1. ' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Criminal Appeals Nos.123 and 125 of 1998 as they arise out of common judgment.
2. ' Brief facts leading to the present appeal are that on 25-4-1997 the P.W.2 complainant Ghulam Hussain, his brother injured Shahnawaz and P.W. Wahid Bux had gone to attend the marriage ceremony of one Iqbal. At about 10-30 a.m. They were returning from there as the said function was fixed at 1 p.m. When they reached near Regent Railway Crossing, Manzilgah, they saw appellants present there. The appellant Illahi Bux abused the P.W.3 injured Sadiq Nawaz by disclosing as to why he had restrained appellant Sher Muhammad from passing near his house. Then he instigated the other appellants to teach a lesson to the injured. On the said instigation, the appellant Sher Muhammad took out a pistol from the folds of his shalwar and directly fired a shot at the injured which hit him near his penis. After receiving the injury P.W.3 fell down on the ground and became unconscious. All the appellants then ran away. The complainant took the injured to police station where he lodged the report at 11-10 a.m.
3. ' The police after usual investigation, challaned the appellant in the Court of law.
4. ' The learned Ist Additional Sessions Judge, Sukkur tried, convicted the appellant for offences punishable under sections 324, 504, 114 and 149, P.P.C. And sentenced each of them to various terms of imprisonment and fine. All the sentences were ordered to run concurrently with benefit of section 382-B, Cr.P.C. Under the impugned judgment dated 10-11-1998.
5. ' I have heard the Advocate for the appellants, Assistant Advocate General for the State and perused the record of this case very carefully.
6. ' The learned counsel for the appellants has stated that the ocular testimony consists of P.W.2 complainant and P.W.3 injured who are brothers inter se; that the independent witness Wahid Bux who was eye-witness of the incident has not been examined; that the oral testimony is in conflict with the medical evidence; that there was enmity between the parties therefore, the appellants have been involved falsely and there are contradictions in their evidence.
7. ' Conversely, the learned Asstt. A.-G. Has stated that the victim P.W.3 has fully supported the case and implicated the appellants who is corroborated by P.W.2 complainant brother of the injured; that the evidence is sufficient to convict the appellants; therefore, the third eye-witness was not examined, as such no adverse inference can be taken in non-examining the P.W. Wahid Bux; that there is no conflict between the medical and oral evidence and that the contradictions pointed out by the defence counsel are minor in nature which have not affected the veracity of the witnesses.
8. He has supported the impugned judgment.
9. ' I have given due consideration to the arguments, gone through the evidence with the help of learned counsel for the appellants and found that the case of prosecution rests upon ocular testimony only, which consists of two prosecution witnesses viz. P.W.2 complainant Ghulam Hussain and his brother P.W.3 injured Sadiq Nawaz. Their evidence reveals that on the date of incident at about 10-30 a.m. When they reached at the place of incident along with P.W. Wahid Bux, the appellants came and challenged the injured. Out of them appellant Ellahi Bux abused the injured and on his instigation the appellant Sher Muhammad fired from his pistol at the victim. He received the fire-arm shot near his penis and then the appellants ran away. Both the witnesses are brothers inter se. The third eye-witness was Wahid Bux. He was not connected with the prosecution witnesses through any relationship but he might be their friend. The prosecutor gave up the said witness, on the ground that he was won over by the accused persons. Thus it is established that P.W. Wahid Bux was not supporting the prosecution case. If the P.W. Wahid Bux was hostile then the prosecutor should have examined the said witness and after declaring him hostile, he should have cross-examined the witness so as to bring the true facts on the record enabling the trial Court to assess the value of statement of P.W. Wahid Bux. Thus the prosecution has withheld the best piece of evidence available with them and did not allow the trial Court to assess and evaluate his evidence in accordance with law. As such non-examination of. P.W. Wahid Bux has adversely reflected upon the prosecution story and a presumption as required under Article 129(g) of the Qanun-e-Shahadat Order, 1984 can fairly be raised that had P.W. Wahid Bux been examined, his evidence would have been unfavourable to the prosecution. Thus we are left with the evidence of two brothers.
