' Appellants Muhammad Ali (20) and Zahura (23) have filed appeal against the order, dated 12th September, 1982 of Mag'strate Section 30, Faisalabad whereby the learned Magistrate convicted the appellants under section 307/34, P. P. C. For having launched murderous assault on Sanatta P.
W.
4. They have been sentenced to undergo 5 years' R. I. Each and to pay a fine of Rs, 5,000 each, in default whereof to undergo 6 months' R.
1. Each. Half of the fine, on recovery, has been directed to be paid as compensation to Sanatta injured P. W.
2. Briefly, the prosecution case is that two persons had gone to the Behak of Sanatta P. W. 4 for committing theft but as Sanatta P. W. 4 woke up and challenged them, they started running. He pursued the culprits, accompanied by Dault and Ahmad P. Ws. They were able to catch one of them. The other thereupon fired a shot which hit Sanatta P. W. As a result of which one of his arms was broken. The first information report was lodged on the statement of Sanatta P. W., wherein he gave full particulars of the two culprits.
3. During investigation Jahan Khan P. W. 5 also appeared before the police and disclosed the names of the appellants whom he had identified at the time of occurrence.
' The appellants were arrested. After the completion of necessary investigation, challan under section 307/34 of Pakistan Penal Code was submitted against them.
4. At the trial, Daulat Ali P. W. 1, Ahmad P. W. 2 and Bakhsha P. W. 3 did not support the prosecution case. They were declared hostile, were allowed to be cross-examined by the learned Public Prosecutor but nothing tangible was brought out.
5. The eye-witness account has been furnished by Sanatta P. W. 4 and his brother Jahan Khan P. W.
5. Jahan Khan P. W. 5 has stated that having heard the noise which was raised by Sanatta etc., he ran towards him. He heard the noise of a fire shot, whereafter he saw the appellants while coming towards his side, running. He identified them as Muhammad Ali and Zahura. Sanatta complainant while making statement, pointed towards Muhammad Ali and stated that he alongwith others had caught him, while pointing towards Zahura stated that he had fired the shot. He also showed his broken arm regarding which the trial Court has made a note. Sanatta P. W. Has been thoroughly crossexamined. He has stated that he identified the appellants later, on the basis of detailed identification marks which he had given in the first information report and that he had observed the appellants closely and so he was in a position to give the details of identification. He has been cross-examined regarding the features of the Sub-Inspector who investigated the case in order to test his capability of noting the features. No previous enmity or has been brought on record. The only suggestion put to Sanatta that Zahura party had got a case of injuries registred against them 6-7 years ago, has been denied by him. He has also denied that some case was registered against Mohabbat and Salabat etc. For injuries suffered by Sajjada and that Bakhsha P. W. 3 was a witness in that case. It has not been asked as to who was the complainant, nothing has been asked as to in what connection Mohabbat and Salabat had been involved. Nothing concrete to prove any enmity or has been brought on record. P. W. 5 Jahan Khan has not even been suggested anything.
6. The doctor who had examined Sanatta P. W. Had found that Sanatta had suffered 5 fire-arm injuries which included exit wounds also.
7. Learned counsel for the appellants has contended that the independent witnesses have not supported the case of the prosecution and that the eye-witness account is furnished by two real brothers only, one of whom, who is the complainant, who had not given the names of the appellant's at the time of registration of the case, and since no identification parade was held, it can be assumed that he learnt the names of the appellants later. He has laid stress on the fact that there is no corroboration of the eye-witness account. In the case of Muhammad Ali appellant he has vehemently argued that he cannot be held liable in any case for the reason that neither he had fired any shot nor had instigated his co-accused, either by raising a lalkara or by calling for assistance to be released. Lastly, it is contended that the sentence is severe as no pre-meditation has been alleged.
8. Learned counsel for the State has defended the judgment of the learned lower Court and has argued that no enmity worth the name has been brought on record and that there is no reason to disbelieve the complainant and the other eye-witness.
9. I have considered the arguments of the learned counsel for the parties and have gone through the record. It is correct that except the statements of Sanatta P. W. 4 and Jahan Khan P. W. 5, there is no -other incriminating evidence, but the fact remains that the complainant party have come up without any bias. Had there been any previous enmity or the complainant would have got the case registered by name. H gave a detailed account of identification of the two culprits, which was never controverted during the trial. No question has been put nor any sugsestion has been made that the identification marks given by the complainant in the F. I. R. Did not connect the appellants. Jahan Khan P. W. 5 the other eye-witness who had given the names of the appellants during the investigation when he appeared before the Police for the first time, had not been asked any question that he had any animosity with any of the appellants. The fact of Sanatta P. W. 4 and Jahan Khan P. W. 5 being real brothers is no ground to discard their evidence keeping in view the fact that they had no bias. In the circumstances, I find no merit in the B contentions raised by the learned counsel for the appellants for discarding the statements of these two witnesses. However, there seems to be weight. In the argument of the learned counsel for the appellants regarding criminal liability of Muhammad Ali appellant. He has not been tried for having committed any trespass. There is no allegation that he had committed any theft, all that is stated, is that he accompanied by the other, had come for theft. There is no evidence that he had instigated his co- accused to c fire at the complainant or even had prompted him to act in any such manner to get his release effected. In the circumstances mere fact of his having been seen in the company of his co. Appellant Zahura cannot be equated with having committed an offence under section 307, P. P.
C. No D case of common intention appears to have been made for commission of offence under section 307, P. P. C. It is apparent from the evidence that the act of firing which resulted in injuries to the complainant, was an independent act of Zahura appellant.
' In the circumstances, it is doubtful whether Muhammad Ali can be held responsible for having common intention of launching murderous assault. He is, therefore, given the benefit of doubt and is acquitted. He shall be released forthwith if not required in any other case.
' So far as the case of Zahura appellant is concerned, there is reliable evidence against him, of having fired, at the complainant. He was identified at the spot, his action of firing at the complainant finds corroboration from the medical evidence. His conviction is, therefore, maintained, but keeping in view the fact that there was no previous enmity and the assault F was not a pre-meditated one, his sentence of imprisonment is reduced to three years' R. I. The sentence of fine is. However, maintained, Whole of the fine, on recovery, shall be paid as compensation to Sanatta complainant. He shall also be given the benefit of the provisions of section 382-B, Cr. P. C.