FAHIM AHMED SIDDIQUI, J.---The appellant was arrested in Crime No,232 of 2013 registered at Police Station Kamber City for assault on the complainant party with pistols and causing fire arm injury to one of the prosecution witnesses. He and his co-accused were prosecuted before the learned Assistant Sessions Judge, Kamber for the offences punishable under Sections 324, 148, 149 and 337-H(2), P.P.C. After conclusion of the trial, he was found guilty of the offence punishable under Section 324, P.P.C., as such trial Court convicted and sentenced him for an offence under Section 324 to suffer for rigorous imprisonment for a period of five years and to pay fine of Rs,5000/-.
2. The incident which gave rise to the case occurred on 23-09-2013 which was reported by complainant Gul Bibi. She stated that they were on disputed terms with Ghulam Hyder Buriro over matrimonial affairs. On that day, she and her sons namely Datar Dino, Khan and Ahmed Khan went to Shahi Bazar for producing purchasing clothes. At about 4:15 PM, when they reached near cloth shop of Ghulam Hussain Mughairi, they saw appellant along with his co-accused who whipped out pistols from the folds of their clothes and appellant abused the complainant party and called out that he would not spare them. It is alleged that the appellant started firing due to which the son of the complainant namely Datar Dino received firearm injury on his right thigh. The appellant and his associates ran away from the scene of offence by making aerial firings. The injured was taken to hospital from where he was referred to CMH Larkana.
3. After completion of the investigation, the Investigating Officer submitted a final report before the concerned Judicial Magistrate, who after completing initial formalities sent up the case to Sessions Court. The learned Sessions Judge entrusted the said case to learned Assistant Sessions Judge, Kamber for disposal according to law.
4. The learned trial Court supplied the case papers to the appellant/convict under receipt (Ex-4), thereafter charge was framed against the appellant/ convict and other co-accused (Ex-5), to which they denied the allegations and claimed trial (Ex-5/A to 5/C). The operative portion of the charge against the accused persons is reproduced as under:-- "I, Illimuddin, Assistant Sessions Judge, Kamber do hereby charge you.--
1. Ghulam Hyder son of Dhani Bux Buriro
2. Ali Jan son of Ghaus Bux Buriro
3. Mashooque son of Ghous Bux Buriro That, you along with proclaimed offenders namely Ghulam Mustafa and Sadam, on 23/09/2013 at 4:15 PM, at the Shahi Bazar adjacent sho of Ghulam Hussain Mugheri, situated in Deh and Taluka Kamber, duly armed with deadly weapons viz. pistols formed an unlawful assembly and did commit rioting and thereby committed offence punishable under section 148, P.P.C. within the cognizance of this Court.
I further charge you there on the aforesaid date, time and place, along with above named proclaimed offenders in prosecution of common object of such unlawful assembly attempted to Qatl-i-Amd of PW Datar Dino, with such intention and under such circumstances that, if by that act you had caused the death of Datar Dino, you would have been guilty of Qatl-i-Amd, and thereby committed offences punishable under section 324 and read with 149, P.P.C. within the cognizance of this Court.
I further charge you there on the aforesaid date, time and place, along with above named a proclaimed offenders in prosecution of common object of such unlawful assembly made aerial firing in order to endanger human life and personal safety of others, and thereby committed offences punishable under section 337-H(2) and read with section 149, P.P.C. within the cognizance of this Court.
And I hereby direct that you be tried by this Court on the officer discharges. (sic)"
5. The prosecution examined PW-1 Complainant Mst. Gul Bibi (Ex-6) who produced FIR (Ex-6/A). The prosecution then examined eyewitness/injured PW-2 Datar Dino (Ex-7). The next prosecution witness is PW-3 ASI Munawar Ali (Ex-8) who produce memo. of place of incident (Ex-18/A), memo of inspection of injuries, memo arrest and memo of inspection of place of arrest (Ex-8/A to 8/D).
