[Lahore High Court, Multan Bench]
Present: Asjad Javaid Ghural, J.
GHULAM YASEEN--Appellant
versus
ABDUL RASHEED etc.--Respondents
Crl. A. No. 422 of 2019, heard on 17.5.2022.
Criminal Procedure Code, 1898 (V of 1898)
ہلاکت کے جرم کا کیس--مدعا علیہ کو دفعات 337- ایف (تین) کی تحت سزا سنائی گئی--دفعات 324 کی تحت بری کیا گیا--جسم کے اہم یا غیر اہم حصے کا تعین--بری کے خلاف اپیل--دفعات 324 کی تحت سزا--درخواست گزار نے فیصلے کی قانونی حیثیت کو چیلنج کیا--متاثرہ شخص کو دائیں بازو اور بائیں ٹانگ پر فائر آرم سے دو زخم آئے--مرحلہء مقدمہ کے اختتام پر ملزم شریک کو بری جبکہ مدعا علیہ کو دفعات 337-ایف (تین) کے تحت دو دفعہ سزا دی گئی اور جرمانہ بھی عائد کیا گیا--درخواست گزار کو دفعات 324 کی تحت بری کیا گیا--مدعا علیہ نے اپنی سزا کے خلاف اپیل نہیں کی--مدعا علیہ کی طرف سے اپیل نہ کرنے کا مطلب ہے کہ وہ وقوعہ کی تفتیش اور حقائق سے اتفاق رکھتے تھے جو استغاثہ نے ثابت کیے--مرحلہء مقدمہ نے مدعا علیہ کو اس دفعہ میں بری اس لیے کیا کہ زخم متاثرہ کے جسم کے غیر اہم حصوں پر پیلٹ سے لگے تھے--قتل کے جرم میں قانون ساز نے جسم کے اہم یا غیر اہم حصے کے درمیان کوئی فرق نہیں کیا--جیسے ہی فائر ہدف کو لگا، قانون میں مطلوبہ ارادہ یا آگاہی ثابت ہو جاتی ہے--استغاثہ نے مدعا علیہ کے خلاف دفعات 324 کی تحت جرم کو مؤثر طریقے سے ثابت کیا--ملزم کی بریت کو منسوخ کیا جاتا ہے اور اسے مجرم قرار دے کر سزا سنائی جاتی ہے۔
----Ss. 324/337-F(iii)/109--Case of murderous assault--Convicted the respondent U/S 337-F(iii) of PPC--Acquitted from the charge u/S. 324 PPC--Vital or non-vital part of the body--Appeal against acquittal--Conviction u/S. 324 PPC--Appellant has challenged the vires of judgment--Injured person caused two fire arm injuries at his right arm and left leg--Trial Court, upon conclusion of the trial acquitted the co-accused, whereas, convicted the respondent U/S 337-F(iii) of PPC of two counts and sentenced him to pay Daman--Appellant was acquitted from the charge u/S. 324 PPC--Respondent did not challenge hi conviction by way of filing an appeal--Non-filing of appeal by the respondent leads to the conclusion that he was in agreement that the incident has taken place in the mode of manner as alleged by the prosecution--Trial Court acquitted the respondent in the said section mainly on the ground that the injuries were caused with pellets at the non-vital parts of the body of the injured--In a case of murderous assault the legislature has not made any distinction between vital or non-vital part of the body of injured--The moment when the fire hit at a target the intention or knowledge as laid down in the statute has been established--Prosecution has successfully proved the charge against the respondent u/S. 324 PPC--to the extent of acquittal of respondent u/S. 324 PPC is hereby set-aside and he is convicted and sentenced.
[Para 2, 3-A, 5, 6 & 9] A, B, C, D & E
2020 SCMR 1486 ref.
Mr. Muhammad Usman Sharif Khosa, Advocate for Appellant.
Syed Imran Abbas Kazmi, Advocate for Respondent No. 1 (in person).
Mr. Ashfaq Ahmad Malik, Deputy Prosecutor General for State.
Date of hearing: 17.5.2022.
Judgment
Through this appeal under Section 417(2) of Cr.P.C. appellant/complainant Ghulam Yaseen has challenged the vires of judgment dated 30.04.2019 passed by the learned Trial Court in case FIR No. 17/2017 dated 30.01.2017, in respect of offences under Sections 324, 337-F(iii) & 109, P.P.C. registered at Police Station, Shah Saddar Din, District Dera Ghazi Khan to the extent of acquittal of Respondent No. 1 hereinafter called the respondent) under Section 324, P.P.C.
2. According to the contents of crime report (Ex.PE) on 30.01.2017 at 3.00 p.m. respondent while armed with gun .12-bore, assaulted upon the brother of the complainant namely Ghulam Mustafa with the intention to killa him and caused two fire-arm injuries at his right arm and left leg. Hence, the aforementioned case was registered.
3. Learned trial Court framed formal charge against the respondent and one another to which they pleaded not guilty and claimed to be tried. The prosecution examined eight witnesses besides producing documentary evidence (Ex.PA) to (Ex.PK). After completion of the prosecution evidence, the statement of the respondent and his co-accused was recorded u/S. 342, P.P.C. in which they denied the allegations leveled against them and professed their innocence. They opted not to appear as their own witnesses under Section 340(2), Cr.P.C., however, produced certain documents (Ex.DA) to (Ex.DC) in their defence.
