' ABDUL LATIF KHAN, J.---Through this single judgment, I propose to dispose of Criminal Appeal No,9 of 2013 filed by appellant Rehmatullah against his conviction and sentence and Criminal Revision No,2 of 2013 preferred by Sawan complainant for enhancement of sentence of the appellant as both the matters are the outcome of one and the same judgment dated 15-4-2013 passed by learned Sessions Judge, D.I. Khan vide which the appellant has been convicted under section 324, P.P.C. And sentenced to three years' R.I. With a fine of Rs,20,000 or in default, to undergo three months' further SI and on further conviction under section 337-F(iv), P.P.C., he has been sentenced to two years' R.I. And also to pay Daman of Rs,50,000 with benefit of section 382-B, Cr.P.C. Extended in his favour.
2. Brief facts of the prosecution case are that on 25-6-2012 at 1300 hours, complainant Sawan lodged a report with the local police in civil hospital, Chaudhwan to the effect that on the day of occurrence, he had taken the cattle for grazing to his field and when reached near the lands of one Sarfaraz, he saw that his co-villager namely Attu was also grazing his cattle in the field of complainant whereas the appellant was grazing his cattle in the field of Sarfaraz. At about 10 a.m., the complainant asked the appellant for grazing of cattle by his brother in the field of the complainant, upon which, an altercation took place between the complainant and the appellant, as a result of which, the appellant took out .30 bore pistol from the folder of his shalwar and fired at complainant with which the latter got hit on his chest and the appellant decamped from the spot.
3. After completion of usual investigation, complete challan against the appellant was submitted in the trial Court. He was formally charged to which he did not plead guilty and claimed trial. In order to prove its case against the appellant, the prosecution examined eight witnesses.
' Statement of the appellant was also recorded under section 342, Cr.P.C. Wherein he denied the allegations. He though did not appear on Oath as required under section 340(2), Cr.P.C. But produced two D.Ws. After hearing the arguments of learned counsel for the parties, the learned Sessions Judge, D.I. Khan vide judgment dated 15-4-2013, convicted and sentenced the appellant as mentioned above, hence the instant appeal and criminal revision.
4. Learned counsel for the appellant contended that the occurrence has not been witnessed by anyone and the complainant has introduced one Gulistan as alleged eye-witness, however, he has been abandoned by the prosecution which amounts to withholding best evidence available with the prosecution and his non-production would be hit by Article 129(g) of Qanun-e-Shahadat Order in order to take adverse inference of the same. He contended that all the witnesses were abandoned and the sole statement of the complainant as P.W.6 was not sufficient to warrant conviction of the appellant. He contended that the story advanced by the prosecution was not supported by the evidence. No recovery has been made from the possession of the appellant or at his pointation. He added that the instant case being case of no evidence, the appellant has been wrongly convicted without the aid of any evidence. He added that the occurrence allegedly took place in thickly-populated area in daylight but none amongst the locality has been examined to corroborate the version of the prosecution. He argued that the medical evidence is also not supporting the prosecution case. He vehemently contended that the trial Court has based conviction of the appellant on suggestions put to the complainant and as such the appellant has admitted his presence on the spot, which is alien to law, as conviction cannot be based in criminal cases in the way as observed by the trial Court. He added that the site plan was prepared on 2-7- 2012, after about 7/8 days without any explanation to this effect, which creates doubt in the prosecution story but the trial Court has not considered the same. He referred to the statements of D.Ws. Who were examined on behalf of the appellant wherein the plea of alibi was taken to the effect that the appellant was not available at the time of occurrence and was in Multan but the trial Court has not considered this aspect of the case too and wrongly convicted the appellant.
5. As against that, the learned A.A.-G. Assisted by learned counsel for the complainant contended that the prosecution has proved the case beyond doubt. It is a daylight occurrence and is a case of single accused. The statement of complainant is clear and reliable and his simple statement can be based for conviction coupled with the medical evidence which is in corroboration to the ocular account. He contended that the learned trial Court has reached to the conclusion that the appellant was guilty of the charges levelled against him. However, he attacked the judgment to the effect that lesser punishment has been awarded and sought the enhancement of the same. He referred to Criminal Revision No,2 of 2013 filed for enhancement of the sentence in accordance with law. He contended that there was no mitigating circumstance for awarding lesser punishment. He added that the amount of fine and Daman is inadequate and is liable to be increased.
6. I have given my thoughtful consideration to the arguments of learned counsel for the parties and perused the record with their assistance.
7. The perusal of the record reveals that the appellant was booked vide murasila Exh.P.W.4/1 on 25- 6-2012 on the complaint of Sawan son of Sarfaraz, lodged by him before the local police. The occurrence allegedly took place, as per version of the F.I.R., at 10 O'clock and the report was made at 1 O'clock. The distance is 14/15 kilometers and the complainant sent to the police station through a Datsun Pick-up. Apparently a delayed report has been made. The story set up by the prosecution is not witnessed by anyone, however, one Gulistan son of Ramzan was introduced by the complainant as an eye-witness but he has been abandoned later on, for the reasons best known to the complainant, despite the fact that he was an important witness so far as the prosecution story is concerned.
