including Gul Alam Khan, D. S. P. started grappling with the culprit and the witness also rushed to the spot and helped others in taking the young man to the stage from where he was taken to the Police Station in a police pick‑up.

28. Ch. Mukhtiar Ahmad, D. S. P. of the Crimes Branch, Lahore (P. W. 27) started investigation in this case on 20‑11‑

68. He took into possession a number of lists of the invitees to the meeting. He also submitted an application to the District Magistrate, Lahore for getting the confession of the accused recorded and then accompanied the accused to the Courts where his confession was recorded.

29. The accused in his statement denied the charges against him and alleged that he had been charged on account of some misunderstanding. He refused to produce any defence, but submitted a written statement, which is reproduced here verbatim:‑ I had gone to attend the Muslim League meeting which was to be addressed by the then President of Pakistan Muhammad Ayub Khan. The place‑Jinnah Park, had been freshly watered either by mistake or design which made the ground very muddy. As a result no one was prepared to sit on the ground for fear of soiling his clothes. The management with the help of police were forcing the people to take their seats which they resisted and a state of pandemonium prevailed. Even after the arrival of the President the struggle between the management aided by the police and the people did not abate and the situation grew worse with people raising all sorts of anti‑Ayub regime slogans particularly attacking Nawabzada Abdul Ghafoor Khan. In this state of turmoil and confusion I heard two shots being fired close to my left and looking found a young man of my age and more or less dressed like me holding his hand aloft with a pistol in it. As he was quite close to me I rushed at him and seized the pistol to relieve him of it. Some others also joined me. As we struggled the police also arrived when he had just loosened his grip and the pistol had come to my hand. A police officer seized my hand and I surrendered the pistol to him. He, however, seemed to have seen us struggling and therefore, ordered both of us to be arrested. We were accordingly arrested and both removed outside the meeting in spite of my protests that I had done nothing. We were placed in separate jeeps and I was taken away to the Bala -Hissar Fort. I did not hear about the man from whom I had snatched the pistol. I was removed to Lahore Fort on 13‑11‑68 where the police first tried to get a confession out of me by being very sweet and nice to me but I told them that I was innocent and narrated the above facts to them. As days passed their attitude began to harden and they started threatening me with dire consequences. From 2‑12‑.'8 they so arranged it that I should not be allowed to sleep and till 5‑12‑68 when I was produced before the Magistrate 1 did not have a wink of sleep. On 4‑12‑68 at night the D. S. P. Chowdhri Mukhtar Ahmad came and informed me that I would be taken before a Magistrate where I shall sign a statement. He told me that no one who had come to this Fort had failed to comply with the wishes of the police had left it alive; adding that if I make a confession I will only be imprisoned but if I refuse to do so I was sure to lose my life. The following day, i.e. on 5‑12‑68 I was taken to a Court accompanied by Chowdhri Mukhtar Ahmad and two other Senior Police Officers. The Magistrate, on our arrival, got up from his chair and received the Police officers very submissively seating them on the dais with him. After a while the Magistrate retired with them into his retiring room where they were closeted for a very long time. When they emerged from the retiring room Chowdhri Mukhtar Ahmad put a written paper before me and asked me to sign it. As I was completely broken down with fatigue and sleeplessness and my spirits were crushed under the ominous threat of impending death awaiting me in my dungeon in the Fort, I thought discretion to be the better part of valour and put my signature to it without even reading what it contained. After this I was taken back to the Fort in the custody of Police where I was kept till next morning when 1 was brought back to Peshawar."

30. The Assistant Advocate‑General Mian Burhanuddin for the State and Khan Sher Bahadur Khan for the accused heard at great length. Reliance for the prosecution was placed on the ocular testimony of P. Ws. 1, 2, 3, 4, 5, 6, 7, 8, 12, 13, 18 and 26 and the retracted confession of the accused, which according to the learned Assistant Advocate‑General was corroborated by the recovery of the bandolier of the pistol with 9MM cartridges. I propose to deal with the retracted confession of the accused first, as counsel for the accused strenuously contended that the confession was not made voluntarily, and that at any rate since it was retracted, it required corroboration, which was not forthcoming. According to him, the confession was made by the accused who was a young student after he had been in police custody for 26 days and for the most of the period in the Lahore Fort far away from his home, and that the learned Magistrate who recorded the confession neither enquired from the accused as to how long had he been in police custody, nor gave him sufficient time for thinking over and returned him back to the police custody.

