1985 PLP 666 (MLD)

Mushtaq Ahmad (40) son of Nazeer Ahmad, Jat, resident of Chak No. 124/R.B, was tried by Magistrate section 30, Faisalabad, under sections 307, P.P.C. and section 13 of the West Pakistan Arms Ordinance, 1965. By judgment, dated 11th June 1983, he was convicted on the said charges. and sentenced to rigorous imprisonment for five years and a fine of Rs.500 under section 307, P.P.C. and R.I. for one year under section 13 of the West Pakistan Arms Ordinance, 1965, with the direction that both the sentences shall run concurrently. The convict has appealed.

2. The F.I.R. version is that two months prior to the occurrence a rope of Muhammad Sharif P.W. was stolen from his Dera. On 27th November 1975 at 3 p.m. he found the said rope at the Dera of Mushtaq Ahmad appellant. He picked the rope and brought it to his own Dera. A shortwhile after, Mushtaq Ahmad appellant came to the Dera of the complainant party and took away the bullock of Muhammad Sharif P.W. Muhammad Siddiq complainant and Ashiq Hussain P.W. brothers of Muhammad Sharif P.W. chased the appellant and retrieved the bullock. During the course, there was an altercation between them. The appellant left the place advancing a threat that he would see to it. At about 4 p.m. Muhammad Siddiq, Muhammad Sharif and Ashiq Hussain P.Ws. were present at their Dera when the appellant came there armed with a .12 bore gun. He threw a challenge that Muhammad Sharif would not be spared and simultaneously fired a shot hitting Muhammad Sharif in the abdomen, forehead and legs, as a result of which he fell down. The appellant tried to reload his gun. Muhammad Siddiq and Ashiq Hussain P.Ws. tried to overpower him, upon which he gave a Butt blow on the head of Ashiq Hussain and he too fell down. The complainant grappled with the appellant but he made good his escape. On the next day Muhammad Siddiq P.W. reported the occurrence to Muhammad Hayat, A.S.I., at Police Post Arori on the basis of which formal F.I.R. was recorded at Police Station Chak Jhumra at 2-30 p.m.

3. Muhammad Hayat, A.S.I., investigated the case. During the investigation Zafar Ullah Khan Lambardar produced a .12 bore gun before him vide memo. Exh. P.B. After the investigation, the appellant was challaned.

4. On 27-11-1975 Dr. Muhammad Aslam, Medical Officer, Civil Hospital, Sangla Hill, examined the injured P.Ws. He found four fire-arm injuries on the person of Muhammad Sharif, all simple in nature. Ashiq Hussain P.W. had one simple injury, caused by a blunt weapon and Muhammad Siddiq P.W. had also one simple injury caused by a blunt weapon.

5. In support of its case the prosecution examined three eye witnesses, namely, Muhammad Siddiq, Ashiq Hussain and Muhammad Sharif. It also relied on the evidence relating to the recovery of gun.

6. The appellant pleaded not guilty to the charge and denied the prosecution allegations against him. No evidence was led in defence.

7. The learned counsel for the appellant has raised the following contentions-- (1) Prosecution evidence about the actual occurrence and the recovery of gun is full of material discrepancies. (2) There is conflict in the medical and ocular evidence. (3) In view of the nature of injuries section 307, P.P.C. is not attracted to the facts of this case. The learned State counsel, on the other hand, contends that prosecution version is supported by three injured eye-witnesses and it being the case of a single accused, it is unbelievable that the appellant was falsely implicated.

8. It may be mentioned in the very outset that the evidence relating to the recovery of gun is highly unsatisfactory. According to the recovery memo. Exh.P.B. the gun was produced before the A.S.I. by Zafarullah Lambardar on 28-11-1975. This recovery memo is attested by Zafarullah, Muhammad Siddiq and Ashiq Hussain P.Ws. Zafarullah P, W. stated that he was present in his house when Muhammad Sharif P.W brought the gun there and he produced it before the A.S.I. Muhammad Siddiq P.W., on the other hand, stated that he snatched the gun from the accused and produced it before the police at the police station. Ashiq Hussain P.W. came up with the version that they produced the gun before the police in the village. The discrepancies pointed out above throw a doubt on the genuineness of the recovery. The conviction and sentence of the appellant under section 13 of the West Pakistan E Arms Ordinance, 1965, is therefore, set aside and he is acquitted of this charge.

9. Now, I proceed to consider the ocular evidence furnished by Muhammad Siddiq, Ashiq Hussain and Muhammad Sharif. The learned counsel has pointed out some discrepancies in their statements which are not material. It is true that they had stated that Muhammad Sharif P.W. suffered an injury on his forehead also, but the medical evidence does not show any injury on that part of his body. However, this fact by itself is not sufficient to discredit them altogether. The occurrence took place in the broad day light and it is the case of a single accused. It is unbelievable that the real culprit was let off and the appellant was substituted. There is nothing on the record to suggest that the eye-witnesses had any motive to falsely implicate ,the appellant in this case. The last contention of the learned counsel merits consideration Since all the injuries on the persons of the injured P.Ws. were declared simple in nature, the offence committed by the appellant, more appropriately, falls under sectfon 324, P.P,.C. His conviction under section 307 , P . P . C . , is therefore, altered to section, 324 P . P . C . This brings me to the question of sentence. For the first time the appellant appeared in Court on 2-10-1978. He was convicted by the trial Court on 11-6-1983 and is in jail since then. In this way, besides facing the agony of a prolonged trial for over four and a half years, he has already undergone rigorous imprisonment for about eight months. Keeping in view all the facts and the circumstances of the case, I feel F inclined to the view that sentence of imprisonment already m uergone by him and fine of Rs.500 imposed on him by the trial Court would be sufficient to meet the ends of justice, and I order accordingly In default of payment of fine he will undergo rigorqus imprisonment for three months. The appeal stands disposed qC accordingly. M . Y . H .