' This Criminal Appeal No,366 of 2000 has been filed against judgment, dated 30-11-2000 passed by learned Sessions Judge (Ad hoc), Quetta whereby the appellant has been convicted and sentenced under section 324/34, P.P.C. For 7 years' R.I. Plus fine of Rs,25,000, in default whereof to further undergo for a period of three months S.I. With benefit of section 382-B, Cr.P.C. Criminal Revision No,138 of 2000 has been filed for enhancement of above said sentence on behalf of complainant, I intend to dispose off the appeal and revision by this common judgment.
2. Brief facts of the case are that on the complaint of petitioner F.I.R. No,51 of 1996 was registered on 10-5-1996 with Police Station Kuchlak under section 324/34, P.P.C. Alleging therein that on the said date Khushal and petitioner visited his house and after taking meal they desired petitioner to accompany with them to Kuchlak, accordingly all of them boarded in a Suzuki Car, when they reached near Killi Samli at about 4-30 p.m. Convict/appellant Pashtoon Yar stopped the car by saying that tyre of the vehicle has been punctured, when the petitioner got down from the vehicle, appellant and his brother co-accused Khushal started firing on him by means of Pistol, as a result whereof petitioner received 9 bullet injuries on his body and he fell down on the ground the accused made their escape good in the said car. One Haji Muhammad Hussain and Jalat Khan took the petitioner to Hospital, the motive behind the incident was alleged to that of matrimonial dispute between the parties. After registration of case the nominated accused were absconded and were declared to be proclaimed offender. Khushal Khan was arrested by the police on 26-6- 1996 and incomplete challan was submitted in the Court of learned Additional Sessions Judge-II, Quetta, for trial of the offence who after conclusion of trial convicted and sentenced the co- accused Khushal Khan under section 324/34. P.P.C. For 3 years' R.I. And under section 337-F, P.P.C.
For two years R.I. With Daman of Rs .240:ko- on 6-1-1999. The said judgment was challenged before this Court in Criminal Revision No,9 of 1999 which was accepted and the sentence of three years awarded to co-accused under section 324/34, P.P.C. By the trial Court was enhanced to 5 years R.I., the operative portion of judgment is reproduced hereinbelow:-- "For the for. Egoing reasons revision is partly allowed in the above terms, consequently, respondent Khushal Khan be taken into custody to serve out another period of two years' R.I. Under section 324, P.P.C. With benefit of section 382-B, Cr.P.C. If not earlier availed by him."
' The appellant was arrested on 30-7-1999: After completion of investigation challan was submitted before learned Sessions Judge (Ad hoc), Quetta for trial. Charge under section 324/34, P.P.C. On 16- 9-1999 was framed and read over to the appellant to which he did not plead guilty and claimed trial. The prosecution examined P. W.1 Muhammad Illyas the complainant who deposed that on 10- 5-1996 appellant and his brother Khushal who are his relative came to his house at 3-00 p.m.
Where he was present alongwith his family, both appellant and his brother Khushal after taking meal asked the complainant to go to Kuchlak Bazar, they boarded a Suzuki Car near Killi Samli appellant stopped the car by saying that Tyre of the vehicle has punctured, the accused got down and made firing upon him with revolver/pistol and made their escape good. One Haji Muhammad Hassan and Muhammad Ashraf alias Jalat Khan took him to Civil Hospital where police recorded his statement Exh P 1-A . P. W .2 Ghulam am Muhammad deposed that on 10-5-1996 he along with Abdul Rahim and Safdar Ali were present in police station, after receiving the information went to Killi Samli to the place of incident and found three empties of 32 bore which were taken into possession vide recovery memo. Exh.P.3-A. P.W.3 Syed Zahid Hussain Shah deposed that on 30-7- 1997 on telephone he received information that absconder accused Pashtoon Yar is present in the High Court building, he along with S.H.O. And other police man arrested the appellant. He after completion of investigation submitted the challan Exh P .3-A . P.W .4 Dr. M anzoor Hussain deposed that his statement was earlier recorded in Sessions Case No,62 of 1997 and he produced MLC Exh.P.2-A before the Court and identified his signatures. After close of prosecution witnesses the statement of appellant was recorded under section 342, Cr.P.C., however, he did not opt to record his statement on oath or to lead any defence witness. The learned trial Court after hearing the parties convicted and sentenced the appellant as mentioned here in above. The petitioner/complainant filed a criminal revision petition for enhancement of sentence while appellant challenged his conviction and sentence.
3. Mr. Muhammad Nawaz Khan Barakzai, Advocate appeared on behalf of appellant argued that the trial Court has failed to appreciate the facts of the case. The statement of petitioner/complainant was taken into consideration without any independent corroboration. The appellant has been implicated in the case due to enmity. The medical certificate is not genuine document and the same has been produced by the petitioner/complainant with mala fides.
