' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No,1115 of 2002 filed by Muhammad Jameel alias Jeela, appellant, who was convicted and sentenced by learned Additional Sessions Judge, Gujrat vide judgment, dated 6-6-2002 as under:--- 10 years' R.I. Under section 324, P.P.C. And to pay Diyat as Arsh amounting to Rs,1,83,780 under section 337-R, P.P.C. The benefit of section 382-B, Cr.P.C. Was also granted to the appellant.
2. Briefly stated the facts of the case are that on 5-8-1998 at about 2-30/3-00 p.m. Muhammad Jameel, appellant, while armed with .12 bore gun fired a shot, which hit on the right knee of Mushtaq Hussain. In all 10 accused were named in the F.I.R. Only four were challand. Out of the said four, only the present appellant namely Muhammad Jameel was convicted and sentenced as stated above.
3. The injured Muhammad Saleem was medically examined by Dr. Zulfiqar P.W.14 at 3-30 p.m. On the day of occurrence. Muhammad Jameel, accused was arrested by Mubarik Ali Shah S-I. (P.W.7) on 14-9-1998 and the accused while in police custody led to the recovery of .12 bore double barrel gun P.1 which was taken into possession vide memo. Exh.P.B.
4. At the trial, prokcution in order to prove its case produced 14 witnesses in all. Statement of the appellant was recorded under section 342, Cr.P.C. In which he pleaded false implication. After conclusion of the trial, Muhammad Jameel was convicted and sentenced as stated above.
5. Learned counsel for the appellant submits that the appellant has been falsely implicated due to enmity. Further submits that there are material contradictions in the statements of the P. Ws. In as much as according to injured witness, the shot having been fired from the back, there was no possibility to identify the accused who, according to prosecution, were ten in number. Adds that brother of the injured witness having been involved in two cases of criminal nature, there was every possibility that the injured was hit by the fire of some enemy. Further adds that neither the blood stained earth was taken into possession nor any crime empty was recovered from the spot. Lastly submits that non-joining of any person from the public in the recovery proceedings, is clear violation of section 103, Cr.P.C.
6. Conversely, learned counsel for the State submits that appellant is named in the F.I.R. With a role of firing at the injured P.W. Further submits that ocular account is fully corroborated by the medical evidence. He supports the judgment of the trial Court.
7. Heard. In the instant case, the occurrence had taken place between 2-30 to 3-00 p.m. On 5-8- 1998. The matter was reported to the police on the same day at 3-30 p.m. Through a complaint and formal F.I.R. Was recorded at 4-25 p.m. The injured was medically examined by Dr. Zulfiqar Ahmad P.W.14 at 3-30 p.m. On the day of occurrence, that is, within half to one hour after the occurrence. He found the following injuries on his person:--- ' "On right knee there were small circular holes and also on right leg there were many holes and also on interior side of the leg. All were entry wounds and there was no exit wound. The area of right knee was swollen and was bleeding profusely. I advised x-ray. There were also corresponding holes on Shalwar."
' The doctor before whom the surgical notes of Muhammad Saleem injured P.W. Were produced, was examined as P.W.12 and the doctor observed as under:--- ' "There were, many entry wounds of bullets, which were from inner side of right shin and were in an area of 8 x 8 c.m. There was swelling on the wounds and were bone deep. At the place of injury, there was no circulation of blood in the veins. The injured leg was numb, however, the injured was conscious. As per X-ray, super condyler fractures with inter condyler extension right femur, which was kept under observation. His leg became weak and (sick) which was amputated below the right knee joint. The wound was kept opened because there was puss infection in the same and when the same was cured then on 3-9-1998 the wound was closed and the patient was discharged on 6-8-1998. The leg of the patient was cut due to the fire-arm injuries."
' There was no negligence on the part of the doctors. When the patient was brought to hospital, blood was profusely oozing from the injury on the person of the appellant.
' It was a broad-daylight occurrence. The parties were known to each other. The fire was shot from the adjacent house while the injured was present in his house. The witnesses are most natural in as much as the complainant (P.W.2) who is real brother of the injured P.W. Lives in the same house.
Khurshid Anwer P.W.3 is also real brother of the injured and lives in the adjacent house. Both these P.Ws. Are consistent on material points. During the course of investigation, 12 bore gun was recovered on the pointation of the appellant. So far as non-recovery of crime empty from the spot is concerned, the weapon used was .12 bore gun and in such like weapon, the empty does not eject, unless the second shot is fired. In the instant case, the convict appellant fired only one shot. There was no previous background of enmity between the parties. There is also no mitigating circumstance in favour of the appellant warranting lesser punishment.
' After having considered the arguments advanced from both the sides and going through the evidence on record, I am of the considered opinion that the prosecution has been successful in proving its case against the appellant to its hilt and nothing tangible could be brought on record in favour of the appellant though the witnesses were put to the test of lengthy cross-examination.
Resultantly the appeal filed by the convict-appellant is dismissed. The conviction and sentence recorded by the learned trial Court is maintained in toto.