ABDUR REHMAN KHAN, J.---The above three matters pertain to the same judgment of the learned Judge of Lahore High Court delivered on 29th May, 1997; therefore, these are dealt with and disposed of through this judgment.
2. Wajahat Ikram and Sheryar (real name is Sheharyar) who are first cousins inter se were found guilty by the learned Additional Sessions Judge, Rawalpindi and on conviction under sections 324/34, P.P.C. And 337 F-(iii)/34, P.P.C., were sentenced as under:-- Name of the accusedSection of lawSentence Wajahat Ikram 324/34, P.P.C.(i) Arsh, equal, in amount to that fixed for Divat which has been assessed as Rs,1,83, 858 (Payable to the victim). (ii) 10 yearsR.I. 337/34-F (iii) (i) Daman equivalent to the amount of Rs,30,000 (payable to victim). (ii) 3 yearsR.I.
2.Sheryar 324/34, P.P.C.(i) Arsh equal in amount to that fixed for Divat which has been assessed as Rs,1,83, 858 (payable to victim). (ii) 10 yearsR.I.
337/34-F (iii) (i) Daman equivalent to the amount of Rs,30,000 (payable to victim). (ii) 3 rearsR.I.
2. The convicts impugned their conviction, and sentence in the High Court through an appeal while the complainant filed a revision petition for the enhancement of the sentence, imposition of fine, directing the sentences to run consecutively and withdrawal of the concession allowed under section 382-B of the Cr.P.C. The High Court by the impugned judgment maintained the conviction and sentence not only against Wajahat Ikram imposed by the trial Court on both the counts but also directed him to pay fine of Rs,20,000 or in default to undergo 3 monthsR.I. The conviction of Sheharyar accused under both the sections was also maintained but his sentence under section 324/34, P.P.C. Was reduced from 10 years to 7 yearsR.I. And a fine of Rs,10,000 was additionally imposed upon him or for failure to pay it to suffer 3 monthsR.I.
3. In the above background Criminal Appeal No,281 of. 1997 has been filed by the convicts to reverse their conviction and sentence and to acquit them of the charges while the other two appeals have been moved by the complainant; one, against the reduction of the sentence in appeal by the High.
Court and the other against the refusal of the High Court to accept in toto which was prayed for in revision for enhancement.
4. Aamir Fida Paracha (P. W.1) reported the murderous assault at his brother Anjum Farooq Paracha (P.W.3) and Zafar Ashfaq (P.W.2) to the police at 2-30 in the night which had occurred the same night at 1-30. It was stated in this report that he and his brother Anjum Farooq Paracha visited their ailing mother in Satellite Town and after staying with her till late in the night returned to their house in Rawalpindi in their car. It was 1-30 in the night that they parked their car in the garrage and started towards their house. They met P.W.2 Zafar Ashfaq with whom they exchanged greetings. In the meantime a motor cycle driven by Sheryar appellant while the appellant Wajahat.
Ikram occupying its real seat (pillion) came there from behind. Sheharryar raised Lalkara that they are there to teach lesson to Anjum Farooq Paracha (P.W.3) for pursuing murder case. No sooner his brother turned towards them, Wajahat Ikram fired at him and a bullet hit him beneath the left chest while a bullet injured Ashfaq Zafar on the back of left thigh and he (informant) took shelter behind a corner of the wall. P.W. Abdul Mannan was also attracted to the spot on hearing the Lalkara raised by Sheharyar. On their hue and cry the two rode the motor-cycle and decamped. The incident took place at a distance of two yards from an electric pole and a bulb in the pole and the light in the adjacent houses had shed sufficient light on the spot.
5. Motive for the crime was stated to be causing injuries to the father of the complainant, Altaf Hussain and Muhammad Siddique by Ikramul Haque (father of Wajahat .Ikram) and others with fire-arm in November, 1991. The second reason for the crime was described to be the registration of a case under section 506, P.P.C. Against the accused by P.W. Anjum Farooq. Accused tried to overawe and pressurize Anjum Farooq so as to compel him to compromise these criminal cases with them. But on their failure, they resorted to this violent act.
