Zahoor son of Umar Hayat (28) was sent up for trial by Police Station Shahpur Saddar, District Sargodha, for an offence under section 307, P.P.C. Kanwar Azmat Ali Khan, Magistrate Section 30, Jauharabad, vide his judgment, dated 16-12-1981 convicted and sentenced him to five years' R.I.
With a fine of Rs.1,000 and in default of payment of fine, further R.I., for three months. It was further directed that Rs.500 out of the fine, if recovered shall be paid to Muhammad Yaqoob, P.W., as compensation: The convict appealed. This judgment shall dispose of the same.
2. The prosecution story, in brief as disclosed by Mian Muhammad in F.I.R. Exh. P.B., was to the effect that on 6-2-1979, the first informant with his maternal-aunt's son Muhammad Yaqoob was coming back to their village after purchasing a bullock. When they were passing through Chak, appellant Zahoor armed with a .12 bore gun came there. He raised a Lalkara addressing Muhammad Yaqoob that he would teach him a lesson for giving evidence against Mazoor and Mian Muhammad, sons of Umar Hayat. Simultaneously, he fired hitting Muhammad Yaqoob on his left leg, whereupon he fell down. Many persons were attracted to the spot, whereupon the assailant ran away. The motive for the occurrence was that the first informant and Muhammad Yaqoob, injured, were prosecution witnesses in a case against real brothers of the assailant.
F.I.R. Exh. P.B. Was lodged by Mian Muhammad P.W.2 on 6-2-1979 at 4 p.m. It was recorded by Ahmad Khan M.H.C. P.W.6 with regard to an occurrence which had taken place the same day at 2 p.m. At a distance of four miles from Police, Station Shahpur Saddar. Manzoor Ahmad, S.I./S.H.O., P.W.7 had investigated the case. He recorded the statements of the witnesses and prepared site plan Exh. P.F. Of the spot. He arrested the appellant on 11-2-1979. He got recovered gun P.1 at the instance of the appellant. Since the appellant could not produce any licence for the same, therefore, he registered another case under the Arms Ordinance against him. After usual investigation he challaned the accused.
Dr. Ghulam Haider Shah, Medical Officer, P.W.3 on 6-2-1979 examined Muhammad Yaqoob, injured, and found three fire-arm injuries on his person.
3. The prosecution in support of its case produced seven witnesses in all. P.W.1 Dr. Abdul Mannan, Radiologist had taken X-Ray of the injured and gave his report. P.W.2 Mian Muhammad had given ocular account of the occurrence. P.W.3 Dr. Ghulam Haider Shah had examined the injured and gave his medical report. P.W.4 Muhammad Yaqoob, injured, gave a detailed account of the occurrence the way it transpired. Mian Muhammad son of Muhammad Siddique was an eye- witness and gave a detailed account of the occurrence. Malik Ahmad Khan, H.C. P.W.6 had recorded formal F.I.R. Exh. P.B. P.W.7 Manzoor Ahmad, S.I. Had investigated the case and challaned the appellant.
At the conclusion of the prosecution evidence, the appellant appeared without oath, wherein he refuted the prosecution allegations, and pleaded innocence. In answer to a question he further stated that the complainant party had injured his nephew Maqbool Hussain, therefore, in order to save his life he grappled with Muhammad Yaqoob and during this struggle the gun went of and injured Muhammad Yaqoob.
The appellant also produced four defence witnesses. All of them also supported the defence version of the appellant.
4. It was contended by learned counsel for the appellant that the appellant had undergone the rigours of trial thrice. Submits that twice earlier he was convicted for the same offence but in appeal the judgments were set aside and the case was remanded for recording the statement of the doctor. Argues that the appellant has already undergone one year of imprisonment and has been facing the rigours of prosecution since 1979. Submits that in these circumstances, the sentence of imprisonment already suffered by him would adequately meet the ends of justice. The contentions were opposed by learned counsel for the State.
5. I have heard the learned counsel and gone through the evidence. The prosecution in order to establish its case has relied upon the statements of Muhammad Yaqoob and Mian Muhammad, caste Gondal. The witnesses were cross-examined at length. The prosecution could not bring anything on the record, which could even remotely suggest that the ocular account is not trustworthy and cannot be relied upon. The witnesses are truthful and have given a detailed account of the occurrence. Their testimony also stands corroborated by medical evidence as well as motive. The injured, Muhammad Yaqoob and his brother Muhammad Siddique had asserted that they were prosecution witnesses against the brothers of the appellant, which was being resented by the appellant. This part of their statement has not even been challenged in cross- examination therefore the motive stands proved. As far as the main occurrence is concerned, it also stands proved because the defence also admits the place of occurrence, time of occurrence and the weapon with which it was committed. The only difference is that according to the defence version, Muhammad Yaqoob was injured with his own gun. I have considered this aspect of the case and hold that the same is not possible. If the appellant was grappling with Muhammad Yaqoob, who was armed with a gun, which went of accidentally, then the injury received by Muhammad Yaqoob should have been going downward, which is not the case here. Even otherwise, this defence was not taken before the Investigating Officer at the initial stage. Even the witnesses were not put this defence.
For what has been discussed above, I hold the prosecution has been able to prove its case beyond any doubt. The appeal fails which is, accordingly, dismissed.
As far as the quantum of sentence is concerned, I have noticed that the appellant is facing prosecution since 1979. Twice his case was remanded. The appellant has already undergone more than one year of imprisonment. In these circumstances, I feel the sentence of imprisonment already undergone by him would adequately meet the ends of justice. The sentence of fine is, however, maintained. The appeal is dismissed in the above terms.