PW-4 Marginal witness Nazeer Hussain (Ex-11) and PW-5 Dr. Bhirma (Ex-12), who produced provisional and final medical certificates (Ex-12/A and 12/B). The learned prosecutor then closed the prosecution side under his statement (Ex-13). Subsequently, the accused persons were examined under Section 342, Cr.P.C. (Ex-14 to Ex-16). In their statements under Section 342, Cr.P.C, they took plea that they were falsely implicated in the instant case by police and the accused Ali Jan and Mashooque examined their defence witnesses to disprove the prosecution case and establish their alibi pleas. Both the defence witnesses DW-1 Rasheed Ali and DW-2 Gul Hassan were also examined (Ex-17 and Ex-18).
6. The case was tried and co-accused Mashooque and Ali Jan were acquitted by trial Court and appellant was convicted as mentioned earlier, which was challenged in this appeal.
7. On the consideration of the evidence, the Court below found that the only offence under Section 324, P.P.C. has been made out against the appellant, as except 324, P.P.C. no other charge was considered at the time of pronouncement of sentence. It is worth mentioning that as per medical evidence, the injury of the injured falls under Ghayr Jaifah Mutalahimah. It is worth noting that neither the prosecution nor the complainant has challenged the verdict of the trial Court regarding award of sentence to the appellant. In this appeal, the appellant has challenged the conviction and sentence awarded to him by the trial Court.
8. Ms. Seema Abbasi learned counsel appearing for the appellant assails the impugned judgment on the ground of improper appreciation of evidence and misreading and non-reading of the available evidence. She points out that there are certain contradictions in the evidence recorded before the court below. She submits that one of the marginal witness has denied all the prosecution memos, which creates doubt about the prosecution case. According to her, the evidence of the investigating officer is also evasive and it appears that he has neither visited the alleged spot nor conducted investigation at all, and when it is considered within light of deposition of prosecution witness Nazeer Hussain, it appears that the whole of the prosecution case is false.
She submits that the appellant is acquitted in the offshoot case as such the recovery itself becomes doubtful therefore happening of the instant incident is also questionable. Regarding recovery there are some conflicting views between complainant and witness. The recovered weapons were neither sealed and nor sent for the ballistic expert to verify whether the same was in working condition.
9. Mr. Sardar Ali Rizvi, learned A.P.G. supports the impugned judgment. According to him the role of accused is consistently described by the witnesses and non-establishing of the offshoot case will not mar the prosecution case, as it is just corroborative piece of evidence. According to him, the prosecution proved the case, and he prays for maintaining the sentence.
10. After having heard the learned counsel for the appellant and the learned Public Prosecutor and after precisely going through the record, I am of the view that the charge was not properly framed as it was not framed under any of the penal sections for injuries. As per medical report, the injury was declared as ghayr-jaifah-mutalahimah, which falls under Section 337-F(iii), P.P.C. but the charge was silent about the injury sustained to injured, who was examined by the trial Court as a star prosecution witness being eye-witness who sustained the injury at the hands of the appellant. The charge is framed under Section 324, P.P.C. while the remaining sections are about rioting or aerial firing etc., which attracts Sections 148, 149 and 337-H(2) of P.P.C. It is worth mentioning that neither any section pertaining to injury to injured was mentioned in the charge nor any effort was made by the prosecution to add the said section.
11. I have perused the entire evidence, although the appellant is not charged for an offence punishable under Section 337-F(iii), P.P.C., but there is sufficient evidence on the record that the appellant has caused firearm injury to the injured Datar Dino. However, it is also come on the B record that the appellant has not made the second fire on the injured and the injured received injury on the non-vital part, meaning thereby that the appellant has no intention to kill the injured.
In such circumstances, the punishment under Section 324 is not justifiable. The other aspect of the case is that the injured witness has received firearm injury, as such this aspect requires consideration. The prosecution has produced sufficient evidence regarding injury sustained to injured witness Datar Dino. Although, one of the marginal witness namely Nazeer Hussain did not support the prosecution case but after declaring him hostile the learned prosecutor cross- examined him and in cross-examination he stated as under:-- "On the day of incident, the accused was arrested red handed with a pistol"
This witness during examination in chief did not deny the occurrence of the incident. The prosecution has produced all the memos. verified by the investigating officer ASI Munawar Ali and also deposed before the trial Court. From the evidence of I.O., it is established that the empties were recovered from the place of incident; blood was also seen on the place of incident. There are ocular account of the incident, which has come through complainant Gul Bibi and injured witness Datar Dino. Both of them are consistent regarding injury sustained to injured by the hand of appellant Ghulam Hyder, and they could not be shakened on the vital points of their evidence during cross-examination.
