' Iftikhar alias Kale and his real brother Tariq Mehmood alias Billa had been tried by a learned Magistrate, Section 30 at Gojra on the charge of having launched a murderous assault on one Javed. Through his judgment, dated 20-6-1992, the said learned trial Court had found both the said accused persons guilty of the charge and having convicted them under section 324/34, P.P.C., each one of them was punished to suffer seven years' R.I.
2. During the course of investigation, Tariq abovementioned was found in possession of a carbine for the possession of which, he did not have a licence. He was consequently tried also for an offence punishable under section 7 of Ordinance XX of 1991 and the same learned trial Court after convicting him on the said charge, sentenced him to seven years' R.I.
3. Iftikhar and Tariq convicts have filed Criminal Appeal No,651 of 1992 to call in question the conviction and sentences recorded against them under section 324/34, P.P.C. Criminal Appeal No,650 of 1992 has been filed by Tariq alone to impugn his conviction and sentence recorded under section 7 of Ordinance XX of 1991. Both these matters are being disposed of together through this single judgment.
4. The occurence in question had taken place on 7-11-1991 at about 9-00 a.m. On a public path in the area of Chak No,415/J.B. Within the jurisdiction of Police Station Saddar Gojra of District Toba Tek Singh. The same had been reported to Mubarak Ahmad S.I. (P.W.3) at 3-30 p.m. At Chowk Katchery Gojra by Muhammad Aslam (P.W.1) who is a brother of Javed P.W., the injured victim of the occurrence in question. Aslam complainant had informed the said Police Officer that on the day of occurrence, his younger brother, namely, Javed P.W. Had left the house at about 9-00 a.m. To get the puncture in his bicycle tube mended from the shop of one Amanat Ali and that just as the said Javed P.W. Was passing in front of the house of one Abdul Ghani, Iftikhar accused armed with a dagger and his brother Tariq accused armed with a .12 bore carbine, launched an attack on Javed.
The complainant had added that Iftikhar inflicted dagger injuries on the person of Javed while Tariq accused fired a shot at him which hit Javed P.W. In front of his left shoulder. The complainant had further claimed that after inflicting the above-mentioned injuries, both the assailants ran away from the place of occurrence.
5. He had further disclosed that his younger brother Javed P.W., had been engaged to be married to Mst. Surraya Bibi, a sister of the two accused persons but on account of the opposition offered by Muhammad Nawaz, another brother of Mst. Surraya Bibi, the father of the said Mst. Surraya Bibi broke the said engagement; that Javed P.W. Had told the said Rehmat Ali, the father of Mst. Surraya Bibi and the two accused persons, on a day prior to the present occurrence that they had not done well by breaking the engagement in question; that Iftikhar and Tariq accused had felt aggrieved of such a stance taken by Javed P.W. And that it was on account of this grievance that they had attacked Javed P.W. With the intention of murder.
6. During the course of investigation, Iftikhar and Tariq appellants had been arrested on 12-11-1991 and while Iftikhar appellant was found in possession of a dagger, Tariq appellant was found in possession of a carbine and a separate F.I.R. Bearing No,424/91 was registered at Police Station Saddar, Gojra against Tariq appellant for being in an unauthorised possession of the said carbine.
7. When confronted with the prosecution case, the two appellants denied their participation in the occurrence in question and pleaded that they had been involved on account of enmity.
8. Canvassing acquittal for the two appellants, their learned counsel argued that the two eye- witnesses, namely, Aslam and Afzal P.Ws. Were chance witnesses of the occurrence in question; that the motive alleged did not stand proved on record and in any case, the same offered no reason to the appellants to attack Javed P.W.; that the ocular testimony was inimical which stood uncorroborated on record and that in the circumstances, it could not be said that the prosecution had successfully proved its case against the two appellants. In the alternative, the learned counsel contended that in view of the provisions of section 324 of the P.P.C. If hurt had been caused in the course of the assault, then the assailant could be punished only for the hurt caused and not for the murderous assault and that in the circumstances, punishment of seven years imprisonment imposed on the two appellants under section 324/34, P.P.C. Was not legal.
9. In respect of Tariq's conviction under section 7 of Ordinance XX of 1991, the learned counsel submitted that the said Ordinance which had been promulgated by the President of Pakistan on 2- 7-1991 ceased to exist on the expiration of four months i,e. On 1-11-1991 and that Act No,XXI of 1991 which had been enacted for the same purpose was promulgated with effect from 2-12-1991 and thus no such law existed as from 1-11-1991 to 2-12-1991. The crucial date in the present case was 12- 11-1991 when the recovery in question had been allegedly made from Tariq Mehmood appellant and that in the circumstances, the law creating the offence in question of which, Tariq appellant stood punished, did not exist on the day when the offence in question had allegedly been committed. In the alternative, the learned counsel argued that the weapon in question had not even been exhibited at the trial and even on that score, the said appellant's conviction could not be sustained.