10. ' The appellants have claimed enmity with the injured as a TV belonging to Illahi Bux was stolen and he suspected that the deceased was involved in the theft. Such suggestion was put to the complainant who admitted the same but when such suggestion was put to the injured, he in the beginning denied the same by showing ignorance that TV of Illahi Bux was stolen but when he was further cross-examined on the point, he admitted that a `faisla' of theft of TV of Illahi Bux was held in which he was declared innocent. Thus, there was enmity between the parties; therefore, in such situation the evidence of two interested, hostile and inimical witnesses cannot be safely relied upon without corroborative piece of evidence as the witnesses have cause to implicate the appellants because of above-mentioned enmity.
11. In order to see whether evidence of these two witnesses is corroborated by other piece of evidence, I have examined the medical evidence. Both the witnesses are unanimous that single shot was fired at the injured but the said piece of evidence has been belied by the medical evidence as C according to the medical officer, he found two wounds of entry and one wound of exit on the person of injured. The P.W.1 Medical Officer Dr. Muhammad Yasin found the following injuries on the person of the injured:-
1. One lacerated penetrating wound of entry of fire-arm at the root of penis involving the abdominal skin measuring 1 c.m. In diameter circular in shape with inverted margins. Blackening and charring present.
2. One lacerated wound of exit on left side of scrotum measuring 1-1/2 c.m. Irregular shape with margins averted appears to wound of exit to wound No,l.
3. One lacerated penetrating wound of entry of fire-arm at the distance of 3 c.m. Away from Injury No,1 measuring 1 c.m. In diameter circular in shape with inverted margins. Blackening and charring present.
12. Thus, on the above aspect of the case, the oral evidence is not corroborated by the medical evidence. Furthermore, the P.W.3 stated that the culprit had fired at him from a distance of about 8 or 10 paces that means the said distance was about 20 to 25 feet. P.W.2 complainant Ghulam Hussain was cross-examined on the point of distance of shot. He gave evasive replies and tried to suppress the said distance. However, the fact remains, as per injured that he was fired upon from a distance of about 20 or 25 feet, but this aspect of the case has also not been corroborated by the medical evidence as according to the Medical Officer on both the wounds of entry blackening and charring were found present. According to the Modi's Medical Jurisprudence, blackening and charring on the wound can occur when a shot is fired from a distance of less than three feet. As such the injured was fired at from a very close range and not from a distance of about 20 or 25 feet. Thus, the ocular testimony is neither supported nor corroborated by any piece of evidence including the medical evidence. Thus it is very unsafe to rely upon such type of evidence.
13. ' Appellants have alleged that the deceased was declared KARO by one Wahid Bux Awan the witnesses denied such suggestion put to them. They claimed that the incident took place because the P.W.3 had restrained Sher Muhammad from passing near his house. The seat of the injury on the person of the injured clearly demonstrates that the injury might have not been caused because of the motive alleged by the appellants. It appears that a person who wanted to inflict injury had caused the said injury so that the victim should become impotent as the fire-arm shot was fired at the penis of the injured. It appears that the culprits had achieved their object as according to the medical officer the victim has become impotent. If a person wants to cause injury for any other reason then he would have caused the injury on other parts of the body of the injured and not on the penis. The fire-arm shot was fired at the victim by putting the fire-arm weapon very close from the penis of the victim; therefore, the intention of the culprit was clear for the purpose of causing the injury apparently such injury could only be caused when the culprit was suspecting that the victim had some illegal relationship with a lady.
14. Furthermore, there are also material contradictions in the evidence of witnesses with regard to leaving the house of the complainant, reaching the marriage hall by foot or rickshaw. The place where they went to attend marriage, and the time of reaching at the place of marriage etc. These contradictions coupled with the other contradictions create doubt in the prosecution story and veracity of witnesses.
15. ' After considering the material available on the record, I am of the considered view that the prosecution has failed to prove the case against the appellants beyond any reasonable doubt; therefore, the appellants are entitled to the benefit of doubt which was accordingly given to them while passing the short order dated 28-8-2006 by which I had allowed the appeals. These are the reasons of the said short order. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.