1. ' Haroon Rashid, Nasrullah and Naeem Akhtar were sent up for trial for an offence under section 307/326/34, P.P.C. By Police Station Sillanwali, District Sargodha. The learned Magistrate Section 30, Sargodha, vide his judgment dated 26-11-1988 convicted and sentenced Haroon Rashid and Naeem Akhtar to six years' R.I. Each and a fine of Rs,15,000 each, or in default R.I. For one year. They were given the benefit of section 382-B, Cr.P.C. Also. Nasrullah was sentenced to two years' R.I. And a fine of Rs,5,0(0 or in default R.I. For six months under section 307/34, P.P.C. He was also given the benefit of section 382-B, Cr.P.C. It was further directed that the fine, if recovered, out of it Rs,20,000 shall be paid to Abdul Qayyum injured P.W. As compensation. Haroon Rashid and Naeem Akhtar have filed an appeal challenging their convictions and sentences. Nasrullah has filed a separate appeal challenging his conviction and sentence. Muhammad Yamin complainant has also filed a Revision seeking enhancement of the sentence of the convicts. All these matters will be disposed of by this judgment.
2. According to the prosecution story, as given in the F.I.R. On 25-7-1987 at about 9-30 p.m. Abdul Qayyum, nephew of the first informant Muhammad Yamin, was carrying milk in a bucket from his house to the shop in Grain Market, Sillanwali. On the way Haroon Rashid accused started following him. When Abdul Qayyum reached near the office of the Market Committee, Nasrullah appellant came on a cycle and Naeem Akhtar appellant was sitting on the carrier of the said cycle. In the meanwhile, Haroon Rashid called the other co-accused that it was Abdul Qayyum, therefore, throw acid on him. Naeem Akhtar threw acid on Abdul Qayyum. With the result, different parts of his body were burnt. On the alarm raised by Abdul Qayyum, the witnesses came to the spot and witnessed the occurrence. The motive for the occurrence was that Haroon Rashid, appellant wanted to develop friendship with Abdul Qayyum who did not encourage him because said Haroon Rashid did not enjoy good reputation.
3. Statement Exh.P.A. Was made by Sh. Muhammad Yamin, P.W.1., on 27-7-1987 at 1-15 p.m. Which was recorded by Atta Muhammad, S.I., P.W.4, in Sillanwali Market. Formal F.I.R. Exh.P.A./1 was registered the same day at Police Station Sillanwali, District Sargodha.
2. ' After the registration of the case, Atta Muhammad, S.I. Went to the spot and recorded the statements of the witnesses. He prepared the site plan Exh.P.D. __of the place of occurrence and gave his notes thereunder. On 4-8-1987, the appellants while in custody led to the recovery of bottle PA which contained acid, which was secured vide memo. Exh.P.C. After usual investigation, he challaned the accused.
3. ' Dr. Muhammad Zafar, Medical Officer, Sillanwali, P.W.5, on 25-7-1987 at 10 p.m., examined Abdul Qayyum, aged 18 years, and found the following injuries:--
(a) A burnt area 40 c.m. x 20 c.m. On the right side of the chest abdomen extending from right shoulder upto the abdomen.
(b) Burnt area right upper and lower on the anterior and posterior aspect.
(c) Burnt area left forearm. As a whole 20 % of the body is burnt and only skin deep.
4. ' Dr. Nazir Ahmad, P.W.6, re-examined Abdul Qayyum on 11-11-1987 on the direction of D.M. Sargodha, and submitted his report Exh.P.F. The said doctor had declared the injuries grievous because the patient was unable to follow his normal pursuits of life.
5. ' The prosecution in support of its case produced six witnesses in all. The eye-witness account has been furnished by Sh. Muhammad Yamin, Abdul Qayyum, the injured, and Sh. Muhammad Afzaal P.Ws.1 to 3, respectively. Sh. Muhammad Yamin corroborated his statement Exh.P.A. Lodged by him.
6. In cross-examination, however, he admitted that when he reached the spot, the occurrence had already taken place a few minutes before his arrival. A perusal of this statement clearly indicates that he was not an eye-witness of the occurrence. Abdul Qayyum, P.W.2 corroborated the statement of P.W.1 Sh. Muhammad Yamin, and gave a detailed account of the occurrence the way it transpired. In cross-examination, however he admitted that photographs Exhs.D.A. And D.B. Were his with Haroon Rashid appellant standing with him. He stated that while going to the shop, he did not come across any of the witnesses. He also admitted that when the acid was thrown at him his uncle Muhammad Yamin was not present at the spot but came live minutes thereafter. He admitted that he knew the appellants before the commission of the offence and they could -see them in the electric light at the spot. Sh. Muhammad Afzaal, P.W.3 stated that on 25-71987 at 9-30 p.m. He saw Abdul Qayyum injured going towards his shop. He was followed by Haroon Rashid who called his co-accused to throw acid upon him, whereupon Naeem Akhtar threw the acid which injured Abdul Qayyum. He also witnessed the recovery of bottle P.4 at the instance of the appellant which was secured vide memo. Exh.P.C. In cross-examination he admitted that he was a close relation of the complainant side. The reasons for his presence at the spot were that he had come to the Grain Market looking for his son. He further admitted that the police investigated the case from 25th July, 1987 to 27th of July, 1987 and some other persons were associated with the investigation. He could not refute the suggestion that one Muhammad Ali, Muhammad Iqbal and.