4. Mr. Amanullah Kanrani, Advocate appeared on behalf of petitioner/complainant argued that prosecution has succeeded to establish its case beyond any reasonable doubt and accordingly he has been convicted under section 324/34, P.P.C., only while no punishment has been awarded for the injuries caused to the petitioner/complainant. He next argued that the trial Court has not awarded passed proper conviction to the appellant for the offence alleged against him and the same requires to be dealt with in accordance with law.
5. Mr. Ghulam Mustafa Mengal learned Assistant Advocate-General. Appeared for the State and supported the impugned judgment of trial Court. Ile was of the opinion that proper sentence !Las been awarded by learned trial Court in the circumstances of the case.
6. I have heard the arguments of learned counsel for the parties and perused the record minutely.
P.W.1 Muhammad Illyas complainant/injured deposed that on 10-5-1996 the appellant alongwith his brother Khushal, his relative, at 3-00 a.m., came to his house and after taking meal they desired him to accompany them to Kuchlak Bazar, all of them boarded a Suzuki Car, when they reached near Killi Samli at 4-30 p.m. The appellant Pashtoon Yar stopped the car, when they got down from the vehicle the appellant and co-accused after firing at him with Revolvers made their escape good from the spot in the said car. One Haji Muhammad Hassan and Muhammad Ashraf alias Jalat Khan took him to Civil Hospital where the complainant gave his statement and F.I.R. Exh.P/1-A was lodged. The complainant deposed that he received 9 bullet injuries. The complainant was cross-examined by suggesting that he had blocked the way of appellant being armed with Pistol and tried to snatch the vehicle, Khushal tried to apprehend him and due to scuffling revolver went out and fires were made, hitting him on his body. After going through the suggestion given in cross-examination it has come on record that the occurrence has not been denied by the appellant and causing of bullet injuries by means of Pistol has also not been disputed so there is no need of re-appraisal of rest of the prosecution witnesses as the place of incident has also been admitted by the appellant. The plea was introduced that petitioner/complainant blocked the way of appellant and tried to snatch the vehicle by show of force from them, while brother of appellant Khushal apprehended him the fires were made from the Pistol having in the hand of complainant hitting him on his body. Nothing has been brought on record by the appellant as to why he remained absconder and did not report the matter with police authorities for the alleged offence committed by the petitioner/complainant. The plea which was taken by the appellant remained unproved while recording his statement under section 342, Cr.P.C. The Question Nos.3, 4 and 5 were again altogether denied. Even the appellant did not opt to record his statement on oath or to produce any defence witness in support of the alleged plea.
' What has been discussed hereinabove, I am not inclined to accept this appeal as nothing has been brought on record to believe the evidence has been misread or wrongly appreciated by the trial Court. However, the trial Court has not delivered the judgment in accordance with law. Once it was found that offence alleged against the appellant has been proved under section 324, P.P.C.
Then he should have been convicted for the injuries caused to the complainant apart from 324, P.P.C. To bring the judgment in conformity with law, I would like to re-produce the relevant section as under:- "324. Attempt to commit Oatl-iAmd.---Whoever does not 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.
' 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."
Dr. Manzoor Hussain appeared as P.W.4 and got recorded his statement as per certificate Exh.P.4 the following injuries were found on the body of complainant which are as under:--
(1) Bullet entrance on anterior surface of right hypochondrium 5 c.m. In diameter (No exit).
(2) Bullet entrance on lateral side of right iliopsoas region 5 c.m. In diameter (No exit).
(3) Bullet entrance on anterior aspect of right thigh 5 c.m.
(4) Bullet exit on medial surface of right thigh 1 c.m. In diameter.
(5) Bullet entrance on another aspect of left high thigh 1 c.m. In diameter.
(6) Bullet exit on enteromedial aspect of left thigh 1 c.m. In diameter.
(7) Bullet entrance on right luber region 5 c.m. In diameter (No exit).
(8) Bullet entrance on 3 below the wound No,5.5 c.m. In diameter allo exit).
(9) Bullet entrance on backside of left iliopsosas 5 c.m. In diameter (No exit).
The injuries Nos. 1, 2, 7 and 9 caused to the complainant fall under section 337-C, P.P.C. Which were found extended to the body cavity of the trunk and provided punishment under section 337-D, P.P.C. As imprisonment for either description for a term which may extend for 10 years as Tazir and accused shall be liable to pay amount of Arsh which shall be 1/3rd, of Diyat. Since the offence under section 324, P.P.C. Has been proved against the appellant, therefore, he is also convicted and sentenced under section 337-D, P.P.C. To suffer R.I. For 3 years and also to pay Arsh amounting to Rs,94,953, to the injured. Since co-accused Khushal was convicted and sentenced under section 324, P.P.C. By, this Court for 5 years' R.I. On the same allegations therefore, law of consistency require that the appellant be also awarded the same punishment provided to the co-accused Khushhal Khan. As such the sentence of convict/appellant awarded by trial Court under section 324/34, P.P.C. For 7 years' R.I. Is reduced to that of 5 years' R.I. Both the convictions and sentences shall run concurrently with benefit of section 382-B, Cr.P.C.
' With the above modification the appeal is otherwise dismissed and revision petition accordingly disposed off.