' KHAWAJA MUHAMMAD SHARIF, J.--- Appellant Allah Bakhsh is complainant of the case registered against the respondents vide F.I.R. No,674 of 1991 dated 9-12-1991 under sections 324/337-A(3)/ 337-F(5)/34, P.P.C. Police Station 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), P.P.C. One year's R.I. And Daman of Rs,15,000. 337-F(i), P.P.C. Six months' S.I. And Daman of Rs,500. 337-A(i), P.P.C. One year's R.I. And Daman of Rs,2,000.
(2) Rasheed 337-F(i), P.P.C. Three, years' R.I. And Daman of Rs,15,000. 337-A(i), P.P.C One year's R.I. And Daman of Rs,2,000.
(3) Bashir 337-F(vi), P.P.C. Three years' R.I. And Daman of Rs,15,000.
337-A(iii), P.P.C. Three years' R.I. And Arsh equal to 1/10th Diyat of Rs,20,292.37. 337-A(i), P.P.C. One year's R.I. And daman of Rs,2,000. The afore-referred judgment of conviction was assailed by the respondents before the learned Court of Session, 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, A.S.-I. Criminal Miscellaneous No,1236/M of 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 F.I.R. (Exh.P.F./1), are that on the fateful day and time he along with his brother Allah Yar (P.W.5), Allah Ditta (P.W.6), Sakina Bibi (P.W.3), Zohra Bibi (P.W.4), his sister and mother Gullan were busy in their fields, when, Ahmad 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 forearm with Dangori, he fell down and Ahmad, 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 Sakina at her head and right forearm, 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, Ahmad, 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 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 P.Ws. Were X-rayed, they appeared before the learned trial Court, they are star-witnesses of the case being injured P.Ws., medical examination of the injured P.Ws. Was conducted on the same day, the doctor who medically examined them and the Radiologist appeared qua the said injuries; that the injured P.Ws. Were not asked even a single question qua non-happening of the occurrence or qua self-sufference of the injuries on their persons; that the learned trial Court was rightly convicted and sentenced the respondents but they were wrongly acquitted by the learned Additional Sessions Judge without giving any cogent or legal reason; that the judgment of acquittal is based on surmises and conjectures and is liable to be set aside coupled with restoration of judgment of conviction. Ch. Jamshed Hussain, Deputy Prosecutor-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 74 hours in lodging the F.I.R., the complainant is not injured in this case, medical examination took place with a delay of seven hours, Rasheed respondent also received five injuries, he was medically examined on 8-12-1991, his father filed a private complaint but was dismissed; that allegedly Vahola was used by Rasheed but the said injury is simple in nature; that the Vahola and hatchet are sharp-edged weapons but the injuries are with blunt weapons; that Ahmad Sher was found innocent during the course of investigation by the police who is presently 75 years of age and 61 years of age at the time of occurrence, no recovery was effected from him; that recoveries effected from Rasheed, Bashir and Iqbal (since dead) were handed over to the Investigating Officer by one close relative of the respondents, namely, Ghulam Farid; that the two P.Ws. Who got separated the parties, namely Allah Ditta and Muhamand 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 party and that in support of the aforesaid submissions, he would rely on 1993 SCM R 828, 1981 SCM R 389, 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 P.Ws. 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 F.I.R. Lodged. In my view the afore-referred conduct is a natural one. Even otherwise, delay in lodging the F.I.R. Is not fatal to the prosecution.
8. Amongst five P.Ws., four injured P.Ws. Appeared before the learned trial Court i.e. Allah Yar (P.W.5), Allah Ditta (P.W.6), Sakina Bibi (P.W.3) and Zohra Bibi (P.W.4) 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 persons of the injured P.Ws. In this regard Dr. Fayyaz Hussain appeared as P.W.9 and stated that he medically examined all the injured P.Ws. 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-daylight 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 P. W.1 in order to prove the X-ray reports.
10. All the four P.Ws, who being injured persons are star-witnesses 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 Additional Sessions Judge to base his finding of acquittal. I am sorry to note that how the learned Additional Sessions Judge overlooked the statements of four injured P.Ws. 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 see 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 Additional Sessions Judge 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 circumstances of the case in hand and is not applicable in this case.
13. As far as case of respondent Ahmad 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 Additional Sessions Judge shall remain in fact.
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
15. 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.