10. In respect of the two appellants' conviction under section 324/34, P.P.C. It may be mentioned that Javed P.W. Was the injured victim of the occurrence in question which had taken place in broad daylight. He had received stab wounds as also a fire-arm injury on his person from a rather close range and that also from the front side. In the circumstances, it is not believable that the assailants could have escaped unnoticed or unwitnessed after inflicting the injuries in question on the person of Javed P.W. Suggestions had been made during the course of cross-examination that Javed P.W. Had been involved in criminal cases prior to the present occurrence and had other enemies also. No explanation, however, exists on record as to why Javed P.W. Should have spared his actual assailants who were also from amongst his enemies and to have instead falsely substituted the present appellants in the present occurrence. Except for this breaking of engagement, no ill-will or enmity exists between the parties. Thus, no justification is available on record to discard the testimony offered by the best witness of the occurrence i,e. The victim himself of the same. He is supported by Afzal P.W. Who is not in any manner related to the complainant party nor had any ill-will or motive against the accused party. The statements made by Afzal and Aslam P.Ws. Cannot be brushed aside by terming them as the statements emanating from chance witnesses. The venue of occurrence was a public path and the only persons who could have witnessed such an occurrence, would be the passers-by. In the circumstances, any such witness cannot be condemned as being a chance witness because it is only such like witnesses who are the only natural witnesses of occurrences which take place at such like public places.
11. The ocular testimony thus, inspires confidence. The same is supported by the medical evidence, including the nature of injuries and the nature of weapons used in the occurrence in question. The prosecution had claimed that Javed P.W. Had been engaged to a sister of the two appellants which engagement had subsequently been terminated by the family of the two appellants. Javed P.W. Had himself admitted that he had extended threats to the father of the two appellants of unpleasant consequences for breaking the engagement in question. In such like circumstances, where the name an honour of any unmarried girl of the family were involved and where Javed P.
Had extended threats even to the father of II.; two appellants, it cannot be said that the appellants did not have a motive to attack the victim.
12. Consequently, I find that no exception can be taken to the finding of guilt recorded against the two appellants.
13. Nevertheless, the question as to what offence had been committed by the two appellants deserves examination.
14. The newly-added section 324 of the P.P.C. Provides as under:-- "Attempt to commit Oatl-i-Amd.--- Whoever does any act with such intention or knowledge and under such circumsances, that, if he by that act caused Qatl, he would be guilty of Qatl-i-Amd, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall be liable to the punishment provided for the hurt caused: ' Provided that, where the punishment for the hurt is Qisas which is not executable, the offender shall be liable to Arsh and may also be punished with imprisonment of either description for a term which may extend to seven years."
15. It would thus be appreciated that where hurt had been caused to any person, the offender was liable to the punishment provided only for the hurt caused and not for the attempt to commit `Qatl-i-Amd'. In the present case, Javed P.W. Had received as many as seven injuries on his person.
Therefore, the offenders are culpable and punishable not for attempt to commit `Qatl-iAmd' but for the injuries actually caused by them on the person of Javed P.W. Consequently, the conviction of the two appellants recorded under section 324/34 of the P.P.C. And the punishments awarded to them thereunder are set aside.
16. Out of the seven injuries received by Javed P.W., five are stab wounds which involve cutting and incising the flesh. Nothing was brought on record to demonstrate that the said cutting or incising had exposed any bone or that any of these five injuries extended to the body cavity of the trunk.
17. Consequently, in respect of the stab wounds inflcited on the person of Javed P.W., each one of Iftikhar and Tariq appellants are convicted under section 337-F(ii) read with section 34, P.P.C. Each one of them shall pay Rs,5,000 as Daman to Javed P.W. And shall also suffer two and a half years'
(2-1/2 years) R.I. As `Tazeer'. The fire-arm injuries received by Javed P.W. Fall within the purview of sub-clause (iii) of section 337-F of the P.P.C. Each one of the two appellants is accordingly convicted under section 337-F(iii), read with section 34 of the P.P.C. And is directed to pay Rs,5,000 as 'Daman' to Javed P.W. And also to undergo two and a half years' (2-1/2 years') R.I. As `Tazeer'.
These two sentences of imprisonment shall, however, run concurrently and the appellants shall be allowed the benefit of provisions of section 382-B of the Cr.P.C.
18. Criminal Appeal No,651 of 1992 is disposed of in the above terms.
19. This brings me to the disposal of Criminal Appeal No,650 of 1992 through which the conviction of Tariq appellant under section 7 of Ordinance XX of 1991 has been challenged.
20. The recovery of the Carbine in question had taken place on 12-11-1991. Ordinance XX of 1991 under which, Tariq appellant has been convicted and punished ceased to exist on 1-11-1991 i,e. On the expiration of a period of four months after the promulgation of the said Ordinance, as envisaged by Article 89 of the Constitution. The Act which was consequently enacted on the same subject came into force on 2-12-1991. Thus, no such law, under which Tariq appellant stands convicted existed on the day on which the offence in question had been committed.
21. Consequently, the conviction of Tariq Mehmood appellant under section 7 of Ordinance XX of 1991 and the punishment of seven years' R.I. Awarded to him thereunder are set aside. He is acquitted of the charge and shall be set at liberty forthwith in this case.
22. Criminal Appeal No,650 of 1992, is, therefore, allowed in the above terms.