31. Relying on Sarwan Singh Rattan Singh v. State of Punjab (P L D 1957 S C (Ind.) 555), Hashim v. The State (P L D 1960 Kar. 160), Wazir and others v. The State (P L D 1960 Kar. 674), Haji Yar Muhammad v. Rahim Dino and others (P L D 1960 Kar. 769) and Mst. Akhtarl Begum v. The State (P L D 1960 Kar. 797) he contended that the confession was not voluntary but made under duress. In P L D 195' Supreme Court mentioned above, it has been held ;‑ "It is difficult to lay down and hard and fast rule as to the time which should be allowed to an accused person in any given case before recording his confession under section 164, Criminal P. C. However, it would be reasonable to insist upon giving an accused person at least 24 hours to decide whether or not he should make a confession. And where there may be reason to suspect that the accused has been persuaded or coerced to make a confession, even longer period may have to be given to him before his statement is recorded." In P L D 1960 Kar. 160, it has been held "Accused remaining before Magistrate recording confession only for an hour but was in police custody before and after recording of confession for 24 hours in all‑Confession held not voluntary." In P L D 1960 Kar. 674 it has been held "If the accused after making the confession is delivered back to the police custody, the voluntary nature of the confession is vitiated." In P L D 1960 Kar.1769 it has been held :‑ "If the accused remains in police custody for a fortnight after his arrest till his confession, then the confession cannot be held to be voluntary." In P L D 1960 Kar. 797 it has been‑‑held that "Accused in custody of police for 8 or 14 days before making confession‑Magistrate not questioning accused as to how long he had been in police custody, nor informing him that he would not be sent back to police custody after confession‑Text of confession disclosing that accused had been tutored‑Confession not voluntary or reliable."

32. In the light of the above authorities, I, therefore, proceed to examine the retracted confession in the instant case. It is in evidence that the accused was arrested on 10‑11‑19681 and was kept in Bala Hissar Fort at Peshawar under police custody. It is also in evidence that the accused was ordered on 13‑11‑68 to be detained under the Defence of Pakistan Rule and was soon after transferred to Lahore Fort, where hey remained under the custody of the Police till 5‑12‑68 when be made the confession. It is also in evidence that the accused is a young student, aged about

19. The accused was charged for such a serious offence that even if there was no physical, pressure on him, there must be extreme mental pressure oil him, which the police under whose custody throughout he was, could not have alleviated in any way under the circumstances of the case, but must naturally have on the other hand tried to aggravate it. In the circumstances, the voluntary nature of the confession becomes very much doubtful. The learned Magistrate Mr. Ale Ahmad (P. W. 21) has admitted in his statement that he did not enquire from the accused as to how long be had been in Police custody and his statement further shows that be gave only half an hour to the accused to think over. Though the learned Magistrate has stated that lie made the accused understand that he would not be sent to Police custody even if be did not confess, yet the statement of Chowdhry Mukhtiar Ahmad, D. S. P. (P. W. 27) shows that the accused was actually sent back to Police custody. The accused had been brought to Court by the Staff' of the Additional Inspector‑General of Police, Special Branch straight from Lahore Fort and he was banded over back to the same staff who took him back to the same Fort where he was kept till the next day under Police custody. Under these circumstances, I hold that the Magistrate had neither satisfied himself that the accused was making the confession voluntarily, nor had given him sufficient time to think over, and that the accused who had been brought from Police custody where he had been for 26 days was under C sufficient pressure was sent back to the same custody. Relying on the authorities mentioned above, I, therefore, hold that the confession was not made by the accused voluntarily and could not, therefore, be relied upon.