6. The learned trial Judge based conviction on the following items of evidence and that was confirmed by the High Court in appeal:-- A. The F.I,R. Was lodged within an hour of the occurrence which can be termed as promptly lodged report and which eliminates possibility of deliberations and concoction. B. The evidence of the three eye-witnesses i.e, Aamir Fida Paracha (P.W.1), Anjum Farooq Paracha (P.W.3) and Ashfaq Zafar (P.W.2) and out of whom the latter two were injured, was consistent and believable. C. Motive for the crime was established. D. Medical evidence supported the occular evidence. E. Recovery of crime weapon at the behest of Wajahat Ikram from a graveyard is proved by the reliable deposition of the marginal witnesses. F. Expert opinion established that the five empties picked up from the spot and the lead recovered from the body of the injured matched the pistol recovered on the pointation of the accused Wajahat Ikram.
G. Sheryar accused is vicariously liable under section 34, P.P.C. With his co-accused and the offence was committed in furtherance of common intention irrespective of the fact that he did not fire any shot. The High Court, however, thought it proper to reduce his punishment from 10 years to 7 years on account of his lesser role in the crime.
7. The learned counsel appearing for the convicts/appellants emphatically argued that the ocular account in the case was furnished by interested witnesses and that the learned Courts have legally erred in founding conviction on such evidence. This argument has invariably been advanced with such emphasis in many decided cases as if it is inflexible rule of universal application that in no case the testimony of an interested witness is to be believed. However, it is not so, every criminal case proceeds on its own facts and is to be decided on its own merits. It has repeatedly been laid down that it is the value of the evidence which is to be considered for rendering finding of guilt and that mere interestedness of a witness by itself would not be a criteria for discarding his evidence.
The evidence of the two eye-witnesses P.W,1 and P.W.3 although interested but if judged on the above yardstick then the inherent quality of their testimony do qualify it to be adopted for conviction. As for the third eye-witness (P.W.2) he is neither related to the complainant side nor is inimical towards the accused, therefore, it is wrong to dub him as interested witness. Out of the three eye-witnesses P.W.2 and P.W.3 had admittedly received fire-arm injuries, therefore, there is no point to doubt their presence at the time of firing and as for the presence of the third eye-witness (P.W.1) he is a natural witness because his house is adjacent to the spot. It was next argued that if the two brother witnesses used to visit their mother every night then why not they were fired on some earlier occasion and similarly if the assailants were allegedly following the victims then why they were not fired elsewhere. It was clarified that if the accused had pre-planned the commission of the offence then why not they embushed themselves instead of firing at the P.Ws. In the open. It was submitted that how after all the accused knew about the arrival of the victims at that particular time. All these are imaginative and conjectural points and could only be posed to the accused for answer. It is not for the Court to find out as to why the accused did not act in a particular way at a certain time and if he had done it is the manner as suggested by the defence then he could not have been identified on the spot or the charge could not have been proved.
Court is only required to determine the veracity of that which is brought against the accused in the evidence examined before it and not that the accused in the circumstances alleged against him could act in a different manner and, therefore, if he had acted in another way then the prosecution could not prove the charge against him. This would be indulging in guesswork which is not permissible under the law. Therefore, in the circumstances of the case it is to be seen whether the witnesses are truthful in their narration and whether their testimony finds support from other materials on record. There is no successful rebuttal of the prosecution evidence that the crime did not take place at the place as alleged by the eye- witnesses. The evidence of the complainant and the two injured eye-witnesses could not be discarded on this count. The recovery of five empties from the spot and the two bullet marks at point No,10, which is a wall of an adjacent house, further support it. Although there is no recovery of blood from the spot but that by itself would not disprove the venue of the crime because; firstly, in the intervening time between the injuries and the spot inspection the blood if had oozed from the injury it could not remain there because of the use of the road; and secondly, the incident occurred in October in which ordinarily warm clothes are worn and the blood might not have reached the road through soaking process. Thirdly, it is in the evidence that the injured were quickly taken from the spot and, thus, there was no chance for smearing of the road with the blood. It was