The appellant was convicted under section 307, P.P.C. And sentenced to 5 years' R.I. And a fine of Rs.2,000 or in default thereof 6 months' R.I. Vide judgment dated 9-6-1983 by the Magistrate Section 30, Sheikhupura.
2.According to the prosecution, F.I.R. 197/76 Exh.P.A./1 was recorded on the basis of the statement of Ghulam Ali complainant P.W.1 on 7-10-1976. According to the F.I.R., the complainant party was attacked by the accused while they were on their way to irrigate their land during the night at 7-30 p.m. On the fateful day. As a result of the said murderous assault Muhammad Javaid P.W.3 was injured. He had suffered eight simple injuries.
3. There were five accused in all, all real brothers, out of whom two were declared proclaimed offenders, whereas the rest of the three were charged and tried by the learned trial Court and only the appellant was convicted as stated above, whereas the other two co-accused namely Shahid Pervaiz and Zaheer Alam were acquitted being given the benefit of doubt by the same judgment.
4. The prosecution had produced six witnesses in all to support its version. P.W.1 Ghulam Ali is the complainant and an eye-witness of the occurrence. P.W.2 Fazal Mahmood is also an eye-witness and witness of the recoveries and had attested the memo. Exh, P.C. In respect thereof. Muhammad Javaid is the injured P.W.3. P.W.4 is Muhammad Anwar S.I., who had investigated the case. P.W.5 is Ghazanfar Ali, S.I., who had executed the warrants of arrest against the appellant on 14-10-1976.
P.W.6 Dr. Muhammad Nazir had examined the injured and prepared the medico-legal report Exh.
P.G. And thereafter Exh.P.E./1 another medico-legal report prepared on the basis of an application for the same i.e. Exh.P.E.
5. The recoveries effected in the case were as follows:-- Pistol P.2 and an empty P.3 vide memo. Exh. P.D. And live cartridge P.1 vide Exh. P.C.
6. The learned trial Court disbelieved the recoveries but placing reliance on the ocular evidence corroborated by medical evidence sentenced the appellant as aforesaid and acquitted the co- accused.
7. The learned counsel contended for the acquittal of the appellant and submitted that there was a delay of 14 hours in the lodging of the F.I.R. And for the same there was no plausible explanation and the motive was not proved. Further submitted that as the recoveries were disbelieved, therefore, the prosecution had failed to link the allegation of the injuries having been caused by a fire-arm. Further submitted that all the injuries were simple in nature and on the non-vital part of the body and further submitted that they were inconsistent with the medical report as they are not precisely at the place on the injured P.W., as alleged by the prosecution in its ocular evidence.
8. The learned counsel further argued that, in view of what has been stated above, and taking into consideration that there was-no second attempt made on the injured and as stated above that all the injuries were simple, therefore, the case does not fall within the ambit of section 307, P.P.C. And that at best the offence may be covered under the provisions of section 324, P.P.C. Therefore, further argued, that sentence awarded to the appellant is excessive. Further submitted that it shall meet the ends of justice if the conviction of the appellant is converted to one under section 324, P.P.C. Instead of under section 307, P.P.C., and the sentence of fine awarded to the appellant be reduced accordingly. In this respect, pointed out that the appellant had already undergone six months' detention.
9. On the other hand, the learned counsel for the State submitted that the conviction of the appellant was duly supported by the ocular evidence on record and that the learned Court was the best Judge to evaluate the same. Further submitted that the appellant had already been shown leniency as although he had been convicted under section 307, P.P.C., yet he was awarded by 5 years' R.I. And a fine of Rs.2,000. However, conceded that the injuries were simple in nature and not on the vital part of the body and that the appellant had not repeated any shots or in any other manner attempted to injure the complainant party by making a second attempt.
10. In view of what has been stated above, as neither the attempt was repeated nor the motive has been proved, and as the injuries were simple and on non-vital part of the body of the injured P.W., therefore, it is held that the offence falls under the provisions of section 324, P.P.C., under the circumstances of the case, and not under section 307, P.P.C. Therefore, the conviction of the appellant is converted to the under section 324, P.P.C. Instead of under section 307, P.P.C. And accordingly his sentence is reduced to one already undergone, but the fine of Rs.2,000 is maintained. In the event of the failure of the appellant to pay the fine, he shall further undergo six months' R.I. The appellant is allowed two months to deposit the said fine.
11. Therefore, the present criminal appeal is partly allowed in accordance with the terms stated above and disposed of.