' SHAHID ANWAR BAJWA, J.--- This appeal has been filed by three appellants against judgment dated 15-1-2009 passed by 2nd Additional District and Sessions Judge, Karachi Central in Sessions Case No,229 of 2004 whereby Mohammad Ali appellant No,2 was convicted under section 324, P.P.C. For attempt to Qatl-i-amd of Tahir and Orangzeb and sentenced him to rigorous imprisonment of 10 years and also to fine of Rs,10,000 and in case of default to suffer rigorous imprisonment for 3 months and appellant No,1 Mohammad Yaseen Khan and appellant No,3 Mohammad Waseem were, while taking lenient view, convicted to suffer rigorous imprisonment for three years each and fine of Rs,5,000 each and in case of default to suffer rigorous imprisonment for one month more. Benefit of section 382-B, Cr.P.C. Was extended to the appellants.
2. On application under section 426, Cr.P.C. This Court on 3-4-2009 allowed bail application of appellants Nos.1 and 3. Application under section 426, Cr.P.C. Of appellant No,2 was dismissed.
3. Incident which is subject-matter in this case is alleged to have occurred on 14-6-2004 at about 10-00 a.m. Material part, after narration of previous history wherein it was alleged that appellant No,1 and his family demanded hand of sister of injured persons in marriage for appellant No,1 and that it was refused by father of injured persons and due to this grudge there have been exchange of hot words between the members of two families, it was stated that at about 8.30 p.m. During night before the incident sister of injured person went to roof and appellant No,1 threw stones on the roof. Injured Orangzeb met with appellant and as a result of which appellant was annoyed.
Thereafter, incident narrated in the F.I.R. In the following words:- "Today I was present in the house when at about 10-00 a.m. My mother as usual sent my younger brother Aurengzeb aged 19 years to shop to bring the Rusk for breakfast. As soon as my brother emerged from the gate I reported fire-shot. I and my mother running went outside from the house.
In lane at the corner of the House No,L/779 our neighbour Muhammad Yasin and his brother Wasim and Muhammad Ali caught hold my brother and were beating him. Muhammad Ali had Repeater in his right hand and pistol was hanging on left shoulder. I raised cries why are you beating my brother and you should leave him, upon this they left my brother and all the three brothers told it was good the other brother also came, today finish them. I also reached at the corner of the house.
Muhammad Yasin and Waseem challenged that brother Muhammad Ali kill both the brothers, upon which Muhammad Ali made straight the Repeater towards us both the brothers and started firing with intention to commit our murder. As a result of firing I sustained two bullets on right leg and on shin of left leg and younger brother Aurang Zeb sustained bullets on right leg therefore, I and my brother fell down. Much area people Muhammad Imran son of Ashraf and others gathered there. All the three brothers fled away from the spot."
4. F.I.R. No,93 of 2004 was registered at Khawaja Ajmer Nagri Police Station at 1408 hours. After registration of F.I.R. Police Conducted investigation and during course of such investigation police visited place of incident and prepared Mashirnama of place of incident and recovery. On 14-6- 2004 three appellants were arrested. Mashirnama of their arrest was prepared and on 17-6-2004 on pointation of Muhammad Yaseen weapon allegedly used in the crime was recovered and police prepared such Mashirnama accordingly. The appellants were charged and tried in Court below. Nine witnesses were produced (P.W.1 Tahir; P.W.2 Orangzeb; P.W.3 Mohammad Makki who produced Mashirnama of recovery; P.W.4 Mohammad Imran neighbour; P.W.5 P.C. Aqeel Ahmed who produce Mashirnama of arrest; P.W.6 A.S.-I. Abdul Rehman; P.W.7 A.S.-I. Asif Zia; P.W.8 Syed Mazaharuddin Senior MLO and P.W.9 Zafarullah Khan). Thereafter statements under section 342, Cr.P.C. Of appellants/accused were recorded. Trial Court observed that following points require determination;
(i) Whether injured namely Tahir and Orangzeb sustained fire-arm injuries?
