1997SCMR 111 (PLP)

2. The case of the prosecution, briefly narrated in F.I.R. No.8/1990 registered at Police Station, City, Quetta, lodged by Muhammad Mir P.W. on 31‑1‑1990, is that he was engaged in business at Cut Piece Galli, Plaza Market under the name and style of Lateef Cloth House. His uncle Sultan Muhammad petitioner No. 1, is residing in his house situate in the same street. On the day of occurrence at about 3‑00 p.m., while the first informant was present in his shop, his uncle Sultan Muhammad on alighting from the upper storey of his house first he started hurling abuses and went back and then at 4‑30 p.m. he returned, started abusing the first informant took out pistol and fired at him hitting his right shoulder. Abdul Qadir, petitioner No.2, also descended from his house and started hurling brick‑bats hitting the P.W. Fazal Karim. Din Muhammad, Baloo and Abdul Qadir, apart from the shopkeepers who had gathered at the venue of the crime, were stated to have witnessed the occurrence. The motive duly set up in the F.I.R. is a dispute between the parties over a house which Muhammad Mir, complainant, had purchased from one Akbar Kashmiri for a sum of Rs.32,00,000 to the annoyance of petitioner No.2, who is also said to have got a cross‑case registered against Muhammad Mir, complainant, Fazal Karim P.W. and three others under sections 307, 147 and 148, P.P.C. wherein all of them have been acquitted.

3. Muhammad Amin, S.I. (P.W. 8) and Abdullah Jan, S.H.O., Police Station City, Quetta, on information qua the medico‑legal case, visited Civil Hospital, Quetta, and took down the report at the dictation of Muhammad Mir, complainant (P.W.1.), Muhammad Amin, S.I. then sealed into separate parcels shirts of Muhammad Mir and Fazal Karim P.Ws. vide recovery memos. Exh.P./4‑A and Exh.P./4‑B.' He thereafter went to the spot, recorded the statement of Bari Dad P.W. prepared the site plan Exh.P/8‑A and arrested the petitioners from their house. After completing the investigation, he challaned the petitioners to the Court of Session to stand their trial.

4. Muhammad Mir P.W. was found to have sustained an entrance wound of fire‑arm 1/3" in diameter on the side of his chest below the right clavicle, with black margins and circular in shape. X‑ray examination revealed fracture of right humerus. Fazal Karim P.W. had suffered a lecerated wound of the size of 2"xl" on the parietal region and was muscle deep. This injury was, however, decalred simple.

5. The petitioner No.l, when examined under section 342, Cr.P.C., denied the prosecution allegations but admitted that there existed between the parties a dispute over purchase of the house by the complainant. While asked as to whether he would like to add anything else, petitioner No. l urged that he was innocent; had committed no offence and; that he had been attacked by the complainant party. Petitioner No.2, when asked a similar question, declined to say anything else.

6. The learned trial Judge accepted the evidence of the injured P.Ws. Muhammad Mir and Fazal Karim; that of the eye‑witness Bari Dad as corroborated by the medical evidence and the recovery of a piece of lead of a bullet extracted from the clavicle of Muhammad Mir (P.W.1) during the operation. However, in the opinion of the trial Judge, the fire‑arm injury sustained by Muhammad Mir P.W. as a result of fire shot by Sultan Muhammad, petitioner No. 1, was his individual act. He further concluded that petitioner No. l did not repeat the fire and, therefore, his intention manifestly was not to kill him but to cause grievous injury with a dangerous weapon and thus he was guilty of the offence under section 326 and not that of attempted murder falling within the purview of section 307, P.P.C. Similarly looking to the nature of injury suffered by Fazal Karim P.W. at the hands of petitioner No.2 to be simple, in that, he was held liable under section 323, The two petitioners were thus sentenced in the above terms.

7. The appeal of the petitioners before the High Court having failed, they now seek lave to appeal.

8. Syed Ayaz Zahoor, learned counsel appearing on behalf of the petitioners, mainly confined his argument to the following points: (a) That the conviction of the petitioners rests on the ocular evidence of Bari Dad (P.W.3) whose name had not figured in the F.I.R. whereas Din Muhammad and Abdul Qadir, who were named therein, having witnessed the occurrence, were abandoned by the prosecution without assigning any reason, therefore, it raised the presumption against the integrity of the prosecution case; and (b) that the offence under section 323, P.P.C. was exclusively triable by the Conciliation Court and, therefore, trial of petitioner No.2 by the Court of Session was without jurisdiction.

9. We have not been impressed by the first contention of the learned counsel for the petitioners. It was raised in the High Court but was rejected, if we may say so, for sound reasons. The prosecution case was amply proved by the evidence of the two injured witnesses. Nonetheless, it has been stated in the F.I.R. that many shopkeepers were attracted to the spot. Bari Dad (P.W.3) is not shown to have been a chance witness or was, in any way, unreliable. The second plea of the learned counsel also seems to have not been taken before the learned trial Court. It was thus for the first time urged before this Court which cannot be allowed to be raised. Even otherwise, the contention is devoid of substance. The learned counsel for the petitioners was unable to persuade us that if in a incident there are offences triable by the Court of Session alongwith an offence triable by the Conciliation Court, the trial of the latter offence by the Court of Session was, in any manner suffered from any jurisdictional defect.

10. As to the cross‑case and the plea of self‑defence, it was not urged in the statements of the petitioners. Nonetheless, in that case the accused were acquitted against which no appeal was filed which implied that the petitioners satisfied with the fate of their case.

11. After the perusal of the record and hearing the learned counsel, we are satisfied that the trial Court had appraised the evidence of the prosecution in its true perspective. It is also impossible to contend that the conclusion reached by the learned Judge in Chambers of the High Court was, in any way, perverse or fanciful. The two points urged before us are scarcely the grounds for interference by this Court in its special jurisdiction. The petition is, accordingly, I dismissed.

12. On 26‑4‑1995, the petitioners were granted interim bail by a learned Judge in Chamber of this Court till the hearing of this petition. As the leave to appeal has been refused, they are directed to be taken into custody for serving out their sentences of imprisonment. N.H.Q./S‑1069/S Leave refused.