Appellant Allah Bakhsh is complainant of the case registered against the respondents vide FIR No,674/1991 dated 9.12.1991 under Sections 324/337-A(3)/337-A(5)/34 PPC, PS Saddar Jhang in which respondents were tried by the learned Magistrate Section 30 Jhang, who, vide judgment dated 6.3.2004 convicted and sentenced them as under:-- Sr. No, Name of accused Offence Sentence
1. Ahmad 337-F(v) PPC 337-F(i) PPC 337-A(i) PPCOne year RI & Daman of Rs, 15,000/- Six months SI & Daman of Rs, 500/- One year. RI & Daman of Rs, 2000/-
2. Rasheed 337-F(i) PPC 337-A(i) PPCThree years RI & Daman of Rs, 15,000/- One year RI and Daman of Rs, 2000/-
3. Bashir 337-F (vi) PP C337 A(iii) PPC 337-AO) PPCThree years RI & Daman of Rs, 15,000/- Three years RI & Arsh equal to 1/10th Diyat of Rs, 20292.37.
One year RI & Daman of Rs, 2000/- The afore-referred' judgment of conviction was assailed by the respondents before the learned Court of Sessions, where, vide impugned judgment dated 18.4.2005, the learned Additional Sessions Judge, Jhang (Mr. Salahuddin) acquitted the respondents and this appeal is directed against the said judgment of acquittal. As this appeal was admitted to regular hearing on 11.7.2005 and was fixed on 14.9.2007 on which date neither the respondent nor their learned counsel appeared, so, non-bailable warrants for their arrest were issued and, today, they have been produced before this Court in handcuffs by Muhammad Fayyaz ASI Crl. Misc. No, 1236-M/2007 has been filed on their behalf for withdrawal of the said warrants of arrest. For reasons recorded therein this application is allowed and their handcuffs have been removed with a direction that they shall be careful in future.
2. Brief facts of the case, as given by the complainant Allah Bakhsh in the FIR (Exh.PF/1), are that on the fateful day and time he alongwith his brother Allah Yar (PW-5), Allah. Ditta (PW-6), Sakina Bibi (PW-3), Zohra Bibi (PW-4), his sisters and mother Gullan were busy in their fields, when, Ahmed armed with Dangori, Rasheed with hatchet, Bashir with vahola and Iqbal (since dead) armed with a dangori emerged there, they raised a Lalkara to teach them a lesson for restraining possession of land, Bashir inflicted a vahola blow to Allah Yar on his head, Ahmad and Iqbal delivered successive blows at his right hand and left fore-arm with dangori, he fell down and Ahmed, Bashir and Iqbal gave multiple blows on various parts of his body, Mst. Gullan, Sakina and Zohra attracted to his alarm, upon which, Rasheed gave a hatchet blow to the head of Zohra and Ahmad gave a dangori blow on her back, Iqbal gave successive blows with dangori to Saltine at her head and right fore- arm, hatchet blows by Rasheed landed at the left hand of Mst. Gullan, Ahmad and Iqbal caused multiple blows to her with dangori at various parts of her body, Ahmed, Bashir and- Iqbal dealt successive blows to Allah Ditta at various parts of his body while motive statedly was with regard to possession of a piece of land.
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 nine prosecution witnesses during the trial. The respondents` respondents were convicted and sentenced variously by the learned Magistrate but were acquitted by the learned Additional Sessions Judge as has been chalked out in the opening paragraph of this judgment.
4. Learned counsel for the appellant in support of this appeal against acquittal of the respondents submits that the ocular account in this case is corroborated by the medical evidence conducted on the same day; that the injuries on the persons of the injured-PWs were X-rayed they appeared before the learned trial Court, they are star witnesses of the case being injured-PWs, medical examination of the injured-PW was conducted on the same day, the doctor who medically them and the Radiologist appeared qua the said injuries; that the injured-PWs were not asked even a single question qua non-happening of the occurrence of qua self-sufferance of the injuries on their persons; that the learned tribe Court was rightly convicted and sentenced the respondents but the were wrongly acquitted by the learned ASJ without giving any cogent of legal reason; that the Judgment of acquittal is based on surmises an conjectures and is liable to be set-aside coupled with restoration of judgment of conviction. Ch. Jamshed Hussain, Deputy Prosecute General Punjab has adopted arguments of learned counsel for the appellant.