next argued that the incident was deliberately belatedly reported to the police and this delay was for deliberation to substitute the accused for the real culprits. This argument would not prevail; firstly, because there appears no delay in reporting the occurrence as the firing took place at 1-30 and the F.I.R. Was lodged at 2-30 and this gap of one hour could be consumed in lifting the c injured, seating them in the car, taking them to the hospital and then contacting the Police for report. Secondly, it could not even remotely be suggested as to who could be the real assailant and as no other enmity of the accused with some other person could be proved nor it could be shown as to what prompted the complainant to spare the actual attacker and instead involved the appellants. In this context it was emphasized that the police station was adjacent to the spot and the matter could be reported there much earlier but this argument conveniently overlooks the fact that it would have been top priority for the reporter to take first the injured to the hospital for treatment and then to report the occurrence as it needs no explanation that saving life of the related injured P.W. Was more essential than worrying at that tense moment for the subsequent objections of delayed report and its effect. It is interesting to note that at one stage the learned counsel submitted that the report could not be lodged as promptly as had been done and he rather tried to describe the report as too prompt. Because the complainant indulged in writing the report instead of attending to his injured brother. It was next argued that it was a night occurrence and the identification of culprit was impossible. This appears to be a routine argument which does not take into consideration the reliable evidence on record in shape of the light and recovery of bulb from the spot. The recovery of pistol at the behest of Wajahat Ikram was also doubted as according to learned counsel the appellant had a licensed pistol which he could use in the commission of the offence and as such there were no sense either to use or to produce unlicensed pistol. It is a matter of common knowledge that accused prefer to use unlicensed weapon for commission of the offence as there are remote possibility of locating such weapon by the police than the licensed weapon. Both the High Court and the trial Court have discussed the recovery and have believed it on the basis of the testimony of independent person Ateeq Shehzad (P.W.4) and the Investigating Officer (P.W.9) and the three Police Constables who were examined as C.W.1, C.W.2 and C.W.3. The recovery of empties from the spot and the lead from the body of Anjum Farooq Paracha and its matching with the alleged recovered crime weapon was also doubted. It was also objected that they were sent with sufficient delay to the arms expert and, therefore, his report could not be relied. The trial Court has dealt with these objections in this manner: "Though, it was objected by the learned counsel for the defence that as to why the Investigating Officer did not take into possession the empties during the night when he had come to the place of occurrence, just after the occurrence (the police station being adjacent to the place of occurrence), but the evidence shows that no case had been registered till that time and no one had told him about the presence of any empties at the spot at that time, neither it was got clarified that as to whether any eye-witness was present on the spot at that time or not". The High Court in para. 17 of its judgment has commented on this aspect of the case which is reproduced: "Learned counsel for the appellant contended that the crime empties are stated to be sent to the Forensic Science/Laboratorty promptly but a pellet recovered from the body of Anjum Farooq was not sent to the Laboratory till the recovery of the pistol (P6). It was, therefore, claimed that this was the clear violation of the instructions and cast a doubt on the prosecution. In this respect, he also relied upon Muhammad Shafi and others v. The State (PLD 1968 Lah. 869) wherein the crime empties were sent after nine daysdelay to the Forensic Science Laboratory the Court had held that no value should be attached to the such recovery of crime empties. Similarly view was taken in Bashir Ahmad v. The State (PLD 1987 Lah. 505). In the instant case, however, it is on the record that the pellet (P11) recovered from the body of Farooq Anjum was handed over to the police on the 12th October, 1994, in a sealed bottle under certificate Exh.PJ The same was taken back after one or two days to Dr. Raja Muhammad Yusaf (P.W.10) by S.H.O. For re-fixing the official stamps on the bottle.
After re-fixing of the official stamp on the bottle, the pellet P.11 was sent to the Forensic Science Laboratory. Although there appears no justification for withholding these articles in the Malkhana even for a few days after recovery thereof, but the overall evidence produced by the prosecution does link the accused with the crime they had been charged'. I find no defect in this analysis and appreciation of the evidence by the two Courts and the objection of the learned counsel on this count would not prevail."