33. So far as the corroboration of the confession is concerned, the Assistant Advocate‑General did not contest the legal position that a retracted confession required corroboration before‑it could be relied upon, but he contended that the recovery of the bandolier and charger containing 9 MM cartridges from the hujra of the uncle of Shakir was sufficient corroboration of the confession in material particulars. There is, however, no force in this contention, as there is no evidence whatsoever on file to show that the bandolier, charger and cartridges belong to Shakir Khan mentioned in the confession. These articles were recovered from the hujra of Nadir Khan and the key for the locked room was produced by Zahir Khan, son of Nadir Khan. It could not, therefore, be said that the articles belonged to Shakir, simply because Shakir was a nephew of Nadir Khan. It is common knowledge that 9 MM pistols are in abundance in this part of the country, and the bandolier and the charger with cartridges could belong to anybody other than Shakir. There was nothing particular on them to show that these belonged to Shakir and that the pistol had, therefore, been given by him to the accused. I, therefore, hold that there is even no corroboration of the retracted confession on file.

34. So far as the ocular evidence is concerned, I am of the opinion that there is more than enough evidence on file to prove that it was the accused and none else who fired two shots with a pistol at the stage where the President and other dignitaries were sitting. Gut Alam, D. S. P. (P. W. 1), Dal Muhammad (P. W. 2), Bismillah Jan (P. W. 3), Mushtaq‑un‑Nabi (P. W. 4), Nur Muhammad (P. W. 5), Said Rasool (P. W. 7), Farukh Sair (P. W. 12), Nawabzada Col. Muhammad Amir Khan (P. W. 18) and Banaras Khan (P. W. 26) all have stated that it was the accused who fired the shots, and their statements are corroborated by the statements of Syed Mir Muhammad Jafari (P. W. 6). Nawabzada Col. Abdul Ghafoor Khan (P. W. 8) and Abdur Rauf Semab (P. W. 13) who saw the accused having been arrested on the spot soon after the shots were fired. All these P. Ws. are independent persons hailing from different ‑places and having no ill‑will whatsoever towards the accused. There is, therefore, no reason why they should falsely depose against the accused. Their presence on or near the spot can E neither be doubted nor was questioned by counsel for the defence, as they are either police officials or office‑bearers of the Muslim League, who were admittedly present in the meeting. Besides, two of them, namely Gut Alam Khan D. S. P. (P. W. 1) and Mushtaq‑un‑Nabi (P. W. 4) received injuries in the process of arresting the accused, as is evident from the statements of Doctor Muhammad Zahir (P. W. 10) and Doctor Khilji (P. W. 11).

35. The contention of the accused that some other person close to him fired the shots and that he caught hold of the pistol', of the real culprit is simply ridiculous for if he could see the real culprit firing the shots, there is no reason why other,; who were also present close to him did not see the real culprit. There is also nothing in the evidence to suggest that all these persons present near the spot were either interested in the real culprit and therefore, let him go, or were on inimical terms with the accused to implicate him falsely. The accused was in the middle of the gathering and this is not denied by him even in his statement. In the circumstances, a number of persons must have' been present round him, and there could, therefore, be no mistake about the identity of the actual culprit, especially when the culprit admittedly fired two shots. In view of the abundant prosecution evidence on file, I am, therefore, firmly of the opinion that it was the accused and none else who fired two shots with the pistol (Exh. P. 1) at the stage where the President and other dignitaries were present.

36. Learned counsel for the accused raised a number of points to show that the prosecution evidence could not be relied upon and I take up these points seriatim. His first contention was that all the P. Ws. were either police officers or office‑bearers of the Muslim League and were, therefore, interested, and that disinterested persons who were in abundance in the meeting were not produced. He also complained that the President and the Governor whom he wanted to summon as P. Ws. were not summoned. There is no force in this contention, because the police officers and the office‑bearers of the Muslim League were respectable and responsible persons present in the meeting, and they had naturally to be produced in evidence in preference to t others. Besides, there is nothing on file to suggest that they were in any way interested against the accused and there is no reason why their testimony should be doubted. So far as the, non‑production of the President and the Governor or other persons from the gathering is concerned, there is no rule that every eye‑witness to an occurrence ought to be called by the prosecution in support of its case. It was impossible for the prosecution to produce all the persons present in the gathering and the production of the President or the Governor could not and would not have benefited the accused in any way. On this point Vasudeo Balwant Cogte v. Emperor (A I R 1932 Bom. 279), is quite clear, where it has been held :‑ "But prima facie it is for the prosecution to call such witnesses as they think will establish their case. No doubt if the Public Prosecutor knows of a witness who favours the accused, it is his duty either to call the witness himself or to see that the defence is supplied with the name of the witness and given an opportunity of calling him. In the present case undoubtedly the evidence called by the prosecution was sufficient to establish the charge. Mr. Patwardhan suggests that his client was prejudiced by the fact that His Excellency did not go into the witness box. I cannot myself see in what respect His Excellency could have given any evidence which could possibly have helped the accused. I pressed Mr. Patwardhan to tell me in what respect he suggested that the evidence of His Excellency could have helped the accused, but he was unable to say more than that the accused's pleader might perhaps have got something out of the witness in cross‑examination which would have helped the accused, but he was unable to suggest any specific point in which the evidence of His Excellency would have been useful." The same is exactly the case here and learned counsel for the defence could not show as to how the statements of the President and the Governor would have helped the accused.