(ii) Whether on 14-6-2004 at 12-30 p.m. The accused Mohammad Yaseen and Waseem caught hold of Orangzeb and accused Mohammad Akli fired upon him and Tahir with their common intention to casue Qatl-i-amd?
5. After recording evidence vide order dated 15-1-2009 appellants were sentenced as stated above.
6. Details of injuries sustained by Tahir are as under:---
(1) Fire-arm wound of injury on the anteromedial aspect of right knee joint measuring 2.5 x 2 cm with structure deep with inverted margins. Blackening around the wound present. Blood oozing out from the bone with restriction of movement of right knee joint.
' Fire-arm wound of exit, lacerated manner on posterior aspect of right knee joint measuring 13 cm 10 cm with everted margins. Bleeding from the wound with restricted movement.
(2) Multiple punctured wound on the dorsal aspect left foot scattered over 10 c.m. x 10 c.m. By area, each measuring 1 c.m. In diameter with inverted margins with blood clots around.
' No exit wound.
' The corresponding tear in the Shalwar with staining of blood seen.
' His X-ray investigations were done and the injuries were reserved.
7. Details of injuries sustained by Orangzeb were as under:---
(1) Fire-arm wound lacerated manner on right leg posteromedial aspect measuring 12 c.m. x 10 c.m. Structure deep with collection of blood and clots around corresponding tear in the Shalwar was present. His X-ray investigations were done and the injury was reserved. I produce medical reports as Exhs.13/A and 13/B, it is same, correct and bears my signature.
8. P.W.1 was Tahir, in his statement he stated that his mother sent his younger brother, Tariq to fetch breakfast at about 8-00 a.m. When he became considerably late, his mother sent his other brother Orangzeb. He stated that after sometime he heard fire-arms report. He came out of his house and saw accused Muhammad Yaseen and Waseem, armed with weapon, holding Orangzeb and Muhammad Ali aiming riffle towards Orangzeb. Tahir said that he asked accused as to why they were beating his brother. Accused kept quiet and when he asked a second time they replied that they were going to kill Orangzeb as well as Tahir. He stated that when he advanced towards Mohammad Ali, Mohammad Ali fired upon him and fire shot hit his leg below his knee. Second fire also hit on the same leg. Few pellets hit upon his left leg. He stated that he fell on the ground and there after present appellant Muhammad Ali No,2 went towards Orangzeb and fired upon him which hit his left leg. Thereafter Muhammad Ali ran away. Mohallah people including Imran and Saboor gathered at the spot and they put both the injured persons in a taxi. Meanwhile, police mobile also reached the spot and took Mohammad Yaseen and Waseem alongwith their motorcycle to the Police Station. Police tried to record statement of Tahir but due to severe pain he requested that he be allowed to go to hospital for treatment. Thereafter police reached hospital where his statement under section 154, Cr,P.C. Was recorded. In cross-examination witness admitted that there is a criminal matter between the parties pending before 3rd Judicial Magistrate Karachi Central.
9. P.W.2 was second injured person Aurangzaib. He stated that his mother woke him up and as his brother Tariq had gone out to get breakfast and had not returned, his mother sent him after Tariq.
Since he came out of his house accused/Waseem caught hold of him. Accused Yaseen was having pistol in his hand. Meanwhile, Mohammad Ali came and he fired with his Repeater in the air.
Witness said that accused persons were taken him to kill him, meanwhile his brother P.W.1 came out of the house. Accused Mohammad Ali fired upon. Tahir who received injury in his right leg below shin. Accused Yaseen and Waseem were beating him and took him towards a wall.