It was also argued that the medical officer who examined P.W. Ashfaq Zafar could not appear as P.W., and therefore, the position of one of the two injures which was described as "Bruise" could not be ascertained. It was all along the case of the prosecution at the trial that both the injured witnesses received injuries with pistol shots fired by Wajahat Ikram accused and the medical reports have verified this fact. The appellants could not discredit these reports nor they challenged the nature of the injuries being fire-arm rather their plea was that some unidentified assailant had caused these fire-arm injuries and instead they have been falsely involved in the case. It was in this context pointed out that in the F.I.R. Ashfaq Zafar was alleged to have been hit with only one bullet but in his medical report it is shown that he had received two injuries. It is to be noted that just after the F.I.R. The injury statement of the P.W. Was prepared by the Investigating Officer in which two wounds have been shown. The existence of two injuries on the person of the witnesses stand established from the said document as well as from the Court statement of P.W. Ashfaq Zafar and the other two eye-witnesses. It was stressed that P.W. Ashfaq Zafar was not an independent witness as he was under the obligation of P.W. Anjum Farooq who being activist of PPP had nominated him as a Member of Zakat and Ushr Committee. This argument has no force as firstly, it could not be established from any independent source that it had so happened and secondly, the stand of the defence on this count is inconsistent because it was suggested to Ashfaq Zafar that this nomination was for membership while the suggestion to P.W. Anjum Farooq Paracha was that it was for Chairmanship. Thirdly, even if what was suggested was true that was after the present occurrence when Ash faq Zafar having sustained fire-arm injuries had already charged the accused. The learned counsel was critical as to how Anjum Farooq Paracha could compromise the case of other with whom he had no relations and submitted that the motive alleged by the defence to the extent that the accused were annoyed with him for his refusal to compromise the case was false. It appears that the learned counsel is oblivious of the fact that the record indicates that Anjum Farooq Paracha besides being the complainant in the case was most active in prosecuting those cases and, therefore, it appeared that the relation of the victim of these cases did not agree to compromise the cases without his consent. The learned counsel referred to application Exhs. PG and PH drafted by the Investigating Officer, requesting the Medical Officer to apprise him to his opinion if the two injured witnesses were fit enough to give statement and argued that these two applications did not contain number of the F.I.R. Nor section of law under which it was registered and as such F.I.R. Was lodged much after the preliminary investigation had been conducted and such an F.I.R. Had lost sanctity and was a doubtful document. It is a very far- fetched and inconsequential argument as it could not be explained as to how mere omission of F.I.R. Number and section of law in these documents would leave to the consequence as argued. It is obvious that the two witnesses were not injured in any other incident and naturally their statements to be recorded in respect of the injuries suffered by them in the only incident that had occurred at the relevant time. Thus, neither anything turns on it nor any adverse inference can be drawn against the prosecution on this count. It was argued that the presence of accused Sheryar on the site could not be established because the motor-cycle allegedly driven by him to the spot had not been recovered. It is not understandable how non-recovery of the motor-cycle could be a proof for his absence when otherwise his presence stood established by confidence inspiring evidence.
8. The learned counsel while arguing the legality of the conviction and sentence under section 324, P.P.C. Submitted that under the law which was operative at the time of commission of the offence an accused could not be punished under the first part of section 324, P.P.C. But he could be covicted only under the second portion of the section for the hurt caused. He elaborated that the occurrence occurred on 11-10-1994 while the amendment through Criminal Law (3rd Amendment)
Ordinance, 1994 was enforced on 25-11-1994 and he referred to Shahbaz Ahmad and others v. The State (PLD 1994 Lahore 344), Arshad v. The State and another (1996 SCMR 1270) and sections 334 and 336-N, P.P.C. He also submitted that payment of Arsh could be ordered only to one of the accused and not to both of them as it is imposed in lieu of Qisas which could be extracted only once. The learned counsel also referred to Bhai Khan and others v. The State (PLD 1992 Supreme Court 14) and Attaullah and others v. The State (PLD 1990 Peshawar 10) to support his view-point.
On the other hand the learned counsel for the complainant contended that the appellants having been found guilty under section 324, P.P.C. For firing and for causing injuries by Wajahat to Anjum Paracha of the nature of Itlaf-i-Salahiyyat-i-Udw were liable to Oisas so that the principle of equality as envisaged in Islam could have been fulfilled. It this context he was of the view that if injuries of the kind caused to this P.W. Could not be inflicted on the accused then through modern scientific device the disability the injuries have brought about over the person of P.W. Anjum Farooq Paracha, the accused should be made to suffer the same disability. He clarified that admittedly on the receipt of the injuries spinal card of Anjum Farooq P.W. Was damaged and, thus, he is unable to move his leg and his lower portion has become senseless, which has permanently affected the functioning, power and competency of that part of the body. It was, therefore, argued that the principle of equality demands .That the same disability should be caused to the appellants. He next submitted that the appellants were liable to be punished to ten years under first part of section 324, P.P.C. And also under the second part of this section for having caused injuries of Itlaf-i- Salahiyyat-i-Udw which is punishable under section 336, P.P.C. He further submitted that although the penalty of Arsh has been imposed on them but having regard to the second part of section 324, and section 336 read with section 337-N, P.P.C. They were liable to imprisonment as Tazeer. It was also argued that as two persons had been injured, therefore, the sentence should have been ordered to run consecutively and that the accused being hardened and desperate persons should not have been extended the benefit of section 382-B, Cr.P.C.: In order to properly appreciate the respective submissions of the learned counsel for the parties it would be proper to reproduce the old section 307, P.P.C., the original section 324, P.P.C. And the amended section 324 and section 326, "307. Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, 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 either to imprisonment for life, or to such punishment as is hereinabefore mentioned.
