' Briefly the prosecution case is that Ghulam Nabf complainant P.W.1 was returning home in the company of Ch. Bashir Ahmad P.W.2 and Hafiz Muhammad A hmad P.W.3 from Madrasa-Talim-ul- Islam at 6-00 p.m. On 4-3-1981. When they reached near the house of Abdul Rahim P.W.4, Munir Ahmad accused armed with .12 bore gun and his co-accused Munawar armed with .12 bore pistol, suddenly came in front of them and raised 'Lalkara' addressing Bashir Ahmad "be on guard" and simultaneously Munir fired a shot hitting Bashir Ahmad on his right thigh and his co-accused Munawar fired a shot from his pistol at Hafiz Muhammad Ahmad which hit his left knee. As a result of the gunshot injuries they fell down. On hearing the reports of the gunfires, Abdul Rahim P.W.4 and Wall Muhammad P.W. (not produced) came out of their houses and witnessed the occurrence.
' Some more persons also collected at the scene but a little later. Both the injured persons were removed to the hospital, immediately after accused persons decamped, with their respective weapons.
2. Dr. Ali Hassan, P.W.5 examined Bashir Ahmad P.W.2 at 6.30 p.m., the same day and observed 5 gunshot wounds on his person, vide medical report Exh.P.D. Out of these injuries, 2 were exit wounds and the rest were entry wounds. On the person of Hafiz Muhammad Ahmad P.W.3 the same doctor noted one gunshot wound on his left knee vide medical report Exh.P.F. Their injuries were X-Rayed but no body lesion was seen underneath. However, they were hospitalized at Civil Dispensary Chak No, 168-91, from 4-3-1981 to 18-3-1981. They also remained under treatment at District Headquarter Hospital, Sahiwal from 18-3-1981 to 26-3-1981, vide certificates Exhs.P.E. And P.G. Issued by Dr. Ali Hassan and Exh.P.H. And P.J. Purported to have been issued by Medical Superintendent, District Headquarter Hospital, Sahiwal.
3. Both the accused were arrested on 5-3-1981. Munir accused led to the recovery of gun P.3 from his house and Munawar got recovered pistol 'P.4 from his shop on 7-3-1981. These weapons were seized under memos. Exh.P.K. And Exh.P.L. Respectively, witnessed by Gul Sher P.W.6. After usual investigation challan against them was put in Court.
4. At the trial the prosecution in support of its case examined 4 eye-witnesses namely, Ghualm Nabi complainant P.W.1, Bashir Ahmad, the injured P.W.2, Hafiz Muhammad Ahmad another injured witness (P.W.3) and Abdul Rahim (P.W.4). It also relied on medical evidence furnished by P.W.5 Dr. Ali Hassan and incriminating recovery of weapons deposed to by Gul Sher P.W.6 and Ahmad Khan S.I. P.W.7.
5. The accused persons in their statements under section 342, Cr.P.C. Denied the allegation against them and professed innocence. They maintained' that the present case was concocted against them due to enmity and the witnesses had deposed against them because of their connection with. Bashir Ahmed P.W. Initially they expressed to produce defence evidence but ultimately they declined to do so.
6. The learned trial Court found the evidence of recovery of weapons as doubtful and discarded the same but believed the ocular evidence and the medical evidence, of course, for good and cogent reasons. On its strength the accused were convicted under section 307 read with section 34, P.P.e. As indicated above. Being aggrieved both the convicts namely, Munawar and Munir have challenged their conviction and sentence by filing separate appeals, Criminal Appeal No, 43 of 1982 and Criminal Appeal No, 70 of 1982, respectively, I propose to dispose of both the appeals by this single order as they arise out of the same impugndd judgment.
7. I have heard the learned counsel for the appellants as well as for the State and also perused the record with their assistance.
8. Learned counsel appearing on behalf of tile appellants have not challenge the correctness of the prosecution story. They have raised the solitary objection, that is, that accepting the facts of the case on its value an offence under section 324, P.P.C. Is made out and not an offence under section 307, P.P.C. As held by the learned trial Court. In this regard a reference has been made to the evidence of Dr.. Ali Hassan P.W.5 who stated that no fracture was detected underneath the injuries, therefore, they were simple in nature but they were declared as "grievous" because both the injured witnesses remained admitted in the hospital for over 20 days. In cross-examination the medical witness stated that he has been administering drugs of ordinary type to the injured persons during their stay in the hospital. He saw them moaning with pain but they used to take their meals and go to the bath room regularly. Their mental condition was normal and they were not anaemic.