37. The second contention of the learned counsel was that there were major discrepancies in the statements of the ocular witnesses, and that they could not, therefore, be relied upon. Only the following discrepancies were referred to by him :‑ (1) That according to Gul Alam Khan (P. W. 1), Mushtaq un‑Nabi (P. W. 4), Nawabzada Col. Muhammad Amir Khan (P. W. 18) and Banaras (P. W. 26) the accused got up from a sitting position and resorted to firing, while according t o Dal Muhammad (P. W. 2) and Bismillah Jan (P. W. 3) the accused did not get up from a sitting position but was standing when he resorted to firing. (2) That according to Gul Alain Khan (P. W. 1), Bismillah Jan (P. W. 3), Mushtaq‑un‑Nabi (P. W. 4), Nur Muhammad (P. W. 5), Said Rasool (P. W. 7), Farukh Sair (P. W. 12) and Banaras Khan (P. W. 26) nobody interfered with the accused before he fired the two shots, while according to Dal Muhammad (P. W. 2) the witness caught hold of the accused before the accused fired the two shots, and that according to Col. Muhammad Amir Khan (P. W. 13) the accused fired the second shot when some persons had already caught hold of him.

38. So far as the first discrepancy is concerned, it was not pressed by counsel for the accused as it is no discrepancy at all. All the P. Ws. were admittedly not looking at the accused and each must have seen the accused not exactly at the same time, but at different time soon one after the other. In the circum stances, some might have seen the accused while he was still sitting while some might have noticed him when he had already got up. So far as the second discrepancy is concerned, it too, in my opinion, is not a discrepancy of any serious nature so as to make the testimony of the P. Ws. doubtful. In a situation like the one in question when the attention of the people was attracted, towards the incident all of a sudden, it was impossible for all of them to have formed the same impression of tile incident or to have observed exactly a similar situation, especially when the incident took place in a few seconds. Every body must have formed an impression of what ha saw at once and the observa tions of all the P. W s., in the circumstances, could never be the same. I am, therefore, of the opinion that this discrepancy was also not of such a nature as to affect the testimony of the witnesses.

39. The learned counsel next contended very vehemently that the statement of Col. Abdul Ghafoor Khan (P. W. 8) revealed that soon after the firing two young men were arrested by the public and brought towards the stage bodily lifted and that this fact thoroughly supported the statement of the accused, which was also evidence in the case. According to him Col. Abdul Ghafoor Khan was a very respectable and responsible man and there was no question of his giving a wrong version of the incident. The learned counsel contended that when there were two versions of a case; one of the prosecution and another of the accused and when the version of the accused also appeared to be reasonable and probable, then the benefit of doubt was to be given to the accused. According to him, the burden of proving his plea was not as heavy on the accused as it was on the prosecu tion and even if the plea of the accused was not established, yet if it created reasonable doubt with regard to his guilt, the benefit of doubt was to be given to the accused. For this he relied on Sajdar Ali v. The Crown (P L D 1953 F C 93) and Muhammad Idrees v. The State (P L D 1965 Lah. 553).

