1. This Criminal Jail Appeal is directed against the judgment dated 21st December, 2004 passed by Sessions Judge Jaffar Abad at D.M. Jamali (hereinafter referred to as the trial Court) whereby the appellant has been convicted and sentenced in the following terms:-- "Accused Nazir Ahmed is accordingly convicted and sentenced under section 459, P.P.C. To suffer three years' R.I. And under section 337-F(v), P.P.C. For causing hurt which amounts to Shajjah-e- Hashimah to pay Daman of Rs,5,000 to injured complainant Juma Khan and to suffer one year R.I.
2. Both substantive punishments shall run concurrently. Accused Nazir Ahmed is in custody shall remain in jail till completion of his terms of imprisonment and realization of Daman amount. Benefit of section 382-B, Cr.P.C. Is extended in favour of accused Nazir Ahmed." Briefly stated the facts of the case are that F.I.R. No,36 of 2004 under section 459, P.P.C. Was registered with Police Station Cattle Farm Jaffar Abad on 26th September, 2004 at 8-15 a.m. On the report of iuma Khan stating that on the last night he was sleeping in his house and his cattle was tied in the courtyard at about 3-00 a.m. He was awakened by the noise and he saw Nazir Ahmed standing near his cot. According to the complainant he caught hold of Nazir Ahmed and made notice whereupon Nazir Ahmed fired two shots with TT pistol one of the bullets pierced through his right wrist and Nazir Ahmed ran away after releasing himself from the complainant. It has been further stated that the gunshot reports attracted his brother Roshan and paternal cousin Mirza Khan who saw appellant running away and he was identified in the light of torch and moon.
3. According to the complainant appellant with intention to commit theft entered his house and caused him injury.
4. P.W.6 Mushtaq S.I. Conducted formal investigation of the case in result of which challan Exh.P/6-B and Exh.P/6-C were submitted and appellant was sent to the Court of Sessions Judge Jaffar Abad at D.M. Jamali. On the stated allegations foimal charge under section 459, P.P.C. Was framed which was read over to the appellant on 21st October, 2004 to which he pleaded not guilty. Prosecution in order to prove the charge examined as many as six witnesses namely P.W.1 Dr.Hidayatullah Medical Officer D.H.Q. Hospital, examined the injured (complainant) on 26th September, 2003 and issued medical certificate Exh.P/1-A, P.W. 2 Mirza Khan was witness of the incident as well as co-mushir of the memos. Exh.P/2-A, Exh.P/2-B about inspection of place of incident and seizure of two empties of TT pistols respectively. P.W.3 Juma Khan was the complainant, P.W.4 Liaqat Ali constable was witness to the disclosure of accused and recovery of TT pistol. He produced seizure memo. Exh.P/4- A and also stated about seizure of the torch produced by Juma Khan. P.W.5 Hussain Bakhsh was witness to the seizure of blood stained clothes of Juma Khan and produced seizure memo. Exh.P/5- A, P.W,6 Mushtaq Ahmed conducted formal investigation. After prosecution closed its side, appellant was examined under section 342, Cr.P.C. Wherein he denied the case of prosecution and pleaded to be innocent, however, he neither opted to make statement on oath nor examined any defence witness: The learned trial Court concluded the proceedings by means of judgment dated 21st December, 2004, whereby the 'appellant has been convicted and sentenced in the aforementioned terms. The appellant being aggrieved by the impugned judgment, preferred this jail appeal. Mr. Nazir Aftab, Advocate has been appointed counsel for the pauper appellant who challenging the conviction of the appellant argued that the appellant was not charged for offence under section 337-F(v), P.P.C. Hence his conviction for the same without alteration of the charge was illegal. There is no eye-witness of the incident, P. W.2 Mirza Khan who is shown to have been attracted to the scene of occurrence on hearing the gunshot reports, is closely related to complainant and his evidence without independent corroboration cannot be made basis for conviction. According to the learned counsel for the appellant both. P. W.2 Mirza Khan and P. W.3 Juma Khan complainant contradicted each other on material points making the case of prosecution doubtful. The recovery of alleged crime weapon was not made from the possession of accused, the house wherefrom the recovery was made was not in exclusive control and possession of, appellant, therefore, the said recovery is of no benefit to the prosecution to connect the appellant with the crime. The trial Court without taking into consideration the contradictions and improvements made by the P.Ws. Also ignored the defence plea raised during cross-examination of P.Ws. And reached to the conclusion which is in conflict with the evidence available on the record. The conviction and sentence awarded to the appellant, stated to be bad in law, cannot hold the field. The learned counsel in support of his arguments placed reliance on the following case laws:--
(1) 2000 PCr.LJ 367, (2) 1996 PCr.LJ 668, (3) 1986 PCr.LJ 733. Mr. Abdul Rahim Mengal the learned Assistant A.-G. Supported the impugned judgment and argued that the charge framed against the appellant contains the allegations about entering the house with intention to commit the theft and causing of injures to the complainant Juma Khan, therefore, non-mentioning of Section 337-F(v), P.P.C. Would not make the charge defective, besides no prejudice has been caused to the appellant by the said omission as he was very much aware of the allegations made against him. According to the learned Assistant A.-G., P.W.3 Juma Khan is supported by P,W.2 Mirza Khan and the circumstantial evidence further supports the ocular account.' Whereby the charge against the appellant stands proved without any shadow of doubt and appellant failed to bring on record any material to make the case of prosecution doubtful, hence the judgment of the trial Court being in consonance with the evidence available on the record and free from any legal infirmity calls for no interference.