Learned counsel argues that the evidence of doctor shows that both the injured witnesses stayed at the hospital voluntarily and not because they could not be treated out of the hospital. They were capable of following their normal pursuits and as such their case fell out of the definition of "grievous hurt" given in clause "eighthly" of section 320, P.P.C. Learned counsel further argues that if it is admitted that during the stay at Civil Dispensary Chak No, 168-9L the injured persons' remained in severe pain and were unable to pursue their normal daily routine, even then their injuries, could not be termed as "grievous hurt" because the period for which they had stayed there i.e, from 4-3- 1981 to 18-3-1981 falls short of the prescribed period of 20 days. According to him their admission in Civil Hospital, Sahiwal from 18-3-1981 to 26-3-1981 shown in certificates Exhs.P.J. And P.H. Cannot be counted and considered because these certificates have not peen proved as required under the law.
9. As against this, learned counsel appearing on behalf of the State argued that because the appellants had fired shots aiming at the P.Ws., therefore, it can be safely inferred that they intended to cause the death of Bashir Ahmed and Hafiz Muhammad Ahmed P.Ws. He also urged that certificates Exh.P.H. And P.J. Purported to have been issued by Medical Superintendent, D.H.Q.
Hospital, Sahiwal were admissible in evidence without formal proof because they were issued by a Gazetted Officer and were also exhibited and marked as such.
10. I have carefully considered the arguments addressed by the learned counsel for the parties. As for the admissibility of certificates Exh.P.H. And Exh.P.J. They could only be legally brougth on the record in the statement of the person, whose signatures appeared thereon. The statement contained therein could not be proved by a person other than its author, as contemplated by section 64 of Evidence A Act. These certificates having not been proved legally, were wrongly considered by the learned trial Court to hold that both the injured persons stayed in the hospital for over 20 days as indoor patients. Again no evidence is available to show that both the patients namely Bashir Ahmed and Hafiz Muhammad Ahmad P.Ws. Remained under constant bodily pain preventing them to follow their normal pursuits.
11. The contentions of the learned counsel for the State, that an accused firing a shot from his gun or pistol automatically fixes him with the knowledge that the person hit by the shot would be killed, is too sweeping to be accepted.
12. In view of the foregoing discussion, I find that the injuries both on the persons of Hafiz Muhammad Ahmad and Bashir Ahmed P.Ws. Are on the non-vital parts of their body; the injuries did not involve fracture of any bone underneath and the medical witness has not opined that these injuries were in any manner dangerous to life; and the period for which the witnesses remained admitted to the hospital is less than 20 days, therefore, the injuries in question do not attract the provision of section 307, P.P.C. Or 326, P.P.C. If it is admitted without conceding that the period of stay of injured witnesses at Sahiwal District Headquarter Hospital could be counted to make the admission in hospital beyond 20 days even then their injuries cannot be held as grievous because according to Dr. Ali Hassan the witnesses were not unable to follow their normal pursuits. It is well- settled by now that an accused should be punished for E what he actually did and not for what he might have done. It is not the thought of man which could be tried but the actual act and its consequences are actionable. I am, therefore, clearly of the view that the injuries suffered both by Bashir Ahmad and Hafiz Muhammad Ahmad, P.Ws. Are simple in nature and they are squarely covered by section 324, P.P.C.
13. As I have held that the injuries are simple in nature therefore, conviction of both the appellants under section 307/34, P.P.C. Is altered to one under section 324 read with section 34, P.P.C. And their sentence is also reduced from 7 years to 21 years and a fine of Rs,1,000 or to undergo 6 months' R.I.
In default of payment of fine. A further penalty of Rs,2,000 is imposed on each of them under section 544-A, Cr.P.C. Which shall be payable to both the injured F persons as compensation in equal shares. In default of payment of compensation the appellants would further undergo 3 months' R.I. Each. It is further directed that the period for which the appellants remained in jail during the trial shall be computed towards the sentences of imprisonment awarded to them, under section 382-B, Cr.P.C.
14. In the terms indicated above, both the appeals are partly accepted.