1. SHAFIUR RAHMAN, J.-Leave to appeal was granted to Sitam Khan convict to examine whether his conviction under section 307, P. P. C. Was not upheld by the High Court of Peshawar by its judgment dated 13th of March, 1975 on "clear misreading of evidence".
2. On the 15th of January, 1973 at about digerwela Aziz Khan (P. W. 1), Ghazi Khan (P. W. 2) and one Mir Rahman (not produced) were sitting on the boundary of the field of Babu Miran Jan in village Kotka Abizar Dakhli Sarwar Fatehkel in district Bannu and they were all unarmed. Sitam Khan appellant armed with a shot-gun and Mumtaz co-accused armed with a rifle happened to come there. They also sat there. Mumtaz asked for and obtained the gold ring of Ghazi Khan and put it in his finger.
3. When Ghazi Khan demanded it back Mumtaz refused. There was an altercation over it. Aziz joined the altercation. In the meantime Muhammad Ghulam and his two sons Muhammad Usman and Muhammad Noman all three armed with guns appeared on the scene. Sitam Khan fired a shot at Aziz (P. W. 1) which proved ineffective. Then Mumtaz Khan the co-accused fired a shot at Aziz hitting him on the head. Aziz fell on the ground. Muhammad Ghulam called out to his sons to fire at Aziz on which Muhammad Usman fired at Aziz but missed him. Ghazi Khan was given a butt blow by Mumtaz Khan on the head. Thereafter, the appellant and his companion disappeared from the scene. A cot was brought from the village and Aziz Khan (P. W. 1) lodged a report at P. S. City Bannu whereupon a case was registered at Police Station Munda. Dr. Muhammad Kamal Khan examined Aziz Khan the same day and reported the following two injuries both being caused with fire-arms on his person :-- "1. A scalp deep grazed wound 3' x f at the right side of head 2' above the right ear. The skull bone in the middle of wound had been hit by projectile and a small depression 1/16" x 1/16' had been made in it.
2. There were some foreign particles in the right .Eye and there was blood in the anterior chamber of right eye."
4. GhaziKhan virus also examined the same day and an abrasion 1/8' x 1/8" at the back of right ear caused by blunt means was found. These two injured witnesses alone appeared as eye-witnesses of the occurrence. The recoveries particularly of the '12 bore empty was not proved in support of the prosecution case. 'The accused including the appellant denied their participation in the occurrence and alleged false implication on account of enmity.
5. The appellant produced a witness m defence.
6. The trial Court (Additional District Magistrate, Bannu) held the offence under sections 382 and 307, P. P. C. Proved against the appellant and Mumtaz and convicted both of them under sections 382/34 and 307/34, P. P. C. As regards the three other accused the evidence was found to be interested with no reliable corroboration in support of it. They were given the benefit of doubt and acquitted.
7. On a joint appeal filed by the appellant and Mumtaz Khan the High Court converted the conviction of Mumtaz Khan from one under section 307/34, P. P. C. To one under section 323, P. P. C. And awarded the imprisonment already undergone. As regards the appellant his appeal against conviction and sentence under section 307, P. P. C. Was maintained on the assumption that "Sitarn Khan appellant used the rifle and hit Aziz Khan on the right side of his head effectively". There was found to be no pre-concert between the appellant and Ghazi Khan and the abrasion on the person of Ghazi Khan was found to be more likely in the process of grappling than by the butt end. The conviction of both under section 382 was set aside, for it was held difficult "to believe that an offence under B section 382 at all" had been committed.
8. The acquittal of Mumtaz Khan under section 307, P. P. C. And the conviction of the appellant under section 307, P. P. C. By the High Court was clearly on a misreading of the evidence. Sitam Khan was convicted as he was taken to have fired the effective shot on Aziz (P. W. 1). Mumtaz was acquitted because he was found not to have fired at all at Aziz and the injury which was attributed to him, that is, an injury on the head of Ghazi Khan by the butt of the gun was held to be injury received by Ghazi Khan in the grappling. The learned Chief Justice while narrating the facts of the case reproduced the prosecution case in the following words- "An altercation ensued. Sitam Khan, appellant, fired a shot and this shot hit Aziz Khan (P. W.).
