2011 PLP 732 (YLR)

MIAN FASIH-UL-MULK, J.

Muhammad Javed appellant was charged under sections 302/324/34, P.P.C. and on conclusion of trial was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life with a compensation of Rs.2,00,000, ten years' R.I. under section 324, P.P.C. with a fine of Rs.10,000 and to six months R.I. under section 337-F(i), P.P.C. along with payment of, Daman amounting to Rs.20,

000. However, benefit of section 382-B, Cr.P.C. was extended to the appellant.

2. On 24-10-2005 Fazal-ur-Rehman complainant in injured condition reported to local police in Emergency Ward DHQ Hospital Abbottabad that at about 3-30 p.m. he along with Adil Waseem was present at Banni Chowk. In the meanwhile Sajid and Javed duly armed with .30 bore pistols came there and started firing. Sajid fired at Adil Waseem, who was hit and died at the spot. Javed fired on the complainant due to which he sustained injury on right side of chest. Occurrence was witnessed by Jehanazeb and Shahzad. Both the accused after commission of crime decamped from the spot. Motive behind occurrence is minor altercation with accused Javed on 23-10-2005.

3. At trial, after observing codel formalities, formal charge was framed against the accused, who professed innocence and claimed trial. The Prosecution in support of its case examined eleven witnesses in all.

4. On close of prosecution evidence, accused was examined under section 342, Cr.P.C., who pleaded false implication. He appeared as his own witnesses on Oath Wherein he alleged his innocence and false Implication. On assessment of evidence, the appellant was found guilty. He was convicted and sentenced as mentioned above.

5. Learned counsel representing the appellant at the outset stated that neither the appellant has been charged for commission of murder of deceased Adil Waseem nor any evidence to this effect was led by the prosecution but it is storage that learned trial Court has convicted and sentenced the appellant under section 302, P.P.C. also. Learned counsel, however, does not challenge the remaining terms of conviction and sentence of appellant as recorded by the learned trial Court.

6. Learned counsel for complainant as well as State counsel did not controvert the factual position as urged by learned counsel for the appellant.

7. We have given our due consideration to the facts of the case and have gone through the whole record. It is crystal clear that absconding co-accused Sajid son of Mohabat has been assigned the role of firing at deceased Adil Waseem whereas appellant Muhammad Javed is charged for ' effectively firing at complainant. Further, the prosecution has failed to prove its case by leading any confidence-inspiring evidence against appellant for sharing common intention in commission of murder of Adil Waseem. Superior courts have time and again observed that common intention for committing murder is a question of fact which can be ascertained on the basis of acts and conduct of accused, ferocity of attack, weapons used, number of blows or fire shots coupled with element of pre-concert of mind. The appellant, in the facts and circumstances of the case, did not commit murder of deceased but was wrongly and illegally convicted and sentenced therefor. However, the prosecution has been able to prove its case against appellant qua firing at the complainant and seriously injuring him, therefore, the learned trial Court rightly convicted and sentenced him under sections 324 and 337-F(i), P.P.C., which findings of fact are maintained.

8. Consequently, this appeal is partially allowed. The conviction and sentence of appellant recorded under section 302, P.P.C. is set aside while remaining conviction and sentence recorded under sections 324/337-F(i), P.P.C. are maintained. H.B.T./67/P Order accordingly.