5. The submissions made by the learned counsel for the parties considered, record of the case perused. The case of prosecution as set up in the F.I.R. Is that P.W.3 Juma Khan while sleeping in his house was awakened on the noise of footsteps and hey saw appellant standing near his cot and when he tried to catch hold of him, appellant fired two shots with TT pistol, one of the bullets pierced through his right arm (wrist.) P.W.3 Juma Khan in his statement stated that Mirza and Roshan also reached the spot who in the light of the torch identified the appellant who had entered his house to commit theft. In cross-examination P.W.3 stated that the torch was in his right hand.
6. He further stated that he was on visiting terms with accused. P.W.3 defied that accused has been involved in this case to obtain his land, however he admitted that against other family members of appellant cases have been registered. P.W.2 Mirza Khan who allegedly was attracted to the scene of occurrence by the gunshot reports in his statement stated that he and his paternal cousin Roshan in the light of torch saw appellant armed with pistol present there and Juma Khan was injured.. Accordingly to P.W.2 the police inspected the place of incident and saw the footprints. Two empties of TT Pistol were taken into possession from the spot. IrC cross-examination P.W.2 stated that the torch fell from the hand of Juma Khan which was picked by him. He further stated that the footprints were traced out by tracker. P.W.2 also admitted that prior to the incident they had friendly terms with accused.
7. The report of the incident was lodged by P.W.3 at 8-15 a.m. The distance between police station and house of complainant i,e, place of incident is shown to be 9110 Kilometers and the F.I.R. Does not state that what precluded the complainant to lodge the report soon after the incident which took place at 3-00 a.m. The unexplained delay of more than five hours cannot be ignored.
8. Furthermore as per medical evidence complainant was examined at 8-50 a.m. And again there is no explanation that what took so long for providing medical aid to P.W. Jurna Khan who in cross- examination stated that on receiving of the bullet wound he became unconscious. It would be, worth mentioning that P.W.2 Mirza Khan who is shown to be the witness of the incident as well as of site inspection made by Investigating Officer on the morning of the incident at about 10/10-30 a.m.
9. Stated about tracing out of footprints through tracker. After identification of accused who was already known to P. Ws. Tracing out of his footprints creates doubt about his identification at the time of the incident. Adverting to the recovery of two empties of TT pistol from the 'place of incident and recovery of TT pistol on the potation of appellant which as per case Of prosecution was in result of disclosure of appellant who led the police party to his house and got recovered the TT pistol with magazine containing two live cartridges. Without making any observation with regard to admissibility of disclosure of appellant and recovery made in result of the same, it would suffice to state that the said recovered TT pistol allegedly used in the crime was not referred to fire-arm expert to match it with the two empties allegedly taken into possession from the scene of crime and in absence of any such evidence the said recovery cannot be of any help to the prosecution to prove the charge against the accused. Excluding the recovery of TT pistol the case of prosecution is left with the statement of P.W.2 Mirza Khan and P.W.3 Juma Khan complainant. According to P.W.3 Juma Khan accused had entered his house to commit theft but his such plea is found to be without any substance as neither the accused was alleged to be found taking away his cattle tied in the courtyard nor any other article of the complainant was being removed by the accused. Both P.W.2 Mirza Khan and P.W.3 Juma Khan admitted that they had friendly relations with appellant and were on visiting terms, while P.W.3 admitted that against other family members of appellant cases have been lodged. Thus having in view the delay in lodging of the F.I.R. And no evidence to support the plea of complainant that appellant had come to commit theft and making attempt to trace out his footprints at the scene of occurrence, makes the affair doubtful and statements of P.W.2 Mirza Khan and P.W.3 Jurna Khan alone without any independent corroboration cannot be made basis for conviction, thus in such view of the matter, I amenable to agree with the findings of the learned trial Court. Accordingly the conviction and sentence awarded to the appellant through judgment dated 21st December, 2004 passed by Sessions Judge Jaffar Abad at D.M. Jamali, is set aside and appellant is acquitted of the charge who is ordered to be released forthwith if not required in any other case of offence.