' MIAN FASIH-UL-MULK, J.---Shad Muhammad appellant was charged under sections 324/337- A(ii)/3,4, P.P.C. And on conclusion of trial was convicted under section 324 P.P.C. And sentenced to 5 years' imprisonment with compensation of Rs,25.000 in default to further undergo 3 months' S.I. He was also convicted under section 337A(ii) P.P.C. To 2 years' imprisonment Tazir with payment, of 5% of the amount of Diyat as Arsh. However, both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was extended to . The appellant.
2. Briefly stated the facts of prosecution case are that on the day of occurrence complainant Nisar Muhammad was making water drain near his under construction house when in the while accused Shad Muhammad emerged along with absconding accused Farhad and forbade the complainant from making drain. Accused Shad Muhammad armed with .303 bore rifle made firing upon the complainant with which lie was hit and injured on left side of his skull. Actused Farhad also fired with kalashinkov, which proved ineffective, and complainant took shelter in his house.
3. At trial after observing codal formalities, formal charge was framed against the accused.
Prosecution in support of its case examined seven witnesses in all.
4. Accused was examined under section 342, Cr.P.C. Who pleaded false implication but did not examine himself as his own witness under section 340(2), Cr.P.C. On assessment of evidence, the appellant was found guilty. He was convicted and sentenced as mentioned above.
' Various notices regarding hearing of this appeal were issued time and again against the complainant but these were returned unnerved and lastly it was reported by the local police that he had gone to Karachi for earning his livelihood, therefore, his service could not be effected.
5. Learned counsel representing the appellant contended that alleged eye-witness of occurrence namely Gulzaria Bibi was abandoned by the prosecution whereas Atta Muhammad P.W.7 is real brother of complainant and is thus an interested witness. It was urged on behalf of appellant that evidence produced before the learned trial Court did not justify conviction, as the same is full of contradictions and discrepancies. The injury on the person of complainant is doubtful. Though empties were allegedly recovered from the spot but were not produced in court and not exhibited.
Only an interested witness, who was inimical towards the accused was examined, whose statement was not corroborated by any independent ocular or circumstantial evidence. One Bahadur Khan had allegedly witnessed the occurrence but was neither examined by police nor produced before court and as such best available evidence was withheld. Learned counsel for appellant further contended that a genuine compromise was effected through the intervention of jirga members and the complainant after receiving compensation amount had waived off his rights as the offence was compoundable. He concluded that prosecution has failed to prove its case beyond reasonable doubt and instead, of extending benefit of doubt, the learned trial court has stretched the case in favour of prosecution thus prayed for acquittal of appellant.
6. Learned State' Counsel strongly opposed the contentions of appellant and supported the impugned judgment. It was contended that prosecution has been able to prove its case against appellant by producing confidence inspiring ocular evidence supported by medical evidence beyond any shadow of doubt and, therefore, lie was rightly convicted and sentenced by the trial court.
7. I have given my due consideration to the facts of the case and have gone through the whole record. Allegedly, Mst. Gulzaria and Atta Muhammad P.W.7 witnessed the occurrence, during the course of examination-in-chief stated that when he heard report of noise over which he came out and saw that accused Shad Muhammad and Farhad A duly armed started firing upon his brother, who was hit therewith on his head. He did. Not specify as to whose fire out of the two hit the complainant. In cross-examination he .Stated that besides him, the complainant and Bahadur Rehman were there but police did not bother to record statement of the latter. He further stated that accused Shad Muhammad was armed with "Wageen". The witness clarified that lie cannot give the name of said rifle in Urdu. The firing was not made with a rifle having 40/50 rounds in its magazine. The complainant while appearing as P.W.6. Categorically stated that the occurrence was witnessed by his mother and brother namely. Mst. Gulzaria and Atta Muhammad P.W.7 respectively. Accused Shad Muhammad who was armed with ..303 bore gun started firing with intention to commit his Qatl-e-Amd with which he was injured on left side of his skull while lie could hardly escape himself from the firing of absconding accused Farhad, who was armed with Kalashnikov. He concealed himself in his house over which the accused started firing and damaged the house hold articles. In cross-examination the witness changed his version and stated that the accused was armed with kalashnikove it was further stated that soon after the occurrence elders of area convened a jirga wherein the dispute was settled. He further stated that Rs,10,000 were given to him as expenses of bandages whereas Rs,12.000 were agreed to be paid later on and the compromise deed was drafted. The learned trial court has not taken into consideration this important piece of evidence and probably because of this reason the complainant avoided attending the court despite issuance of several notices. The Investigating Officer, P.W.4 in his cross-examination admitted that he did not note any mark of tiring on the walls of house of complainant. He did not recover blood-stained earth from the spot due to rain. (No evidence is available with regard to rain on the day of occurrence except mentioned by I.0.) The I.O.
Further admitted that he could not find any incriminating article during house search of accused nor sent the recovered empty to the FSL for arms expert opinion.
8. There is force in the arguments of learned counsel for the appellant that once the complainant admitted that compromise was effected between the parties the complainant thereafter cannot resile because the offence was compoundable and the complainant admitted receipt of Rs,10.000 as compensation for his injury. In the case of Syed Sabir Hussain Shah and another v. Syed Iftikhar Hussain Shah and another (1995 M LD 563), his lordship of single Bench 'of this court observed as under:-- "12. I am not impressed by the arguments advanced by the learned counsel for the respondent/complainant and am of the considered view that the sole question which has to be determined by this Court is as to whether or not there was a composition/compromise on 18-1- 1992 between the parties when the respondent/complainant out of his free-will and without any compulsion appeared before the learned Additional Sessions Judge and gave a statement in the court that the matter had been patched up between the parties. Not only this that the complainant had stated before the Court on oath that the matter had been patched-up between the parties and he also received a sum of Rs,4,000 (Rs,2,000 from each of the accused) inside the Court and, to this effect, his statement was recorded by the learned Additional Sessions Judge. In my opinion, once a compromise has been effected it cannot be withdrawn and .I am also clear in my mind that it is incompetent for any person, once having entered into a valid composition/compromise to withdraw from the same.
(13) In the circumstances this revision petition is accepted, the order of the learned Sessions Judge dated 4-8-1993 is set aside and he is directed to acquit the accused-petitioners as and when the case is fixed before him for hearing."
9. On merits P.Ws. 4, 5 and 7 are not consistent on material particulars of the case and their statements are not confidence-inspiring. According to P.W.7 many persons were examined but no such statement is available on record. Best available evidence was withheld which compels this court to draw an adverse inference. An interested witness, who is inimical towards the accused was examined but his statement is not corroborated by any independent evidence. The superior courts have time and again held that evidence of interested witness cannot be accepted and relied upon unless corroborated by sonic unimpeachable reliable and trustworthy source or strong circumstances, which might remove inherent doubt attaching to some interested or partisan witnesses. In the facts and circumstances of the case and in view of the above discussion, the impugned conviction and sentence recorded by the trial Court is liable to be set aside.
10. Consequently, this appeal is allowed. Conviction and sentence recorded by the trial Court through the impugned judgment and order is set aside. The appellant be acquitted forthwith if not required in any other case.