ABDUL SATTAR Versus STATE
Appellants have called in question the judgment dated 10-2-1998 passed by the learned IInd Additional Sessions Judge, Nawabshah in Sessions Case No.143 of 1993 under sections 307, 34, P.P.C. Section 324, Qisas and Diyat Ordinance and 13-D, Arms Ordinance, vide Crime No.78 of 1993 Police Station Town "A" Section Nawabshah, whereby the aforenamed appellants have been found guilty with common knowledge and intention committing the criminal act under section 506(2), P.P.C. and sentenced to suffer R.I. for six months and they were allowed benefit of section 382-B, Cr.P.C. Hence this appeal.
2. Brief facts of the case are that complainant Abdul Ghani son of Mehrab Khan Jamali has stated in F.I.R. that Rahim Bux Jamali is his maternal uncle and he is his clerk and used to reside in the house of Rahim Bux Jamali, Advocate. On 13-8-1993 at evening time the complainant was sitting in the office when accused Abdul Sattar, Abdul Hameed came in the office and enquired for Rahim Bux Jamali, Advocate, whereupon the complainant told them to come after one hour. The complainant narrated the facts to Mr. Rahim Bux Jamali, Advocate, who after one hour went away towards Housing Society for some work, the complainant and one Ghulam Hussain Magsi slept in the office. At about 3-05 hours on the knocking of the door, the complainant opened the door and saw on the electric light accused Abdul Sattar armed with revolver Saleem armed with revolver, Abdul Hameed Larik empty-handed standing and one motorcycle was -also standing. Accused Abdul Hameed asked about Rahim Bux Jamali, Advocate, complainant informed him that he is not available and the accused started abusing, whereupon, complainant asked them not to abuse, thereafter accused Abdul Sattar and Saleem took out revolvers from their folds and fired at him, the complainant went inside the office, the fires hit the wall of the office near the door and other places. On cries and fire reports P.W. Ghulam Hussain and P.W. Ali Gul Bhangwar came, accused went away on motorcycle towards eastern side. After half an hour Rahim Bux Jamali came, to whom the complainant narrated the facts, who advised the complainant to lodge the report.
3. Appellants Abdul Sattar, Abdul Hameed and Saleem were initially challaned by the police before the Court to face the trial.
4. Formal charge under sections 324, 504, 34, P.P.C. was framed against the accused, to which the accused did not plead guilty and claimed to be tried.
5. Prosecution in support of their case examined complainant Abdul Ghani, P.W. Ghulam Hussain P.W. Rahim Bux Jamali, Advocate P.W. Yar Muhammad, P.W. Muhammad Yakoob, P.W. Manthar Ali, P.W. S.I.P. Ghulam Haider and thereafter the learned Prosecutor closed the side of prosecution.
6. The statements of the accused were recorded, who denied the allegations levelled against them by the prosecution.
7. The learned trial Court after having gone through the evidence, adduced by the prosecution before the trial Court and hearing the learned counsel of the parties passed the judgment in terms as stated above.
8. I have heard the learned counsel Mr. Qurban Ali H. Chauhan for .the appellants and Mr. Rahmatullah Hisbani, Advocate, who is representing Mr. Rahim Bux Jamali, Advocate, who is one of the witnesses in this case, Mr. Ali Azhar Tunio, learned A.A.-G. for the State has not supported the impugned judgment. ,
9. Mr. Qurban Ali H., Chauhan learned counsel for the appellants has argued that the present appellants were charged under sections 307, 34, P.P.C. 324, Qisas and Diyat Ordinance and 13-D, Arms Ordinance and the aforementioned offences have not been proved and have been dropped and that is also mentioned by the learned IInd Additional Sessions Judge, Nawabshah while delivering the judgment and the offence is said to have been proved under section 506(2), P.P.C. and Mr. Qurban Ali Chauhan while elaborating his contention submitted that since the appellants were charged only under sections 307, 34, P.P.C. section 324, Qisas and Diyat Ordinance and 13-D, Arms Ordinance, the conviction under section 506(2), P.P.C. is illegal and void. He has further argued that the conviction for minor offence is illegal where charge for major offences does not constitute necessarily notice of minor offence and under the circumstances the conviction under section 506(2), P.P.C. is illegal. In support of his contention he has placed reliance on PLD 1960 SC (Pak.) 173, wherein the Honourable Supreme Court has held that the conviction for minor offence is illegal where charge for major offence has not been constituted and the conviction under section 448, R.P.C. has been held illegal in circumstances of the case. According to the contents of the F.I.R. and the evidence, adduced by the prosecution, it is the case that the appellants duly armed with revolvers came in the office of Rahim Bux Jamali, Advocate, who was not available and they fired, but the complainant and other witnesses escaped and did not sustain even scratch. According to the contents of F.I.R. the complainant was at the mercy of the accused who were armed with revolvers and had they intention to kill him, the appellants could have easily killed them, on-the contrary even the witnesses have not sustained scratch and intention of killing is to be gathered or inferred only from external acts. I have also gone through the evidence, adduced by the prosecution and material available on record. I have also examined very carefully the impugned judgment. Intention is a state of mind which is not ordinarily ascertainable "the thought of a man", therefore, "is not triable because even the devil himself knoweth not the thought of man "intention", then, is to be gathered or inferred only from external acts and, therefore, for this purpose it is very necessary to examine the intention of accused. Reference can be made of case Taj Muhammad v. The State reported in PLD 1963 (W. P.) Kar.
118. The facts, circumstances, surroundings and environments, according to the case of the prosecution, the complainant and witnesses were at the mercy of the accused, who were duly armed with revolvers, but no hurt has been caused to them and it has been specifically stated by the complainant and witnesses that thereafter the appellants/accused ran away. The judgment delivered by the learned IInd Additional Sessions Judge, Nawabshah suffers from illegality in view of the fact that the major offences under sections 307, 34, P.P.C. 324, Qisas and Diyat Ordinance and 13-D, Arms Ordinance have not been constituted and thereafter he has convicted and sentenced the appellants to suffer six months' R.I. under section 506(2), P.P.C. is illegal under the law. I am being fortified by a case Sultan Ahmed and others v. The State reported in PLD 1960 SC (Pak.) 173.
10. Mr. Ali Azhar Tunio learned A.A.-G. for the State has agreed with the contentions raised by the learned counsel for the appellants and has not supported the impugned judgment. Mr. Rahamatullah Hisbani, who was representing Mr. Rahim Bux Jamali, Advocate, one of the witnesses in the case, has also agreed with the contentions raised by the learned counsel for the appellants.
11. Upshot of the above discussion is that the judgment delivered by the learned IInd Additional Sessions Judge, Nawabshah suffers from illegality and he has not applied judicial mind on the facts of the case. I give benefit of doubt to the appellants, their conviction and sentence are set aside. In result appeal is allowed. Appellants are on bail. Their surety and bail bonds stand discharged. Appeal allowed.
H.B.T./A-240/K Appeal allowed.