This State appeal is directed against the judgment of Judicial Magistrate, Jauharabad, dated 22- 12-1987, whereby he acquitted Lal Khan respondent and his co-accused Habib Khan (not respondent herein) from the charge under section 307/34, P.P.C.
2. The brief facts of the prosecution case are that Kabal Khan reported the matter to the police that on 16-8-1984 at 12-00 noon, he, Sabaz Ali and Zeba Khan went out of mine to bring water. Lal Khan respondent armed with gun and Habib Khan, his co-accused, armed with carbine, were present there. Sabaz Ali had hardly covered a few paces when the accused started following him. Habib Khan accused raised Lalkara, whereas Lal Khan respondent fired at him, which hit on the backside of his head.
3. The prosecution in support of its case produced six witnesses, out of whom Kabal Khan P.W.1 and Sabaz Ali Khan P.W.2, father and son, respectively gave the ocular version of the occurrence. Dr.Riaz Ali, P.W.3, examined the injured. The evidence of the remaining witnesses is of formal nature.
4. The defence of the respondent as well as the acquitted co-accused, was that of bare denial and false implication. NO evidence was produced in defence.
5. The learned Magistrate disbelieving the prosecution evidence acquitted the respondent and his co-accused.
6. The learned Law Officer appearing on behalf of the State has strenuously argued that the reasons advanced by the learned Magistrate while acquitting the respondent and his co-accused, are fallacious, based on gross misreading of evidence and have resulted into miscarriage of justice. He contented that mere enmity by itself is no ground to disbelieve the evidence of natural and probable witnesses, when the occurrence took place in the broad daylight eliminating the chances of false implication. According to the Law Officer, the learned Magistrate, it appears, had made up his mind to acquit the respondent and thereafter he advanced the reasons to support the judgment without looking into the prosecution evidence, and properly appreciating the contentions raised by the prosecution. That the evidence of Sabaz Ali injured P.W.2 is being amply corroborated by the motive; as well as by the medical evidence further fortified by the prompt lodging of the F.I.R.
Mere non-recovery of the weapon of offence cannot be a ground for acquittal, in the presence of this fact that the respondent was never arrested by the police, as he was granted pre-arrest bail and thereafter it became impossible to recover the weapon at the instance of the respondent. The alleged discrepancies pointed out by the learned Magistrate are imaginary and fanciful and are contrary to the record, rather he has failed to point out any discrepancy between the statements of the eye-witnesses. On the contrary, he made a passing reference with respect to the medical evidence, that according to the doctor the fire was shot from a distance whereas according to the injured P.W.2 he received injury from a close range. The careful reading of the medical evidence would reveal that the doctor in his examination-in-chief categorically deposed that the injured received the injury from close distance, as burning was present on the body of the injured P.W.2.
This is the glaring example of the misreading of evidence, which has materially affected the judgment of the learned Magistrate and has resulted into miscarriage of justice.
7. The learned counsel for the respondent has vehemently argued that the learned Magistrate gave very cogent reasons which are borne out by the record and mere possibility of a different view has never been considered a valid ground for setting aside the order of acquittal because in law sanctity is attached to it and the State appeal can only be filed by the Provincial Government according to the provisions of section 417, Cr.P.C. In support of his contention he placed reliance on Muhammad Nazir v. Muhammad Ali and another 1986 SCMR 1441, where their Lordships held that mere existence of another possibility regarding appreciation of evidence would not be a ground for setting aside a judgment of acquittal.
8. I have gone through the entire evidence with the able assistance of the learned counsel for the parties minutely and have examined the respective submissions of the learned counsel. On reappraisal of the evidence, I find that the reasons advanced by the learned Magistrate while acquitting the respondent, are not borne out by the record. Admittedly, the occurrence took plat--- at 12-00 noon in the broad daylight. Sabaz Ali P.W.2 received the injury from a close range on back side of his head, due to the motive mentioned in the F.I.R. Which was lodged without any loss of time. The evidence of Sabaz Ali injured P.W.2 is being amply corroborated by the medical evidence as well as by the evidence of Kabal Khan P.W.1 whose presence at the scene of occurrence cannot be disputed. Mere relationship by itself is never a ground to disbelieve the straightforward and confidence inspiring evidence of a witness when his presence at the place of occurrence is proved beyond reasonable doubt. Kabal Khan P.W.1, Sabaz Ali P.W. And respondent No.1 were working as labourers in the mine at the relevant time, hence both the abovementioned witnesses are the natural and probable witnesses of the occurrence, as the occurrence took place at the mine site.
The defence taken by the respondent is neither plausible nor borne out from the direct or circumstantial evidence brought on the record.
9. As observed earlier, the learned Magistrate had made up his mind to acquit the respondent, so he tailored his reasons accordingly to suit his preconceived judgment, which are not borne out from any evidence. The reason advanced by the learned Magistrate that the ocular version is against E the medical evidence, is contrary to the record because presence of burns on the body of the injured P.W. Corroborated the ocular version and demonstrated the misreading of the evidence by the learned trial Court. The learned Magistrate due to non-appreciation of evidence and under misconception of law, disbelieved the ocular version furnished by Sabaz Ali. P.W.2 on the ground that the Investigating Officer did not collect any blood-stained earth from the spot, in spite of the testimony of Sabaz Ali injured P.W.2 that his blood did fall on the ground from the fire-arm wound sustained by him. The principle of law is that when the ocular version is coming from the mouths of straightforward C and confidence inspiring witnesses, then that evidence by itself is sufficient to record a conviction, independent of any corroboration. The corroboration is a rule of prudence and not a rule of jurisprudence.
The other reason furnished by the learned Magistrate for acquitting the respondent is that Zeba Khan did not appear for $the prosecution, by itself is no ground to disbelieve the ocular version, as the la--w does not lay down the number of witnesses who are required to prove a fact. Even the respondent did not produce Zeba Khan in his defence who could haven given some credence to the defence version.
10 The upshot of the above discussion is that the acquittal of the respondent has resulted into miscarriage of justice, hence State appeal is accepted, and the respondent is convicted under section 307, P.P.C. For causing fire-arm injury to Sabaz Ali P.W.2.
11. The question of sentence, however, requires consideration. The respondent was acquitted in the year 1987 and he has enjoyed the fruit of acquittal for a considerable time; hence while awarding sentence I take a lenient view.
12. In the circumstances, I think a sentence of twro years' R.I. Plus fine of Rs.10,000 (ten thousand only) or in default one year's R.I. Would meet the ends of justice and I order accordingly.
Out of the fine, if recovered, Rs.5,000 be paid to the injured P.W. Sabaz Ali as compensation under section 544-A, CrP.C.
13. The respondent is on bail. He shall surrender to his bail bond and be sent to jail as convict to serve the sentence imposed on him.