Muhammad Sher alias Bheelu, Shamshir and Sajawal were convicted by Magistrate Section 30, Jauharabad, under section 307/34, P.P.C. Vide judgment dated 31-8-1988 for having launched murderous assault on Saleh Muhammad P.W.2, while armed with guns on 27-3-1987 at 11-00 a.m. In the area of Dhok Tirriri Dakhli Khurr, at a distance of 13 miles from. Police Station, Naushera, District Khushab, and sentenced as follows:-- Muhammad Sher alias Bheelu and Shamshir.
Five years' R.I. Plus to pay a fine of Rs.10,000 each, in default whereof to undergo R.I. For six months each.
Sajawal.
Two years' R.I. Plus to pay a fine of Rs.5,000, in default whereof to undergo R.I. For two months.
A sum of Rs.10,000, on recovery of the fine, has been directed to be paid to Saleh Muhammad injured P.W.
2. Report was lodged by Shah Muhammad P.W.1 at 7-00 a.m. On 28-3-1987. In that, he stated that he was going to attend the marriage of Khizar Hayat alongwith his brother Saleh Muhammad at village Dhok Tirriri. On way, Muhammad Sher alias Bheelu, Shamshir and Sajawal armed with guns attacked Saleh Muhammad at 11-00 a.m. After raising a Lalkara. According to him, the shot fired by Muhammad Sher struck Saleh Muhammad on the right wrist and upper arm while the shot fired by Shamshir struck him on the right thigh and right flank. Saleh Muhammad fell down. Sajawal continued raising Lalkaras.
Motive for the occurrence was that the father of the complainant had helped the police party in raiding the house of Muhammad Sher 8/10 years ago and had also appeared as a witness against Muhammad Sher for having committed the murder of his daughter during the commission of raid by the police.
The occurrence apart from the complainant was witnessed by Mian Muhammad, Haji Manna and Ata Muhammad.
3. During investigation, recovery of gun was effected only from Muhammad Sher. Two empties taken into possession from the spot were found wedded with the gun vide report Exh. P.N.
4. At the trial, statements of 10 P.Ws. Were recorded.
Eye-witness account was deposed to Shah Muhammad P.W.1, Saleh Muhammad (injured) P.W.2 and Mian Muhammad P.W.3. The other two witnesses were given up as unnecessary.
The complainant as well as the other two eye-witnesses corroborated the narration of the occurrence reported in the F.I.R.
5. Evidence of recovery of gun at the instance of Muhammad Sher was deposed to by Ahmad Hassan P.W.7 and Muhammad Nawaz S.I. P.W.6.
6. Dr.. Muhammad Saleem Akhtar, who had medically examined the injured at 8-00 p.m. On 27-3- 1987 appeared as P.W.8. He had noted the following injuries on the person of Saleh Muhammad:- (1)A grazing fire-arm wound on front of lower part of right fore-arm on ulnar side measuring 2.5 c.m. x 0.8 cm, 3 c.m. Above the wrist.
(2)A lacerated entry wound circular in shape and there was blackening around measuring 0.5 c.m. x 0.5 c.m. On outer posterior aspect of right arm. It was 5 c.m. Above the elbow. A lacerated exit wound of fire-arm projectile margin 0.7 c.m. x 0.5 c.m. On inner posterior aspect of right arm, 4 c.m.
Above the elbow.
(3)A lacerated entry wound of fire-arm projectile measuring 0.7 c.m. 0.6 c.m. On right lateral side of abdomen just above the iliac crest. No exit wound was found.
(4)A lacerated entry wound 0.8 c.m. x 0.6 c.m. On lateral aspect of middle of right thigh. A lacerated exit wound 0.7 c.m. x 0.6 c.m. On front of middle of thigh. It was 4 c.m. The entry wound slight and lower level than entry wound.
Right sleeve of the shirt was found bearing many perforations while there was perforation in the Shalwar also opposite to injury No.4 All the injuries were opined to have been caused by fire-arm.
The injury on the right flank was declared grievous.
The doctor who had performed the X-Ray appeared as P.W.8.
7. The appellants during their statements under section 342, Cr.P.C. Denied the prosecution case as a whole and pleaded innocence. Muhammad Sher denied to have led to the recovery of the gun.
8. I have gone through the evidence and considered the contentions raised by the learned counsel for the appellants.
Except the incident mentioned in the F.I.R., which according to the prosecution was motive for the occurrence, there was no other enmity between the parties. The defence during cross-examination failed to bring out any motive for their false involvement in the case. Although P.W.1 and P.W.2 are real brothers yet Mian Muhammad P.W.3 is not related to them. He has only been dubbed as a friend of the injured P.W.
9. Shamshir is son of Muhammad Sher while Sajawal is nephew of Muhammad Sher. There is no allegation against Sajawal of having used his gun even by way of firing in the air. The gun, which he was alleged to have been holding was not even recovered. His participation in the occurrence, therefore, cannot be considered beyond reasonable shadows of doubt.
10. Although Shamshir has been assigned the role of having fired a shot at Saleh Muhammad and the injury assigned to him was found on the vital part-- yet the important aspect is that no recovery was effected from him and the two E empties picked up from the spot were wedded with the gun recovered from Muhammad Sher. It is the prosecution's own case that two shots were fired in all; one of which had struck Saleh Muhammad on the right wrist and upper part while the other had hit him on the right thigh and the right flank. Had the injuries resulted from the two shots fired from two guns, the two empties found on the spot would not have matched with the gun recovered from Muhammad Sher.
11. It is not the case of the prosecution that Muhammad Sher had fired twice. Had that been so, it could have been argued that the empties found from the spot were fired by Muhammad Sher while Shamshir might have taken away the empties resulting from his shot. In the circumstances, the allegation against Shamshir of having injured Saleh Muhammad by firing a shot seems not only to be doubtful one, but appears to be concocted, too. As a result of the above discussion, participation of Sajawal and Shamshir in the occurrence appears to be highly doubtful. The appeal filed by both of them is, therefore, allowed and they are acquitted. They are on bail. Their sureties shall stand discharged.
12. So far as Muhammad Sher is concerned, the prosecution, in my view, has succeeded in proving the case against him beyond any reasonable shadows of doubt. Not only he had the motive to commit the crime but ocular account furnished against him by the witnesses, which included an independent one also, is I corroborated by the recovery of gun at his instance and the report from the Forensic Science Laboratory. The appeal filed by him, in the circumstances, is dismissed.
However, the sentence of five years' R.I. Awarded to him is reduced to R.I. For four years. The sentence of fine of Rs.10,000 also appears to be excessive. The same is reduced to Rs.5,000 in default whereof he shall undergo R.I. For six months. Whole of the fine, on recovery, shall be paid as compensation to Saleh Muhammad injured P.W. He shall be given the benefit of the provisions of section 382-B, Cr.P.C. He is on bail. He shall be caused to be arrested through non-bailable warrants and lodged in jail to undergo the remaining sentence.