40. There is no quarrel with the aforesaid legal proposition, but the question is as to whether the statements of Col. Abdul Ghafoor Khan and the accused had any substance in them or not in view of the abundant evidence to the contrary. There is no, doubt that Col. Abdul Ghafoor Khan did state that soon after the shots were fired people caught hold of two young boys whom they brought towards the stage bodily lifted, but then this version of his could rot be relied upon in view of the direct evidence of a large number of equally respectable and responsible persons to the contrary. Not a single witness has supported the statement of Col. Abdul Ghafoor Khan in this respect despite the fact that most of them were cross‑examined on this point by the defence. It is highly improbable that if this had been a fact, it would not have been noticed by any other witness. I would not venture any conjectures as to why Col. Abdul Ghafoor Khan deposed to the above effect, but the fact remains that there is no corrobora tion whatsoever of this version of his from any quarter and it could not, therefore, be relied upon. It was not even his own version before he appeared at the trial. He was cross‑examined by the defence with respect to his statement to the police and his replies, which is evidence in the case, show that this was not his version before he was examined in Court. Even his own brother Col. Muhammad Amir Khan who was sitting close to him on the stage and who is equally respectable and responsible has not supported him in this respect. I, therefore, hold that the statement of Col. Abdul Ghafoor Khan, to the effect that soon after the shots were fired, two young men were arrested by the public and brought bodily lifted towards the stage, could not be relied upon.

41. So far as the statement of the accused is concerned, the version put forth by him, to the effect that he shots were fired by another man near him, that he caught hold of that man, relieved him of his pistol and that he was arrested under a misunderstanding, is simply an after‑thought. This was not his K case before Col. Abdul Ghafoor Khan was examined in Court and the plea was simply raised later on to fit in with the state ment of Col. Abdul Ghafoor Khan. This is evident from the trend of the cross‑examination of the P. Ws. carried out by counsel for the defence. Seven ocular witnesses, namely, Gul Alam, Dal Muhammad, Bismillah Jan, Mushtaq‑un‑Nabi, Nur Muhammad, Syed Mir Muhammad Jafari and Said Rasool were examined before Col. Abdul Ghafoor Khan was examined and not a single question was put to anyone of them by the defence about the public having arrested two persons. It was after the statement of Col. Abdul Ghafoor Khan was recorded that the defence started cross‑examining the P. Ws. on those lines. All the ocular witnesses, namely, Farukh Sair, Abdur Rauf Semab, Col. Muhammad Amir Khan and Banaras Khan who appeared after Col. Abdul Ghafoor Khan were examined on this point and even Nur Muhammad (P. W. 15) and Lal Muhammad (P. W. 16), who were merely witnesses to the recovery memos., were examined on this point. Furthermore, the plea of the accused, coupled with the statement of Col. Abdul Ghafoor Khan would have raised a doubt about the prosecution version if there had been no evidence in support of the prosecution. In the instant case there is more than enough evidence of respectable and responsible persons in support of the prosecution, which clearly negatives the version put forth by the accused. I, therefore, hold that the version put forth by the accused was neither reasonable nor probable in the circumstances of the case and could not be relied upon.

42. The next point that remains to be determined is as to what offence or offences did the accused commit. Counsel for the accused contended that the shots went off in the grappling after the accused had been caught hold of, and that the accuse had not, therefore, fired any shot at anybody. According to him the accused was yet at the stage of preparation for the offence when he was caught hold of, and that since the 'shots were fired in the struggle without the accused firing at anybody, the accused had, therefore, committed no offence. The learned counsel further contended that at any rate since the shots were not fired or aimed at any body, no offence under section 307, P. P. C. had been committed, and that at the utmost the accused could be guilty of the offence of criminal intimidation under section 506, P. P. C. For the above the learned counsel relied on the statements of Dal Muhammad and Col. Muhammad Amir Khan.

