MIAN ABDUL KHALIQ, J.- Bootay Shah and Imam Shah sons of Alam Shah have filed this appeal against their conviction and sentence passed by Malik Ghumam Sabir, Magistrate Section 30, Gujranwala vide his impugned judgment dated 2.7.1987 whereby they were convicted under section 307/34 P.P.C, to undergo sentence of 7 years R.I. Each and a i.e of Rs. 2,000/- each, in default whereof to suffer further R.I. For 6 months each. They were also directed to pay Rs. 3,000/- each as compensation to both Muhammad Rafiq injured/complainant and Tahir Mahmood, injured/P.W. In equal share and in case of default, the amount was directed to be recovered as arrears of land revenue They were extended the benefit of section 382-B Cr.P.C.
2. The appellants were challaned and sent up for trial A charge under sections 307/34 P.P.C, was framed against the appellants, to which they denied and claimed trial.
3. The prosecution produced 7 P.Ws in all to substantiate its case. PW.1 Muhammad Rafiq complainant stated that he was a Tonga Driver and on 31.8.1985 at about 4.00 p.m. a quarrel took place between the complainant's children and that of Bootay Shah appellant. The complainant to protest reached to roof top of his house and Bootay Shah appellant started calling him bad names.
Bootay Shah was armed with revolver whereas Imam Shah appellant was armed with a Khanjer, who reached the roof top of their house. Imam Shah appellant raised Lalkara and exhorted Bootay Shah to teach a lesson to the complainant, on which he fired which hit the complainant on the left side of neck of the complainant. Bootay Shah again fired on the left arm of P.W.2 Tahir Mahmood.
Thereafter both the appellants continued raising Lalkara. The occurrence was witnessed by Tahir Mahmood, Mst. Safia Begum wife of the complainant P.W. (given up) and P.W.3 Arshad Mahmood.
P.W.2 Tahir Mahmood corroborated the statement of PW.1 and stated that Bootay Shah had fired on the neck of PW.1 and also on his (P.W's) left arm. The occurrence was also witnessed by P.W.3 Arshad Mahmood, and Mst. Safia Begum P.W. (given up). He further stated that Bootay Shah appellant fired 7 shots. P.W.3 Arshad Mahmood corroborated the statements of P. Ws.l and 2 and also stated that Bootay Shah had fired on the neck of PW.1 and on the left arm of P.W.2, PWA Anjum Naheed Butt witnessed the recovery of 7 empties from the spot P.3/1-7 vide memo Exh.PB and the S.H.O, also in his presence took into possession bloodstained clothes of P.W.1 (P.4 to P.6) vide memo Exh.PC. P.W.5 Feroze Din witnessed the recovery of revolver P.I from the Dub of Bootay Shah appellant and Khanjer P.2 from the Dub of Imam Shah which were secured by the police vide memos Exhs. PC and PE respectively. He also attested the memos of recovery of bloodstained clothes P.4 to P.6 of PW.1. P.W.6 Muhammad Siddiq A.S.I, drafted the formal F.I.R. Exh.PA/1, on the basis of complaint Exh.PA. He identified the handwriting of Muhammad Ismail S.I. (since dead) and stated that Exhs. PA to PG were in the had of Muhammad Ismail S.I.
4. P.W.7 Dr. Saeed Iqbal medically examined P.W.2 Tahir Mahmood on 31.8.1985 at 4.35 p.m. And found the following injuries on his person:-
1. A lacerated i.e arm wound 3/4 c.m. x 3/4 c.m. x bone deep with black margin present around the wound on the outer side of left shoulder.
2. Abrasion 5 c.m. x 2 c.m. On the inner side of right elbow joint.
Injury No. 1 was kept under observation and it was by i.e arm. Injury No.2 was simple caused by blunt weapon.
On the same day he also medically examined Muhammad Rafiq complainant and found the following injury on his person:-
1. Lacerated wound 3/4 c.m. x 3/4 c.m. x going deep on the front of neck with black margins present around the wound.
The injury was kept under observation caused by i.e arm. On X-ray he declared the injury as simple.
5. The appellants when examined under section 342 Cr.P.C, denied the prosecution evidence against them and also the recovery of incriminating articles. Appellant Bootay Shah stated that Tahir Mahmood (P.W.2) and his father P.W.1 (complainant) had quarrelled with each other and P.W.2 had fired at P.W.1 and also fired at his own arm. Appellant Bootay Shah when examined under section 340(2) Cr.P.C, again stated that P.W.2 had fired at his father P.W 1 and thereafter fired at his own arm. Imam Shah appellant stated about his innocence. The appellants did not produce any witness in defence.
6. The learned trial Court after evaluating the evidence on record convicted and sentenced the appellants. I have heard the learned counsel for the appellants as well as have perused the record.
P.W.1 on 31.8.1985 at 5.30 p.m. In Civil Hospital, Gujranwala made his statement Exh.PA which was recorded by Muhammad Ismail S.I. (since dead) on the basis of which formal F.I.R. Exh.PA/1 was registered. Imam Shah appellant was alleged to be armed with a Khanjer P.2, at the relevant time, but he neither attempted nor used the same in the commission of the offence and only proverbial Lalkara was attributed to him. I am of the view that the witnesses had made............... Embroidery in their statements to implicate Imam Shah appellant and his case is not free from doubt and giving him benefit of doubt I acquit him of the charge. He is on bail and his bail bonds are discharged.
7. P.W.1 complainant and P.W.2 Tahir Mahmood who were injured during the occurrence as well as P.W.3 Arshad Mahmood, another eye witness had specifically attributed injuries to Bootay Shah which he had caused with revolver at P.W.1 and P.W.2.
8. The learned counsel for the appellants has vehemently contended that the ocular testimony is not in consonance with the medical evidence furnished on record by the statement of P.W.7 Dr. Saeed Iqbal as the blackening was found around the injuries of P.W.1 and P.W.2 which were caused by i.e arm and Bootay Shah was stated to have fired at P.W.1 and P.W.2 from the roof top i.e. From a distance cf about 14 feet. The motive has not been proved on record as Mst. Safia Begum wife of the complainant and mother of P.W.2/injured and P.W.3 was not produced by the prosecution.
9. No doubt Mst. Safia Begum was not examined. She stated about the quarrel between the children of the complainant and the accused party, but immediately after arrival of the accused the occurrence had followed. P.W.1 is the father whereas P.W.2 and P.W.3 are his sons, but nothing was brought on record by the defence that they had any motive to falsely involve Bootay Shah in the present case. They had no animus against him and only bald suggestions were given to the P.Ws.
10. Dr. Saeed Iqbal (P.W.7) had not found any charring or tattooing around the injuries.............. On the person of P.W.1 caused on him when he was in the courtyard of his house, clearly indicate that they were not fired at from a close range. The ocular testimony furnished on record by the statements of P.Ws. 1, 2 and 3 is in consonance with the medical evidence as stated by P.W.7. The recovery aspect of the case against appellant Bootay Shah also stands proved.
11. Appellant Bootay Shah was convicted and sentenced by the trial Court on 2.7.1987 and since then he is in the jail. I am of the view that the period already undergone by him in the jail along with a i.e of Rs. 1,000/-, in default whereof to suffer 2 months R.I. As well as compensation of Rs. 2,000/- to be paid to injured Muhammad Rafiq and injured Tahir Mahmood in equal shares shall meet the ends of justice. He shall deposit the amount of i.e as well as compensation in the trial Court within one month. In default of payment of compensation he shall suffer one month . With this modification in the conviction and sentence of Bootay Shah, the appeal qua him is dismissed.