' A report was lodged at Civil Hospital, Rustam at 9-30 a.m. On 19-11-1993 by P.W. Wajahat Ali who charged appellants Umar Dad, Jamil Akber and absconding accused Said Zaman for effectively firing at the complainant with whom they had previous enmity. The event had taken place at 9-15 a.m. At Datsun-Adda in Rustam Bazar where Wajahat Ali had come from village Nawan Killi alongwith his uncle Amir Haider and P.W. Gul Khitab for purchases. Wajahat Ali was immediately taken to the hospital where on the arrival of the police he lodged a report within 15 minutes.
2. Accused Umar Dad and Jamil Akber were arrested on the spot within few minutes while accused Said Zaman absconded. The appellants on the completion of investigation were tried before Sessions Judge, Mardan on a charge under sections 324, 337-D and 34, P.P.C. And on conviction sentenced each to 3 years' R.I. With fine of Rs,2,000 or 6 months' R.I. In default and in addition 3 years' R.I. Each with a direction to pay a sum of Rs,76,666 a., "Arch" to the complainant, vide his judgment and order, dated 15-8-1996. The sentences awarded on both counts were directed to run concurrently. The appellants were given benefit of section 382-B, Cr.P.C. Hence this appeal. A criminal revision petition (Criminal Revision No,100 of 1996) under section 435 read with section 439, Cr.P.C. Has been also filed by complainant Wajahat Ali against the quantum of sentence passed on the appellants by the trial Court which in his view is inadequate. Both these appeal and revision petition are disposed of by this single judgment recorded in Criminal Appeal No,268 of 1996.
3. I have heard Mr. Tasleem Hussain Khan, Advocate on behalf of the accused-appellants and Mr. Riaz Ahmed Khan, Assistant Advocate-General assisted by Mr. Javed A. Khan, Advocate for the complainant party. Not only, that the complainant was immediately after the occurrence rushed to the hospital, he lodged a report with the local police in 15 minutes and named the appellants alongwith the absconding accused for effective firing at him at Datsun-Adda in Rustam Bazar where the injured had come from the village alongwith his uncle and another person, namely, Umar Khitab in order to make purchases. Both the appellants were arrested within few minutes of the incident after chase on a thoroughfare leading to Akhun Baba by Constable Sultan Ali who happened to be on Gasht in the Bazar followed by A.S.-I. Muhammad Inam Khan and others. The A.S.-I. Also disarmed appellant Umar Dad of a .30 bore pistol with 5 rounds in magazine. Accused Said Zaman, however, made good his escape. P.W. Muhammad Iqbal Khan, S.-I. On 21-11-1993 recovered from a pond a .12 bore pistol at the instance of accused Jamil Akber with an empty in chamber in the presence of P.Ws. Amir Taj and Muhammad Inam. Dr. Maqsood Ahmed at 9-40 a.m.
On the same day examined complainant and found the following:--
(1) Seven entry wounds all of same calibre on back middle.
(2) One entry wound on extreme left just below the left shoulder-joint.
(3) Six entry wounds 1" - 2" apart from each other.
The doctor declared these injuries dangerous to life and caused by firearm. He confirmed his medico-legal report Exh.P.M. Accused Umar Dad on 22-11-1993 made an inculpatory confessional statement before Mr. Ihsanullah Khan a Magistrate 1st Class.
4. In the background of blood feud enmity between the parties this occurrence had arisen. Jan Akber a brother of appellant Jamil Akber was murdered and brother of the complainant, namely, Shahid was charged. The victim within 15 minutes lodged a report with the local police in hospital and named appellants alongwith the absconding accused for effective firing at him in Rustam Bazar soon after the complainant alighted from the vehicle. The appellants while running from the spot were chased by Sultan Ali, F.C. Followed by A.S.-I. Muhammad Inam of the local police and arrested at "Akhun Baba" while Said Zaman accused managed to escape. Appellant Umar Dad was also disarmed of a .30 bore pistol while on the pointation of Jamil Akber appellant a .12 bore pistol was recovered from a pond by the Investigating Officer on the 3rd day of his arrest. The medical evidence indicates use of different type of fire-arms.
