' The appellants Shah Charm and Shah Sawar were tried by the learned Judicial Magistrate at Chunian on the charge under section 307/34, P.P.C. For having caused murderous assault on Chiragh Din. Vide judgment, dated 29th of March, 1986, the learned trial Magistrate found both the appellants guilty on the aforesaid charge, and the appellant Shah Behram was convicted and sentenced to undergo rigorous imprisonment for a term of five years, and to pay fine of Rupees five thousand, or in default thereof, to suffer rigorous imprisonment for one year. Appellant Shah Sawar was convicted and sentenced to undergo rigorous imprisonment for one year, and to pay fine of Rupees two thousand, or in default, to suffer rigorous imprisonment for a term of six months.
Appellant Shah Behram was also convicted under section 13 of the Arms Ordinance, and it was ordered, that the sentence under the aforesaid Ordinance and that of section 307/34, P.P.C. Shall run concurrently.
2. Aggrieved by the aforesaid conviction and sentences, the appellant Shah Behram has filed Criminal Appeal No,357 of 1986, while appellant Shah Sawar has also filed Criminal Appeal No, 697 of 1986. Both these appeals shall be disposed of through this single judgment.
3. Occurrence resulting into the receipt of the injuries by Chiragh Din complainant took place on 2- 10-1980 at 5-30 a.m. In a field in village Hanjrai Kalan Tehsil Chunian District Kasur situated at a distance of 14 miles, from Police Station Sarai Mughal. On the receipt of the information of the said occurrence, Taj Din Sub-Inspector P.W.6 reached Chunian Hospital, and recorded the statement of the complainant Exh.P.A., and the same was sent to the police station for the registration of a case.
In the police station, on the basis of the aforesaid statement Exh.P.A. Formal F.I.R. Exh.P.A./I was drawn by Muhammad Sharif Muharrir Head Constable P.W.8 at 5-30 p.m.
4. Complainant in brief stated that on the fateful day at about 5-30 a.m. He was proceeding from his Behak to his Dhari for bringing fodder. He saw that Manzoor Ahmad son of Fazal Din was being chased by the appellants. Shah Sawar appellant was armed with Dang, while Shah Behram was armed with pistol, and both were raising Lalkaras that Manzoor Ahmad would not be spared by them. Complainant Chiragh Din intervened and tried to stop the appellants, whereupon, Shah Sawar appellant was infuriated and raised Lalkara to the effect that the complainant was also helping Manzoor Ahmad, therefore, he should also be killed, upon which, Shah Behram fired a shot from his pistol hitting the left chest of the complainant, who fell down. In the meanwhile, Noor Muhammad and Shakir P.Ws. 2 and 3 respectively also reached the scene of occurrence. Appellant Shah Sawar could not be arrested, and was absconding, but was arrested by the police and was produced before the Court on 16-5-1981.
5. Medical examination of the complainant revealed that in fact he had received an injury with a fire-arm and a number of pellets were also recovered from the said wound.
6. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by the complainant Chiragh Din P.W.1, Noor Muhammad P.W.2 and Shakir P.W.3.
7. When examined under section 342, Cr.P.C., the appellants denied the charge and stated that one Abdul Sattar son of Noor Samand was cleaning his pistol, when incidentally the fire was shot, which had injured the complainant. Appellants stated that they were falsely involved in this case, because the complainant was an employee of Noor Samand. In defence, one witness was produced to support the version of the appellants.
8. With the assistance of the learned counsel for the appellants, and the State, I have carefully perused the record of this case, and I have also heard the contentions raised by both sides with utmost care.
9. As far as the eye-witness account is concerned, the same is consistent and inspires confidence.
Both Noor Ahmad P.W.2 and Shakir P.W.3 are not only related to the complainant side, but also related to the appellants. In this view of the matter, I have no doubt in my mind about their presence at the scene of occurrence, and both the witnesses would not go to the extent of involving the innocent persons in this case. Their searching cross-examination also shows, that they have no animus with the appellants, and not an iota of evidence exists on the record so as to doubt the veracity of these witnesses.
10. Adverting to the motive, it was stated that Manzoor Ahmad had given beating to the mother of the appellants, and thus, with a view to avenge the said insult, the appellants were out to punish Manzoor Ahmad, and since the complainant tried to stop them from doing so, therefore, he was made victim of the attack. Thus, the motive sounds true. The complainant out of civic sense and with good intention had tried to dissuade the appellants from committing the B crime, as a result of which, the complainant became the target of the attack. Therefore, the motive in my view corroborates the prosecution case.
11. The defence plea is not plausible. The complainant had received injury with a .12 bore cartridge from a carbine which looks like pistol. On the other hand, the defence did not elaborate this aspect, and it was asserted that it was merely a pistol, during the cleaning of which, through accident the bullet was fired hitting the chest of the complainant. Defence version is thus liable to be rejected.
12. As far as appellant Shah Sawar is concerned, he has only been attributed a proverbial Lalkara.
Both the appellants were chasing Manzoor Ahmad, and I am not prepared to believe that only on the exhortation of Shah Sawar, Shah Behram had injured the complainant. In this view of the matter, I give benefit of doubt to Shah Sawar and, therefore, the appeal filed by him is allowed. The conviction and sentence of appellant Shah Sawar is set aside. He is on bail. He shall be discharged from his bail bonds.
13. So far as the case of Shah Behram is concerned the prosecution has proved the same beyond any reasonable shadow of doubt, therefore, I do not find any substance in the appeal filed by appellant Shah Behram. His appeal is rejected. However, it is directed that the 'sentence already undergone by him would be sufficient to meet the ends of justice. His sentence of fine is set aside.
He shall be released forthwith, if not required to be detained in any other case.