1. Appellants Zawar Hussain and Safeer Hussain Khan,, both real brothers, were tried by a Judicial Magistrate with powers under section 30, Cr.P.C. On a charge under section 307/34, P.P.C. For having committed the murderous assault upon Mehar Zaman Khan, P.W.1. Vide judgment, dated 7th of January, 1987, both the appellants were found guilty on the aforesaid charge and accordingly, appellant Zawar Hussain Khan was convicted and sentenced to undergo rigorous imprisonment for a term of five years and to pay a fine of Rs.2,000 or in default to suffer R.I. For a term of six months. Appellant Safeer Hussain Khan was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.500 or in default to suffer rigorous imprisonment for a term of two months. The appellant were also tried on the charge under section 13 of the Arms Ordinance by the aforesaid Judicial Magistrate who tried them under section 307/34, P.P.C. Vide judgment, dated 7-1-1987, the appellants were found guilty and were sentenced to undergo rigorous imprisonment for a term of one year. They filed two separate appeals and vide judgment dated 11th of June, 1988, the learned Additional Sessions Judge acquitted Safeer Hussain and vide judgment dated 13th of June, 1988, Zawar Hussain Khan's sentence was reduced to the period already undergone by him and he was also directed to pay a fine of Rs.1,000 or in default to undergo six months' R.I.
2. Aggrieved by their conviction, the appellants have preferred a joint appeal to assail their conviction under section 307/34, P.P.C. While Zawar Hussain Khan also, filed a revision petition bearing No.357 of 1988 to assail his conviction under the Arms Ordinance. The complainant has filed a revision petition bearing No.148 of 1987 seeking enhancement of sentence awarded to both the appellants under section 307/34, P.P.C.
3. This judgment shall dispose of the appeal as well as both the revision petitions. The unfortunate occurrence took place on 10th of May, 1985 at about 3 p.m. Near the Dera of the injured i.e. Sohrab Wala Dakhli Zalla Shumali situated at a distance of three miles from Police Station Sadar, Mianwali.
4. Mehar Zaman, injured, the first informant proceeded to lodge the first information report when in Chowk Kachehri, he came across Muhammad Afzal, A.S.I., P.W.6 who recorded his statement Exh.
5. P.A. And sent the same to the police station for the registration of a case. At the police station, the formal F.I.R. Exh.PA./1 was drawn by Feroze Khan, Head Constable, P.W.8.
6. The prosecution case in brief, as disclosed in the statement Exh. PA. By the first informant was that he was an agriculturist and resided at his own Dera. On 9th of May, 1985, a day before the occurrence, the sheep of the first informant had entered into the wheat crop of the appellant Zawar Hussain whereby the damage was caused to the crop. The appellants drove away the sheep and thereafter exchange of abuses took place between the father of the first informant Abdur Rauf Khan on the one side and both the appellants on the other side.
7. On the fateful day at about 3 p.m. The first informant alongwith his father Abdur Rauf Khan accompanied by Ghulam Abbas Khan was proceeding from their Dera to the Dera of Ikram Ullah Khan and when they reached near the house of the appellants, both Zawar Hussain and Safeei Hussain armed with guns emerged from their Baithak and challenged the first informant and remarked that lesson would be taught to them for the abuses. Appellant Safeer Hussain then fired a shot which was ineffective and thereafter, the second fire was shot by Zawar Hussain appellant hitting on the left side of the neck of the first informant, on,the receipt of which, he fell down.. The appellants while firing more shots escaped from the scene of occurrence.
8. Dr. Mukhtar Ahmad, P.W.5, medically examined Mehar Zaman on 10th of May, 1985 at 4-30 p.m. And the following injury was noticed: "An entry wound 1 c.m. x 1/2 c.m. Size on anterior aspect of neck on left side, 4-1/2 c.m. To the left from mid line, 5 c.m. Above the left clavicle and 4-1/2 c.m. Below the mandible."
9. The injury was declared simple having been caused with a fire-arm.
10. Appellant Safeer Hussain was arrested on 11th of May, 1985 by Muhammad Afzal A.S.]. And appellant Zawar Hussain was arrested on 17th of May, 1985 and on the same day, appellant Zawar Hussain led the police and got recovered gun P.3 alongwith three live cartridges P.4/1-3 from the box lying in his house, of which the key was given by the mother of the appellant. The said articles were taken into possession vide memo. Exh. P.D. Attested by Muhammad Iqbal Khan P.W.4 and Abdur Rehman's Khan (given up) besides Muhammad Afzal A.S.I. (P.W.6). On the same day, Safeer Hussain appellant also led the police and got recovered another .12 bore gun P.5 alongwith two live cartridges P.6/1-2 from the same box, which were taken into possession vide memo. Exh.P.E.