7. Qazi Farooq were associated as suspects in the commission of the offence. P.W.4 Atta Muhammad had investigated the case. The statements of the doctors have already been discussed.
8. ' At the conclusion of the prosecution case, the appellants were examined under section 342, Cr.P.C.
9. Wherein they refuted the entire prosecution allegations and pleaded innocence. The appellants also produced three witnesses in defence.
10. ' Muhammad Tufail, D.W.1, stated that on 25-7-1987 the complainant had shown suspicion on his brother Haroon Rashid and two others, namely, Muhammad All and Iqbal as suspects. Thereafter, some arbitrators were appointed who gave a finding that the said persons were innocent. D.W.2, Ch. Bashir Ahmad, Advocate, Notary Public stated that the application Mark 'A' was attested by him.
11. Mukhtar Ahmad, Head Constable, D.W.3, stated that according to the daily diary of 1987 Atta Muhammad S.1. On 24-7-1987 left the police station at 8 a.m. And came back on 27-7-1987 at 6-30 p.m. Thereafter, he again left the Police Station on the same day i,e, 27-7-1987 at 6-35 p.m.
12. ' It is contended by learned counsel for the appellants that the prosecution has not been able to prove its case at all. Submits that the case was got registered with an unexplained delay of two days which, in the circumstances, would be fatal to the prosecution. Contends that admittedly Muhammad Yamin, P.W. 1, was not an eye-witness of the occurrence; therefore, his statement may be ruled out of consideration. Submits that P.W. 3, Sh. Muhammad Afzaal in cross-examination, admitted that initially the police had investigated the case by associating three other persons without registration of a case, and, thereafter on 27-7-1987 the present case was registered involving the appellants. Submits that in any case a perusal of the statements of both the doctors clearly indicates that the injuries received by Abdul Qayyum, P.W.2, were simple in nature, therefore, the appellants could not be convicted for section 307, P.P.C. Submits that even otherwise also the prosecution allegation was not to the effect that the appellants wanted to commit the murder of Abdul Qayyum. Their only intention was to cause hurt. The contentions have been opposed by learned counsel for the State as well as by the learned counsel for the complainant.
13. I have heard the learned counsel and gone through the evidence with their assistance. As far as P.W.1, Sh. Muhammad Yamin is concerned, it is clear that he was not an eye-witness of the occurrence according to his own admission as well as according to the statement of Abdul Qayyum, P.W. 2, therefore, his statement is ruled out of consideration. Abdul Qayyum injured has given a detailed account of the occurrence and, in such circumstances, I do not doubt that there could be any mistake on the part of this witness with regard to the identity of the assailants, especially when it has come in evidence that he already knew the appellants very well. As for as the contention of the learned counsel for the appellants that even if the prosecution case is accepted it would fall under section 323, P.P.C. Instead of section 307, P.P.C. Needs examination.
14. According to the statement of Dr. Muhammad Zafar, P.W.5, injuries on the person of Abdul - Qayyum were simple in nature. However, Dr. Nazir Ahmad, P.W. 6 had opined that the injuries on the person of Abdul Qayyum were grievous. He had examined the injured on 15-8-1987. In his statement he further stated that because of the injuries there were chances that the injured might not be able to use his right shoulder. This assertion cannot advance the case of the prosecution because there was only an apprehension on the part of the doctor. In cross-examination, he admitted that no limb of the injured had become incapacitated. I have carefully gone through the statement of this doctor and am of the opinion that he did not C give any reason on the basis of which it could be ascertained that the injury on the person of Abdul Qayyum was grievous.
15. ' In these circumstances, I feel that the assertion of the learned counsel for the appellant that the case falls under section 323, P.P.C. Has some force. Therefore, while relying upon the statement of Abdul Qayyum, P.W.2, I hold the prosecution has been able to prove its case against the appellants, but the conviction is altered from section 307/34 to section 323/34, P.P.C. The sentence of imprisonment is reduced of all the appellants to one year R.I. They are also sentenced to a fine of Rs,1000 each, or in default three months' further R.I. The fine, if recovered, the whole of it shall be paid to Abdul Qayyum injured as compensation. The appeal is disposed of in the terms stated above. For the same reasons, the revision also stands dismissed.