' Through this appeal, the appellants have challenged the judgment dated 16-2-1995 passed by Judicial Magistrate Section 30, Bahawalpur whereby he convicted the appellants (in case F.I.R.
No,107/94 dated 5-5-1994 registered under section 324/34, P.P.C. At Police Station Khairpur) under section 324, P.P.C. And sentenced them to five years' R.I. And a fine of Rs,10,000 in default whereof to undergo S.I. For six months each. Benefit of the provision of section 382-B, Cr.P.C. Was also extended to the appellants.
2. The prosecution story as given in the F.I.R. (Exh. PA) is that on 5-5-1994 Muhammad Munir, A.S.I.
(P.W.7) brought the undertrial prisoners in a Police Van to the Court of the Assistant Commissioner, Khairpur. Some of the prisoners disembarked from the bus to ease themselves. As the undertrial prisoners were boarding the bus after doing the needful, Muhammad Tahir (undertrial prisoner) was fired at by Muhammad Ramzan appellant with a carbine but the fire missed. Appellant Muhammad Yar also tried to fire but the police officials raised Lalkara and the appellants decamped. The police party arrested them after a little chase. The weapons of offence i,e, Carbine (Exh.PC) was also recovered from Muhammad Ramzan (appellant and carbine (Exh.PD) from Muhammad Yar (appellant).
' The motive alleged in the F.I.R. Is that on 14-10-1993 Muhammad Arif, husband of appellant Muhammad Ramzan's niece, was killed by Muhammad Tahir and the said Muhammad Arif was real uncle of Muhammad Yar appellant. A case stood registered vide F.I.R. No,243/93 wider section 302/324/34, P.P.C. At P.S. Khairpur and Muhammad Tahir was facing trial. The appellants made a murderous assault on Muhammad Tahir on account of the afore-referred grudge.
3. During trial, the prosecution examined seven, witnesses. Noor Muhammad, FC appeared as P.W.1.
He stated that on 5-5-1994 he was posted at police lines and was on duty in judicial guard of which Munir Ahmad, A.S.I. Was the in charge. According to him, as they brought the undertrial prisoners from Bahawalpur to the Court of the A.C., Khairpur and when the said undertrial prisoners were boarding the bus after easing themselves, Muhammad Ramzan appellant fired with his carbine at undertrial Tahir which went amiss. Muhammad Yar appellant also attempted to fire but they raised Lallcara and both the appellants ran away. The police chased them and on the way appellants jumped into the canal. Akhtar Constable and Munir Ahmad, A.S.I. Also jumped into the said canal and arrested Muhammad Ramzen appellant who on personal search, led to the recovery of a carbine and two alive cartridges. According to him, appellant Muhammad Yar appellant was caught by Ramzan Qasim, Constable. Farman Ali, H.C. Appeared as P.W.2. He corroborated the statement of Noor Muhammad P.W. Similarly, Muhammad Ali, Constable appeared as P.W3 Yousaf Ali, S.I. (P.W.5), Muhammad Tahir, the victim of attack (P.W.6) and Munir Ahmad, A.S.I. Appeared as P.W.7. They all corroborated the prosecution story.
' Muhammad Akhtar, Constable (P.W.4) besides being an eye-witness is also a witness of recovery of carbines Exh.PC.
4. The accused when examined under section 342, Cr.P.C. Denied the prosecution story and attributed false implication to enmity. They stated that Muhammad Tahir P.W. Was the murderer of Muhammad Arif (husband of appellant Muhammad Ramzan's niece and a real uncle of Muhammad Yar appellant). The accused party in the said case had got a false case registered against them in connivance with the police to dissuade them from pursuing the said murder case.
5. Learned counsel for the appellants in support of this appeal has raised the following points:--
(i) That ineffective firing is attributed to Muhammad Ramzan appellant whereas Muhammad Yar appellant did not fire.
' That the prosecution evidence consists of police witnesses and no public witness saw the alleged occurrence although it allegedly took place in a broad daylight and in the premises of the Court compound.
' That the weapons of offence were not produced before the learned trial Court.
(iv) That the whole story of firing by the appellants, their decamping from the spot and the alleged chase, the appellants' jumping into the canal and the arrest of the appellants by police from the said canal is repellent to common sense.