8. Complainant appeared in the Court as P.W.6 who has charged the appellant for firing at him.
Only one fire has been attributed to the appellant, however, he deposed that when he fell on the ground, again fired another shot but that was ineffective, which does not stand to reason. No recovery has been made from the appellant. The site plan was prepared on the pointation of one Umar Daraz on 2-7-2012, after about 8/9 days. The said Umar Daraz is neither mentioned in the F.I.R.
Nor in the statement of complainant. The delay in preparation of site plan has also cast heavy doubt on the prosecution story. The complainant has contradicted the site plan by saying that the local police has prepared the same at his pointation. The contents of the F.I.R. Were not supported by complainant while appearing as P.W.6, rather additions and deletions have been made purposely which have been oversighted by the learned trial Court. The murasila Exh.P.W.4/1 reveals that the brother of appellant namely Attu was grazing cattle in the property owned by the complainant whereas the appellant was allegedly grazing cattle in the property of one Sarfraz. It was averred that the complainant asked the appellant that his brother Attu is grazing cattle in the property of complainant and on this the appellant fired at him who fell on the ground while the appellant decamped from the spot, whereas in his statement as P.W.6, the complainant added second shot after falling on the ground which was ineffective and the story given in the murasila has not been corroborated by the complainant, which is a contradiction of grave nature and escaped notice of the trial Court.
9. As many as five witnesses were abandoned by the prosecution including Umar Daraz, on whose pointation the site plan has been prepared, as reveals from the contents of site plan, Gulistan, the alleged eye-witness who attracted to the spot soon after the occurrence as per version of the complainant apart from Shah Jehan, Abdul Manan and Naseer. These witnesses were abandoned by the prosecution, as won over by the accused party, in the light of joint statement of D.P.P. For the State and counsel for the complainant, on 10-1-2013. This important aspect of the case has escaped notice of the learned trial Court. The file is silent about won over of these witnesses by the accused party, which shows that the complainant had a false case against the appellant and these witnesses were not supporting the concocted story and were abandoned. No serious effort has been made by the complainant to examine these witnesses and adopt the legal procedure provided for won over witnesses under Qanun-e-Shahadat Order. These witnesses, particular Umar Daraz and Gulistan, were of vital importance for the prosecution case and were abandoned without any rhyme or reason, just by saying as won over which cannot be safely believed without the aid of any material. The best evidence available with the prosecution was withheld which speaks loudly about the fact that they were not supporting the prosecution case and adverse inference can be taken against the prosecution as provided under Article 129(g) of Qanun-e- Shahadat Order.
10. So far as the medical evidence is concerned, statement of Dr. Behram, Civil Hospital, Paharpur was recorded as P.W.1 which shows that the occurrence took place more than three hours before the examination of complainant by the doctor. The bore of weapon through which injury was allegedly caused could not be specified by the doctor. No blackening or charring marks were found on the body of victim. There was no exit wound and the bullet was stated to be still inside the soft tissues of the victim. Final report Exh.P.W.1/2 prepared by the Medical Officer contains final result after X-ray showing the injury as Ghayr Jaifa Mudihah. As such the medical evidence is not in consonance with the statement of the complainant.
11. The site plan (Exh.P.W.7/1) reveals that at Point-B, one missed cartridge was recovered which does not stand to reason as missed cartridge is not normally ejected whereas at Point-C, led bullet was taken into possession. The complainant failed to explain the preparation of site plan on 2-7- 2012 with a delay of 8/9 days.
12. The learned trial Court has drawn inference from the suggestions put to the complainant in cross-examination, considering the same as positive suggestions and based conviction of the appellant, which is not relevant and legal approached for conviction of an accused in any criminal case. There is no evidence to corroborate the solitary statement of the complainant about the occurrence, but strange enough that the trial Court, admitting this lacuna on the part of prosecution, observed that the appellant has not denied the occurrence and these observations were made by the trial Court on the basis of alleged positive suggestions put to the complainant in cross-examination. If we peruse these suggestions, the same in any eventuality, would not make a case of admission by the appellant. It cannot be termed as acceptance of the occurrence by the appellant in the mode and manner alleged by the prosecution. The appellant was also not confronted with the alleged suggestions during his statement under section 342, Cr.P.C., which were made basis for conviction.
13. For the reasons discussed above, I am of the considered view that the learned trial Court has erred in convicting the appellant. Therefore, Criminal appeal No,9 of 2013 is accepted, the impugned judgment of conviction and sentence recorded by learned Sessions Judge, D.I. Khan on 15-4-2013 is set aside and the appellant is acquitted of the charges levelled against him. He being on bail is relieved of the liability under the bail bonds.
14. As criminal appeal filed by the appellant has been accepted and he has been acquitted of the charges, therefore, Criminal Revision No,2 of 2013 for enhancement of sentence has become infructuous and is, therefore, dismissed.