43. The learned Assistant Advocate‑General on the other hand contended that the accused did fire the two shots before he was arrested, and that the circumstances of the case and the subsequent conduct of the accused showed that he fired the shots at none else but the President who was then sitting on the stage. For the firing before arrest the learned Assistant Advocate -General relied on the statements of the ocular witnesses and for the conduct of the accused on the statements of P. Ws. Gul Alam, D. S. P., Col. Abdul Ghafoor Khan and Col. Muhammad Amir Khan. According to Gul Alam P. W. the accused when brought to the stage shouted "Bhutto Zindabad" and according to Col. Abdul Ghafoor Khan and Col. Muhammad Amir Khan he shouted "that if he was murdered, the nation would avenge his murder". According to the learned Assistant Advocate‑General, the circumstances during the days of occurrence which could not be denied by anybody were such that the attempt must naturally have been made on the life of the President, and that the shouts of the accused after his arrest certainly pointed to that fact. According to him the accused had the intention of shooting the President and at any rate had the knowledge that if his shot hit the President, it would result in his death, and since if death had been caused, the offence would certainly have been that of murder, as the case of the accused was neither covered by any of the General Exceptions or any of the Exceptions to section 300, P. P. C., the offence committed by the accused therefore clearly fell within the purview of section 307, P. P. C. The learned Assistant Advocate‑General further contended that the consequence of the act of the accused was not material, and that even if it be assumed that the attempt failed due to the intervention of other persons, the accused was still guilty of an offence under section 307, P. P. C. because the failure of the attempt was independent of volition of the accused. For this he relied on Provincial Government, C. P. and Berar v. Abdul Rahman (A I R 1943 Nag. 145), which lays down that: "For the purpose of S. 307, what in material is the intention or knowledge, not the consequence of the actual act done for the purpose of carrying out the intention. Section 307 clearly contemplates an act which is done with the intention of causing death but which fails to bring about the intended consequence on account of the intervention of a cause operating independ ently of the volition of the accused."

44. After giving my anxious thought to the arguments advanced by both the sides, I am of the opinion that the state ments of Dal Muhammad and Col. Muhammad Amir Khan do not support the defence contention. The statement of Dal Muhammad shows that the accused did fire two shots towards the stage before he could control the accused and the statement of Col. Muhammad Amir Kan shows that the accused had already fired a shot towards the stage when he was grabbed. The conditions prevailing during the days of occurrence which could not be denied, coupled with the fact that the accused fired towards the stage where the President was sitting and then shouted "Bhutto Zindabad and the nation would avenge his murder" clearly indicate that the accused did fire at the President. The intention of a person can only be judged from his action and the action of the accused in this case clearly indicates that he had the intention of shooting the President or at least had the knowledge that the shooting, if successful, would result in the death of the President. There was not even the slightest suggestion on the part of the defence that the case of the accused would have been covered either by any of the General Exceptions or any of the Exceptions to section 300, P. P. C. if death had ensued. The accused was, therefore, evidently guilty of an offence under section 307, P. P. C., The intervention of others, even if it be assumed that the intervention was there before the shots were fired, was of no avail to the accused, in view of the authority mentioned above. I, therefore, convict the accused under section 307, P. P. C.

45. So far as the charge under section 14 of the Arms Ordinance is concerned, it is in evidence that the accused had taken precautions to conceal the existence of the pistol with him from a large number of police officers who were on duty at the meeting, and since the accused had no licence for the possession A of the pistol, relying on the authority laid down in Yoshpal v. Emperor (A I R 1933 All. 627), I hold the accused guilty of an offence under section 14 of the Arms Ordinance and convict him thereunder as well.

46. The last point to be determined is the amount of sentence to be awarded to the accused. The maximum sentence provided for an offence under section 307, P. P. C. when no injury is caused is ten years' rigorous imprisonment and fine, the accused has committed such a heinous offence that under normal circumstances, in my opinion, he would have richly deserved the maximum penalty provided for the offence, but in the circumstances of the present case I am, however, of the opinion that the accused is entitled to some leniency.

47. The accused is a young student of impressionable mind and it could not be denied that there was extreme propaganda oaf hate during the days of occurrence by almost all the political parties against the Government and those at the helm of affairs, especially among the student community, and that feelings of the public and especially of the students were very high. In the circumstances, the accused appears to have acted under: impulse and was, therefore, entitled to some leniency. I, therefore, sentence him to undergo rigorous imprisonment for period of five years under section 307, P. P. C. I refrain from imposing a sentence of fine, as the parents of the accused are alive and the accused who is a student has no property whatsoever. Imposing a sentence of fine on him would amount to punishing his parents, which in the circumstances of the case, is not called for. Under section 14 of the Arms Ordinance he is sentenced to undergo two years' rigorous imprisonment. The two sentences to be undergone by the accused concurrently. The pistol and the live cartridges are confiscated to the Government, while all the other articles taken into possession by the police, be returned to the respective owners.