' The learned counsel relied on 1985 PCr.LJ 2364; (Rafaqat All v. The State) and 1977 PCr.LJ 671 (Muhammad Azeem v. The State) to contend that in absence of a public witness, evidence of recovery cannot be relied upon.
' Coming to the question of sentence, the learned counsel relied on 1989 SCM R 1387 (Ghulam Sarwar v. Javaid alias Khalid and another) to contend that in a case of ineffective firing, this Court reduced the sentence of already undergone i,e, one year and eight months plus fine and the Hon'ble Supreme Court maintained the judgment of this Court.
6. The learned counsel for the State, on the other hand, has defended the impugned judgment and submits that the offence under section 324, P.P.C. Had been proved beyond a shadow of doubt as the appellants had come to the spot having armed themselves, Muhammad Ramzan appellant fired which missed and Muhammad Yar appellant was prevented from firing as the police-men had raised Lalkara.
7. I have given anxious thoughts to the arguments addressed at the bar, have gone through the evidence on record and the precedent case-law.
8. The offence under section 324, P.P.C. Is complete when it is proved that the accused has done "any act with such intention or knowledge, and under such circumstances, that, if he by that act caused Qatl, he would be guilty of Qatl-i-Amd".
To constitute an offence under the afore-referred provision two elements are necessary i,e, mens rea followed by an actus reus. Mere criminal intent is not an attempt. However, if the criminal intent is followed by certain acts to achieve the objective in mind, the offence would be said to have been committed. The question as to what constitutes an attempt to commit an offence has engaged the attention of this Court as also the august Supreme Court in several cases. In 1973 SCM R 108 (Abdul Majid v. The State), the Hon'ble Supreme Court observed as follows:- "Whether any given act or series of acts constitute a criminal attempt punishable under the penal law a question of fact in each case, depending on the circumstances surrounding the act. More specifically, an attempt to commit a crime consists of the following elements:--
(i) The intent to commit the crime.
(iii) Performance of some act towards the commission of the crime, and
(iv) Failure to consummate its commission on account of the circumstances beyond the control of the offender.
' The test whether there has been an attempt to commit a crime, is a factual one by reference to the three ingredients set out above."
Keeping the afore-referred criterion in mind there is evidence on record to prove that Muhammad Ramzan appellant had a grudge against Muhammad Tahir (under trial prisoner) as he was the murderer of the husband of his niece and he had come to District Courts to face the trial in the afore-referred murder case. To realise his objective of murdering Muhammad Tahir, he came to the spot with a carbine, aimed at his target but by a circumstance which was beyond his control it missed nevertheless the offence stood completed as soon as he fired at his target.
' The prosecution case consists of independent witnesses. Muhammad Munir, A.S.I. (P.W.7) was in charge of the judicial guard whose duty was to bring under trial prisoners to Court. He is the complainant in this case. His statement is corroborated by Farman Ali, H.C. (P.W.2), Noor Muhammad (P.W.1), Muhammad All (P.W.3), Muhammad Akhtar (P.W.4), Muhammad Yousaf (P.W.5) and Muhammad Tahir (P.W.6) who was the victim of attempt to commit Qatl-i-Amd.
The afore-referred witnesses though mostly police officials were natural witnesses inasmuch as they were the members of the judicial guard who had brought the under trial prisoners to the Court of Assistant Commissioner.
' Despite a lengthy cross-examination, the prosecution could not shake credibility of any one of these witnesses. They are admittedly not inimical to appellants and nothing was suggested to these witnesses in cross-examination to justify and inference that they had any intimacy with Muhammad Tahir (P.W.6) victim of the attack to have cooked up a false case. However, the case of Muhammad Yar appellant is distinguishable for the following three reasons:-
(i) that he did not fire at;
(ii) that there is no mention in the F.I.R. (Exh.PA) that he too was armed with a carbine; and that he is not directly connected with the motive part of the prosecution story.
