' SAID MAROOF KHAN, J.---On the report of Sher Alam complainant a case was registered against Noor Ali alias Khan Bahadur and his two sons Ahmad Ali and Hussain Khan under sections 324/34, P.P.C. At Police Station, Lakki Marwat vide F.I.R. No,347 dated 6-9-2003. In the F.I.R. The complainant alleged that on 6-9-2003 at about 10-00 a.m. He along with his brother Saeed-ur-Rehman and his relative Naseeb Khan was busy in plastering the house from outside and in the meanwhile the appellants Khan Bahadur, Ahmad Ali and the absconding accused Hussain Khan emerged there.
Both the appellants were armed with .12 bore shotgun whereas the absconding accused Hussain Khan was armed with a Kalashnikov. The appellant Khan Bahadur asked his sons Ahmad All and Hussain Khan to kill. Accordingly both of them fired at the complainant party and as a result of their firing the complainant was hit and injured while his companion escaped unhurt. The motive for the offence was that a few days prior to the occurrence the father of the complainant had lodged a report against Shaukatullah son of Shah Wali regarding commission of theft over which the accused were annoyed. Besides the complainant P.Ws. Saeed-ur-Rehman and Naseeb Khan were alleged to be the eye-witnesses of the occurrence.
2. The above report of the complainant was recorded by Saif-ul-Malook, IHC in the Emergency Room Civil Hospital Lakki Marwat in the shape of Murasila Exh.P.A./1 which was sent to Police Station, Lakki for registration of the case and accordingly the case was registered. The appellant Noor Ali alias Khan Bahadur and Ahmad Ali were arrested while Hussain Khan absconded after the occurrence. The formalities of sections 87 and 204, Cr.P.C. Were observed against the absconding accused and on completion of investigation challan was submitted for trial of the appellants. They were put to trial by the learned Sessions Judge Lakki Marwat and on conclusion of the trial, on 12-9- 2005, both the appellants were found guilty of the charge under section 324; P.P.C. And accordingly convicted and sentenced to suffer rigorous imprisonment for five years and also to pay a fine of Rs,50,000 or in default to suffer simple imprisonment for six months. In addition the appellant Ahmad Ali was also convicted for offence under section 337-D, P.P.C. And sentenced to undergo rigorous imprisonment for further five years and also to pay 1/3rd of Diyat as Arsh to the complainant. Both the sentences were ordered to run concurrently and the benefit of section 382- B, Cr.P.C. Was also extended to the appellants. The absconding accused Hussain Khan was declared as Proclaimed Offender. Feeling aggrieved of their conviction and sentence the convicts- appellants Noor Ali alias Khan Bahadur and Ahmad Ali filed Criminal Appeal No, 99 of 2005 while the complainant Sher Alam filed Criminal Revision No,48 of 2005 for enhancement of sentence of the appellants. Both the appeal and revision having arisen out of one and the same judgment are disposed of by this single judgment.
3. Mr. Sanaullah Khan Gandapur learned counsel for the appellants contended that the motive for the offence as mentioned in the F.I.R. Is false as the prosecution has not brought on record the alleged report of the father of the complainant stated to have been lodged against Shaukatullah for commission of offence of theft. It was further submitted that there are material contradictions in the ocular account of the incident furnished by the complainant and P.W. Naseeb Khan as well as the medical evidence. It was next argued that no blood and empties were recovered from the spot and that this circumstance also generates serious doubt as to genuineness of the prosecution version. The learned counsel further contended that the conviction of appellant Ahmad Ali under section 337-D, P.P.C. Was illegal as no charge was framed under this section. It was further submitted that appellant Noor Ali alias Khan Bahadur was not assigned any positive role in the commission of the offence and therefore, there was no justification for 'his conviction.
4. On the other hand, Mr. Muhammad Yaqoob Khan Marwat learned counsel for the complainant contended that it was a daylight occurrence and the complainant as well as P.W. Naseeb Khan had seen the appellant committing the offence. That the eye-witnesses have fully supported the version mentioned in the F.I.R. And that their evidence is further corroborated by the medical evidence. Further submitted that the non-recovery of blood and empties from the spot and the failure of the prosecution to establish the motive could , not adversely affect the prosecution case because ocular account of the incident furnished by the eye-witnesses has established the case against the appellants beyond reasonable doubt. With regard to the charge under section'337-D, P.P.C. The learned counsel for the complainant submitted that, the framing of charge under separate head was not essential as the contents of the charge framed against the appellants fully contained the allegations levelled against them and as such they have not been prejudiced in their defence.
5. I have considered the arguments of learned counsel for the parties and gone through the record with their assistance.
6. To substantiate the guilt of the appellants the prosecution has mainly relied upon the evidence of Sher Alam complainant, P.W.3 Naseeb Khan and statements of P.W.6, Dr. Ismail Iqbal and P.W.8, Dr. Falak Naz, P.W.2 Sher Alain has reiterated the same facts which he had mentioned in the F.I.R.
