2011 PLP 825 (MLD)

MAZHAR ALAM KHAN MIANKHEL, J.

The appellants through instant appeal have challenged their conviction and sentence recorded by Additional Sessions Judge-IV/Izafi Zilla Qazi, Swat in case F.I.R. No. 339 dated 4-7-2008 Police Station Ghaligai, District Swat registered under section 324/34, P.P.C. Later on offences under sections 337A(i), P.P.C. and section 13 Arms Ordinance were also added.

2. Accused were arrested in the case and were sent to the Court of Additional Sessions Judge-IV/Izafi Zilla Qazi, Swat for their trial. The prosecution in support of its case produced as many as nine P.Ws. whereas the appellants neither produced their defence evidence nor they appeared as witness. They only recorded their statements under section 342; Cr.P.C. The trial Court after conclusion of the case, convicted and sentenced the accused to six months' R.I. each for the offence under section 324, P.P.C. and Rs.1000 each as fine, in default of payment of fine to undergo further seven days' S.I. each and two months' R.I. each for the offence under section 13 Arms Ordinance and Rs.500 each as fine in default of payment of fine to further undergo two days' simple imprisonment. The appellants were extended the benefit of section 382-B, Cr.P.C.

3. The learned counsel for the appellants while claiming their innocence submitted that the conviction and sentence of the appellants is wrong, illegal against the law and record of the case. The prosecution failed to establish the guilt of the appellants. No case under the sections of law for which the appellants were charged was made out. The material evidence on the record was misread and misinterpreted by the trial Court. Their conviction under the circumstances cannot be maintained and requested for their acquittal.

4. Learned State Counsel assisted by learned counsel for the complainant submitted that the prosecution has proved its case against the convicts through direct evidence. Circumstantial evidence collected by the I.O. has further strengthened the case of the prosecution. The appellants failed to shatter the entire material available on the record against them. The trial Court though has convicted the appellants but has taken a very lenient view. So, they are not entitled for any other concession and requested for dismissal of their appeal.

5. Learned counsel for the parties and State counsel were heard. Record of the case was perused. The record of the case would reveal that the complainant Umar Ali Shah, an Advocate, reported the matter at Police Post Shamozai at 1900 hours on 4-7-2008 regarding an occurrence which took place at 1600 hours. The crux of the report is that the appellant No.2, Khisro in front of the hujra of complainant talking on his cell phone at maximum pitch of his voice in a shouting manner for which he was asked by Muhammad Riaz P.W.2 as to why he is behaving in such a manner and the complainant along with his brother Jamil Akhtar and Muhammad Riaz went there but they were asked by Khisro to wait there, he is coining back. Then he along with his father namely Abdul Ghaffar, appellant No.1 armed with rifles came back and by pointing their rifles on then, attempted to kill them. But the complainant along with his brother Jamil Akhtar overpowered them and snatched their rifles.

6. Apart from this, a report by Abdul Ghaffar appellant No.1 (Exh.PW. 1/X-1) was also made at 1800 hours in the same police post Shamozai which was recorded at Serial No.12 of the Daily Diary that Umar Ali Shah along with his three brothers came to his house and they bawld him out for the use of path leading towards mosque and started beating him with their respective Kalashnikovs. During the scuffle and hue and cry, his daughter came out of the house with a rifle in her hand but complainant Umar Ali Shah snatched said licensed rifle from his daughter and took it away.

7. The report of the complainant P.W. Umar Ali Shah was culminated into F.I.R. whereas, no further progress or inquiry etc. was made with regard to the report of Daily Diary made by appellant No.1. Record of the case in this regard is completely silent.

8. The above referred is the factual story of the case. The prosecution evidence, by leaving aside the contradictions and veracity of evidence, is apparently in line with the above said factual story. But what requires determination is the question as to whether any attempt was made by the appellants with the intention to commit qatl-e-amd of the complainant and his brother; whether the above stated facts would be sufficient to constitute an offence under section 324, P.P.C. Before further discussion, it seems appropriate that section 324, P.P.C. be reproduced. "

324. Attempt to commit qatl-e-amd.

Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-e-amd, shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than five years if the offence has been committed in the name or on the pretext of honour and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall in addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused: Provided that, where the punishment for the hurt is qisas which is not executable, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to seven years." The bare reading of the section would confirm that the act of attempt should be with such intention or knowledge and under the circumstances in which the attempt is being made. So, it is obvious that for an attempt to commit qatl-e-amd there must be "melts rea" followed by the act of wrongdoer which if done may cause 'qatal' of the person., Mere criminal intention in absence of an act of attempt is not sufficient to constitute an offence under section 324, P.P.C. The story put forth by the prosecution does not reflect any such act which could amount to an attempt with an intention to commit qatl-e-amd punishable under section 324, P.P.C. Had they any such intention, then they could have done easily from some distance as they were allegedly armed with rifles.

9. It was for the I.O. to have assessed whether the offence of attempt to commit Qatl-e-Amd was made out and then it was the duty of the trial Court to have seen whether the entire facts together would constitute an offence under section 324, P.P.C. Record of the case would suggest that investigation of the case was conducted with a malice on the part of the I.O. The production of the licensed rifle of the appellant by the complainant in the circumstances can well be understood.

10. Then comes the evidence produced by the prosecution. The statement of the star witness Muhammad Riaz is full of material contradictions which can hardly be believed. His presence at the relevant time becomes' doubtful when he said that he remained with the complainant in his Hujra till 10-00 p.m. and the complainant never went for report in his presence. The other eye-witness Jamil Akhtar was not produced. Entire evidence in the light of site plan if seen would make their narrations absolutely unbelievable. The fact that the complainant along with his brother and P.W. Riaz kept on waiting at the place of alleged occurrence about fifteen minutes for the return of appellant is not a natural story and entirely by unbelieveable. Till the arrival of appellants armed with rifles, close to the complainant and witnesses they do not act in the manner which could suggest an attempt at the lives of complainant and witnesses is again unbelievable. Had there been any such intention, then they could have easily attempted by firing at them instead of getting so close to them to provide them a chance to snatch their rifles. Neither Beladar nor any of his house inmates was produced as a witness who allegedly have seen the occurrence. Mere distance between point 1 of complainant and point 2 of appellant Khisro which is 300 yards makes the case of prosecution doubtful as to how his act of talking on cell phone was a matter of disturbance for complainant. In this view of the matter, the report made by the appellant prior in time to the present report appears to be true when they have dispute over a path and motive is there. The licensed rifle of the appellant No.1 was snatched from his daughter by the complainant who later on came along with a concocted and baseless story. The report of appellant which was earlier in time was not investigated under the law. This alone makes a big dent of doubt on the story of prosecution benefit of which cannot be denied to the appellants. When snatching of rifles from the appellants is not proved then application of section 13 Arms Ordinance against the appellant also becomes a question mark.

11. For the reasons discussed above, prosecution has bitterly failed to prove its case against the appellants. Hence, this appeal is allowed, the conviction and sentence of the appellant is set aside. As the appellants arc already on bail, so they are discharged from the liability of the bail bonds. H.B.T./108/P Appeal allowed.