P L D 1994 Lahore 344 (PLP)

MUHAMMAD AMIR MALIK, J: ‑‑Shahbaz Ahmad and Muhammad Arshad appellants were tried, convicted and sentenced as under by the Special Court (Suppression of Terrorist) Activities, Gujranwala Division, Gujranwala vide judgment dated 27‑5‑1992: (i) .Under section 324/34, Part I, P.P C. read with section 337‑A(i), Qisas and Diyyat Ordinance for causing Shajjah Khafifa to 8 years' R.I. each and a fine of Rs.10,000 each or in default thereof six months' R.I. each. Under section 324/34, Part II, P.P.C. read with section 337‑F (iii) Qisas and Diyyat Ordinance to one year's R.I. each and to pay Daman of Rs.10,000 each to Basharat P.W. The convicts have appealed.

2. The occurrence took place at 8‑00 p.m. on 2‑6‑1991. Razzak Ahmad, complainant (P.W. (2) moved a written application (Ex.PB) at the police station on the next day at 4‑00 p.m. and on its basis Muhammad lqbal Moharrar A.S.I. (PW.6) recorded the formal F.I.R. (Ex.PB/1).

3. The version given was that on 2‑6‑1991 at 8‑00 p.m. Razzak complainant alongwith Basharat (P.W3), Afzal and Ch. Shahbaz Ahmad were present at the Dera and a bulb was on. They were just gossiping. At once Shahbaz Ahmad and Arshad appellants respectively armed with a Klashnikov and .12 bore gun reached and raised Lalkara that they had come to take revenge of the murder of Ghulam Rasool. They started firing. The shot fired by Shahbaz hit Basharat P.W. and the shot of Arshad also hit Basharat. He fell down and thinking that he had died the appellants left.

4. The motive given was that about 15 years before the occurrence Shahbaz Ahmad, P.W. had murdered the father of Shahbaz appellant, case was registered but the accused was acquitted.

5. The appellants at the close of the trial pleaded that they had been falsely involved due to enmity and some unknown persons had caused injuries to Basharat P.W. in the darkness.

6. Dr. Sajjad Nabi (P:W.1) medically examined Basharat P.W. on 2‑6‑1991 at 11‑00 p.m. He was having 7 fire‑arm injuries. Some were kept under observation and advised X‑ray. ^All were later on declared simple.

7. Razzak Ahmad complainant and Basharat (P.Ws. 2 and 3) .gave the eye‑witness account of the occurrence. Faiz Ahmad Cheema (P.W.4) stated about the recovery of two bullets which were extracted from the wall from the Dera of Shahbaz, one empty cartridge from the courtyard (P.1, P.2 & P3) which were secured vide memo. (Exh.PC). Arshad Munir (P.W. 5) stated about the recovery of Klashnikov at the instance of Shahbaz appellant on 3‑81991 from his house with magazine and 8 live bullets (P.6/1‑8), the memo. is (Exh.PD). He told in cross‑examination that the accused and the complainant party were from his brotherhood and were inimical to each other. Shaukat Ali, A.S.I. (P.W.8) has also stated about the recovery of bullets and cartridge (P.1, P.2 & P.3) from the wall and the courtyard. Muhammad Amin, Inspector (P.W.9) investigated the case. He arrested Arshad accused on 28‑8‑1991 and before that he had initiated proceedings under section 87, Cr.P.C. for his arrest as he was not traceable.

8. Basharat Ahmad, P. W. is injured and he along with Razzak have supported the case. Basharat was soon medically examined by the doctor.

9. Learned counsel for the appellants contended that the witnesses were inimical and so could not be believed unless corroborated. Ho‑also pointed out that the FIR was delayed. After hearing the learned counsel for the State who supported the judgment and going through the record the occurrence and the participation of the appellants seems to be proved. The injured witness was soon carried to the hospital and medically examined. As it was 11‑00 p.m. i.e. night time and there were fire‑arm injuries to Basharat, so the family took time to report the matter to the police. The delay in lodging the FIR does not seem to have been utilised for concocting the case. The injuries on the person of Basharat are by fire‑arm and on the upper part of the body and so one cannot say that these would have been self‑suffered. The appellants have taken the stand that somebody in the darkness of night fired at Basharat but there is nothing on the record to indicate that Basharat or his family had enmity or illwill in the village or near about with some other people as well. Arshad was not traceable as per statement of the investigator, was arrested later on after the proceedings under section 87, Cr.P.C. had been initiated. The contention is, therefore, rejected.

10. The result is that the conviction recorded against the appellants is upheld for having caused injuries to Basharat P.W. We have, however, noticed that very fluid language has been used in section 324, P.P.C. The heading given in the margin is "Attempt to commit Qatl‑i‑Amd". The section runs: "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‑i‑Amd, shall be punished with imprisonment of either description for a term which may extend to ten years; ‑‑and if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused: ‑". The attempt at Qatl‑i‑Amd is equated to actual Qatl‑i‑Amd which has been defined in section 300, P.P.C. and for which sentence has been provided in section 302, P.P.C. How the legislature in its wisdom has equated the attempt at Qatl‑i‑Amd with actual Qatl‑i‑Amd? is very hard to understand. Not only this but something more. For attempt at Qatl which has been equated to Qatl‑i‑Amd in opening part of section 324, P.P.C. if hurt is caused, the offender is to be liable for punishment provided for the hurt caused, meaning thereby that if no hurt is caused, the sentence is up to ten years with fine but if some hurt is actually caused covered by sections 337‑A and 337‑F, the sentence is to be much less. There seems to be no logic or coherence in the two provisions. We hope that the Ministry of Justice, Law and Parliamentary Affairs, Government of Pakistan, would have a second look as to the provisions of the Code referred to above and streamline the law.

11. The upshot is that the conviction under section 324, P.P.C. read with sections 337‑A and 337‑F, P.P.C. is maintained with a sentence of three years' R.I. and a fine of Rs.1,000 or in default thereof four months' R.I. each. They would have the benefit of the provisions of section 382‑B, Cr.P.C. The appeal, therefore, is dismissed. N.H.Q/S‑446/L Sentence reduced