' Belal, his brother Sher Muhammad and his son Liaqat, appellant herein, along with one Niaz were tried by Judicial Magistrate Section 30, Bahawalnagar, who, vide his judgment dated 27-4-1988, convicted them under section 307, P.P.C. And sentenced to five years' R.I. And a fine of Rs, 1,000 each or in default to undergo three months' R.I. Vide same judgment Niaz was acquitted. Feeling aggrieved thereby the convicts have filed this appeal (Cr. A. No, 39 of 1988- BWP).
2. The occurrence took place on 7-1-1983 at 11 a.m. In the vicinity of Chak Muradwala, district Bahawalnagar, at a distance of 16 Kilometre from Police Station Minchinabad. Report was made by Abdul Rashid complainant to Muhammad Afzal S.I. At Police Post Ghumandpur through statement Exh. P.A. On its basis formal F.I.R. Exh.PA./1 was drawn the same day at 5-30 p.m. By Si. Muhammad Amir.
3. According to prosecution, Mst. Karam Elahi mother of Muhammad Afzal (P.W. 2) inherited some landed property from her brother. She mutated the same in the name of her sons Muhammad Afzal, abovementioned, and Muhammad Aslam. Abdul Rashid, complainant, (P.W. 1) cultivated that land as tenant. The appellants, Belal and Sher Muhammad claimed that very land as belonging to them. They made repeated attempts to grab its possession (but in vain). On the fateful day at 11 a.m. Abdul Rashid was bringing sugarcane to the crusher. Allah Ditta his minor son was following him. He was at some distance from the crusher, when appellants shouted that they would teach him a lesson for not surrendering possession of land to them and opened fire at him. Shots fired by Sher Muhammad and Belal hit Allah Ditta while the shot fired by Liaqat hit Abdul Rashid.
Occurrence was witnessed by Muhammad Afzal and Muhammad Aslam P.Ws. Both Abdul Rashid and his son Allah Ditta were medically examined by Dr. Muhammad Alain (P.W. 4) who noted following injuries on the person of Abdul Rashid--
(1) A round and lacerated wound of entrance on upper middle of right palm. Size of wound is 0.2 c.m. x 0.2 c.m.
(2) A round lacerated wound of entrance 0.2 c.m. x 0.2 c.m. On upper medial side of right forearm.
(3) A round and lacerated wound of entrance 0.2 c.m. x 0.2 c.m. On lower middle of left side of chest along the xiphisternum. They were caused with fire-arm and declared simple in nature.
Following injuries were found on the person of Allah Ditta:--
(1) Three circular lacerated wounds of entry on left side of head 0.2 c.m. x 0.2 c.m.
(2) A wound of entrance 0.2 c.m. x 0.2 c.m. On left side of forehead about 1 c.m. Above the left eyebrow.
(3) A wound of entrance 0.2 c.m. x 0.2 c.m. On left side of chest about one c.m. Medial of left breast.
(4) A wound of entrance 0/2 c.m. x 0.2 c.m. On left side of abdomen about 7 c.m. Latera Iwsrd of umbilicus.
(5) A wound of entrance 0.2 c.m. x 0.2 c.m. On upper part of right thigh groin.
(6) Two wounds of entrance each 0.2 c.m. x 0.2 c.m. About 4 c.m. Apart on the lower medial side of left thigh.
(7) A wound of entrance 0.2 c.m. x 0.2 c.m. On upper medial side of left calf. A wound of entrance 0.2 c.m. x 0.2 c.m. On back of left wrist.
Injuries Nos.3 and 4 were grievous as a pellet got lodged in the abdomen and the other near the heart as detected in the X-ray. Rest were simple.
4. S.I. Muhammad Amir and S.I. Muhammad Afzal investigated the case partly. A .12 bore gun was recovered from Liaqat appellant. The appellants as well as Niaz (since acquitted) were arrested and challenged to Court. It may be stated here that S.I. Muhammad Amir and S.I. Muhammad Afzal have not appeared as the former was not traceable while the latter had been incapacitated due to paralysis.
5. At the trial four witnesses in all were examined by the prosecution in support of its case. Abdul Rashid (P.W.1) the complainant (injured witness) and Muhammad Afzal (P.W.2) narrated the account of assault. Allah Ditta injured being minor was not produced. Dr. Muhammad Alam (P.W. 4) proved injuries of Abdul Rashid and Allah Ditta.
