P L D 1964 (W (PLP)

(e) Penal Code (XLV of 1860), Ss. 307 & 326‑‑Shot of small pellet fired from distance of 100 yards fracturing bone of index finger‑Offence, held, does not fall under S. 307 but under S.

326. A. R. Tayab for Appellant. M. S. A. Pirzada for the State. The appellant Abdul Rahman son of Umed Ali, aged 30 years, has been convicted by the Additional District Magistrate, Bahawalpur with section 30 powers of an offence under section 307, P. P. C., for having caused a gunshot injury to the complainant Abdul Karim, and sentenced to 5 years rigorous imprisonment.

2. Abdul Karim had abducted the sister of the appellant some time ago for which reason the appellant and his brothers harboured a feeling of revenge against Abdul Karim. Two years before the incident in question the appellant Abdul Rahman and his brother Sultan were alleged to have fired at Abdul Karim and had injured him and both of them had been convicted by the lower Court but on appeal Abdul Rahman was acquitted by the Sessions Judge. The present incident happened on 16‑1‑

61. It is the case of the prosecution that Abdul Karim and his nephew Ibrahim were on that day returning from Dera Ghulam Perhar when the appellant and his brother Sultan who had ambushed themselves behind some shrubs near the canal, came out and fired at them. Before firing they had challenged them and upon this challenge Ibrahim, who had held the rein of the horse upon which both of them were travelling, spurred it on and as a result of this sudden action Abdul Karim fell down from the horse and it was after he had fallen down that he received a gunshot injury on the left index finger. Ibrahim managed to escape unhurt. Even Ibrahim after receiving this injury got up and ran and crossed the canal without any further damage. The incident took place at about 1‑0 p.m. and the report was made promptly at 4‑15 p.m. at the police station which was 12 miles away from the scene of the occurrence. The injury of Ibrahim was x‑rayed by Dr. Abdur Rahman, P. W. 7, and it showed that there was a fracture and the pellet had remained inside the finger. An offence was registered against both Abdul Rahman and Sultan but the latter had absconded and the trial therefore proceeded only against the present appellant. The Sub‑Inspector arrested the appellant on 25‑1‑61, and on 4th February 1961, the latter took the Sub-Inspector to a place about 3 karams away from his house and there he dug out a 12‑bore gun which was seized. This recovery was made in the presence of two witnesses, namely Muhammad Zaman P. W. 2 and Illahi Bux P. W.

3. According to the first information report two other persons had seen this incident. These were Bashir and Mahmood alias Mamoo.

3. At the trial the evidence against the appellant consisted of the oral testimony of the complainant Abdul Karim, b is nephew Muhammad Ibrahim and one of the two alleged eye witnesses Muhammad Bashir. There was also the evidence of the recovery of the gun of the instance of the appellant and the medical evidence with regard to the injury on the index finger of the complainant. There was also the circumstance that one of the two assailants had absconded. The learned Additional District Magistrate accepted all this evidence and convicted and sentenced the appellant as stated above.

4. The contention of Mr. A. R. Tayab, the learned Advo cate for the appellant, before me was that the alleged eye witnesses in this case were all interested aid should not be believed. He further contended that the witnesses of the recovery of the gun were not persons of the same locality and were other wise unreliable. He also raised certain legal objections in respect of the trial of the case and to this I shall revert a little later.

5. I agree with the learned counsel that both Abdul Karim and Ibrahim are interested witnesses. There is admittedly enmity between them on the one hand and the accused and his brothers on the other. It was admitted by Abdul Karim that another brother of the appellant named Muhammad Zaman had given evidence against him in a murder case. The other eye witness Muhammad Bashir also admitted that he was a tenant of Ibrahim's father. However, merely because these witnesses are interested their testimony cannot be discarded. The question of enmity cuts both ways. It may induce a person to falsely rope in his enemy and on the other hand it may be the reason for the assault. In the present case, there can be no doubt that Abdul Karim received the injury in his index finger as a result of the gunshot. This is the opinion of the doctor and the x‑ray has established the fact that the pellet was still inside the injury and there was a fracture of the bone of the said finger. Mr. Tayab was not prepared to argue that this could be a self‑inflicted injury, and rightly so, because if a person gets somebody to fire at him or at his hand he takes the risk of getting at least his whole hand smashed and he could not be sure that a fire from a shotgun would merely injure a solitary finger. The report in this case was made without any toss of time. The Injury was fresh. The firing took place in broad daylight and, therefore, it is reasonable to believe that the assailants must have been seen. Only two persons were named amongst the assailants and one of them has absconded which further strengthens the prosecution case. The oral evidence is further supported by the fact of the recovery of the gun and the absconding of the other alleged assailant. There is no reason to believe that Abdul Karim would substitute the name of these two brothers for the real assailant, As far as the recovery of the gun is concerned it is true that one of the witnesses Muhammad Zaman has not got a very bright record but the same cannot be said about the other witness Illahi Bux, P. W.

