SAHIBZADA ASADULLAH, J.---The appellant Zahidullah has called in question the judgment dated 09.04.2021, rendered by learned. Sessions Judge, Karak, whereby the appellant has been convicted under section 324, P.P.C. for effective firing at the complainant Mehraban Shah and sentenced for rigorous imprisonment of three (03) years and fine of Rs.20,000/- or in default thereof, to undergo two months simple imprisonment. He was further convicted under section 337-F(ii), P.P.C. and sente nced to two (02) years rigorous imprisonment with payment of Daman amounting to Rs.50,000/- and till the payment of Daman, he shall be kept in jail and he shall be dealt with in the manner as if he is sentenced to simple imprisonment unless Daman is paid to the injured complainant Mchraban Shah. Benefit of section 382-B, Cr .P.C. has also been extended to the convict.
2. The complainant Mehrlian has also filed Cr. R. No. 28-B of 2021, for enhancem ent of sentence awarded to the appellant. As both, the instant criminal appeal and revision petition arisen out of the same impugned judgment I intend to decide the same through this common judgment.
3. Brief facts of the case are that on 30.07.2018, Saeed ur Rehman SHO Polic e Station Sabir Abad, received information that an injured has been brought to civil hospital, Sabir Abad. On such information, he rushed to said hospital where the injured namely Mehra ban Shah reported the matter to the effect that on the eventful day at 07.30 hours, he was coming to Police Station, Sabir Abad, for reporting the matter of dispute over landed property while their females were busy in their landed property , meanwhile Hunar Jan son of Zabta Khan, Sparli Khan and Habibullah sons of Wali Jan, his co-villagers, came there and started beating their females. That he rushed towards them for rescuing meanwhile the accused Zahidullah, his co-villager , who was already present at some height in embankment started firing at him with intention to commit his Qatl-i-amd, as a result he got hit on back of left shoulder . Motive for the occurrence was stated to be a dispute over landed property . That the occurrence was also witnessed by his wife Mst. Chandan Bibi, hence, the instant FIR.
4. After completion of investigation, prose cution submitted complete challan under section 512, Cr.P.C. against the accused as he was avoiding his lawful arrest. On 31.08.2018, the accused was arrested and prosecution submitted supplementary challan against him. After complying with the provision under section 265-C, Cr.P.C, the accused was charge sheeted on 21.12.2018, to which he pleaded not guilty and claimed trial. The prosecution in order to prove its case produced and examined as many as 11 witnesses, where after, the accused was examined under section 342, Cr.P.C, wherein he professed innocence and false implication, however , he did not wish to be examined on oath as provided under section 340(2), Cr.P.C, nor opted to produce defence evidence. After hearing arguments from both the sides, the learned trial Court vide impugned judgment dated 09.04.2021, convicted the accused and sentenced him, as mention ed above. Feeling aggrieved, convict/ appellant filed the instant criminal appeal against his conviction.
5. The learned counsel for the parties along with Assistant Advocate General representing the State were heard at length and with their valuable assistance the record was gone through.
6. The record tells that it was the complainant who after receiving the firearm injury reported the matter to the local police, and as such the accused/appellant was indicted for commission of the offence, and as such the prosecution proceeded with the matter which ultimate ly led into conviction of the appellant. True that single accused is charged and that substitution is the rare phenomenon, but equally true that it alone will not absolve the Court of law of its liability to apply due care and diligence while deciding the fate of an accused charg ed. This Court cannot ignore the fact that the appellant has been charged under section 324, P.P.C. and in such like cases the accused is to show that the charge brought against is the outcome of mala fide and that the prosecution failed to establish charges against. I read the impugned judgment of the learned trial Court though the reason s advanced are based on record but being an appellate Court it is the bounden duty of the Court of appeal to apply its judicial mind and scan the available record as an appeal is the continuation of the proceedings. This Court is to judge as to whether the impugned judgment is based on reasons and that the learned trial Court forwarded justifiable reasons to convict the accused and as to whether the impugned judgment calls for no interference.
7. The complainant was examined as PW-05, who narrated the events in the sequence; he had reported the matter and offered himself for cross-examination, who was comprehensively cross-examined on material aspects of the case. There is no denial to the fact that the complainant while reporting the matter stated therein that at the day and time of incident he was leaving for the local police station to report the matter , as earlier to the present occurrence, a quarrel had taken place between the parties and while en-route to the Police Station he heard commotion and noticed that the women folk of his house who were working in the adjoining fields were ruthlessly beaten by the father and other relatives of the convict appellant and he rushed to the place of incident to their rescue and in the meanwhile he received a firearm injury on the back of his shoulder; and that he observed the convict/appellant was sitting in ambush on the top of a nearby hill; and that soon after receiving the firearm injury he was shifted to the local hospital where he reported the matter .
