JUDGMENT MIAN FASIH-UL-MULK, J.---Appellant Muhammad Taj was tried by learned Sessions Judge-I, Mansehra on charge under sections 324/336, P.P.C. And having found guilty was convicted and sentenced to suffer eight years' imprisonment with a fine of Rs.20,000 under section 324, P.P.C.
And sentenced to PLD 1977 Kar. 726; PLD 1964 pay Rs.2,35,085.50 as Arsh i.e. One half of (W.P.) Kar.
264; 1993 PCr.LJ 1760; 2010 diyat money under section 336, P.P.C. SCMR 1009; 2002 YLR 908; PLJ 2008 Benefit of section 382-B, Cr.P.C. Was, Cr.C. Lahore 279(sic); 1998 and 1999 SCMR 2783 ref. MLD 1400 however, extended to the appellant.
2. Facts of the prosecution case are that on 1-6-2006 at 1625 hours the complainant made report to Hakim Khan A.S.-I. In emergency ward of Civil Hospital Mansehra that on eventful day at 3-00 hours he was proceeding to doctor in the company of his were and when reached near culvert at Maswal road, the accused suddenly appeared with loaded pistol and alarmed him that he will decide about the complainant and hit the victim on left biceps, as a result the complainant fell on the ground. On hue and cry of his were, Arif and many other people attracted and brought him to hospital. The motive of occurrence was stat ed land dispute.
3. After completion of investigation complete challan was put in court, whereafter trial commenced. Initially, appellant was indicted under section 324/337-F(i.e), P.P.C. But later on charge was altered and section 336, P.P.C., was inserted in place of section 337-F(III), P.P.C., in view of observations made by this Court in Criminal Miscellaneous No.254 of 2007 decided on 27-3- 2007. The charge was amended accordingly. Prosecution in support of its case examined eight witnesses whereafter the appellant was examined under section 342, Cr.P.C. On assessment of evidence, the appellant was found guilty and was convicted and sentenced as mentioned above.
4. Learned counsel for the appellant contended that evidence produced before the learned trial Court did not justify conviction of appellant as the prosecution case is replete with glaring doubts and charge against the appellant cannot be held proved as per requirements of law. It was further argued that prosecution has not been able to examine even a single disinterested witness from the locality in support of its case. Learned counsel further argued that as single shot has been attributed to the appellant and complainant sustained simple injury on non-vital part of the body, therefore, the conviction and sentence was not justified. It was further argued that initially accused was charged under section 337-F(i.e), P.P.C. But was subsequently wrongly charged under section 336, P.P.C. Which section of law in the circumstances was not applicable. Learned counsel concluded that prosecution has failed to prove its case beyond reasonable doubt and instead of extending benefit of doubt, the learned court has stretched the case in favour of prosecution.
Learned counsel prayed for outright acquittal, however, in the alternate offered that the appellant is ready to pay Rs.50,000 as Daman, if the court holds otherwise. Reliance was placed on PLD 1977 Karachi 726, PLD 1964 (W.P.) Karachi 264, 1993 PCr.LJ 1760 and 2010 SCMR 1009.
5. On the contrary, learned State Counsel assisted by counsel for the complainant argued that the trial Court has rightly convicted and sentenced the appellant. Reliance was placed on 2002 YLR 908; PLJ 2008 Cr.C. Lahore 279(sic), 1998 MLD 1400 and 1999 SCMR 2783.
6. I have heard the learned counsel for the appellant and State counsel assisted by learned counsel for the complainant at length and has perused the record.
7. Admittedly, the appellant has been charged for inflicting single shot, which resulted into causing of simple injury, on muscle of upper arm and bone was not found damaged or visible. If the appellant had the intention to kill the complainant from a short distance he would have aimed at the complainant on his head, neck or chest i.e. Vital parts of the body than muscle of upper arm. As the appellant has not repeated the shot, therefore, his intention to kill is not apparent on the face of record. I have carefully gone through the judgments cited by learned counsel for the parties. In the case of Muhammad Umar v. Mir Arif alias Qadri 2002 YLR 908 his Lordship has held "that two real brothers, complainant injured P.W. And other real brothers have been produced but they cannot be termed as interested witnesses because definition of interested witness is that he is not only related to complainant or deceased but he should also be inimical towards accused person which fact is not present. There was not an iota of evidence on record that present appellant had any will or hostility against respondent accused".
In the case in hand the eyewitnesses are the complainant and his were, who had admittedly having a land dispute and the parties were .Hostile towards each other.
In the case of Muhammad Yasin v. Manzoor Ahmed 2007 MLD 1420 his Lordship has held that "if charge was not framed in the case under section 324, P.P.C. But facts and circumstances of the case transpire that the provision of law was fully attracted, so judicial notice was being taken in such regard".
The facts and circumstances of this case and reported cases in 1998 MLD 1400 and 1999 SCMR 2783 are altogether different, therefore, would hardly strengthen the case of prosecution against appellant.
