' ASIF SAEED KHAN KHOSA, J.--- Akhtar Zaman and Arshad Iqbal appellants were convicted for an offence under section 324, P.P.C. Vide judgment, dated 12-11-2001 rendered by the learned Judicial Magistrate Section 30, Mianwali and were sentenced to rigorous imprisonment for seven years each and fine of Rs,5,000 each or in default of payment thereof to undergo simple imprisonment for three months each. Through the same judgment the learned trial Court had also convicted both the appellants for an offence under section 336, P.P.C. And had sentenced them to rigorous imprisonment for seven years each and to pay Arsh to Arshad Iqbal P.W. Equal to the full amount of Diyat each. The appellants were further convicted by the learned trial Court for an offence under section 337-D, P.P.C. And were sentenced to rigorous imprisonment for seven years each and to pay Arsh equal to 1/3rd of the amount of Diyat each to Arshad Iqbal P.W. Arshad Iqbal appellant was also convicted by the learned trial Court for an offence under section 337-F(iii), P.P.C. And was sentenced to rigorous imprisonment for three years and to pay Daman of Rs,10,000 to Zafar Iqbal P.W. All the sentences of imprisonment passed against both the appellants were ordered by the learned trial Court to run concurrently and the benefit under section 382-B, Cr.P.C. Was extended to both the appellants. Akhtar Zaman appellant has challenged his convictions and sentences before this Court through Criminal Appeal No,1844 of 2001 and Arshad Iqbal appellant has preferred Criminal Appeal No,1921 of 2001 before this Court against his own convictions and sentences recorded by the learned trial Court. Wazir Hussain complainant has also filed Criminal revision No,80 of 2002 before this Court seeking enhancement of the sentence passed by the learned trial Court against the appellants. I have heard all these matters together and I propose to decide the same together through the present consolidated judgment.
2. The prosecution's case against the appellants is that at about 6-30 p.m. On 2-5-2000 they had launched a murderous assault upon Arshad Iqbal (P.W.2) and Zafar Iqbal (P.W.3) and had caused firearm injuries to them at an open place in village Tibba Karsial situated within the area of Police Station Chakrala, District Mianwali, F.I.R. No,28 was lodged in respect of that incident at Police Station Chakrala, District Mianwali by Wazir Hussain complainant at 9-30 p.m. On 2-5-2000 for offences under sections 324/34/09, P.P.C. After completion of investigation of the said criminal case a challan was submitted before the learned trial Court. Both the appellants, pleaded not guilty to the charge framed against them by the learned trial Court and claimed a trial. During the trial the prosecution produced nine witnesses in support of its case against the appellants including three eye-witnesses out of whom two were the injured victims. In their statements recorded under section 342, Cr.P.C. The appellants admitted their presence and participation in the alleged occurrence but advanced a different version of the incident in question. However, they neither made statements on oath under section 340(2), Cr.P.C. Nor produce any witness in their defence.
At the conclusion of the trial the learned trial Court found the prosecution's case against the appellants to have been proved beyond reasonable doubt and, thus, they were convicted and sentenced by it as mentioned and detailed above. Hence, the present appeals and the connected revision petition before this Court.
3. I have heard the learned counsel for the parties and have gone through the record of this case with their assistance. It has been argued by the learned counsel for the appellants that the prosecution had failed to prove its case against the appellants beyond reasonable doubt and the version advanced by the appellants in their statements recorded under section 342, Cr.P.C. Rang true and the same merits acceptance by this Court. It has also been argued by the learned counsel for Akhtar Zaman appellant that nothing had been recovered from the possession of this appellant during the investigation of this case and a Deputy Superintendent of Police had opined about innocence of this appellant during the investigation of this case. It has further been argued by him that this appellant was less than eighteen years of age at the time of the alleged occurrence and, therefore, his trial by the learned trial Court as well as his convictions and sentences recorded by it stand vitiated against this appellant that the learned Assistant Advocate- General appearing for the State as well as the learned counsel for the complainant have maintained that the prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, their convictions recorded by the learned trial Court do not warrant any interference by this Court. The 'learned counsel for the complainant has gone on to maintain that in the peculiar circumstances of this case the sentences passed against the appellants by the learned trial Court warrant suitable enhancement by this Court.
4. After hearing the learned counsel for the parties and going through the record of this case with their assistance it has straightaway been observed by me that the occurrence in this case had taken place during daylight and the F.I.R. In respect of the alleged incident had been lodged with reasonable promptitude and the names and specific roles of both the present appellants had been clearly mentioned therein. Although Wazir Hussain complainant (P.W.1) had received any injured during the alleged incident yet it cannot be lost sight of that of Arshad Iqbal (P.W.2) and Zafar Iqbal (P.W.3) had the stamp of injuries on their persons so as to vouchsafe their involvement in the said occurrence. As a matter of fact they were the injured victims of this case and the defence had utterly failed to bring anything on record of this case to establish any background of ill-will or bitterness between these victims and the appellants so as to prompt the former to falsely implicate the latter in a case of this nature. Bath the said injured eye-witnesses had made consistent statements before the learned trial Court and their statements had received ample support from the medical evidence which had confirmed the date and time of the occurrence, the weapons used by assailants and the locale of the injuries sustained by these witnesses. The motive set up by the prosecution was that about four days prior to the present occurrence the injured witnesses had exchanged slaps and fist blows with the present appellants when these witnesses had reprimanded the appellants upon their teasing young girls outside a Girls School. The two injured witnesses produced by the prosecution before the learned trial Court were personally involved in the said incident forming the motive and the defence had not seriously controverted the said witnesses in that regard. In these circumstances the motive had provided sufficient corroboration to the ocular account furnished in this case. Although the alleged recovery of a pistol effected from Arshad Iqbal appellant during the investigation of this case had remained legally inconsequential in the absence of any matching of such pistol with any crime-empty yet this aspect of the matter has not weakened the prosecution's case against the appellants.