Mohallah people gathered at the place of incident. Accused Mohammad Ali after getting round came towards Orangzeb and fired upon which hit his right leg below shin. Accused Mohammad Ali took pistol from Yaseeen and made his escape good from scene of occurrence. Mohallah people who had gathered there surrounded Yaseen and Waseem. Meanwhile, police came and arrested accused Yaseen and Waseem at the spot. Mohallah people put.Them in a taxi and Saboor and Imran, took them to Abbasi Shaheed Hospital. Witness further stated that injured Tahir was admitted in hospital for treatment and he was not admitted. At about 6/7 p.m. Police came and visited place of incident in presence of P.W.2 and Makki and prepared such Mashirnama which was read .Over to him and was signed by him and by both the witnesses. He stated that, police secured three empties from the place of incident. In cross-examination he admitted that there were two cases between the parties pending in various Courts.
10. P.W.3 was Mohammad Makki. He was not present at the time of incident. He stated that he came to know from Tariq that Orangzeb and Tahir received fire-arms injuries and when he reached his home his sister informed him that present appellant pointed T.T. Pistol and firearm towards women-folks and enquired about Tariq.
11. It may be recalled that P.Ws.1 and 2 stated that Imran and Saboor boarded both injured persons in a taxi. P.W.1 stated that Mohallah people, Imran and Saboor boarded injured person in taxi. P.W.4 Imran stated that his younger brother came out and told him that someone had injured Orangzeb and. Tahir with gunshot. He reached there. He found Orangzeb and Tahir in injured condition. He asked Tahir as to who had injured him and Tahir said Mohammad Ali with gunshot. He stated that he took both the persons to Abbasi Shaheed Hospital.
12. P.W.5 was a police constable posted at Khawaja Ajmair Nagri Police Station. He stated that he was on patrolling duty when he received wireless message that two persons were lying in injured conditions. He reached the spot and he saw that two persons were lying on ground in injured condition. He stated; "we sent both the injured persons in private vehicle to Abbasi Shaheed Hospital". Witness stated that two persons were coming from the ground adjacent to place of incident and Mohallah people told police that they were same persons who had injured victim by firing. In the cross-examination witness stated that they reached at the spot at 2-45 p.m.
13. P.W.6 is an A.S.-I. Who was posted at that time at Police Station Khawaja Ajmair Nagri. His statement is identical to that of P.W.S. He also stated that he reached at the spot at 2-30 to 2-40 p.m.
14. P.W.7 Asif Zia on the fateful day was posted at police station as Duty Officer. He stated that at 11- 25 a.m. An Entry No,15 was received from Abbasi Shaheed Hospital. As per this Entry two brothers Tahir and Orangzeb were brought to the hospital in injured condition. Witness stated that he rushed to Abbasi Shaheed Hospital and both injured persons recorded their statements at 12.30 p.m.
15. P.W.9 was Zafarullah who was at that time posted as S.I.O. At the police station. He stated that he inspected place of Vardat and recovered three empty cartridges of .12 bore rifle from place of Vardat. He further stated that he also inspected house of accused persons and recovered a rifle which was handed over to him by brother of the accused persons, namely Waseem and he prepared such Mashirnama of recovery. He further stated that three live cartridges and Repeater produced in the Court were same. Witness was extensively cross-examined. In cross-examination he stated that it was correct to suggest that during investigation accused persons stated before him that incident occurred because victims had refused to give hand of their sister of accused person Yaseen. He further stated that he left Police Station for place of incident at about 11 to 12 noon and he took 5 to 7 minutes to reach the place of incident. He stated that he did not see spots of blood at the place of incident. He stated that he did not see spots of blood at the place of incident. He admitted as correct that no bullet stained piece of earth was seen or collected from place of incident. He further admitted as correct to suggest that no bullet stained clothes of injured persons were recovered or produced in Court. He admitted that recovery of Repeater was made on 15th/16th June from the house of accused persons. He could not say exact time of recovery but stated that it was at about 11 to 12 noon. He stated there were 3 or 4 police officials with him at the mobile but he could not state their names at the time of cross-examination. He stated that he took memo of recovery along with him He admitted that no person was associated from the locality as witness. He stated that he sent Repeater to Forensic Laboratory for examination. He admitted that he could not show the report of Forensic Laboratory. Suggestion was put to him that it is incorrect that Repeater was recovered from the accused Mohammad Ali. He stated that Repeater was recovered from the house of Mohammad Ali. He admitted that accused, persons are complainants in another case.
