OAISER AHMED HAMIDI, J.--- Appellant Muhammad Shareef was tried by Mr: Allah Bux Memon, Judge, Special Court for Suppression of Terrorist Activities, Hyderabad, for the offence under section 307/34, P.P.C., who found him guilty and vide judgment, dated 26th June, 1991 sentenced him to suffer R.I. For three years and to pay a fine-of Rs.5,000 or in default to suffer R.I. For one year. By this appeal filed under section 7(1) of the Suppression of Terrorist Activities (Special Courts) Act. 1975 the appellant has challenged his conviction and sentence.
2. On 21-2-1989 one Gianchand, a resident of Tando Muhammad Khan Town was abducted by the dacoits. The students of High School Tando Muhammad Khan boycotted their classes and took out a procession to protest against this abduction. Complainant Altaf, Ghulam Mustafa, Mushtaque and Mumtaz Ali who were in the procession were also joined by Abdullah. At about 11-15 a.m. The procession reached Pakistan Chowk when the present appellant alongwith absconding accused Guddu alias Aslam Pervaiz, Fareed and Saleem (not sent up) emerged there. Out of them the present appellant was armed with a Klashnikov, absconding accused Guddu had a mauser, absconding accused Fareed carried a dagger, while accused Saleem (not sent up) had a revolver with him. All of them asked about the reason for getting the shops closed and on hearing the reason they flew into passion and opened fire with their respective weapons causing injuries to Abdullah and Mumtaz Ali. The mob then dispersed and the culprits, also took to their heals. Both Abdullah and Mumtaz Ali were taken to Taluka Hospital, Tando Muhammad Khan. On the same day at 12-15 p.m., the report of this incident was lodged at Tando Muhammad Khan Police Station. On the same day at 12-20 p.m. The counter-report lodged by Muhammad Aslam, brother of appellant was registered at the same police station under section 147-504, P.P.C. After usual investigation the appellant and co-accused, namely, Guddu alias Aslam Pervaiz and Fareed were sent up. Both Guddu alias Aslam Pervaiz and Fareed absconded during the pendency of the case, while the case against the present appellant proceeded.
3. The appellant pleaded not guilty to the charge framed against him under section 307/34, P.P.C., and, claimed a trial. At the trial the prosecution examined Abdullah (P.W.1), Altaf (P.W.2), Ghulam Mustafa (P.W.3), Sikandar (P.W.4), Mumtaz Ali (P.W.5), Dr. Anwar Ali (P.W.6) and Muhammad Mooso A.S.I. (P.W.7). .
4. The appellant met the charge with a bare denial professing innocence. According to him the witnesses have deposed against him due to enmity. The appellant did not step into the witness- box. He, however, examined Muhammad Saleem (D.W.1), and Muhammad Shaft (D.W.2) in his defence.
5. On the assessm ent of evidence available on record the learned Judge found the appellant guilty and convicted him accordingly.
6. Before examining the evidence adduced by the parties, we propose to examine the legal point about the jurisdiction of Special Court that has been urged by Mr. Shoeeb Bukhari, learned counsel for the appellant during the course of arguments. It is contended that the appellant was tried by Special Court for Suppression of Terrorist Activities for an offence which was not a scheduled offence, and consequently his conviction under it would be coram nonjudice. Section 4 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, confers exclusive jurisdiction to a Special Court in relation to scheduled offences. Paragraph 4(ii)(a) of the Schedule makes it clear that section 302 or section 307, P.P.C., if committed in the course of the same transaction in which an offence specified in this paragraph or paragraphs (b) and (c) is committed, or in addition to or in combination with such offence, will be a scheduled offence. Paragraph (c) is attracted to the facts of the present case, which for the sake of convenience is reproduced below:-- "Any offence punishable under the Arms Act, 1878 (XI of 1978), or any offence punishable under any of the following sections of the West Pakistan Arms Ordinance, 1965 (West Pakistan Ordinance No.XX of 1965), namely, sections 8, 9 and 10, if committed in respect of a cannon, grenade, bomb or rocket; or a light or heavy automatic or semi-automatic weapon, such as Klashnikov, a G-III rifle or any other type of assault rifle."
7. According to the case of the prosecution the appellant was armed with a Klashnikov at the time of incident. The mere presence of an arm of prohibited bore falling within the mischief of the above paragraph at the time of commission of offence was sufficient for the purpose of giving jurisdiction to the Special Court and we are in agreement with a view taken by a learned Single Judge of the Lahore High Court in the case of Muhammad Ahmad v. The State reported in 1978 P Cr. L J 864, wherein following observations were made:-- "But I unable to accept his further contention that a stengun cannot be said to have been used in the commission of the offence unless it has been actually fired. A stengun is a deadly and fearsome looking weapon and. Its very presence is likely to induce complete submissiveness in the victim even though it may not have been actually fired. It is true that the prosecution has not alleged that at the time of raiding the Bank the petitioner and his companions had not actually fired the stenguns, but then it has taken up the position that it was the fear of the stenguns which compelled the bank employees to quietly surrender the cash and which later discouraged them from pursuing the culprits. It is, therefore, difficult to accept the contention that the stenguns were not used in the course of the commission of the robbery. Thus, the case of the petitioner does appear to fall under item (a)(iii) of the Schedule."
8. The preliminary objection, therefore, seems to be devoid of any force and is overruled.
9. The case of the prosecution mainly rests upon ocular testimony consisting of Abdullah (P.W.1), Altaf (P.W.2), Ghulam Mustafa (P.W.3), and Mumtaz Ali (P.W.5). Out of these witnesses Abdullah (P.W.1), and Mumtaz Ali (P.W.5) are injured persons and consequently their presence at the place of occurrence can hardly be suspected. Abdullah (P.W.1) has, however, not supported the case of the prosecution by stating as follows:-- "When the procession came to Pakistan Chowk there was firing. I shall not be able to say who had fired. I was hit with bullets. I had received three bullet injuries ...."