P.W.3, Naseeb Khan who is stated to be an eye-witness of the occurrence .Stated that on the day of occurrence he along with the complainant was busy in plastering the walls of the house. The complainant was at some distance from him and in the meanwhile the appellants Noor Ali alias Khan Bahadur and his son Ahmad Ali duly armed with DB shotguns, accompanied by the absconding accused Hussain Khan armed with a Kalashnikov, came there. Noor All alias Khan Bahadur appellant directed his two sons for firing at the complainant party and accordingly they started firing with which the complainant Sher Alam was hit and injured. In cross-examination he stated that the occurrence had taken place at 10 a.m. That after the occurrence they took the injured to the hospital where the matter was reported to the police. That he also accompanied the Investigating Officer to the spot at 1200 noon and there his statement was recorded.
7. P.W.6, Dr. Ismail Iqbal D.H.Q. Hospital Lakki stated that oil 6-9-2003 at 11-45 a.m. Injured Sher Alam was brought by Constable Mehmood Khan No,43 for examination. After examination of the injured he found the following: -.
' "One F.A. Entrance wound 1/6" x 1/6" skin, muscles cavity deep on the back lumber region at the level L3. Approximately 2" right of midline.
' Nature "of injury kept under observation.
' Probable duration one to four hours.
' Kind of weapon F.A. Injury.
' That the Medico-legal report- Exh.ML correctly bears his signature.
' P.W.8, Dr. Falak Naz Surgeon D.H.Q., Hospital Lakki Marwat stated that injured Sher Alam was referred to him by Dr. Ismail Khan for further treatment.
' Leportomy was performed small gut (ileum was perforated) primary closure was performed. After three days its leaked reexploration done and due perotinist small gut was brought out. After about one and half months the small gut was closed and he after about seven days developed fistula. On the patient request he was referred to Peshawar. At Peshawar conservative treatment given and after about one month he was again referred to D.H.Q., Hospital Lakki. Here management for wound, care and fistula were done arid the patient recovered and was discharged. After about 20 days again the wound became infected and on their own will they went to Peshawar. One .12 bore pellet most probably S.G. Pellet was removed from interial abdominal wall and handed over to dispenser on 6-9-2003. That his report Exh.P.W.4/3 correctly bears his signature.
8. Both the eye-witnesses, namely, P.W. Sher Alam complainant and P.W.3, Naseeb Khan have unequivocally deposed at the trial that appellant Ahmad Ali had fired with a shotgun arid in consequence thereof the complainant Sher Alam (P.W.2) was injured. In view of the fire-arm injuries sustained by the complainant Sher Alam hfs presence at the spot cannot be doubted. The medical evidence in the shape of statement of P.W.6, his report Exh.ML as well as evidence of P.W.8, his report Exh.P.W.4/3 and the statement of C.W.-l, Muhammad Aslam Dispenser also support the prosecution version. The testimony of , P.W.6 and P.W.8 indicates that the complainant sustained pellet injuries, 'pie non-recovery of blood and empties from the spot cannot adversely affect the prosecution case because rest of the' evidence is sufficient to prove the guilt of Ahmad Ali appellant. There is absolutely no evidence on the record suggesting that the complainant party was inimical towards the appellants and therefore, there was no reason for the complainant to substitute the appellant Ahmad Ali for the real offender. The complainant and P.W. Naseeb Khan have supported each other regarding material aspects of the case. They are consistent hi that on the day of occurrence the appellant Ahmad Ali had fired at the complainant party and as a result the complainant was injured. Their statements were therefore, rightly believed by the learned trial Judge with regard to guilt, of Ahmad Ali appellant. The contention of the learned counsel as to alleged defect in the charge is withQut substance because in the charge framed against the appellants the material facts, constituting the offence have been specifically mentioned.
9. The role of appellant Noor Ali alias Khan Bahadur is somewhat different from that of Ahmad Ali as he is not charged for firing at the complainant party. According to the F.I.R. And statement? Of the two eye-witnesses the appellant Noor Ali alias Khan Bahadur had commanded his sons Ahmad Ali and Hussain Khan absconding accused for firing at the complainant party. However, this allegation against appellant Nopr Ali alias Khan Bahadur is doubtful. As per evidence on record it could not be, determined with pertainty that he shared common intention in causing injuries to the complainant because in spite of being armed with DB shotgun, as alleged in the F.I.R., he had not fired at the complainant party and in this view of the matter he is entitled to a finding of acquittal and his conviction and sentence is liable to be set aside.
10. For the above reasons the appeal is partly accepted, the conviction and sentence of the appellant Noor Ali alias Khan Bahadur is set aside and he is acquitted of the charge levelled against him. He shall be released forthwith if not required in any other case. The conviction and sentence of appellant Ahmad Ali is maintained and his appeal is dismissed with the only modification that he shall pay the l/3rd of Diyat as ArSh amounting to Rs,91,921 before the expiry of the period of his imprisonment failing which he shall be kept in jail till payment and dealt with in the same manner as if sentenced to simple imprisonment. As far as the revision is concerned, in this case besides the appellant Ahmad Ali his brother Hussain Khan absconding accused is also held responsible for causing hurt to the complainant and moreover there is no background of previous enmity between the parties, therefore, relying upon the rule laid down in PLD 1996 SC 122 I have come to the conclusion that the awarded sentence would be sufficient to meet the ends of justice.
The Criminal Revision No,48 of 2005 is, therefore, dismissed.
11. Above are the detailed reasons for my short order dated 19-6-2006.