5. Mr. Tasleem Hussain Khan, Advocate urged that medical evidence furnished in this case by the doctor contradicts the ocular evidence of the complainant and P.W. Amir Haider. He took me to the reading of site plan Exh.P.B. By stating, that if appellants Umar Dad and Jamil Akber while standing on points Nos.4 and 5 had fired on the complainant at point No,1 within the range of 5/6 paces the shot shall go in a bunch and cause single wound on the body whereas 6 entry wounds are mentioned in the medico-legal report Exh.P.M. Which were caused to the complainant in an area of 1/2 inches (apart from each other). Admittedly, in the site plan the distance of appellant Umar dad from the victim at the time of firing is shown by 6 paces and that of Jamil Akber at 5-1/2 paces, but witnesses usually tell distance approximately by not measuring it in inches and do often make exaggerations. In the instant case argument of the learned counsel cannot be maintained for the simple reason that even if we consider distance given in the site plan correct, a fire caused by .12 bore pistol from a distance of 6 paces would make pellets spread in an area of 1-2 inches. On the converse when we read medico-legal report we see that 6 inlet wounds 1" - 2" apart from each other were caused on the back and another entry wound in the extreme left shoulder joint suggesting the use of two types of weapons. This fact also gets support from the recovery of .30 and .12 bore pistol and empties. A .30 bore pistol was taken into possession from appellant Umar Dad by A.S.-I. Muhammad Inam Khan when arrested immediately after the event and .12 bore pistol at the pointation of appellant Jamil Akber on the 3rd day of his arrest from a pond. The evidence led by Dr. Maqsood Ahmad read in this background of the case would not only be found in line with the ocular evidence of the complainant and P.W. Amir Haider but also corroborated totally by the recovery of weapons and empties of different bore. Additionally, Umar Dad on 22-11-1993, i,e,, on the 3rd day of his arrest made a statement (Exh.P.L/1) before Mr. Ehsanullah Khan, Magistrate 1st Class, Mardan and confessed the occurrence in the same manner by implicating not only himself but appellant Jamil Akber also and of his arrest immediately after the event with a .30 bore pistol by the police alongwith the co-accused. The confessional statement of accused Umar Dad is simple, straightforward and rings true and can be used to corroborate the said ocular and circumstantial evidence.
6. In this background of the prosecution case, we found not only a very prompt report made by the victim himself before the police in hospital within 15 minutes of the event signed further by P.W.
Amir Haider, but also the consistent medical evidence of the doctor and arrest of both the accused at some distance from the spot immediately after the firing coupled with recovery of crime pistols and empties which have established guilt of the appellants on the charge in hand beyond any reasonable doubt which is further corroborated by the inculpatory confessional statement of appellant Umar Dad.
7. We, however, accept arguments of the learned Advocate that as occurrence in this case had taken place on 19-11-1993 the appellants should have been punished in accordance with law prevailing on that day, i,e,, under section 324 of Ordinance XII of 1993, the Criminal Law (Second Amendment) Ordinance, 1993 which is reproduced below:-- "Attempt to Oatl-e-Amd.--- Whoever does any act with such intention or knowledge, under such circumstances, 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."
' The learned trial Court in this background of the event erred in convicting accused under Ordinance XV of 1995, i,e, the Criminal Law (Amendment) Ordinance, 1995 wherein section 324, P.P.C. Was again amended as under:- "Attempt to commit Qatl-e-Amd.--- Whoever does 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, 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 (in addition to the imprisonment and fine as aforesaid) be liable to the punishment provided for the hurt caused."
8. The appellants would have been in the circumstances convicted under section 324, P.P.C. Of Ordinance XII of 1993 as existed at the time the offence was committed. Accordingly, the judgment and order in appeal would be modified to the extent that the appellants are now convicted under section 324 read with sections 337-D and 34, P.P.C. Under Ordinance XII of 1993 and sentenced each to 5 years' R.I. As "Tazir" for the hurt caused to the complainant and each shall be also liable to "Arsh" which is 1/3rd of the "Diyat". With these modifications in the conviction and sentence of the accused the appeal shall be dismissed while the criminal revision petition succeeds to the extent aforesaid.