1986 PLP 1765 (MLD)

Muhammad Shahnawaz Khan for the State. Date of hearing: 12th March, 1986. Nasir Ali alias Shada (22) and Rahat Ali alias Jugnu (24) were tried for having murderously assaulted Muhammad Hanif. On 13‑2‑1984, Mr. Saadat Ali Chaudhary, Magistrate, Section 30, Lahore, convicted them under section 307/34, P.P.C. and sentenced Nasir Ali to 5 years R.I. with a fine of Rs.5,000 in default to undergo six months R.I. further. Rahat Ali was sentenced to two years R.I. with a fine of Rs.2,000 in default to undergo six months R.I. further. The appeal of the convicts is before me.

2. The motive for the crime according to the prosecution was previous enmity and litigation between the parties. On 13‑6‑1983 at about 6 p.m. Nasir Ali and Rahat Ali armed with revolvers went to the brick‑kiln of Hanif in the rickshaw of P.W. Abdul Khaliq. On reaching there Nasir Ali came out of the rickshaw and asked Hanif to supply bricks to the customers who were sitting in the rickshaw. When Hanif started proceeding towards the rickshaw, just then, from behind Nasir fired a revolver shot hitting .him in the loin near the 5th vertebra. Hanif fell. Rahat Ali also fired at him but missed. Firing in the air, the two accused fled away in the rickshaw. Besides the injured, the occurrence was witnessed by P.W.7 Muhammad Latif (informant), P.W.8 Muhammad Yaqoob and Nazeer (not produced). The injured was carried to the Mayo Hospital where he was examined by P.W.5 Br. Anwar Saeed on 13‑6‑1983 at 7‑30 p.m. who made the following observations: "The injury was a circular penetrating wound I x i c.m. with inverted margins, which was kept under observation." Information was sent to P.W.3 Muhammad Anwar, A.S.I., Police Station, Mughalpura who reached the Hayo Hospital at 8‑30 p.m. and recorded statement Exh.P.W.3/B of P.W.7 Latif because the injured was not fit to make a statement. The same day, formal F.I.R. Exh.P.W.3/'C was registered at Police Station, Mughalpura, situated at a distance of 4 k. m. from the place of occurrence.

3. On 19‑6‑1983 Nasir was arrested. On the following day, he led to the recovery of revolver P.3 and live cartridges P.4/1‑6 from the room of his Havefi which was taken into possession through memo. Exh.P.W.3/E attested by P.W.4 Muhammad Yusuf and P.W.6 Faqir Muhammad. On 21‑6‑1983 Rahat Ali was arrested. After completing the investigation, the accused were sent up for trial.

4. At the trial, Nasir Ali denied guilt and ascribed the case to enmity. He also denied the recovery. Admitting the occurrence, Rahat accused stated that he alone went to the brick‑kiln of Hanif and asked him to supply bricks but he showed his inability and asked him to buy it from elsewhere. An altercation took place. Hanif and his companions threw brick‑bats at him which hit him. He grappled with Hanif whose pistol fell from his pocket, which he picked up and as he was going to be mortally injured, he fired in self‑defence. In defence, no accused led evidence.

5. Disbelieving the defence version of Rahat Ali, relying on the evidence of the eye‑witnesses and that of the recovery of the revolver, trial Court came to the conclusion that the prosecution case was satisfactorily proved against them.

6. Criticizing the finding, learned counsel for the appellants contended that the ocular testimony was highly interested and that the version put up by Rahat was more plausible because the prosecution failed to put up any motive and the version of the accused was more logical. In reply, learned State counsel contended that the rickshaw driver P.W.9 Abdul Khaliq and P.W.8 Muhammad Yaqoob are not connected with the complainant and have no axe to grind against the appellants. They have fully supported the versions of Muhammad Hanif, injured and Latif, informant.

7. I have considered the submissions. The solitary injury in the back with a revolver is attributed to Nasir by the injured Hanif and it is supported by P.Ws Abdul Khaliq rickshaw‑driver and Muhammad Yaqoob and even Latif who admitted enmity with the accused. On the face of it, defence version does not appear to be true. Even otherwise, r it is unnatural because had Hanif been armed with a revolver, her would have used it if he wanted to attack. Further it would be highly improbable that the accused had come so close to Hanif that he grappled with him and the revolver fell from the pocket of Hanif. The moment the accused had come closer Hanif would have ripped out the revolver, had it been with him but this did not happen, it is manifestly obvious that he had no weapon with him. Undoubtedly P.W. Yaqoob is Hanif's partner but otherwise I find nothing against him so as to discard his evidence on this score alone. He has no motive to falsely rope in the appellant. The defence version of Rahat appears to be an afterthought. It has, therefore, rightly been disbelieved by the trial Court There is not a scratch on Rahat to support that he had been attacked. Had it been so, he would have got himself medically examined, but there is nothing on the record to show that he had been injured. Even if the evidence of Latif who admittedly is inimical is discarded, prosecution is left with the evidence of Abdul Khaliq rickshaw‑driver and the injured. I see no reason to disbelieve them. In so far as the attack is concerned, the case is overwhelming against the appellant. There is thus, no force in appeal.

8. With regard to sentence, no doubt prosecution has failed to prove the nature of previous enmity. A general statement that there was previous enmity remained unexplained. Had there been specific enmity it would have been mentioned in the F.I.R. or detailed at the trial which is lacking in this case. What transpired immediately before the occurrence thus remains a mystery. Under these circumstances, I am of the view that the sentence already undergone by the appellants would meet the ends of justice. Including the period of detention before Nasir's conviction, he has served almost nearly 3 years. The sentence of fine of Nisar is reduced to Rs.2,500 in default to undergo six months R.I. Sentence of fine of Rahat is also reduced to Rs.1,000 in default to 3 months R.I. S.A. Order accordingly.