MUHAMMAD ASLAM Versus STATE
This revision petition is directed against the judgment, dated 20-8-1992 of the learned Additional Sessions Judge, Mianwali, who dismissed the appeal of Muhammad Aslam against the judgment of the learned Magistrate, dated 15-4-1992, whereby he convicted Muhammad Aslam under section 307, P.P.C. and sentenced him to four years' R.I. plus fine of Rs.2,000 or in default to undergo further R.I. for nine months. In addition, the learned Magistrate directed the accused-petitioner to pay Rs.4,000 as compensation under section 544-A, Cr.P.C. or in default to suffer R.I. for six months. The convict has filed this revision petition through jail.
2. The prosecution case, in brief, is that on 28-3-1988, at about 9-30 a.m Abdul Ghaffar complainant alongwith Mehr Wali and Nausher, was on his way back to his house situated in Wandha Dabb Dakhli Sultanwala after purchasing household articles from Makerival. When they reached near the bungalow of C.M.E. Markerwal, the petitioner armed with a .12 bore pistol appeared at the scene. He raised a Lalkara that he would not spare Abdul Ghaffar for insulting him yesterday. He fired at Abdul Ghaffar which hit him on his both thighs, who fell down. The petitioner then fled away.
The motive, as alleged, was that a day earlier i.e. on 27-3-1988, Abdul Ghaffar was playing cricket in his land. The petitioner came there and picked up the wickets. There was altercation between the two. In order to take revenge of this insult, the petitioner launched a murderous assault on Abdul Ghaffar.
Thereafter on the statement of Abdul Ghaffar P.W.1, a case under section 307, P.P.C. was registered.
3. The prosecution in order to prove its case examined Abdul Ghaffar complainant (P.W.1), Mehr Wali (P.W.2) and Nausher (P.W.3) who gave the ocular account. Dr. Muhammad Azim (P.W.6), examined Abdul Ghaffar and found five injuries on his person. Amanullah, A.S.I. (P.W.4) investigated this case.
4. The defence of the petitioner was bare denial and false involvement due to enmity.
I have heard the learned counsel for the parties and have gone through the record with their assistance. Learned counsel for the petitioner did not challenge the veracity of ocular evidence, nor he could point out any discrepancy therein. He has done so rightly, because there is overwhelming evidence to show that the occurrence took place in the manner as described by the complainant, whose evidence is being supported by the other two eye witnesses, namely, Mehr Wali and Nausher. Learned counsel for the petitioner has next submitted that the Courts below have not properly appreciated the medical evidence and as such have erred in law in convicting the petitioner under section 307, P.P.C. He submitted that according to the evidence of Abdul Ghaffar, the petitioner fired at him from a distance of one or two paces and all the injuries are on the thighs and are simple in nature. The precise arguments of the learned counsel was that mere fact that pistol was fired by the petitioner would not be sufficient to infer that his intention was to kill, but he should be punished for what he actually did and not for what he might have done. He submitted that in the instant case the injuries are on the non-vital parts of the body and simple in nature; hence the conviction of the petitioner under section 307, P.P.C. is bad in law and it should be altered to one under section 324, P.P.C. Placed reliance on P L D 1963 Kar. 118 and P L D 1964 Kar. 264.
5. Learned counsel for the State has supported the impugned judgment and submitted that the petitioner has been rightly convicted, because he surprised the victim and fired at him from a very close range. It was his good luck that he was saved.
6. After hearing the learned counsel for the parties, I find that in the instant case the trial Court has erred in law in convicting the petitioner under section 307, P.P.C. The medical evidence shows that three of the injuries are on the left thigh and two on the right thigh of the victim and are simple in nature. In the circumstances, it cannot be said on the basis of evidence on record that the petitioner intended to cause the death of the complainant. I would, therefore, alter his conviction under section 307, P.P.C. to one under section 324, P.P.C.
The occurrence took place on 28-3-1988. The petitioner was arrested on 1-4-1988 and was admitted to bail on 24-9-1988. He was again remanded to judicial custody on 20-8-1992, after the dismissal of his appeal and by now he has undergone about one year and seven months' imprisonment. In the circumstances, I think that the sentence already undergone by the petitioner would meet the ends of justice and I order accordingly. The sentences of fine and compensation are remitted. The petitioner should be set at liberty forthwith if not required to be detained in any other case.
N.H.Q./M-1537/L
\Order accordingly.