' KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Criminal Appeal No, 439 of 2003 filed by Muhammad Zafar Iqbal, appellant against the judgment of Judicial Magistrate, Okara dated 19-2-2003, whereby he acquitted the accused-respondents namely, Munir Ahmad and Ahmad Hassan in case F.I.R. No,292/ 1996 registered under section 337-A(ii), 337-F (i), P.P.C. At Police Station, "A" Division.
2. Allegation against accused-respondents was that Munir Ahmad gave rod blow on the front and back of head of Muhammad Zafar Iqbal complainant/ appellant while Ahmad Hassan aimed his pistol towards the complainant with the threat that if he stepped forward he will be shot dead.
Thereafter Munir Ahmad strangulated the throat of Zafar Iqbal and one unknown person gave iron rod blow on the back of the complainant.
3. Having been found guilty by the Investigating Agency the present respondents were challaned to face the trial. At the trial, prosecution in order to prove its case produced six witnesses in all, thereafter, the statements of the accused-respondents were recorded under section 342, Cr.P.C. In which they pleaded innocence and after hearing both the parties, the learned trial Court acquitted both the accused-respondents in an application under section 249-A, Cr . P.0 .
4. Learned counsel for the appellant in support of this appeal submits that there were three eye- witnesses including the injured, namely, Muhammad Zafar Iqbal, who has got six injuries on his person, he was medically examined and some of the injuries on his head, that learned trial Court was wrong in acquitting the accused-respondents in this case, that accused-respondent Munir Ahmad was armed with "Sambbal", recovery was also effected from him, that ocular account in this case is corroborated by medical evidence and that it is not a case of false implication and of any previous enmity between the parties.
5. On the other hand, learned counsel for the respondents-accused submit two eye-witnesses are either related or friends of the injured P.W, that two unknown persons were never arrested by the police during the course of investigation, that no recovery was effected from Ahmad Hassan, accused-respondent, that ocular account is fully corroborated by medical evidence, that recovery has been disbelieved by the trial Court, that motive is flimsy one, that origin of the dispute was not proved and that there are material discrepancies in the statements of the witnesses.
6. Learned counsel for the State supports the judgment of the learned trial Court.
7. I have heard learned counsel for the parties. Occurrence in this case had taken place on 12-9- 1996 at 8-45 p.m. Just in front of the house of injured P.W, there were three eye-witnesses including the injured P.W, three have been produced namely, Mudassar Iqbal P. W.1, Muhammad Zafar Iqbal P.W.2 and another Ashraf P.W.3, Mudassar Iqbal and Muhammad Zafar Iqbal are real brothers inter se. Occurrence had taken place just in front of house of the complainant party, so they are the most natural witnesses in this case. Muhammad Zafar Iqbal injured was medically examined on the same day at 9-00 a.m. There were six injuries on the person of injured P.W. Injury No,1 was on the left side of head i.e, 8 c.m. x 1/2 c.m. Bone deep. Injury No,2 was also on the right side of the back of head i.e, 6 c.m. x 1/2 c.m. Bone deep, then there were also other injuries on his person and all were caused with blunt weapon. X-ray of skull and chest was advised. Injuries Nos.1 & 2 after X-ray examination were declared as "Shujja Mudiaha" while injury No,5 was declared as simple in nature.
The duration given by the doctor within one hour between injury the medical examination also coincide with the time of occurrence. For the sake of arguments if the persons Ashraf and Mudassar P.Ws are disbelieved, then, Zafar Iqbal, who is injured witness P.W. Cannot be disbelieved without any stretch of imagination. Though two public witnesses have not been produced to prove the recovery but the I.0 has appeared and police witnesses are as good witness as the public witness. As far as, two unknown accused persons are concerned, police did not arrest them. As far as, Ahmad Hassan respondent-accused is concerned, no motive was attributed to him, he was not related to Munir Ahmad accused-respondent, no recovery was effected from him, so acquittal of Ahmad Hassan accused- respondent is maintained. However, as far as Munir Ahmad accused- respondent is concerned, he has caused serious injuries on the person of Muhammad Zafar lqbal injured P.W/appellant. I am unable to understand that why the trial Court while charging the accused has not framed the charge under section 324 P.P.C. The injuries given to injured P.W. On his head could prove fatal and it was good fortune not only of the injured but also respondent Munir Ahmad that he did not meet his death. Even the law of the land is that in such like cases if a case is proved then conviction under section 324, P.P.C. Would be given on the one hand and for causing the injuries the other conviction and sentence can be awarded by the trial Court. As the complainant-appellant for not charging the respondent under section 324, P.P.C. Had filed any revision, so this Court cannot convict the respondent Munir Ahmad under section 324, P.P.C. For the just decision of the case, I would like to reproduce answer to question why this case against you put to Munir Ahmad accused-respondent in his statement recorded under section 342, Cr.P.C. As under:-- {{URDU TEXT}}
8. The bare perusal of above said answer would show that he had admitted his presence at the spot, place and time of occurrence. Though during the scuffle according to him injured received minor injuries but in fact he caused serious injuries on the head of injured and in this regard X-ray of skull and chest was also advised to the injured. As the case against Munir Ahmad accused- respondent is proved beyond any shadow of doubt through ocular account corroborated by medical evidence and recovery of "Sabbal" and moreover, it has also come on record that there was no previous background of enmity between the parties, so I am of the considered opinion that the prosecution has been successful in proving its case against Munir Ahmad accused- respondent and the learned trial Magistrate was wrong in acquitting the respondent. Resultantly, this appeal to his extent is accepted, the order of acquittal passed by the learned trial Magistrate is set-aside and the respondent accused, namely Munir Ahmad is convicted under section 337-A(ii), P.P.C. And is sentenced to undergo five years' R.I. And shall be liable to pay Arsh, which shall be 5% of "Diyat". He is also convicted under section 337-F(i), P.P.C. And is sentenced to undergo one year R.I. And Rs, 5000 as Daman. Both the sentences are ordered to run con-currently with the benefit of section 382-B, Cr.P.C.