9. Mumtaz Khan. Appellant, also fired a shot at Aziz Khan but he was not hit. When Aziz Khan fell to the ground Muhammad Usman, the acquitted accused, fired a shot at him but he was not hit. It is said that when Ghazi Khan demanded the ring, Mumtaz Khan, appellant, gave him a butt-end blow instead."
10. "It is, therefore, perfectly understandable that when Mumtaz Khan, appellant refused to hand over the ring Aziz Khan joined him and then there was an altercation in which Sitam Khan, appellant, used rifle and hit Aziz Khan on the right side of his bead, effectively. The mere fact that Ghazi Khan only got an abrasion 1 /8` X 1/8' on the back of the right ear would show that there was no pre- concert, and that the injury to him was probably due to the grappling which he had with Mumtaz Khan, appellant.
8. On the view of the matter that I take it is difficult for me to believe that an offence under section 382 at all has been committed. Every person was responsible for his individual act and since Sitam Khan, appellant, fired effectively at Aziz Khan (P. W.), he should suffer for the consequences of his action. Mumtaz Khan, appellant, can only be held responsible for the simple injury to Ghazi Khan (P.
11. W.) and his liability cannot be extended to anything beyond that."
12. A reference to the evidence of the two eye-witnesses would show that Aziz Khan himself stated as follows - "At this an altercation started. Sitam Khan accused fired a shot and then Mumtaz Khan fired a shot at me. I was not hit with the shot of Sitam. However I was. Injured with the fire-shot of Mumtaz Khan on the right side of my head. I fell to the ground. In the meanwhile when I was on the ground Muhammad Usman accused fired a shot at me but I was not hit."
13. Ghazi Khan (P. W. 2) stated as follows- "I had a finger ring of gold which I gave to Mumtaz Khan on his request. I demanded back that ring from him but he refused. He gave me a butt end blow instead. Aziz Khan P. W. Also told Mumtaz to return the ring. Sitam accused fired at my brother ineffectively. Mumtaz Khan fired at him with his '303 bore rifle (11 shot) which hit my brother Aziz Khan. Sitam had a shot-gun. In the meanwhile I heard Muhammad Ghulam accused ordering Muhammad Usinan accused to fire. Muhammad Usman, Muhammad Ghulam and Noman were standing about 40 paces away from us armed with shot-guns. Muhammad Usman fired ineffectively at us a shot."
14. It is clear from this reproduction of the evidence of the two eye-witnesses that Mumtaz and Mumtaz alone was accused of having fired effectively at Aziz Khan (P. W. 1). In attributing and assigning this shot to Sitam Khan appellant, the learned Chief Justice had clearly misread the evidence.
15. As regards the criminality of the act of the appellant for which he could still be held guilty one has to notice that the trial Court did not record a D positive finding with regard to ineffective firing by him. In the evidence two ineffective shots were attributed-one to. Sitam Khan appellant and the other to Muhammad Usman. The trial Court arrived at the common intention of Mumtaz and Sitam appellant by holding as follows- "The motive for commission of the offence was extorting gold ring which Sitam Khan had snatched away from Ghazi Khan P. W. And be his brother Aziz Khan were not going to part with. Mumtaz Khan accused would not surrender it to them and had to use his rifle to settle it in his favour. The extortion thus transcended to an attempt at the life of Aziz Khan. Both Ghazi Khan and Aziz Khan were empty handed. The common intention of these two accused to snatch the ring and retain it by force was thus accomplished. Aziz Khan was hit on his head by a bullet fired by Mumtaz Khan.
16. He remained in hospital for one month and 12 days and thus barely escaped death. The charge under section 307/34, P. P. C. Against both the accused has been proved both from ocular and circumstantial evidence."
17. The High Court believed in the firing of only one effective shot an mistakenly attributed it to Sitam Khan. In this manner if the misreading in the record is corrected we have no finding either of the trial Court or o High Court upholding as proved the ineffective firing by the appellant Sitam Khan on Aziz (P. W. 1). In the circumstances while accepting the appeal we set aside the conviction and sentence of the appellant under section 307, P. P. C. But for this misreading Mumtaz co-accused of the appellant would not have earned his acquittal under section 307 on the findings recorded by the High Court. The appellant shall be released forthwith unless his detention is required in some other case.