6. In their statements under section 342, Cr.P.C. The appellants denied the allegation and professed innocence. Belal appellant appeared as his own witness under section 340(2), Cr.P.C. And stated on oath that they did not cause any injury to the complainant and his son and that they had been involved due to enmity and litigation pending between them.
7. Learned trial Court believing the prosecution case convicted and sentenced the appellants as indicated above excepting Niaz who has been acquitted.
8. It is contended on behalf of the learned counsel for the appellants that the participation of Sher Muhammad and Belal, appellants, is doubtful inasmuch as Abdul Rashid injured (P.W.1) and the other eye-witness Muhammad Afzal (P.W.2) in their statements before the police (Ehxs.D.A. And D.B.) stated that these two appellants though present at the time of occurrence had not fired at them as they were unarmed. The report filed by the police under section 173, Cr.P.0 is also in the same strain. But it is stated that as the Investigating Officer who recorded aforementioned statements under section 161, Cr.P.C. Did not appear, therefore, they could not get those statements proved resulting in causing prejudice to their case to a great extent. Further argued that participation of these two appellants is highly improbable. According to record, Belal is 60 years old while Sher Muhammad his brother is younger to him by two years so they are fairly old. Liaqat son of Belal who had gone to the spot armed with a gun for launching attack on complainant party, hardly needed help of these old men. While arguing on these lines, learned counsel conceded in clear terms that it was Liaqat appellant alone who fired at and injured both Abdul Rashid (P.W.1) and his son Allah Ditta and that he has been rightly convicted under section 307, P.P.C. Learned counsel, therefore, has not pressed his appeal on merits but requested that his sentence may be reduced which appears as excessive since the two injured suffered pin-hole injuries. Learned State counsel assisted by learned counsel appearing on behalf of the complainant have resisted the appeal saying that specific shots have been attributed to Sher Muhammad and Belal appellants, therefore, they are not entitled to any benefit whatsoever. They, however, failed to successfully meet the argument that the case of Belal and Sher Muhammad appellants had been prejudiced due to non-appearance of the Investiigating Officer and suggested that if it were so found then their re-trial should be ordered.
9. I have carefully considered the arguments in the light of the record. Admittedly, in police statements Exhs.DA. And D.B. Said to have been made by Abdul Rashid complainant (P.W.1) and Muhammad Afzal (P.W.2) both Belal and Sher Muhammad appellants have not been attributed any shot except that they were present empty-handed, at the time of occurrence, but these statements cannot be taken into consideration since they have not been proved according to law because of non-appearance of S.I. Muhammad Amir who, according to the trial Court, could not be traced, therefore, I am in no manner of doubt that case of Belal and Sher Muhammad has been gravely prejudiced.
10. There is another aspect of the case that both the appellants are fairly old persons. One of them, namely, Belal is father of Liaqat appellant while Sher Muhammad is his real brother and, therefore, it appears to me somewhat odd that when their near relation Liaqat a young man had gone to the spot for attacking the complainant party with a gun, the old men would accompany him. I am fortified by the fact that the injuries on the persons of both injured persons appear to be result of one shot fired from .12 bore gun from a longer distance spreading the pellets widely. If three shots had been fired, as alleged by the prosecution then there would have been much more and serious injuries on the 13 person of Abdul Rashid and Allah Ditta, than actually found by the doctor. Belal and Sher Muhammad appellants have already suffered agony of prolonged trial for about five years, therefore, I would not remand their case for retrial. As it would be futile exercise, since, as observed earlier, I have grave doubt as to the presence and participation of Belal and Shcr Muhammad in the occurrence, therefore, I would accept this appeal to their extent and set aside their conviction and sentence and acquit them. They be released forthwith if not required to be detained in any other case.
11. This brings me to the case of Liaqat appellant. Not only that the argument of prejudice caused due to nor production of Investigating Officer is not available to him but his learned counsel has also conceded that the case against him is proved in view of evidence on record. I have already held that it was the shot fired by Liaqat appellant alone which had hit both the injured c persons.
Allah Ditta suffered injuries on the abdomen and chest which amply indicate Liaqat appellant's intention to kill him. His act is covered under section 307, P.P.C. And the learned trial Court rightly convicted him. The sentence awarded to him is also appropriate and not excessive. The appeal to this extent is therefore, dismissed.
' The appeal is partly allowed in the terms indicated above.