12.A pistol was recovered from the accused but he was acquitted in the offshoot case of keeping illicit weapon, even then the prosecution succeeded in bringing considerable evidence on the record to corroborate the ocular account of injury sustained to injured. Now, the only question remains, whether the appellant/accused can be convicted for an offence for which no charge has been framed against him?
13.As a matter of fact, the Courts are not to find out technical and hyper-technical faults and adjudicate the case mechanically by taking some directive provisions as mandatory or vice-versa.
The goal of the Court is to administer justice by searching the truth out of the material before it and justice includes the punishment of guilt as well as the protection of innocence. Justice can neither be done if the shadow is mistaken for the substance and the goal is lost in a labyrinth of unsubstantial technicalities. Broad vision is required, a nice balancing of the rights of the State and the protection of society in general against protection from harassment to the individual and the risks of unjust conviction.
14.Subsection (1) of Section 238, Cr.P.C. lays down that when a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it. Subsection (2) of the same section lays down that when a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it. Section 238 of Cr.P.C. is in the nature of a general provision which empowers the court to convict for a minor offence even though charge has been framed for a major offence. Illustrations
(a) and (b) to the said section also make the position clear. However, there is a separate chapter in the Code of Criminal Procedure, namely, Chapter XLV which deals with irregular proceedings and their effect. This chapter enumerates various kinds of irregularities which have the effect of either vitiating or not vitiating the proceedings.
15. In view of the above position of affairs, now it can be said that legislature has empowered the court to deal a situation when the accused is charged for a major offence but the major offence is not proved, then he could be convicted for a minor offence, as produced evidence by the prosecution so warrants, despite the fact that he may not have been charged with that offence. In other words, where two offences are cognate offences, wherein, the main ingredients are common, the one punishable among them with a lesser sentence and the other with a higher sentence and graver in nature, then certainly, the former could be said to be minor one. In this respect, reliance may be taken from a case reported as Abdul Qudoos and 3 others v. The State (2014 YLR 1473) wherein held as:-- "When accused was charged for a major offence which entailed a longer term of punishment, but a minor offence was proved, which entailed a shorter term of punishment, he could be convicted of minor offence; but an accused charged for minor offence, could not be convicted of a major offence, subject to the limitation of 5.227, Cr.P.C."
16.As discussed above, the trial Court has to frame a separate and distinct charge regarding causing injury to injured witness namely 'Datar Dino' who received firearm injury and the medical evidence has corroborated the ocular account. The witnesses including injured and medical officer appeared before the trial Court and examined and cross-examined on this point. No doubt, on a comparative study of both the offences, the same could not be said to be diverse and of different nature. In the present case, the accused charged under Section 324, P.P.C. because of his act of an attempt to causing death but causing injury to the injured witness Datar Dino, which is a distinct offence under Section 337-F(iii) meaning that it is semblance of allegations leading to the commission of the crime to prove such offence; the accused was also confronted with the said evidence and he was directed to explain those circumstances. In such a situation, the accused cannot be said to have been caught by surprise and he had no opportunity to explain such evidence and in that situation, he cannot be said to have been prejudiced in any manner by irregularity in the charge.
17. The upshot of the above discussion is that as the appellant is guilty of an offence punishable under Section 337-F(iii), P.P.C. for causing injury declared as 'ghayr-jaifah-mutalahimah , while charge against him under Section 324, P.P.C. is not proved and as per Jail Roll, the appellant remained in custody for a period of about two years. I, therefore, convict the appellant under Section 337-F(iii), P.P.C. for causing injury of ghayr-jaifah-mutalahimah to injured Datar Dino and sentence him for a period already undergone. The appellant is present on bail; his bail bond is cancelled and surety is discharged.