' KHAWAJA MUHAMMAD SHARIF, J.---This judgment shall dispose of Criminal Appeal No, 1664 of 2006 filed against the impugned judgment of acquittal, dated 4-10-2006 passed by the learned Additional Sessions Judge, Nankana Sahib, whereby, after having set aside the judgment of conviction of the learned Judicial Magistrate Section 30 Nakana Sahib, dated 24-3-2006, passed against the respondent, acquitted him from the case.
2. Brief facts of the case, as given by the complainant Muhammad Yaseen are that on 28-6-2001 he was present in the Bazar, when suddenly respondent came there, abused him and entered his house, at that time his mother was alone at home, she asked the respondent to stop abuses upon which he gave a blow of iron rod on her head, hue and cry raised by her attracted the complainant, Muhammad Ashar and Muhammad Amin to the spot, the respondent fled away from the spot, she was shifted to the hospital and examined there and motive statedly was that husband of the injured was a witness against the respondent in a criminal case one day prior to the occurrence.
3. 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 prosecution witnesses during the trial, the learned Judicial Magistrate section 30 Nankana Sahib convicted the respondent under section 452, P.P.C. And sentenced to two years' RI with a fine of Rs,1000 in default whereof to further undergo two months' S.-I., the respondent was also convicted under section 337- A(2), P.P.C. And sentenced to pay Arsh amount ofRs,18,000 (5% of the Diyat amount) to the victim with imprisonment of two years and both the sentences were directed to run concurrently.
4. Learned counsel for the appellant, while seeking conviction of the respondent, submits that the learned Judicial Magistrate section 30 had rightly convicted the respondent but he was wrongly acquitted by the learned Additional Sessions Judge in appeal; that the injured-P.W.1 Mst. Mumtaz Bibi has fully supported the prosecution case; that the ocular account in this case is corroborated by the medical evidence; that there was no reason for false implication of the respondent; that her two sons, namely, Muhammad Amin (P.W.2) and Muhammad Yasin (P.W.3) while appearing before the learned trial Court, have corroborated her statement; that the learned ASJ has acquitted the respondent on surmises and conjectures; that the prosecution case was further corroborated by Dr. Abbas Ali (P.W.6) who had medically examined the victim lady and that the prosecution had proved its case against the respondent beyond any shadow of doubt to sustain conviction.
5. On the other hand, learned counsel for the respondents, while defending the impugned judgment of acquittal, vehemently contends that as per P.W. Yasin he was not present at the spot and was called on telephone; that as per P.W. Amin he was present outside the house and came at the spot after the alleged occurrence; that even P.W.1 stated that both of them were not present at the spot; that the iron rod was used in the alleged occurrence so recovery of sota is of no avail which was not blood-stained; that no time of occurrence has been mentioned in the F.I.R; that there is one day delay in lodging the F.I.R.; that neither the blood-stained earth nor blood-stained clothes of the victim were taken into possession; that the case was registered after medical examination of the victim; that as per P.W.1 she remained in hospital for about 8 days but there is nothing on the record to the said effect; that enmity is on the record and that the respondent has rightly been acquitted from the case.
' Mr. Naseeruddin Khan Nayyar, the learned Additional Prosecutor-General, while appearing on behalf of the State, submits that he would support the judgment of conviction and would oppose the acquittal.
6. 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.
7. In this case there were three eye-witnesses including P.W.1 Mumtaz Bibi, who is the victim of the case. The other witnesses are Muhammad Amin (P.W.2) and Muhammad Yasin (P.W.3) who are her sons.
8. The occurrence in this case had taken place on 28-6-2001, matter was reported to the police on 29-6-2001 and she was medically examined by P.W.6 Dr. Abbas Ali on 28-6-2001 at about 8-30 a.m.
Who found a lacerated wound of 7.1 c.m x 1.4 c.m. Into 1.3 c.m. On left frontal parietal region exposing the underlying bone. He declared the above said injury as Shujah-e-Mediha. For the sake of arguments, if we disbelieve the statement of both the sons of the victim, who are P.Ws., there is no earthly reason with this Court to disbelieve statement of P.W.1 Mumtaz Bibi, who, being injured, was a star witness of the case because the occurrence had taken place in her house where she was attacked by the respondent and was caused injuries. There is no question of false implication because it is a rare phenomenon coupled with the fact that the ocular account in this case is fully corroborated with the medical evidence. It is settled by now that even on the basis of a sole statement of a witness, conviction can be awarded to the accused. In the case in hand Mumtaz Bibi P.W.1 is not only a witness but is an injured/victim of the case as well, so, this Court seems no reason not to believe her statement, who, throughout the case, had fully supported the prosecution case.
9. As far as non-recovery of blood stained earth is concerned, it has come to my notice as a Judge and as an Advocate that except in murder cases, it is never taken into possession, so, the said argument of the learned counsel for the respondent is of no avail to him.
10. I may state here that so far as argument of the learned counsel for the respondent that blood- stained clothes of the victim were not taken into possession, it would be a negligence on the part of the Investigating Officer and cannot vitiate the trial.
11. Much stress was laid by the learned counsel for the respondent on the ground that the injury could not have been caused by a "sarya" but surprisingly not a single question on this point was put to Dr. Abbas Ali (P.W.6), so, the same argument is of no avail to him and is not fatal to the prosecution case.
12. I may also mention here that the learned trial Court should also have convicted the respondent under section 324, P.P.C. Because it was an attempt to Qatl-c-Amd on the part of the respondent- accused and section 324 P.P.C. Is a mandatory provision of law. Even if the charge was not framed in the instant case under section 324, P.P.C. But the facts and circumstances of the case transpire that this provision of law is fully attracted, so judicial notices being taken in this regard. In this regard reliance is placed on Zulifqar Ali Bhutto v. The State (PLD 1979 Supreme Court 53), wherein, at page 826, the apex Court of the country was pleased to hold as under:-- "826. The survey of the cases shows that the law as embodied insections 236 and 237 of the Criminal Procedure Code read together appears to be that if on the facts alleged it was doubtful which of several offences on the proved facts will constitute and on the fact eventually proved, of which the accused may be taken to have notice during the recording of evidence at the trial an offence other than the one charged has been committed, then he may be convicted of this other offence, even though he was not charged with it. Their Lordships of the Privy. Council have indeed put it simply and shortly by saying that a man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have been made."
13. So, after having fortified my view with the above quoted judgment of the apex Court of the country, the respondent is also being E convicted under section 324, P.P.C. Although no charge under the said provision of law was framed against him because he had also made an attempt to Qatl-e-Amd of the victim. Therefore, this appeal is accepted and while restoring the judgment of conviction of the learned trial Court in toto, the respondent is also convicted under section 324, P.P.C. And sentenced to two years' R.I. With a fine of Rs,10,000 in default whereof to further undergo S.-I. For three months. All the sentences shall run concurrently. The respondent is on bail. He shall be taken into custody to serve out the remaining part of his sentence.