This criminal appeal arises from the judgment of learned Magistrate Section 30, Mandi Baha-ud- Din, whereby he on 21-10-1984 convicted Saee, Qadir and Mukhtar appellants under section 307, P.P.C. For murderous assault on Khushi Muhammad, Muhammad Nazir, Muhammad Safdar and Ghulam Rasool P.Ws. And sentenced them to 7 years' R.I. Each.
2. The charge against the appellants was that they in furtherance of their common intention duly armed launched murderous assault on the aforesaid 4 P.Ws. And caused them injuries with their weapons. They denied the charge and claimed to be tried.
3. To prove its case, prosecution produced 10 witnesses in all. Muhammad Safdar P.W.1, Khushi Muhammad P.W.2, Muhammad Nazir P.W.3 and Ghulam Rasul P.W.7 are the injured witnesses. They stated that at the eventful time, the petitioners and 10 others had launched attack on them and caused them injuries with their weapons. Mehdi Khan P.W.4 stated that after the occurrence he had seen the appellants and his co-accused leaving the place of occurrence carrying weapons with them. Dr. Rashid Ahmad P.W. Had medically examined the injured P.Ws. He has proved the medico- legal report. Dr. Nazir Ahmad P.W.9 X-Rayed the injuries of the injured P.Ws. The rest of the evidence is of formal nature.
4. When examined under section 342, Cr.P.C. The appellants denied all the incriminating circumstances. They raised plea of false implication on account of enmity. They did not produce any witness in defence.
5. On the conclusion of the trial, the learned Magistrate acquitted the 10 co-accused but convicted the appellants under section 307/34, P.P.C. And sentenced them as stated above.
6. Learned counsel for the appellants contends that there is inordinate delay in lodging the F.I.R., that the eye-witnesses and Mehdi Khan are closely related to each other; that there is long- standing enmity between the parties; that the 10 co-accused have been acquitted but on the same evidence the appellants have been convicted and that the judgment of the trial Court suffers from misreading/non-reading of material evidence. Learned counsel for the State has supported the judgment of the trial Court. No one has appeared for the State.
7. I have considered the submissions made by the learned counsel for the appellants with care. I do not feel persuaded to agree with him. I find that Muhammad Safdar, Khushi Muhammad and Nazir, the 3 injured witnesses, have stated that they were fired at by Mukhtar, Saee and Qadir appellants.
According to the eye-witnesses Saee had also fired at Nazir P.W. The medical evidence shows that the aforesaid 3 P.Ws. Had received fire-arm injuries. Ghulam Rasul P.W.7 stated that Nasrullah, the absconder accused had fired at him. Mehdi Khan P.W. Had seen the appellants coming from the place of occurrence carrying fire--arms with them immediately after the occurrence. The injured witnesses and Mehdi Khan P.W. Have successfully faced the test of cross-examination. No doubt, the eye-witnesses are related inter se and their relations with the accused party were strained about 10/11 years before the occurrence but it is in evidence that they had patched up and settled their difference much before the present occurrence. The case of the 10 acquitted accused was very much distinguishable, inasmuch as, they had not caused any injury to the injured witnesses although they were armed with sticks. According to the prosecution they remained present near the place of occurrence and were raising Lalkaras. The eye-witnesses have not been disbelieved to their extent. The trial Court, in the circumstances of the case, has given benefit of doubt to them. So their acquittal will not adversely affect the credibility of the eye-witnesses. Except for minor and immaterial discrepancies here and there, the learned counsel has not been able to point out any material contradiction/major discrepancy to dishonest improvement in their statements., I do not see any legal infirmity warranting the rejection of their statements qua the appellants. They have not produced any witness in defence to rebut the prosecution case or the evidence produced by it.
The trial Court has properly appreciated the evidence on record and has given sound and cogent reasons for giving benefit of doubt to the acquitted accused and for convicting the appellants. The trial Court has attended to the relevant aspects of the case, e.g. Delay in the F.I.R.; delay in the medical examination; the effect of the relationship of the P.Ws. Inter se and their enmity with the appellants. I do not see any valid reason to disagree with the reasons given by the trial Court for convicting the appellants. For all these reasons I am convinced that the appellants have rightly been convicted under section 307/34, P.P.C.
8. This brings me to the question of sentence. The appellants had used fire--arms in the occurrence and had caused fire-arm wounds to the injured witnesses. So, the sentence of 7 years'
R.I., in the circumstances of the case, is neither harsh nor excessive.
Pursuant to the above discussion, there being satisfactory basis to uphold the conviction and sentence of the appellants, the appeal is dismissed. The trial Court will issue warrants for their arrest. On their arrest they will be sent to jail to serve the sentence. However. They will get benefit of the provisions of section 382-B, Cr.P.C.