3-A. Learned Trial Court, upon conclusion of the trial acquitted the co accused, whereas, convicted the respondent u/S. 337-F(iii) on two counts and sentenced him to pay Daman of Rs. 50,000/- each and in default thereof to remain in simple imprisonment till its realization, however, he was acquitted from the charge u/S. 324, P.P.C. Being aggrieved to the extent of acquittal of respondent u/S. 324, P.P.C. the appellant has filed instant appeal.
4. I have heard the learned counsel for the parties, learned Law Officer appearing for the State and gone through the record.
5. It is straightaway observed that the respondent did not challenge his conviction u/S. 337-F(iii), P.P.C. by way of filing any appeal as such his conviction to this extent has attained finality. Non-filing of appeal by the respondent leads to the conclusion that he was in agreement that the incident has taken place in the mode and manner as alleged by the prosecution and the only point which requires determination by this Court was as to whether from the evidence available on record offence u/S. 324, P.P.C. is made out or not. The learned Trial Court acquitted the respondent in the said section mainly on the ground that the injuries were caused with pellets at the non-vital parts of the body of the injured, as such the same being not grievous in nature do not attract the provisions of Section 324, P.P.C. Before proceeding further it would be appropriate to reproduce Section 324, P.P.C. which reads As under:
“324. Attempt to commit qatl-i-amd. Whoever does any act with such intention or knowledge, and under such circumstances, that, if 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, [but shall not be less than five years, if the offence has been committed in the name or on the pretext of honour], 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 punishment with imprisonment of either description for a term which may extend to seven years.”
6. Bare reading of the above section makes it abundantly clear that in a case of murderous assault the legislature has not made any distinction between vital or non-vital part of the body of injured. The moment when the fire hit at a target the intention or knowledge as laid down in the statute has been established. Reliance is placed on case titled as Sheqab Muhammad vs. The State and others (2020 SCMR 1486) wherein it has been laid down as under:
Similarly, murderous assault as defined in the section ibid draws no anatomical distinction between vital or non-vital parts of the human body. Once the triggered is pressed and the victim is effectively targeted, ‘intention or knowledge’ as contemplated by the section ibid is manifested, the course of a bullet is not controlled or steered by assailant’s choice nor can he claim any premium for a poor marksmanship.”
7. As far as the observation of the learned trial Court that the injuries caused by the respondent were not dangerous to life is concerned, in order to determine the nature of injuries no other evidence than the opinion of Medical Officer who examined the injured has credence. Here in the instant case, Dr. Junaid Asghar, (PW-1) medically examined the injured Ghulam Mustafa on 30.01.2015 and observed two fire-arm injuries at his left thigh and upper part of right arm. According to the ward report “Resuscitated because patient condition was serious. The patient was operated for repair of brachial artery. There was injury to brachial artery and the patient was bleeding severely and patient was in state of shock if not operated injury could cause death of the patient….” His final report reads as under:
“According to Radiologist report no Bony lesions seen in these X-rays Serial No. 750-52 which I have also signed and stamped and according to ward report and surgeons opinion the victim was in state of shock and there was injury to right Brachal artery which was repaired and it was dangerous to life of the victim. So the final opinion for KUO injuries declared as Injury No. 1 Ghair Jaifa Mutlama caused by fire-arm weapon and Injury No. 2 Ghair Jaifa Mutlama caused Fire-Arms weapon, this injury was dangerous to life…”
(emphasis supplied)
Despite opportunity, the defence has not cross-examined the Medical Officer. From the testimony of medical officer it is quite clear that the injury to brachial artery of injured was so grievous that it could cause his death. I am unable to find any piece of evidence from where the learned Trial Court assumed that the injuries inflicted upon the person of injured were not dangerous to life. The conclusion of the learned trial Court to this extent is patently illegal, perverse, based on surmises and conjectures and cannot be subscribed by this Court.
8. I am not in agreement with the submission of learned counsel for the respondent that after acquittal the respondent has earned double presumption of innocence for the reasons that acquittal of the respondent was not clean rather he has been convicted and sentenced for causing hurt against which the respondent has not filed any appeal as such this principal is not any barrier in interfering with the impugned judgment. Even otherwise, this Court is vested with ample authority to intervene in a judgment of acquittal if the same is found to be perverse, patently illegal and result of mis-reading and non-reading of the evidence.
9. For what has been discussed above, I am of the considered view that the prosecution has successfully proved the charge against the respondent u/S. 324, P.P.C. and the learned trial Court has committed material illegality and irregularity while acquitting him from the said charge. Resultantly, the appeal in hand is allowed and impugned judgment dated 30.04.2019 to the extent of acquittal of respondent u/S. 324, P.P.C. is hereby set-aside and he is convicted and sentenced as under:
Under Section 324, P.P.C.
Rigorous imprisonment for two years with fine of Rs. 10,000/- and in default thereof to further undergo simple imprisonment for fifteen days.
The respondent shall be entitled to get the benefit of Section 382-B, Cr.P.C. The respondent shall be taken into custody and be lodged in a prison so as to serve his remaining period of sentence.
(K.Q.B.) Appeal allowed
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