1990 SCMR 74 (PLP)

‑‑‑S.307/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Evidence, re‑appraisal of‑‑‑Leave to appeal granted to reappraise evidence. (b) Penal Code (XLV of 1860)‑‑ ‑‑‑S.307/34‑‑‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Re‑appraisal of evidence‑‑‑Broad daylight occurrence‑‑‑Report was lodged within 20 minute‑‑ Accused were directly charged in F.I.R.‑‑‑Complainant and witnesses attributed effective firing at the complainant to the accused‑‑‑Fact that complainant was fired at with fire arms had been corroborated by medical evidence‑‑‑Enmity though existed between parties but no material had been brought on record that accused had either been falsely implicated or it was a case of mistaken identity Appeal 'dismissed in circumstances. Sahibzada Akhtar Munir, Advocate Supreme Court and Mian Shakirullah Jan, Advocate‑on‑Record (absent) for Appellants (in Criminal Appeal No.6‑P of 1988). S. Safdar Hussain, Advocate‑on‑Record for Petitioner (in Criminal Petition No. 49‑P of 1988). Nemo for Respondent (in Criminal Appeal No. 49‑P of 1988). M. Zahur‑ul‑Haq, Advocate Supreme Court, with S. Safdar Hussain, Advocate‑on‑Record, for the Complainant. Mian M. Ajmal, Additional Advocate‑General, N.W F.P., with Nur Ahmad Advocate‑on‑Record for the State. Date of hearing: 17th May, 1989. ALI HUSSAIN QAZILBASH, J.‑‑This appeal by leave arises from the order of a learned Single Judge of the Peshawar High Court, dated 5‑11‑1988.

2. Zar Moeen and Muhammad Jan, residents of Shanawari, Tehsil Hangu, District Kohat, alongwith three others, namely, Said Jahan, Dildar and Razaq Shah, were charged under sections 307/149 and 148 P.P.C. for firing effectively at Ashoor Gul complainant. The occurrence allegedly took place on 12‑6‑1987 at 5‑50 in the morning at Mamani Talab at a distance of 5/6 kilometers from Police Station Hangu. The report of the occurrence was made in less than an hour. After the arrest of the appellants and the acquitted accused and the completion of the investigation, the appellants and their companions .were put to trial and on its conclusion the Ilaqa Magistrate, vide his judgment dated 28th June, 1988, convicted the two appellants alongwith the acquitted co‑accused under section 307/149 and 148 P.P.C. and sentenced each of them to one year's R.I. under section 148 P.P.C. The appellants were sentenced under section 307 P.P.C. to five year's R.I. and a fine of Rs.3,000 each or in default to six months R.I. The acquitted accused were, however, sentenced to three years' R.I. under section 307 P.P.C. and a fine of Rs.2,000 each, or in default to six months' R.I. The sentences were to run concurrently. The benefit of the provision of section 382‑B Cr.P.C. was also given to the appellants. It was further ordered that out of the fine on realization, a sum of Rs.3,000 be awarded to Ashoor Gul, the injured P.W.

3. The appellants and their companions challenged their conviction and sentence in the High Court. The complainant also filed a revision for enhancement of the sentence of the convicts. In the High Court, the conviction and sentence of the appellants under section 307/34 P.P.C. was maintained as per order dated 5‑11‑1988, whereas Dildar, Razaq Shah and Said Jahan were acquitted of the charges. The revision petition filed by the complainant was also dismissed through the same judgment.

4. The above judgment of the High Court was impugned by the appellants before us and leave was granted on 11th December, 1988 to re‑appraise the evidence. A petition has also been filed by the complainant seeking leave to appeal against the order of the High Court dated 5‑11‑1988. Both the matters are being disposed of by this judgment.

5. We have heard the learned counsel for the parties and have gone through the judgments of the Courts below. This case has no merit. It is a broad -daylight occurrence, the report of which has been made within 20 minutes. The appellants are directly charged in the F.I.R. the complainant and the witnesses who have appeared at the trial have accused the appellants for firing effectively at the complainant. The fact that the complainant has been fired at with firearms has been corroborated by the medical evidence. Though there exists enmity between the parties but no material has been brought forth on the record that the appellants have either been falsely implicated or because of mistaken identity.

6. The appeal fails and is hereby dismissed. Criminal Petition No. 49 6/1988 is also dismissed. MA.K./Z‑75/S Appeal dismissed.