When any person offending under this section is under sentence of transportation for life or imprisonment for life he may, if hurt is caused, be punished with death."
"324. Whoever, except in the case provided for by section 334 voluntarily causes hurt by means of any instrument for shooting, stabbing or cutting, or any instrument which, used as a weapon of offence, is likely to cause death, or by means of fire or any heated substance, or by means of any poison or any corrosive substance, or by means of any explosive substance or by means of any substance which it is deleterious to the human body to inhale, to swallow, or to receive into the blood, or by means of any animal, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both."
Amended section 324.--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 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,"
"Section 326. Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both."
9. It is, thus, to be seen that under section 307, P.P.C. The penalty for ineffective firing was 10 years plus fine and if by the act hurt was caused then the offender was liable either to imprisonment for life or to such imprisonment as hereinbefore mentioned. So, in case of hurt the offence was aggravated and the sentence was, therefore, enhanced. Section 324, P.P.C. As it stood before the amendment was interpreted by some Court to mean that if the act as contemplated in the section has not resulted into hurt then the offender would be liable to 10 years and if hurt had been caused then to the penalty provided by law for the hurt. This could never be the intent and purpose of the Legislature as that would cause strange anomaly and create absurd situation in that in most of the cases the punishment provided for hurt is muchless than 10 years, For example, the wound designated as Damiyah in which skin is ruptured and bleeding occurs is punishable only with one year as Tazeer and the injury known as Badiah which means out or incising the flesh without exp9sing the bone is punishable for payment of Daman and may also be punished to three yearsR.I. And the accused of the injury called as Utalahimah which is lacerating the flesh will be liable to pay Daman and can be awarded imprisonment extending up to 3 years as Tazeer. Thus if an accused shoots a person with intention and knowledge and under the circumstances as contemplated under section 324, P.P.C. And that shot proves ineffective then the shooter will be liable to imprisonment for a term which may extend to 10 years and shall be bound to pay fine but if the shot proves effective and causes any of the three wounds described above or for that matter any Ghary-Jaifah injury as defined in section 337-E and punishable under section 337-F then he would be liable to Daman which is like imposition of fine and for term of imprisonment from one year up to, seven years, in any case to less than 10 years as provided for the shot which did not cause injury. If the Courts which were confronted with dealing with such a situation had kept the old section 307, P.P.C. And the spirit and concept of Islamic jurisprudence they would not have been misled by the unamended section 324, P.P.C. Which they could easily interpret to mean that in case of hurt beside the penalty provided for by the first part of the section the offender could additionally be sentenced to the hurt inflicted by him. In any case even if the Courts felt justified about the existence of such anomaly then the inadvertent omission which otherwise was so obvious and patent for discerning the true intention of the law-maker could be supplied. In this context the rule laid down in Lt.-Col. Nawabzada Muhammad Amir Khan v. The Controller of Estate Duty (PLD 1961 SC 119) could be availed as it was held therein, Court may modify language of statute to given effect to manifest and undoubted intention of Legislature where the language of the Statute in its meaning and grammatically construction lead to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience and absurdity, hardship or injustice presumably not intended, a construction may be put upon which modifies the meaning of the words and even the structure of the sentence". This dictum was also repeated in Muhammad Ismail and others v. The State (PLD 1969 SC 241) as it was stated "there can be no manner of doubt that the true intention of the law-maker was to remove the anomalies created by the unhappy language in which the provisions of sub-clause (b) of clause (2) of Article 58 of the 1962- Constitution were couched by replacing it substantially with what was contained in Article 159 of the Constitution of 1956". In Hasham Khan. v. The State (PLD 1991 SC 567) the said enunciation of law was reiterated and adopted and it was laid down: "The language employed by the draftsman under section 11 is inartistic and does not express the true intention of the law-maker". Keeping in view the said enunciation of law if the word "also" had been read and its omission supplied in the latter part of the original section 324, P.P.C. Then the absurdity, anomaly and the injustice, thus, caused could be, avoided. This word "also" could be read, added or supplied in this way and if hurt is caused to any person by such act the offender shall (also) be liable to the punishment for the hurt caused. After amendment in this section by virtue of Criminal Law (3rd Amendment)
Ordinance, 1994 enforced on 25th October, 1994, the relevant para. Of later part of section 324, P.P.C.