3. It is said that this Illahi Bux, belonged to the village of the complainant but it is not shown that the village of the complainant is very far from the village of the accused, and the mere fact that the witness belonged to the village of the complainant need not necessarily discredit him. There waste then the evidence of the investigating officer. It would indeed be very difficult to hold that the Sub‑Inspector had procured a gun and introduced it in this case which was eventually bound to result in the confiscation of the gun. It has to be noted that there was no love lost between the police and the complainant and they had actually run him in under section 110, Cr. P. C., and had got him bound over not very long before this incident.

6. It might have been possible to argue that there was only one assailant in this case and that was Sultan and the complain ant had falsely implicated his brother namely the present appellant. But no suggestion as to this was made anywhere in the cross‑examination of the prosecution witnesses, nor was anything said in the statement of the accused. Moreover, the fact that the present appellant was involved in the case is supported by the recovery of the gun when he dug it out of the ground. I am, therefore, satisfied that upon the evidence the fact that the appellant fired the gun at Abdul Karim was estab lished and the learned Additional District Magistrate was right in coming to that conclusion.

7. Mr. Tayab has raised two legal objections, firstly, that the succeeding Magistrate who delivered the judgment had not heard the main evidence in this case and when he took over he had not asked the accused whether he would claim a de novo trial. I do not think that there is a duty cast upon the Court whereby it is bound to ask the accused whether he wishes to have a de novo trial. The accused was represented by a pleader and if he did not choose to claim a de novo trial I do not think It lies in his mouth now to complain that he had suffered prejudice because a de novo trial was not held. I agree with the view taken in this matter by Sajjad Ahmad Jan, J., in a recent decision of this Court reported in Gul Sher v. State (P L D 1960 B J 7).

8. The next objection was that the investigating officer was examined by the learned Magistrate at the end of the trial as a Court‑witness. The provisions of section 540, Cr. P. C., give wide powers to the Court to examine any witness at any stage of the case as a Court‑witness, and if the investigating officer appeared on the last date of the case and the Magistrate chose to examine him as a Court‑witness it cannot be said that he had committed any illegality. It was next argued that it was the duty of the Magistrate to further examine the accused after he had recorded the evidence of the investigating officer. It is urged that this amounts to an illegality and further that in any case this was an irregularity which has resulted in prejudice to the accused. It has to be noted that after the evidence of the investigating officer the Magistrate had put a question to the accused whether he wanted to examine any further defence evidence and the answer to that question was in the negative and the accused said that the judgment should be delivered. He was represented by a pleader and as far as the material point in the evidence of the Sub‑Inspector is concerned, namely the recovery of the gun, the two witnesses of the recovery had already been examined and cross‑examined and the accused had been examined on that point earlier under section 342, Cr. P. C. The nature of the cross‑examination of the Investigating officer on this point was similar to the cross‑examination of the witnesses of the recovery. It cannot, therefore, be said that any prejudice was caused to the accused and I do not think any question of illegality arises in the circumstances of the case. It was held by the Federal Court in the case of Abdul Wahab v. Crown (P L D 1955 F C 88) that where no miscarriage or failure of justice had been proved, section 537, Cr. P. C., would cover such a case. This would apply to the present case.

9. The last point is as to what offence was committed by the appellant. In this regard, two circumstances are important, firstly, that the firing admittedly took place from a distance of one Killah which would be about 100 yards. The shot used consisted of small pellets as would appear from the nature of the injury caused. Only one pellet had hit Abdul Karim, and that also on the upper part of his index finger. The fact that the pellet remained inside the index finger would show that it was a small pellet. In these circumstances; it is difficult to hold that the appellant had attempted to cause the death of the complainant. His intention is to be deduced from his choice of the cartridge and the distance from which the gun was fired. He could not have intended to kill Abdul Karim by a small slot fired from such distance. It is true that the bone of the index fingure had fractured but that would not brim the case under r section 307, P. P. C. I am, therefore, of the opinion that the offence committed falls under section 326, , P. P. C. In that view of the matter and having regard to the fact that small pellets were chosen and the gun was fired from a distance of 100 yards I think the interest of justice will be met by imposing a sentence of two years on the appellant.

10. I accordingly reduce the sentence from 5 years to 2 years' rigorous imprisonment. With this modification of sentence the appeal is dismissed. S. Q. Sentence reduced.