16. In his statement under section 342, Cr.P.C. Accused Mohammad Ali stated that no prosecution witness has deposed against him.
17. Learned counsel for appellants made the following submissions:---
(i) That both the injuries are on lower part of leg of the accused. Nobody in his right mind who wanted to kill someone would shoot at his leg. Therefore even if all the allegations and all the statements are admitted offence does not fall under section 324 P.P.C. And at the most it falls under section 337(3)(iii) P.P.C. Which is punishable with 10 years as Ta'zir.
(ii) There are material contradictions in evidence firstly regarding time, secondly regarding who conveyed them to hospital, thirdly in respect of injured persons there is no independent witness of the alleged incident. Only witness from locality is Imran and he clearly stated that he was not present when actual incident took place. Injuries cannot be caused by Repeater. One witness stated gun-shot injury and other stated for rifle shot injury.
(iii) There are material contradictions. Even otherwise, P.W.1 does not mention pistol whereas P.W.2 mentioned a pistol.
(iv) No injury is attributed to have been caused by appellants No,1 and 3. Only role ascribed to them that they held the injured persons. Learned counsel submitted that holding was not even required when there one is facing fire-arms.
18. Learned Assistant Prosecutor General submits that Mohammad Yaseen and Waseem were arrested at the spot and Mohammad Ali absconded and, he was arrested on 26-3-2005. He submitted that intention of accused is not to be gathered from injury but is placed together from the entire totality. It is only mercy of God that injured persons were saved.
19. I have considered the submissions made by the learned counsel and I have also gone through record and proceedings of the Court below.
20. The total discussion in the order of the learned Court below is on page 10 which is in the following words:--- "(18) After hearing the above arguments. I have gone through the record and find that eye- witnesses of the occurrence are complainant Tahir and Aurangzaib, who both have received injuries during occurrence at the hands of accused Muhammad Ali, while accused Muhanunad Yasin and Wasim had caught hold Aurangzaib. Location of injuries as sustained by these two injured would show that these injuries could not be manipulated or self inflicted 154, Cr.P.C.
Statement shows that incident took place at 9-30 a.m. And 154, Cr.P.C. Statement was recorded at 12-30 p.m. And the complainant has explained that due to injuries, firstly he got first aid then got recorded his statement, therefore, in such situation there is no inordinate delay in registration of F.I.R., which proved through sufficient corroboration to prosecution version particularly there was no time for fabrication or padding. Perusal of the evidence of complainant Tahir and injured Aurangzaib shows that their evidence is not shaken at any material point and they ad linked the accused persons. Presence of two witnesses on spot was well-established from injures found on their person. Both the eye-witnesses have been subjected to lengthy cross-examination by the learned defence counsel, but nothing could be achieved to shake their version regarding causing injuries by accused Muhammad Ali in presence of two other co-accused at the place of Wardat.
Layman could not differentiate between Repeater and Rifle. In cross the defence counsel put various suggestion to the complainant and injured, but failed to bring on record to show that the accused persons have been involved falsely.
(19) Case against the complainant party is not a counter-case, but got registered after a considerable time. Motive for the incident proved by the prosecution. Ocular evidence has furnished overt act of the accused persons with their names, as such contention of learned defence counsel on above points are not of much force and the authorities relied by the learned counsel for the accused, are not applicable in the facts and circumstances of the present case."
21 It was stated by P.W.2, that Muhammad Ali firstly fired with Repeater in the air, thereafter upon Tahir who received one fire-arm injury on right knee and multiple punctured wound on left foot.