Now reads as under:-- "And if hurt is caused to any person by such act, the offender shall, in addition to the imprisonment and fine as aforesaidbe liable to the punishment provided for the hurt."
This addition in the section has rather clarified the intention of the Legislature that if in consequence of the act hurt is caused then additionally punishment provided for the hurt can also be imposed. If in the instant case the said enunciation and clarification of law is applied then both the appellants would be liable to punishment for act of firing as well as for the injuries caused.
There is no denying the fact that the injury caused to Anjum Farooq is covered by section 336, P.P.C.
As it has resulted in Iltaf-i-Salahiyyat-i-Udw. The High Court in para. 27 admitted this legal position when it observed: "Although the learned Additional Sessions Judge, had rightly convicted both the accused under section 324, P.P.C. Read with section 34 thereof for an attempt to commit Qatl-i-Amd of Anjum Farooq, but he had erred in awarding punishment in accordance with the aforesaid provisions. As explained above, under section 324 (ibid) initial punishment for such offence is imprisonment which may extend to ten years and fine and in case any hurt is caused to the victim, the offender shall also be awarded the punishment of the kind of hurt caused to the victim in addition to the said imprisonment. The amendment in that section by virtue of Ordinance XVIII of 1994 does not create a new offence, but only clarifies the provisions thereof."
However, the High Court only added fine of Rs,20,000 with it apparently imposing this fine under the first part of the section 324, P.P.C. As there is no scope of fine in section 336, P.P.C. And both those Courts avoided to punish Wajahat Ikram for his act of firing which is covered under the first part of section 324, P.P.C. As the charge of firing and existence of common intention has been established, and as such both the appellants were liable to punishment under the first part of section 324, P.P.C.
I, therefore, in addition to the sentence imposed on the appellants by the trial Court and confirmed by the High Court award each of the appellants imprisonment for three years for the act of firing with common intention under the first part of section 324, P.P.C. This sentence of three yearsR.I. Will run consecutively with those already imposed. Moreover, both the Courts after elaborate discussion and proper appreciation of the evidence and for cogent and valid reasons have come to the conclusion that the offence was committed in furtherance of common intention and as such irrespective of the part played by Sheharyar he was equally responsible for the injury caused by the concerted act. High Court overlooked this aspect and erred in reducing the term of imprisonment of Shehryar to section 324/34, P.P.C. From 10 years to 7 years, I, therefore, reverse the finding of the High Court on this count and restore the sentence of 10 years as imposed by the trial Court. The sentence of fine of Rs,20,000 awarded by the High Court under section 324/34, P.P.C. For murderous assault on Anjum Farooq also appears to be inadequate keeping in view the permanent disability and the expenses borne by him and the inconvenience suffered by him for remaining under treatment for considerable period as indoor patient in various hospitals and for being rendered disabled for pursuing his routine work to earn livelihood. This amount of fine is, therefore, enhanced and each of the accused is to pay Rs,40,000 as fine or to suffer two yearsR.I. In case of default. Out of the total amount of fine half should be paid to Anjum Farooq Paracha. The sentence of two years would start concurrently with three years imposed by me under the first part of section 324, P.P.C.
9. The question that next arises for determination is; whether, the conviction and sentence of the appellants under section 337/34-F(iii) for causing injury to P.W. Ashfaq Zafar is legally correct or whether they were also liable to be convicted and sentenced under the first part of section 324/34, P.P.C. Besides being guilty under section 337/F(iii) for the injuries caused to the said P.W. From the evidence brought on record as discussed in the earlier part of this judgment and also dilated upon exhaustively by the trial Court and the High Court P.W. Ashfaq Zafar also received two fire-arm injuries; one, on "interior abdominal wall in mid-line between umbilicus and symbysir 2" above pubic bone"; and the other entry wound on posterior surface on left thigh with exit wound on medial side of left thigh. It also stands established that the accused had thoroughly thought over the matter and had properly planned the attack at that odd hour of midnight and one of them was armed with deadly weapon like pistol which the other fully knew and both shared common intention to do away with their rival. It is also established that to achieve that which they had jointly intended pistol was and used at random without caring for the life of those who happened to be present on the spot alongwith their primary target of attack. It is well-settled that every person must be presumed to know the consequences of the act that ordinarily and in common course of events do occur. Keeping in view the above background in which the incident was perpetrated the question of applicability of section 324 or 337/F (iii) is to be resolved. The essential ingredients of an offence under section 324, P.P.C. Are as follows:--
1. The doing of an act which by itself must be ordinarily capable of causing death in the natural and ordinary course of event. II. Presence of necessary intention or knowledge that death would ensue as a result of that act.