8. The investigating officer visited the spot and prepared the site-plan on pointation of the complainant and also visited the place wherefrom the accused / appellant had allegedly fired; and that he received two empties of 7.62 bore from the place of the accused/ appellant. The main thrust of the argument of the learned counsel for the complainant was that the direct charge and recovery of empties from the place of firing leaves no room to doubt and that the prompt report made by the complainant further confirms the charge against the appellant. In order to appreciate what the learned counsel for the complainant submitted I deem it appropriate to thoroughly examine the site-plan prepared, the seat of injury on person of the injured and the statement the complainant recorded before the trial Court. The site-plan depicts that at the time of incident the complainant was present at point No.1, with an urge to reach and rescue the women folk from the clutches of the persons who were buy in beating them, and the appellant was shown at point No. 7, in such eventuality when the complainant was proceeding towards the women folk then it was his chest which was exposed to the appellant as by the time he allegedly received the firearm injury he had not crossed the place where the appellant was shown present. Furthermore, the entry wound does not find its exit to the front and it further belies the stance of the complainant. Had the incident occurred in the manner then in that eventuality the victim must have received the firearm injury on the front of his chest. It was further argued that main is not a statue and that apprehending the threat to die the complainant might have changed his posture and so the injury was not received from the. front. True that, man is not a statue but in the instant case the situation is altogether different, as the complainant stated before the trial Court that he did not notice the appellant while present at the top of the hill, but his presence was only noted by the time when he received the injury , if we admit to what the complainant stated to be correct then there is no denial to the fact that before the firing was made he was not in the knowledge of presence of the appellant on the top of the hill and that his only target was to reach the place and to rescue the women folk, so in that eventuality his only and only directi on was towards the fields where the women folk was present, then in absence of knowledge regarding presence of the appellant on the top of the hill confirms that the complainant did not change the posture or his side rather in all eventualities he was facing the appellant and as such the seat of injury does not support the case of the prosecution and more particularly to what the complainant stated. True that medical evidence is confirmatory in nature and in absence of direct ocular account it can steer the wheel and in the instant case the complainant could not establish the mode in which the occurrence took place and the time at which the incident occurred when the direct evidence fails then in that eventuality the prosecution case is to be assessed in light of the medical evidence and when the medical evidence is read in juxtaposition with the site-plan prepared it does not support the case of the prosecution.
9. The Investigating Officer visited the spot and recovered two empties of 7.62 bore, from the place of the accused/ appellant situated at the top of the hill and also recorded statement of the wife of the complainant, who was also examined as a prosecution witness befor e the trial Court. The statement of the wife of the complainant was read with care and surprisingly she stated that on the day of incident while leaving the house for the fields her husband informed her that he was leaving for the Police Station as he was called by the SHO concerned, but surprisingly she did not mention that what for the complainant was to go to the Police Station and she did not confirm an early incident between the parties, and even she did not explain that early in the morning before leaving for the fields there was a quarrel between the parties. The statement of this witness further belies stance of the complainant when she stated that the accused was present at a distance of 20-paces from her. This court is in a fix that which of the witness to be believed in respect of the present of the accused and when such is the state of affairs naturally the benefit if any arises would go to the accused. The record is silent regarding the earlier episode and even any official from the Police Station was not examined to confirm the statement of the wife of the complainant. This long silence on part of the complainant regarding the previous episode tells nothing but that the incident did not occur in the mode and manner as was stated by the complainant. The investigating officer who visited the spot did not associate any independent witness to confirm to what the complainant stated and even did not collect on record the earlier episode and the information regarding the parties involved. In such eventuality this Court does not hesitate to hold that right from the beginning' till the end a conscious attempt was made by the complainant to conceal the true facts from the investigating agency as well as from the Courts of law, and when mystery surrounds the incident then in that eventuality the Court is to look for clarity and when it does not reach to clarity then the court is left with no option but to extend benefit of doubt to the accused charged.
10. After evaluating the evidence available on file coupled with the statements of the witnesses more particularly that of the complainant this Court reaches to an inescapable conclusion that the prosecution failed to bring home guilt against the appellant, so the instant criminal appeal is allowed, impugned judgment is set aside and the appellant is acquitted of the charges, levelled against him. As the appellant is on bail, so his sureties are discharged of their liability to shoulder the bail bonds. So far as the connected Criminal Revision No.28-B/2021 is concerned, the same is dismissed.