10. Abdullah (P.W.1) who was declared hostile has admitted in clear terms that he was a friend of all the accused persons. He has obviously made an obliging statement by disowning the case of the prosecution.
11. Altaf (P.W.2), Ghulam Mustafa (P.W.3) and Mumtaz Ali (P.W.5) have, however, fully implicated the present appellant and all of them are unanimous on the point that the appellant who was armed with a Klashnikov had fired towards the members of procession causing injuries to Abdullah and Mumtaz Ali. There was no previous hostility between the parties and the incident appears to have taken place all of a sudden. Mr. Shoeeb Bukhari, learned counsel for the appellant has invited our attention to certain minor discrepancies in the statements of those witnesses. We have carefully considered these contradictions, but in our opinion, they are not really contradictions of a nature which would shake the probative value of the evidence, but these were errors in the statements which were bound to appear in their testimony due to lapse of time.
12. It is also contended that there is conflict between the eye-witness account furnished by Altaf (P.W.2), Ghulam Mustafa (P.W.3), and Mumtaz Ali, (P.W.5) with the evidence of Dr. Anwar Ali (P.W.6) who speaks of pellet injury. The evidence of Dr. Anwar Ali (P.W.6) shows that Mumtaz Ali had the following injury on his person:-- "Lacerated wound on left lateral aspect of left thigh 1 c.m. x 0.5 c.m. x 2 c.m." .
Dr. Anwar Ali (P.W.6) who had also examined injured Abdullah found the following injuries on his person:-- (i)Lacerated wound medial aspect of right thigh margins inverted, 4 c.m. x 1 c.m. x 2 c.m.
(ii)Lacerated wound medial aspect of left thigh 2 c.m. x-1 c.m. x 3 c.m.
(iii)Lacerated wound on posterior aspect of left thigh in upper portion, margins inverted 3 c.m. x 2 c.m. x 3 c.m.
According to Dr. Anwar Ali (P.W.6) the injury on the person of Mumtaz Ali was grievous while the injuries on the person of Abdullah were simple in nature, which were caused by discharge from fire-arm. Unfortunately no opinion about the weapon used was, given by the medical officer. No clarification was sought in this behalf by both the counsel. The learned Judge also took no pains to get an expert opinion on this point. The learned counsel for the appellant has; however, laid much emphasis upon the following admission made by Dr. Anwar Ali (P.W.6) in his cross-examination.
"The X-ray revealed bullets .In the injury. I did not take out the pellets."
This admission also leads us nowhere. At any rate the size of injuries leads us to this conclusion that the injuries suffered by the injured persons could be the result of bullet shots.
13. The evidence which has come on record shows that there were about 500 persons in the procession. There is also admission on record that the members of procession were asking the shopkeepers to close their shops and obviously this was being done by show of force. Abdullah (P.W.1) who is one of the injured persons has admitted so in the following words:-- "Some of these in the procession were asking shopkeepers 'to close their shops."
14. There is also no dispute that the appellant-had a shop in the Bazar and he had protested against this forcible closure of the shops. Complainant Altaf (P.W.2) has admitted this fact in the following words:-- "The Bazar was open. Accused Muhammad Shareef has a shop in the Bazar. The shopkeepers did not close the shop. Muhammad Aslam is brother of the present accused. He was not present when I reached to Thana for F.I.R. They had filed counter F.I.R."
15. Both Ghulam Mustafa (P.W.3) and Mumtaz Ali (P.W.5) have also stated that the members of procession were asking the shopkeepers to close their shops. This statement when examined in juxtaposition with the defence version about use of force to get the shops closed, leads us to the conclusion ID that the latter version might be true. The copy of counter F.I.R. Is available on record, although not exhibited. No doubt the appellant had not raised the plea of self-defence in specific terms, but as held in the case of Muhammad Ishaq E and another v. The State reported in PLD 1964 Pesh. 143, the accused is entitled to benefit of section 96, P.P.C., if such plea gets support from circumstances proved by the prosecution. Let us now examine, whether the appellant had a right to resist the attempt of the members of procession to get his shop closed? The answer to this question must be in affirmative. There is, however, no indication on record that the appellant had a genuine apprehension of loss of his life or property. It is nobody's case that complainant and other members of the procession were armed with any weapon. In such a situation resort to indiscriminate firing by means of fire-arm was uncalled for F and the appellant had exceeded the right of private defence. The offence committed by the appellant will, therefore, fall under section 308, P.P.C. Viz. Attempt to commit culpable homicide and not under section 307, P.P.C.
16. The only other question that falls for determination is whether the appellant can be convicted now for the offence which is not triable by the Special Court constituted under the Suppression of Terrorist Activities (Special Court) Act, 1975. This question turns entirely on the construction of the schedule to the above Act, the question being, whether the Special Court had the jurisdiction when the cognizance against the appellant was taken has already been dealt with by us in paras. Nos. 6 to 8 ante.
17. On the material before us which have been examined by us with all possible care and attention we have no hesitation in converting the conviction of appellant under section 308, P.P.C. It appears that the appellant has already spent a period of about five months in prison, both as under-trial prisoner and as a. Convict. In these circumstances while awarding conviction to appellant under section 308, P.P.C., the sentence is reduced to that already undergone. The sentence of fine of Rs.5,000 is, however, maintained. The appellant will suffer R.I. For three months in default of fine. The fine, if recovered be paid to both the injured persons in equal shares. The appellant shall be released on payment of fine, if not required in any other case.
18. With this modification the appeal is otherwise dismissed.