Muzaffar, Muhammad Shafi, Muhammad Yousuf and Khan Muhammad were convicted on 3rd July, 1973, by A. C./Magistrate Section 30, Sargodha, under section 326 ,34, P. P. C. And each of them was sentenced to undergo rigorous imprisonment for four years and a fine of Rs. 1,000 (one thousand) or in default to undergo further rigorous imprisonment for one year. It was ordered that in case of realization of fine, Rupees two thousand shall be paid to Umar Draz (P. W.) by way of compensation.
The petitioners filed an appeal, which was dismissed by the learned Sessions Judge on 24th September, 1974. Feeling aggrieved of the judgments of the two Courts below, Muzaffar, etc. Had filed the present revision petition.
2. The case was registered at Police Station City Sargodha, on 26th October, 1970 on the statement of Umar Draz (P. W.), which he made before Muhammad Ishaq; Head Constable, on 26th October, 1970 at 5-30 p.m. In Civil Hospital. Umar Draz disclosed in that statement that on that day at about 4-30 p.m. Muzaffar armed with .12 bore gun, Khan Muhammad with hatchet, Muhammad Yousuf and Muhammad Shafi with hockey-sticks attacked him in the lane of Block No. 7, Sargodha, that Muzaffar fired gunshot at him, which hit him on the left arm ; that the accused threw challenge before attack that they would avenge the murder of their brother ; that the occurrence was witnessed by Khan Muhammad, Ghulam Muhammad and Allah Bakhsh.
3. Umar Draz was medically examined on 26th October, 1970, at 4-30 p.m. The Doctor found a fire- arm wound on the left upper arm and left elbow. This injury was grievous in nature. There was an abrasion on front of the left knee.
4. The prosecution examined seven witnesses in support of the case. Ch. Khurshid Alam, S. H. O.
Was examined as Court witness. The petitioner did not lead any evidence in defence.
5. Learned counsel for the petitioners contended that the prosecu--tion evidence was highly interested and it could not be relied upon without independent corroboration ; that the interested ocular evidence was not corroborated by any other independent evidence , thax no part had been attributed to Muhammad Shafi, Muhammad Yousuf and Khan Muhammad petitioners and the trial Court as well as the appellate Court erred in law in recording the judgment of conviction against them. It was also pointed out by the learned counsel for the petitioner that Muzaffar petitioner had already served his imprisonment.
6. Record has been checked, This Court had issued notice to Muzaffar petitioner to show cause as to why his sentence should not be enhanced. Umar Draz also filed revision petition bearing No. 797 of 1974, for the enhancement of sentence. Since notice for enhancement was issued suo motu by this Court, the revision petition was ordered to be put up alongwith revision petition filed by the petitioner.
7. It is true that Muzaffar petitioner was armed with a gun and he had fired shot at Umar Draz causing him injury on the left upper arm and left elbow. It was stated by the Doctor that the arm of Umar Draz had to be amputated from near the shoulder. The Doctor did not mention anywhere in his statement that arm had to be amputated on account of gun-fire injury. No evidence was produced as to who had amputated the arm and on which date and for whet reason. Without positive evidence that the arm had been amputated on account of gun shot injury the responsibility of that could not be put on Muzaffat petitioner. The prosecution was quite negligent in prosecuting the case and in bringing on record the material evidence pertaining to the amputa-- tion of the arm of Umar Draz. The occurrence had taken place it October, 1970. A period of more than ten years has already elapsed. The sentence of Mazaffar petitioner was not suspended and he has already served his imprisonment. Taking all these circumstances into consideration. I do not consider it a fit case for enhancement of the sentence of Muzaffar petitioner. The statement of Umar Draz complainant was corroborated by Ghulam Muhammad, Allah Bakhsh and Khan Muhammad. It is true that Ghulam Muhammad and Allah Bakhsh petitioners were closely relatea to Umar Draz complainant but Khan Muhammad (P. W.) was a disinter--ested witness. He had no motive- against Muzaffar to make false statement. Muhammad Shafi and Muhammad Yousuf were armed with sticks and Khan Muhammad with hatchet. They had not inflicted even a single blow to Umar Draz (P. W). In the context of this piece of evidence, it is to be considered as to whether or not they shared the common intention with Muzaffar co-accused and were vicariously liable. Umar Draz complainant on the receipt of fire-.Shot-fell down. He had not run away from the spot. Muhammad Shall, Muhammad Yousuf and Khan Muhammad petitioner) had ample opportunity to inflict blows to Umar Draz complainant. The --fact leans against proposition that they shared common intention with B Muzaffar co-accused. The case against Muhammad Shafi, Muhammad Yousuf and Khan Muhammad was not free from doubt. Their revision petition is accepted and they are acquitted of the charge. They are ot--bail and are discharged of their bail bonds.
8. The revision petition filed by Muzaffar petitioner stands dismissed.
Notice for the enhancement of the sentence of Muzaffar is discharged and consequently, the revision petition filed by. Umar Draz for the enhancement of sentence is dismissed.