Law: Penal Code (XLV of 1860)

Section: 308

Law: Criminal Procedure Code (V of 1898)

Section: 417

(On appeal from the judgment and order of the High Court of West :Pakistan, Peshawar Bench, dated the 15th December 1969,in Criminal Appeal No. 171 of 1966). (a) Penal Code (XLV of 1860),  S. 308-Attempt to commit culpable homicide not amounting to murder-Two shots fired from pistol hitting wall in close proximity to each other near place where victim was standing-No corresponding holes in assailants' pockets or trousers proved-Suggestion that pistol went off accidentally, held, clearly not tenable in circumstances. (b) Penal Code (XLV of 1860) S. 308-Attempt to commit culpable homicide not amounting to murder-Superficial abrasions on persons of complainant and accused-Confirmative of grappling between them-Possibility not ruled out of complainant having first abused accused and accused on such provocation taking out pistol and firing-Offence, held, rightly considered under S. 308, P. P. C. (c) Criminal Procedure Code (V of 1898),  S. 417-Appeal against acquittal-Whole case open before High Court-High Court entitled to come to its own independent assessment of evidence Due weight, however, to be given to view of trial Court. Date of hearing : 26th March 1970. JUDGMENT HAMOODUR RAHMAN, C. J.-The petitioner in this case was tried along with another person on a charge under section 307/34 of the Penal Code by a Section 30 Magistrate who acquitted them both on the 23rd July 1969. On an appeal against acquittal by the State the High Court set aside the acquittal of the present petitioner, convicted him under section 308, P. P. C. and sentenced him to rigorous imprison ment for one year as also to a fine of Rs. 500 or in default further rigorous imprisonment for six months. The acquittal of the co- accused was, however, maintained. The petitioner now seeks special leave to appeal to this Court. The. prosecution case against the petitioner was that on the 22nd August 1965, at about 7-30 p.m. he was found grappling with one Gut Ahmad (P. W. 6) while armed with a pistol. The Station House Officer, Hashnagri Police Station actually came upon the scene and with the assistance of two persons who were present at the place, disarmed the petitioner and arrested…