HAQ NAWAZ Versus State
This criminal appeal arises from a judgment of the Additional Sessions Judge-II, Haripur, wherein the appellant Nawaz alias Haq Nawaz was convicted under section 324 of the Pakistan Penal Code 1860 and sentenced to three years' rigorous imprisonment with a fine. The complainant had charged the appellant with effectively firing at him with a pistol. The core legal questions involved the jurisdiction of the Court of Session, the appreciation of oral and medical evidence regarding the firearm injury, and the quantum of sentence. The Peshawar High Court held that the Court of Session had proper jurisdiction as the offence carried a punishment of up to ten years, and upheld the conviction based on consistent ocular and medical testimony supported by recoveries. However, considering the circumstances of the case, the Court reduced the substantive sentence of imprisonment from three years to one year while maintaining the fine, and extended the benefit of section 382-B of the Code of Criminal Procedure 1898 to the appellant. The key principle laid down is that minor contradictions not affecting the core charge do not vitiate a conviction, and appellate courts may adjust sentences where deemed excessive under the circumstances.
- Does the Court of Session have jurisdiction to try an offence under section 324 of the Pakistan Penal Code 1860?
- Whether minor contradictions in ocular testimony regarding who was targeted affect the core prosecution case of firearm assault?
- Can an appellate court reduce the quantum of imprisonment if it finds the trial court's sentence excessive under the circumstances?
- Is an appellant entitled to the benefit of section 382-B of the Code of Criminal Procedure 1898 when not explicitly granted by the trial court?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 30, Code of Criminal Procedure 1898
SALIM KHAN, J.--- Fiaz Khan complainant charged Nawaz alias Haq Nawaz appellant for effectively firing at him vide F.I.R. No.28 dated 18-1-2005 of Police Station Kotnajibullah of District Haripur. It was alleged that the complainant along with his uncle Munsif Khan son of Dost Muhammad was near the village Qabristan at about 8-30 p.m. when Nawaz son of Noor Rehmat and another person came there and started the altercation with the complainant, on which the uncle of the complainant tried to restrain him, but the accused fired on the complainant with his .30 bore pistol with which he was hit. The appellant was tried along with his brother Naimat Khan in Sessions case No.36/7 of 2005 under section 324/34, P.P.C. vide judgment and order dated 27-6-2006 of the learned Additional Sessions Judge-II, Haripur, Naimat Khan was acquitted while the present appellant was convicted under section 324, P.P.C. and was sentenced to three years' R.I. and a fine of Rs.10,000 or in default of payment of fine to undergo three months' S.I. Nothing was mentioned in the judgment about the benefit under section 382-B, Cr.P.C. to the appellant.
2. The learned counsel for the accused-appellant, the learned counsel for the complainant and the learned State counsel argued the case.
3. The learned counsel for the appellant contended that the case was triable by a Magistrate. The learned State counsel and the learned counsel for the complainant referred to the provisions of section 324, P.P.C. as well as to the Schedule of Cr.P.C. and contended that the punishment was 10 years while a Magistrate empowered under Section 30 Cr.P.C. had powers to sentence up to 7 years and the Court of Session had jurisdiction to try the case. The contention of the learned State counsel in this respect is correct.
4. Learned counsel for the appellant contended that Munsif Khan P.W.7 had not charged the appellant for firing at him, although it was mentioned in the F.I.R. by Fiaz Khan P.W.6 that the accused fired at them and P.W.7 also stated the same. But this contradiction was not taken into consideration by the learned trial Court. The statements of Fiaz Khan and Munsif Khan are clear to the effect that the appellant fired at Fiaz Khan P.W.6/complainant.
5. The learned counsel for the appellant also contended that the victim had not appeared before the Medical Board which made the injury caused to him doubtful. The medical officer clearly stated that fire-arm injury was caused to the victim and that injury was not self-inflicted. The recovery memos. Exh. P. W.5/1 regarding two empties from the scene of occurrence, Exh.P.W.9/3 regarding the presence of human blood on the Banyan of the victim, and Exh.P.W.1/4 regarding the recovery of the blood-stained Banyan, with cut mark, of the victim fully support the prosecution case. There is no conflict between the oral and medical evidence. The identification of the accused-appellant at the time of occurrence is not doubtful and P.W.6 has clearly mentioned that the appellant fired at him from a close distance. This fact was supported by Munsif Khan P.W.7 also Niamat Khan co-accused of the present appellant was acquitted of the charge in the same case, but he was not charged in the F.I.R. and for any effective firing. This fact does not make the case against the appellant doubtful in any manner.
6. The learned trial Court has come to the correct conclusion regarding conviction of the accused-appellant, but the punishment granted to the accused-appellant is excessive in the circumstances of the case. A punishment of imprisonment of one year with fine of Rs.10,000 is sufficient in the circumstances of the case. I, therefore, reduce the period of imprisonment from 3 years to one year, but the remaining punishment as awarded shall remain intact, with the facility that benefit under section 382-B, Cr.P.C. is hereby given to the accused/appellant. The appellant is available in Court on bail. He may be taken into custody for undergoing the unexpired period of his punishment of imprisonment.
7. This appeal is disposed of in the above circumstances.
H.B.T./192/P Sentence reduced.