1990 P Cr (PLP)

Date of hearing: 7th October 1989. This criminal appeal arises from the judgment of learned Senior Civil Judge/Magistrate Section 30, Shcikhupura, whereby he on 11-4-1989, while acquitting Muhammad Yaqoob and Akbar Ali co-accused, convicted Muhammad In defence he produced his sister Mst. Asia as D.W.2. He also gave evidence on oath in disproof of the charge against him. Mst. Asia has fully supported him. She stated that at the eventful time, she was present in the Haveli of her house. Muhammad Ajnial P.W. came there. He tried to criminally assault her and also tore her clothes. She raised alarm, which attracted the appellant to the spot. The gun was lying on .the cot. The appellant took it from there and fired at Muhammad Ajmal. Arshad, appellant under section 307, P.P.C. and sentenced him to 7 years' R.I and a fine of Rs.5,000, in default thereof further R.I. for 6 months. He was also directed to pay Rs.10,000 as compensation to Muhammad Ajmal P.W., in default whereof to undergo six months' imprisonment.

2. The charge against the appellant was that on 27-2-1987 at 8-30 a.m., in the area of Wara Karim, Bakhsh of village Bhikey, Police Station Saddar, Sheikhupura, he and his co-accused in furtherance of their common intention launched murderous assault on Muhammad Ajmal P.W. and caused fire-arm wound on the back of his chest which was declared grievous and dangerous to life as well. He denied the charge and claimed to be tried.

3. The motive allegedly was, suspicion of his illicit relations with the sister of the appellant. The acquitted accused are the paternal-uncles of the appellant.

4. To prove its case, prosecution produced 10 witnesses in all. Muhammad Ajmal appeared as P.W.7. He stated that at the eventful time he was passing through lane in front of the Haveli of the appellant when the appellant armed with .12 bore gun, Akbar Ali co-accused with revolver and Muhammad Yaqoob co-accused with Dang came there. Muhammad Yaqoob raised Lalkara, Akbar Ali fired ineffective shot from his revolver and Muhammad Arshad appellant fired with his gun which hit on the back of his chest. The occurrence was seen by Abdul Majeed, Abdul Aziz and Noor Muhammad complainant. They supported the prosecution case in all material particulars. Dr. Ghulam Dastgeer had found one gunshot wound on the person of Muhammad Ajmal, which was grievous as well as dangerous to life. .

5. When examined under section 342, Cr.P.C., the appellant denied all the incriminating circumstances. He raised the plea of grave and sudden provocation. In reply to the question as to why the case against him he stated:

6. Learned counsel for the appellant contended that the prosecution has failed to prove its case beyond reasonable doubts; that the eye-witnesses are interested as well as chance witnesses; that the motive has been disbelieved by the trial Court and that there is reasonable possibility of the defence version being true. Learned counsel for the State has supported the judgment of the trial Court.

7. I have carefully attended to the arguments addressed by the learned counsel for the parties and have reviewed the entire evidence that has been produced by the prosecution, the statements made by the appellant under sections 340(2) and 342, Cr.P.C. and the statement of Mst. Asia D.W. I feel persuaded to agree with the learned counsel for the appellant. Abdul Majid and Abdul Aziz P.Ws. are casual witnesses. They do not reside near the place of occurrence. Abdul Majid is brother of the father-in-law of Muhammad Ajmal P.W. Abdul Aziz is maternal-uncle of the wife of Muhammad Ajmal P.W. So there is something to incline them towards the prosecution. There is also reasons to doubt that they, in fact, were present on the spot at the time of occurrence. They have stated in the cross-examination that they had not accompanied Muhammad Ajmal in injured condition, to hospital. Abdul Aziz and Noor Muhammad are closely related to him. Had they been present on the spot then in the natural course of events they would have accompanied him to the police station. Noor Muhammad is father of Muhammad Ajmal P.W. He is not an injured witness. There is no circumstantial guarantee of his presence on the spot. The motive alleged by him in the F.I.R. has been disbelieved by the trial Court for good reason. On the other hand, Muhammad Arshad has given evidence on oath in support of the plea taken by him in his statement under section 342, Cr.P.C. His sister Mst. Asia D.W.1 has supported him. Testing the prosecution evidence and defence evidence on the same standard, it can safely be said that the evidence produced by the parties is at least equally balanced and as such, the defence version has to be preferred and accepted. Furthermore, no implicit reliance on the prosecution evidence more particularly on the eye-witnesses can be placed. That being the situation, there is no option but to accept the statement of the appellant as a whole. His statement accepted as a whole, reveals commission of an offence punishable under section 308, P.P.C., and not section 307, P.P.C. For what has been said above, the appeal is partly allowed. The conviction and sentence of the appellant under section 307, P.P.C. is set aside. Instead he is convicted under section 308, P.P.C. and sentenced to 3 years' R.I. The appellant will get benefit of the provisions of section 382-B, CIY.C. The fine of Rs.5,000 is reduced to Rs.2,000, in default thereof he will suffer six months' R.I. The amount of compensation of Rs.10,000 is also reduced to Rs.3,000, in default thereof six months' S.I. The amount a of compensation, if recovered shall be paid to Muhammad Ajmal, injured P.W. s., N.H.Q./M-1831/L Appeal partly allowed.