Then he fired at Orangzeb, who received fire-arm injury on his right leg. From the crime scene three empties were recovered. There is no Forensic Science Laboratory' report. Police is stated to have recovered a Repeater from house of the accused. P.W.1 stated that it was Rifle, P.W.2 stated that it was a Repeater and P.W.4 stated that it was gun-shot. No bloodstained earth has been collected from the site although it is claimed that the police reached there while injured were still lying there and in case of Orangzeb there is no report of any corresponding tear in his Shalwar. It is stated by P.W.1 that accused Yasin was having a pistol in his hand. None of the other witnesses have stated that anybody had a pistol in his hand. Therefore while factum of injury received by Tahir and Orangzeb could not be denied there is certainly a lot of embellishment around the story.
22. Who are the witnesses to the actual incident. Only one person from Mohallah has been produced as witness. He is Imran, P.W.4 and other is Makki, P.W.3 a brother. Of the injured two. Imran stated that he was sleeping in his house and his younger brother came and told him that Tahir and Orangzeb had been injured. He stated that he reached the spot and saw the injured person and it was Tahir who told him that Muhammad Ali had fired the gun-shot. So Imran was not present when the incident took place. Makki in his statement stated that he came to know from his brother Tariq and other Adda people that his younger brother Orangzeb had received fire-arm injuries. Even Makki is not an eye-witness.
23. Regarding time of the incident Imran in his statement stated that he took both the injured persons in a taxi to Abbasi Shaheed Hospital. This is also stated by P.W.1, 2 and 3. However when the police constable came (P.W.5) he stated that when he reached there, be saw the two injured persons lying on the ground. In cross examination the police person admitted that when he reached the spot it was 2-45 p.m. The second cop said the same thing. F.I.R. Was registered at 1400 hours and perusal of the F.I.R. Indicates that it was registered after injured persons had been shifted to Abbasi Shaheed Hospital. Police Constable says .That A he reached there at 2-45 p.m. And injured were there. Other witnesses say they were shifted to the hospital and then F.I.R. Was lodged.
It was lodged at 1400 hours. No blood-stained earth was recovered. I think it is again a case of embellishment.
24. Both the injured persons are the only material witnesses. They have ascribed a role to Muhammad Ali that he shot and injured them and this aspect has remained unshaken. As far as, other two appellants are concerned, Tahir P.W.1 stated that Yasin and Waseem were holding Orangzeb and Muhammad Ali was aiming a rifle towards him. Then he said Muhammad Ali fired at Tahir. Then Muhammad Ali went towards Orangzeb and fired upon him and then Muhammad Ali ran away. Mohallah people including Imran and Saboor came and put the injured persons in taxi.
P.W.2, Orangzeb stated that accused Yasin was having a pistol in his hand. This pistol was not seen by Tahir. Then he stated Muhammad Ali came and fired with Repeater in the air. Tahir did not hear either the sound of firing or saw this actual firing in the air. Tahir said Waseem and Yasin were beating Orangzeb whereas Orangzeb said that they only catight hold of him. Orangzeb stated that he was taken toward the wall. Mohallah people gathered and Muhammad Ali after getting around them fired upon him. Tahir neither saw the wall nor Mohallah people nor getting around. It therefore appears a case where lot of improvisations have been made in the story.
25. The injures received by the two injured persons are on their legs and even they are on the lower parts of their legs. There does not appear any intention to kill. The kind of slow motion in which entire scene has been described by the witness gives no earthly reasons why the person who wanted to kill someone would shoot at his legs.
26. The above discussion has led me to the conclusion that offence under section 324, P.P.C. Has not been proved against the accused Muhammad Ali. However, offence under section 337-A(iii), P.P.C. Is proved against him. Therefore, order of the learned Court below is set aside and accused Muhammad Ali is convicted under section 337-A(iii). He has been behind the bars since 2004. He is therefore, sentenced to Punishment already undergone by him. He is ordered to be released if not required in any other case. As far as accused Yasin and Waseem are concerned, they are acquitted of the charges. This appeal is disposed of in the above terms.