In other words to determine the culpability under section 324, P.P.C. The nature of the act done, the intention, the knowledge under which act was done and the circumstances under which the act was perpetrated are to be considered. There is no abstract criteria/formula for ascertaining the intention of the offender which can only be inferred from the external acts and surrounding circumstances. It is provided in section 300, P.P.C. That if an act is done neither with intention of causing death or with the knowledge that the act is so imminently dangerous that it must in all probability cause death, causes the death, then the offender would be liable for the offence of Qatl-i-Amd. Section 301, P.P.C. Reads as under:-- "Where a person, by doing anything which he intends or knows to be likely to cause death, causes death of any person whose death he neither intends nor knows himself to be likely to cause, such an act committed by the offender shall be liable for Qatl-i-Amd".
Under repealed section 300 there was an illustration numbered as (d) which was to the following effect:- "(d) A without any excuse fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual."
In the instant case considering the background of enmity that prompted the attack, the time of late hours of the night which was selected for the assault, the premeditation in which the attack was carried out, and one of the attackers had armed himself with deadly weapon within the knowledge of the other accused and the consistent and at random firing which was made and the short distance from which it was fired clearly lead to the inference that the accused knew that their act was so imminently dangerous that it must in all probability cause death. The accused can be held responsible for their knowledge that death could be caused by their attack. It was laid down in Yashpal v. Emperor (AIR 1933 Allahabad 627) "If a man fires off a fire-arm while a police officer is attempting to arrest him, the natural conclusion is that he is attempting to shoot the police officer and is guilty under section 307; if the defence is that he had merely the intention of frightening the police officer by firing in the air then the burden of proving that fact is upon the defence". The following observation in State of Maharashtra v. Balram Bama Patil and another (1984 PSC 910)
(Supreme Court of India) also explains guidelines for applying section 324, P . P.0 . : "It is sufficient to justify a conviction under section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section. Therefore, it is not correct to acquit an accused of the charge under section 307 merely because the injuries inflicted on the victim were in the nature of a simple hurt."
The dictum laid down in Parcho Kewalram and others v. Emperor (AIR (31) 1944 Sindh 83) is also helpful in resolving the present controversy as it says: "A who was not an expert shot when pursued as a thief by B fired at B and wounded B in the right leg. It was argued that the case did not come under section 307 at all because A did not fire to kill at all but fired only to injure and stop pursuit: "Held that when A fired his revolver under the circumstances, his act, if death had followed, would clearly have fallen under the fourth part of section 300, Penal Code. It was an act so imminently dangerous that would in all its probability cause death or such bodily injury as would be likely to cause death. The case, therefore, came within section 307. The fact that fortunately B was not hit in a vital part of his body and did not die could not take the case out of the purview of section 307 and make section 324 alone applicable".
In Om Parkash v. State of Punjah (AIR 1961 S.C. 1782 (V 48 C 328) it was laid down, "In Emperor v.
Vesudeo Balvant Gogte, ILR 56 Bom. 434; (AIR 1932 Bom. 279) a person fired several shots at another. No injury was in fact occasioned due to certain obstruction. The culprit was convicted of an offence under section 307, I.P.C. Beaumont, C.J., said at page 438 (of ILR Bom.); (at p. 281 of AIR): "I think that what section 307 really means is that the accused must do an act with such a guilty intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events."
It has been ruled in Nardeo Singh and others v. The State (AIR 1953 All. 726 (Vol 40, C.N. 359), "Where an accused person shoots one with a pistol and thereby causes hurt to him he is liable to conviction under the latter part of section 307 and his conviction under section 326 for the same offence is not warranted".
It is, thus, obvious that the accused should have known the result of their acts, therefore, they must be deemed to intend the consequences which ensued from their acts. It was the sheer luck of P.W.