11. Attested by Muhammad lqba1 P.W,4 and Abdur Rehman's (not produced) besides Muhammad Afzal A.S.I. P.W.6.
12. To prove its case at the trial, the prosecution placed reliance upon the ocular testimony furnished by Mehar Zaman, injured, first informant P.W.1, Ghulam Abbas, P.W.2, the cousin of the first informant and Abdur Rauf, P.W.3 the father of the first informant. In addition to the ocular testimony, the prosecution also placed reliance upon the medical evidence as to the injury and the motive as to the damage of crop by the sheep of the appellants.
13. When examined under section 342, Cr.P.C. Both the appellants denied the guilt and stated that they have been falsely involved in this case on account of enmity.
14. With the assistance of the learned counsel for the appellants, the State and the complainant I have carefully gone through the entire evidence and also perused the record of the case.
15. The learned counsel of the appellants has contended that it was a case of false implication and the learned trial Judge has erred while placing reliance upon the recovery in this case and treated the same as a corroborative' piece of evidence. It was urged that since the guns were not connected with the crime empties and since no empty had been recovered from the spot, therefore, this recovery, was of no use. There is force in the submission and thus the recovery of course in this case cannot be treated as a corroborative evidence and, therefore, the case has to be decided on the basis for a evidence adduced by the prosecution in this case.
16. Adverting to the ocular testimony, the first informant is an injured witness and therefore, his presence at the spot cannot be doubted. Furthermore, there is no previous enmity between the parties and only a day before, there was exchange of abuses and on that score, it cannot be said that Mehar Zaman and his father Abdur Rauf P.W.3 would go to the extent of involving the appellants falsely or to substitute them. Statements of both the witnesses arc consistent and the further corroboration thereof is found in the statement of Ghulam Abbas P.W.2. Although, he is a cousin of the first informant yet his presence at the spot cannot be doubted, he was cross- examined at length and an attempt was made to prove him a chance witness but in my view the defence utterly failed to do so. The statements of the eye-witnesses inspire confidence and their statements are creditworthy and, therefore, implicit reliance can be placed upon them.
17. Accordingly, I hold that the prosecution has brought guilt home to the appellant.
18. The learned counsel for the appellants has argued that since it is a case of simple injury, therefore, the offence does not fall within the purview of section 307, P.P.C. I am afraid,, the contention had no force. The first informant was lucky to have survived in the attack because the fire was shot at the front of the left side of the neck of Mehar Zaman. Although, the injury is simple yet the intention is to be gathered and if the same is assessed as envisaged under section 307, P.P.C., there was abundant proof that the appellants had intended to commit the murder of Mehar Zaman. In this view of the matter, the offence is covered by second part of section 307, P.P.C.
19. It may be stated here that causing of simple injury has nothing to do nor can serve as a criterion so as to determine the nature of the offence, inasmuch as. Part I of section 307, P.P.C. Also punishes ineffective firing. In this view of the matter, the conviction of the appellants under section 307/34 PPC is justified on the record of the case.
20. The learned counsel for the appellant has also contended that appellant Zawar Hussain has already suffered rigorous imprisonment for a term of one year, inasmuch as, at the trial, he remained behind the bars for a term of six months and after his conviction also has undergone for another term of six months. Similarly Safeer Hussain appellant, had also remained behind the bars for a period of two, months and 15 days after their conviction and, therefore, the sentence already undergone by them may be considered to be sufficient. I am afraid, the contention has no force because the punishment is to be proportionate with the commission of crime, the administration of criminal justice would be reduced into farce, if in such like cases, meagre sentence is awarded.
21. However, I am inclined to take the lenient view in the case of Zawar Hussain and reduce his sentence to four years' R.I. His sentence of fine is maintained. The sentence -awarded to Safeer Hussain appellant does not call for interference. The sentence of fine awarded to him is also maintained. The appellants shall be taken into custody forth with to serve the remaining portion of their sentence.
22. Adverting to the revision petition filed by Zawar Hussain assailing his conviction under the Arms Ordinance, the same also does not call for any interference because both the Courts below after believing the recovery have awarded the sentence. However, it is directed that the sentence under the Arms Ordinance would run concurrently with the sentence awarded under section 307, P.P.C.
23. As far as the revision petition seeking enhancement of sentence is concerned, the learned counsel for the complainant does not press the same and, therefore, the same is dismissed.