5. In their statements recorded under section 342, Cr.P.C. Both the appellants had accepted their presence and participation in the occurrence in issue but they had advanced a different version of the same. However, the defence had produced absolutely no independent evidence whatsoever before the learned trial Court to establish or substantiate its version of the incident and the statements made by the two Investigating Officers before the learned trial Court show that no such version was advanced by the appellants during the investigation of this case. It may also be of some relevance of mentioned here that the defence version was not even suggested to Wazir Hussain complainant (P.W.1) before the learned trial Court. It is of critical importance to mention here that the defence version advanced by the appellants in their statements recorded under section 342, Cr.P.C. And suggested to Arshad Iqbal (P.W.2) and Zafar Iqbal (P.W.3) before the learned trial Court spoke of only one shot having been fired at the complainant party whereas the medical evidence had clearly established that the above-mentioned injured witnesses had received as many as three independent fire-arm injuries. This by itself was sufficient to expose the hollowness of the defence version.
6. It may be true that no weapon had been recovered from the possession of Akhtar Zaman appellant during the investigation of this case but such a failure on the part of the Investigating Officer to recover a weapon from this appellant could not by itself throw the entire prosecution case against him had otherwise been amply proved through ocular account furnished by two injured witnesses who were supported by the medical evidence and corroborated by the motive.
Although Muzhar Hayat, S.-I./S.H.O. (P.W.7), one of the Investigating Officers, had stated before the learned trial Court that a Deputy Superintendent of Police had declared Akhtar Zaman appellant to be innocent yet the fact remains that the said Deputy Superintendent of Police had not been produced before the learned trial Court as a witness and his opinion was even otherwise inadmissible in evidence. In this context I have noticed that both the Investigating Officers of this case appearing before the learned trial Court had consistently maintained that during their investigations they had formed an opinion about the guilt of this appellant.
7. As regards the plea of Akhtar Zaman appellant regarding his being a 'child' at the time of the occurrence for the purposes of the Juvenile Justice System Ordinance, 2000, I have noticed that no such plea had been taken by this appellant during the entire pendency of his trial and such a plea had been raised by him for the first time before this Court through Criminal Miscellaneous No,1725/M of 2000 and Criminal Miscellaneous No,1979/M of 2002 filed during the pendency of his appeal. I have found such a plea of this appellant to be clearly an afterthought. The learned counsel for the complainant as well as the learned Assistant Advocate-General appearing for the State have pointed out that the documents being relied upon by this appellant in respect of his plea of minority are replete with ambiguities and contradictions and, therefore, they are not capable of being safely relied upon. Be that as it may, the sentences passed by the learned trial Court against this appellant have been found by me to be such which could have been passed against him even by a Juvenile Court and the learned counsel for this appellant has failed to show as to what prejudice has been caused to this appellant in this regard. For all these reasons Criminal Miscellaneous No,1725/M of 2002 as well as Criminal Miscellaneous No,1979/M of 2002 which had earlier been ordered to be heard along with the main appeal, are hereby dismissed.
8. The statement made by Dr. Irfan Elahi (P.W.8) shows that both the legs of Arshad Iqbal (P.W.2) have been paralyzed due to the injuries received by him in this case. The said witness is present before this Court in person today and it is evident that the lower part of his body has been paralyzed and crippled and he cannot even walk. The said witness is a young man whose entire future stands jeopardized and gravely affected by the brutality perpetrated upon him by the present appellants and that too when this witness had reprimanded the appellants upon their immoral activities. In this backdrop the appellants do not deserve anything but the maximum sentences of imprisonment in a case of this nature. The sentences of imprisonment passed by the learned trial Court against the appellants were the maximum sentences that could have been passed by it against the appellants and the amount of fine, Arsh and Daman ordered by the learned trial Court to be paid by the appellants to the injured victims have not been found by me to be open to any interference. In this view of the matter no occasion has been found by me for enhancing the appellants' sentences through acceptance of the complainant's revision petition filed in that regard.
9. For what has been discussed above I have entertained no manner of doubt that the prosecution had succeeded in proving its case against both the appellants beyond reasonable doubt and, therefore, the convictions and sentences of the appellants recorded by the learned trial Court are upheld and maintained and both the above-mentioned appeals are dismissed. For the reasons recorded above the revision petition filed by the complainant is also dismissed.
Appeal and .