9. The learned counsel for the appellants has laid much stress on the non-production of the weapons of offence which were taken into possession vide memos. Exh.PC and Exh.PD. The evidence on record is a corroborative piece of evidence and if the direct oral evidence is overwhelming, is not discrepant and stems out of unimpeachable source, the non-production of weapon of offence would not constitute a fatal blow to the prosecution case. In several cases of theft and cases under the Arms Ordinance, the non-production of the case property was found to be sufficient to create an element of doubt in the prosecution case justifying acquittal but the rational and logic was that when the identity of the property in question has not been established, the offence under section 411, P.P.C. Or under section 13 of Arms Ordinance XX of 1965 was not complete. For instance in 1984 PCr.LJ 1260 (Liaqat All v. The State), the accused was-acquitted as the stolen property was not produced.
' In 1985 PCr.LJ 1529 (Zafar Islam v. The State), conviction in a theft case was set aside as the case property had not been produced.
' In 1989 PCr.LJ 2285 (Ghulam Farid v. The State), this Court acquitted the accused as the stolen bull cart was not produced and the identity of the said property had not been proved beyond a doubt.
' In 1986 PCr.LJ 1902 (Salahuddin v. The State), the accused was acquitted in a case under section 13 Ordinance XX of 1965 when the illicit pistol was not produced in Court.
' In 1985 M LD 54 (Muhammad Iqbal v. The State), the accused was given the benefit of doubt as the stolen cow had not been produced during trial. This view was further affirmed in yet another case reported in 1986 PCr.LJ 402 (Naseem Rafiq v. The State) in which the accused was acquitted as the stolen buffalo had not been produced.
' In 1984 PCr.LJ 1141 (Muhammad Sharif v. The State), the accused was acquitted as the stolen property had not been produced.
' In 1986 SCMR 461 (Dost Muhammad v. The State) conviction under section 13 of Arms Ordinance XX of 1965 was set aside as the illicit arm had not been produced during trial.
' In 1987 PCr.LJ 1058 (Muhammad Ashraf v. The State), the stolen property was produced in Court at the time of recording of the statement of complainant and he identified the same but when the Investigating Officer was examined on a subsequent date, the said property was not produced. The conviction in that case was maintained and it was observed that the complainant had correctly identified the property in question and mere non-production on a subsequent date could not be fatal to the prosecution case.
10. The case-law relied upon by the learned counsel for the appellants does not have a direct bearing on the present case as the facts of this case were different. For instance in 1977 PCr.LJ 671 (Muhammad Azeem v. The State), the conviction under section 13 of Arms Ordinance XX of 1965 was set aside as the prosecution evidence consisted of two police officials who recovered the illicit arm from the accused when they were on a petrol duty at night.
' In 1985 PCr.LJ 2364 (Rafaqat All v. The State), the medical evidence had belied the ocular account and the three recovery witnesses had not supported the factum of recovery.
' In 1989 SCM R 1387 (Ghulam Sarwar v. Javaid alias Khalid and another), the Hon'ble Supreme Court upheld the judgment of the High Court wherein in a case under section 307, P.P.C. It had reduced the sentence of the accused from four years' R.I. To the imprisonment already undergone (one year and eight months). The reason which prevailed with the learned Judge in the High Court for reducing the sentence was that the immediate cause of occurrence had not been disclosed by the prosecution nor the victim of attack disclosed as to why he was attacked.
11. However, in the instant case, the prosecution/evidence consists of police officials whose presence at the spot has not been disputed and the motive stands established.
' The foregoing resume of the precedent case law with regard to non-production of the case property would indicate that the accused were given benefit of doubt in theft cases and cases under the Arms Ordinance as the question of identifying the property in question was involved. In cases of attempt to commit Qatl-i-Amd, the question of identifying the case property or the weapon of offence may not be that important. In such cases it is the mens rea and followed by actus reus which has to be seen and of course the quality of evidence to prove these elements.
For what has been discussed above, the prosecution has successfully proved its case against Muhammad Ramzan appellant. So far as the question of his sentence is concerned I am afraid he does not deserve any leniency as he fired at Muhammad Tahir, P.W. (under trial prisoner) who had been brought to the Court pursuant to a process of law. The appellant acted in a desperate manner and violated even the sanctity of the Court and the judicial process. The appeal to his extent fails and is hereby dismissed.
The case of Muhammad Yar appellant stands on a different footing for reasons mentioned in para.9 above. The prosecution has not been able to prove its case against him beyond a shadow of doubt to sustain a conviction on a charge under section 324, P.P.C. He is, therefore, acquitted and shall be released forthwith if not required in any other case.