5. On the other hand, while defending the judgment of acquittal learned counsel for the respondents submits that there is a delay of 7 hours in lodging the FIR, the complainant is not injured in this case medical examination took place with a delay of seven hours, Rashee respondent also received five injuries, he was medically examined of 8.12.1991, his father filed a private complaint but was dismissed; that allegedly vahola was used by Rashed but the said injury is simple is nature; that the vahola and hatchet are sharp edged weapons but the injuries are with blunt weapons; that Ahmed Sher was found innocent during the course of investigation by the police who is presently 75 year of age and 61 years of age at the time of occurrence, no recovery was affected from him; that recoveries affected from Rasheed, Bashir an Iqbal (since dead) were handed over to the Investigating Officer by on close relative of the respondents, namely, Ghulam Farid; that the two PWs who got separated the parties, namely, Allah Ditta and Muhammad were not produced; that the land in dispute was in possession of the respondents 3/4 months prior to the occurrence, so, question of attack does not arise on the "part of the respondents on the complainant and that in support of the afore-said submissions, he would rely on PW 1993 SC 393, PLJ 1981 SC 601, 1993 SCM R 828, PLD 1976 SC 593 and 1992 SCM R 96.
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. The occurrence in this case had taken place on 6.12.1991 at 12.00 (noon), the matter was reported to 'the police at 2.40 p.m. on 9.12.1991 by Allah Bakhsh complainant and the reason given for the delay was that as the injured-PWs were in the critical condition, he remained busy in the hospital in order to save their lives and at his first chance he got the FIR lodged. In my view the afore-referred conduct is a natural one. Even otherwise, delay in the lodging the FIR is not fatal to the prosecution.
8. Amongst five PWs, four injuired-PWs appeared before the learned trial Court i,e, Allah Yar (PW5), Allah Ditta (PW6), Sakina Bibi (PW3) and Zohra Bibi (M4) to support the prosecution case qua the seat of injuries on the part of the accused persons. In all there are 21 injuries on the person of the injured-Ms. In this regard Dr.Fayyaz Hussain appeared as PW9 and stated that he medically examined all the injured PWs on 6.12.1991 at 7.00 p.m. and duration between the injuries and medical examination 'was given by him within 12 hours which fits in with the time of occurrence, so, it can be said that the ocular account in this case is corroborated by the medical evidence.
9. It was a broad-day-light occurrence, so, no question of mistaken identity arises. Even otherwise, number of injuries coincides with the number of assailants. One of the injuries on the person of Gullan Bibi was found to be a fracture after getting report of the Radiologist who appeared as PW1 in order to prove the X-Ray reports.
10. All the four PWs, who being injured persons are star witness of the case, appeared before the learned trial Court and have fully supported the prosecution case. They were cross examined and nothing could be shaken from their testimony to discard the same. Even otherwise, they have no animus against the respondents to falsely depose against them, so, this Court seems no reason not to believe their statements.
11. Perusal of the impugned judgment of acquittal reveals that no cogent and legal reason has been given by the learned ASJ to base his finding of acquittal. I am sorry to note that how the learned ASJ overlooked the statements of four injured-PWs whose statements were supported by the medical evidence and could not have been disbelieved at all. Even Ch. Jamshed Hussain, Deputy Prosecutor General Punjab has supported the judgment of conviction passed by the learned trial Court.
12. Court has to seen the intrinsic value of the eye-witnesses. If the Court comes to the conclusion that their evidence has come through an unimpeachable source and was of confidence inspiring coupled with the fact that if it was supported by the medical evidence then the same is sufficient to base conviction. As far as recoveries are concerned, those are only supportive in nature. In the afore-referred circumstances, this Court is of the considered view that the prosecution has proved its case against the respondents to the hilt and the learned ASJ has wrongly acquitted the respondents after having based his judgment on surmises and conjectures. The precedent case law relied upon by the learned counsel for the respondents is distinguishable from the facts and I circumstances of the case in hand and is not applicable in this case.
13.As far as case of respondent Ahmed Sher is concerned, he was found innocent during the course of investigation by the police but was never placed in Column No, 2 of the challan, presently he is about 77 years of age and there is no denial by the complainant side to the said factum of age, so, while granting benefit of doubt, this appeal to his extent is dismissed and \his acquittal by the learned ASJ shall remain in tact.
14.As far as acquittal of respondents Rasheed and Bashir is concerned, this appeal to their extent is allowed, the impugned judgment of acquittal to their extent is set-aside and the convictions and sentences recorded against them by the learned trial Court are hereby restored. They shall be taken into custody to serve out the remaining part of their sentence.