This State Appeal is directed against the judgment dated 6.3.2004, passed by the learned Magistrate Section 30, Lahore Cantt, Lahore. whereby, respondent was acquitted from the case registered against him (Vide FIR No, 145/96) dated 30.9.1996 under Sections 364/511, 337-A(ii), L(ii), F(i)/148/149 PPC, Police Station Wandat Colony, Lahore), on the statement of victim Muhammad Ramzan.
2. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced eight witnesses during the trial.
3. The learned Additional Advocate General, in support of this appeal against acquittal submits that the ocular account is corroborated by the medical evidence; that complainant of the case, namely, Muhammad Ramzan appeared before the learned trial Court as PW3; that he is the star witness of the case being injured of the occurrence; that his statement was further corroborated by PW1 Said Muhammad who is father of the victim; that their _statements were further corroborated by Rana Imtiaz who appeared as PW2; that he is independent witness of the occurrence; that. Dr. Asif Nazir, who had medically examined the victim Muhammad Ramzan, also appeared before the learned trial Court as PW4 who corroborated the prosecution case; that the learned trial Court has believed the evidence of the victim Muhammad Ramzan and the doctor but has acquitted by the respondent which has caused gross miscarriage of justice; that a co-accused of the respondent, namely, Muhammad Ahsan, who is real brother of Ramzan,injured-PW is still at large; that the prosecution has proved its case against the -respondent beyond a shadow of doubt and is liable to be convicted under Section 337-Ali) PPC.
4. On the other hand, learned counsel for the respondent, while opposing this appeal against acquittal, contends that no independent witness was produced by the prosecution to prove its ease against the respondent, that the occurrence in question had taken place in the dark hours of the night and identification of the accused was not possible; that there was no rivalry between the parties; that the recovery of pistol is of no consequence as the same was produced before the police by the respondent himself which was a licensed one; that after acquittal from the case, the respondent has earned double presumption of innocence; that the version put forth by the respondent before the learned trial Court was more plausible and convincing; that in fact the respondent was not present at the place of occurrence and was falsely involved in the case; that the respondent produced three DWs to prove his innocence; that the investigating Officer did not bring. statement of any of the eye-witnesses on record, that the judgment of acquittal is a well reasoned judgment and that since the case was not proved against the respondent beyond a reasonable doubt, therefore, this appeal against acquittal is liable to be dismissed.
5. I have heard learned counsel for the parties, have, gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the, parties.
6. I have gone through the contents of the FIR. Unfortunately both the parties are very closely related to each other i,e, respondent Munawar Hussain is brother-in-law (Behnoi) of the injured-PW Muhammad Ramzan. Muhammad Ramzan appeared before the learned trial Court as PW3. He is the star witness of the case being injured of the occurrence. His statement was further corroborated by PW1 Said Muhammad who is father of the victim but has no strong motive or enmity to falsely implicate the respondent in the case in question. Their statements remained consistent on material particulars and were further corroborated by Rana Imtiaz who appeared as PW2. He is an independent eye-witness of the occurrence. The learned counsel for the respondent has not been able to point out any thing on record to suggest that he had any motive to falsely depose against the respondent. Dr. Asif Nazir, who had medically examined the victim Muhammad Ramzan, also appeared before the learned trial Court as PW4 who corroborated the prosecution case. In such like cases where the parties are closely related to each other the question of false implication or substitution does not arise. Even nothing was put forth to suggest that either the injuries in question were self suffered or the result of friendly hands. I have gone through the medical report, according to which, the injury attributed to the respondent is present on the head of the victim. The blood was oozing from the injuries, when the victim was examined by the doctor.
It can safely be said that the ocular account is corroborated by the medical evidence. The injury attributed to the respondent is "Shujjah-i-Khafifah" falling in Section 337-A(i) PPC which has been proved by the prosecution against the respondent.
7. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that as the prosecution has proved its case against the respondent beyond a shadow of doubt, therefore, the acquittal of the respondent has led to the grave miscarriage of justice and while acquitting the respondent the learned trial Court has ignored the material evidence on record i,e, the statement of the injured-PW, the medical evidence and the testimony of two eye-witnesses amongst whom one is independent eye-witness of the occurrence. Even today, the victim Muhammad Ramzan is present before this Court to support his case. Though it is settled by now that normally the superior Courts do not interfere with the judgment of acquittal but it is also settled principle of the Apex Court of the country that where acquittal was the result of non-reading or mis-reading of material evidence on record or the A said acquittal had led to gross miscarriage of justice or the same was arbitrary, capricious or against the record, the said judgment of acquittal was interfered with and the accused were convicted accordingly. Resultantly, this appeal is allowed, the acquittal of the respondent Munawar Hussain @) Bari son of Abdul Ghani is set-aside and, while taking a lenient view, he is convicted under Section 337-A(i) PPC and sentenced to one year RI as Tazir with a Daman of Rs, 5,000/- to be paid to the victim Muhammad Ramzan. Benefit of Section 382-B Cr.P.C. shall be extended to him. The convict shall be taken into custody by the competent authorities to serve out the remaining part of sentence.