Ashfaq Zafar that the injuries caused to him did not create any disability otherwise its after effects would have been very serious. In the circumstances of the present case, as explained above, even if the firing had been proved ineffective, section 324, P.P.C. Would have applied and the causing of hurt merely aggravated the offence. It is thus manifest that the section itself does not take into consideration the effect of the acts of the accused except as a measure of sentence. I am, therefore, of the view that the act of firing by the accused in the circumstances of the case clearly amount to murderous assault over P.W. Ashfaq Zaar, if considered in the light of the provision of section 324, P.P.C. And not under section 337-F (iii). Therefore, the conviction of the appellants for the murderous assault and causing injuries to P.W. Ashfaq Zafar is altered from section 337/34-F
(iii) into section 324/34, P.P.C. Both of them are, therefore, convicted under the first part of section 324/34, P.P.C. And each of them is sentenced to five yearsR.I. And a fine of Rs,20,000 each or in default to suffer R.I. For one year and they also being liable for the injuries inflicted on the person of P.W. Ashfaq Zafar which have lacerated the flesh and can be designated as Mutalahima are covered by section 337-E (3) (iii) and punishable under section 337-F (iii). Therefore, each of the appellant is to pay Daman the value of which is fixed at Rs,40,000 keeping in view all the attending circumstances of the case and each of them is also sentenced to undergo two yearsR.I. These sentences of imprisonment will run concurrently with other sentences. The amount of Daman and fine is to be paid to P.W. Ashfaq Zafar. In case of non-payment of Daman and appellants are to be kept in jail and be dealt with as if sentenced to simple imprisonment till the payment of this amount. The benefit of section 382-B, Cr.P.C. Is extended to the appellants.
The contention of the learned counsel for the complainant side that even if Qisas is not executable keeping in view the principle of equality according to injunction of Islam even then the offender could be made to suffer the same disability through modern medical scientific devices. In other words it was meant that if the injuries cannot be inflicted on the appellants in the same manner as they have caused to the injured witnesses then the effect the inflicted injuries have created can be brought about over the persons of the appellants. It appears that this argument has not been advanced in this manner either in the trial Court or in the High Court as it does not find mention in the impugned judgments. Moreover, to ,resolve this issue it would be necessary to examine medical expert to ascertain as to whether the same effect/disability can be caused with certainty without exposing the appellants to further damage/disability which is not possible at this stage. I would, therefore, not further comment upon the merits of this contention and would leave it open for detailed examination in some other appropriate case.
Consequently, Criminal Appeal No,281 of 1997 'Wajahat Ikram and another v. The Stateis dismissed while Criminal Appeals Nos.282 and 283 of 1997 are accepted in the following terms:-- I. Both the accused/respondents are also convicted under the first part of section 324, P.P.C. Read with section 34, P.P.C. For ineffective firing at P.W. Anjum Farooq and each one of them is sentenced to three yearsR.I. And this sentence shall run consecutively with those already imposed by the trial Court and confirmed by the High Court. The amount of fine of Rs,20,000 awarded by the High Court is inadequate which is enhanced and each of the accused/respondent is to pay Rs,40,000 or to suffer two yearsR.I. In case of default. Out of the total amount of fine half should be paid to Anjum Farooq Paracha.
II. The conviction of both the appellants for the murderous assault at P.W. Ashfaq Zafar and causing injuries to him is altered from section 337-F (iii) into section 324/34, P.P.C. Both of them are, therefore, convicted under the first part of section 324, P.P.C. Read with section 34, P.P.C. And each of them is sentenced to five yearsR.I,. And a fine of Rs,20,000 or in default to suffer rigorous imprisonment for one year and both of them also being liable for the injuries inflicted on P.W.
Ashfaq Zafar which can be designated as Mutalahima covered by section 337-E (3) (iii) and punishable under section 337-F (iii), therefore, each of them is to pay Daman the value of which is fixed at Rs,40,000 keeping in view the nature of the injuries and the attending circumstances of the case and each of the appellant is also to suffer two yearsR.I. On this count. These sentences of imprisonment will run concurrently with the other sentences imposed by the trial Court. The amount of Daman and fine is to be paid to p.W. Ashfaq Zafar. In case of non-payment of Daman the appellants are to be kept in jail and be dealt with as if sentenced to simple imprisonment till payment of Daman.
III. The sentence of 10 years imposed by the trial Court on Sheharyar accused/respondent under section 324/34, P.P.C. For attempt to murder Anjum Farooq Paracha is restored and resultantly the judgment of the High Court reducing it to seven years is reversed.