In the case of Muhib and another v. State (PLD 1977 Karachi 726), it has been held that "the essence of offence under section 307, P.P.C. Is the doing of an act which by itself must be ordinarily sufficient to cause death and the presence of the necessary intention or knowledge that death should be caused by the act. The burden of intention could be proved by inference from the circumstances. It has been further held that thought of man not triable. Intention to be gathered or inferred only from external acts. Accused to be punished for what he actually has done and not for what he might have done".
In the case of Dhani Bux v. State (PLD 1964 W.P. Kar: 264), it has been held that "mere fact that pistol was fired by accused, not sufficient to infer that intention was to kill in circumstances of case.
Injuries inflicted by accused simple in nature. Conviction under section 307 altered to one under Section 324, P.P.C".
In the case of Iftikhar alias Kala and another v. The State (1993 PCr.LJ 1760), it has been held that "victim had received five stab wounds involving cutting and incising the flesh without exposing any bone and without extending to the body cavity of the trunk which was punishable under section 337-F(II), P.P.C. Fire-arm injuries suffered by the victim fell within the purview of sub-clause (i.e) of section 337-F, P.P.C. Conviction and sentence of the accused under section 324/34, P.P.C., were consequently set-aside and instead they were convicted under sections 337-F(II)/34, P.P.C. And 337-F(i.e)/34, P.P.C. And sentenced accordingly".
In the case of Muhammad Shah v. The State (2010 SCMR 1009) their Lordship while elaborating principle of appreciation of evidence have held that when two interpretations of evidence are possible, one favouring the accused and the other favouring the prosecution, then the one favourable to the accused is required to be taken into consideration.
Keeping in view the principle laid down in the aforementioned judgments and in the facts and circumstances of the case, I am convinced that the charge under section 324, P.P.C. Was not proved beyond reasonable doubt and, therefore, while granting benefit of doubt, the appellant is acquitted of the charge under section 324, P.P.C.
8. The complainant had allegedly produced a medical certificate before this court at the time of hearing of bail petition of appellant in Criminal Miscellaneous No.254 of 2007 decided on 27-3-2007 and it was observed therein as under:- "However, I am of the view that it was not a simple case of section 337-F(i.e) rather, in view of the certificate produced by the complainant. Apparently, his left arm has been incapacitated due to the said fire-arm injury which amounted to Atlaf-e-Salahiyat-e-Udw. So instead of section 337F(i.e) the proper section applicable to his case shall be section 335 read with section 336 of the P.P.C. For which Arsh is payable."
9. Keeping in view the above findings, the learned trial Court amended the charge and inserted section 336, P.P.C. For convenience section 336, P.P.C. Is reproduced as under:-- "336. Punishment for Itlaf-i-Salahiyyat-I-Udw,--Whoever, by doing any act with the intention of causing hurt to any person, or with the knowledge that he is likely to cause hurt to any person, cause Itlaf-i-Salahiyyat-i-Udw, of any person, shall, in consultation with the authorized medical officer, be punished with Qisas and if the qisas is not executable keeping in view the principles of equality in accordance with the Injunctions of Islam, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as Tazir".
At trial, the prosecution did not produce an iota of evidence regarding Atlaf-e-Salahiyat-e-Udw and rather did not bother to either produce or exhibit the so-called medical certificate in support of its evidence. On the contrary at the trial, the doctor negated this version and no question from prosecution side was put to him regarding Atlaf-e-Salahiyat-e-Udw of complainant. Therefore, in absence of any proof the impugned conviction passed under section 336, P.P.C. Is liable to be set- aside.
10. However, as the occurrence took place in a broad day light and appellant has extended fire shot on upper muscle of the arm of complainant and although the injury is simple one. The offence would be covered under section 337-F(i.e) P.P.C., the punishment prescribed therefor is that the culprit would be liable to Daman and may also be punished with imprisonment of either description of a term which may extend to three years as Tazir. The value of Daman may be determined by the court keeping in view (a) the expenses incurred on the treatment of victim, (b) loss or disability caused in the functioning or power of any organ, and (c) the compensation for the anguish suffered by the victim. The prosecution has neither brought on record any certificate of expenses incurred on the treatment of victim nor any certificate showing loss or disability caused in the functioning or power of any organ to enable the court for determining the value of Daman but in view of the alternate prayer and offer of learned counsel for appellant, it would be just and proper to direct the appellant to pay Rs.50,000 as Daman, the compensation for the anguish suffered by the victim.
11. Consequently, this appeal is partially allowed. The conviction and sentence recorded under sections 324/336, P.P.C. Are hereby set-aside and appellant is acquitted of the charges. The appellant is convicted and sentenced under section 337-F(i.e), P.P.C. To the imprisonment already undergone. However, he is directed to pay Rs.50,000 as Daman to the complainant.