' MAHBUB ALI KHAN, J.---A case under section 307/34, P.P.C. Was registered at Police Station, Nara on 22-10-1986 on the report of Mir Zaman son of Ali Khan. The local police after investigation of the case did not find favour with the correctness of the accusation as made in the report and recommended to the Ilaqa Magistrate for its cancellation under section 169 read with section 173, Cr.P.C. As Mir Zaman was then in Jail in a murder case, his daughter Mst. Shamim Akhtar was obliged to agitate the same matter before Sessions Court by moving a private complaint upon which the respondents-accused herein faced prosecution on charges under section 307/34, P.P.C.
But acquitted by the Additional Sessions Judge, Abbottabad on 13-3-1994 by the judgment and order which has now been impugned by the lady appellant with leave of the Court in the instant appeal moved under section 417(2), Cr.P.C.
2. During the investigation of a murder case reported on the same day by accused-respondent Haider Zaman son of Lal Khan, P.W. Muhammad Aslam, A.S.I. At 23-30 hours recorded the report of this case at the instance of P.W. Mir Zaman wherein he charged accused Haider Zaman for stabbing him at "Chashkah-Vela" on 22-10-1986 in the limits of village Majoan while accused Khani Zaman caught hold of the complainant and accused Saifur Rehman for effective firing on his daughter Mst. Shamim Akhtar. P.W. Muhammad Aslam, A.S.I. After examining the injured persons and writing their injury statements sent them both for medical treatment. He also took into possession some blood-stained earth from the house of P.W. Mir Zaqman where Mst. Shamim Akhtar was lying in injured condition and recorded statements of P.Ws. Mst. Mubarak Jan and Arif Jan mentioned in the report.
3. Dr. Jumma Khan on 23-10-1986 at 11-45 a.m. Examined Mst. Shamim Akhtar, aged 19/20 years and found the following injuries:--
(1) Entrance wound 3" x 2" on the front of the left forearm below the elbow-joint.
(2) Exit 4" x 3" on the back of the left elbow-joint with fracture of the under line bone.
(3) Incised wound 1" x 1/4" x skin deep on front of the right forearm, 4" below the elbow-joint.
' In the opinion of the doctor injuries Nos.1 and 2 had been caused to Mst. Shamim Akhtar by fire shot and injury No,3 by a sharp-pointed cutting-edged weapon. Injuries Nos.1 and 2 were grievous and caused within the probable duration of 24 hours. Blood-stained shirt with corresponding cut marks was delivered to F.C. Lehrasap who had accompanied the lady. X-ray showed the fracture of left forearm upper shaft radius an ulna. The hand was later on imputated. Doctor Jumma Khan during his Court statement has endorsed the correctness of his medico-legal report (Exh.P.W.4/2 relating to Mst. Shamim Akhtar. He has categorically stated that injury No,3 sustained by Mst.
Shamim Akhtar could not be self-inflicted as it was skin deep and the wearing shirt bore corresponding cut marks.
' Dr. Jumma Khan also examined P.W. Mir Zaman on the same day at 12-00 hours and found:--
(1) An incised wound 3" x 1/2" x skin deep on the front of the left forearm, 4" below the elbow-joint.
(2) Multiple linear incised wounds over an area of 6" x 2" of the left shoulder blade and adjacent to chest wall.
(3) An abrasion 1" x 1/2" on the anterior angle of the left shoulder blade.
(4) An abrasion 1" x 1" at the level of the 5th lumbar spine.
' The doctor then referred P.W. Mir Zaman to D.H.Q. Hospital, Abbottabad for further necessary treatment and X-ray. In his opinion injuries Nos.1 and 2 had been caused by a sharp-pointed cutting edged weapon and the rest by blunt object within the duration of 24 hours and affirmed the correctness of his medico-legal report Exh.P.W.4/1. He also handed over to the police constable the blood-stained shirt with corresponding cut marks. P.W. Mir Zaman was latter on X-rayed but no fracture could be detected.
4. Both P.Ws. Mir Zaman and Mst. Shamim Akhtar have been examined in evidence before the trial Judge. Their statements show that on the eventful day at "Chashka Vela" P.W. Mir Zaman accompanied by his daughter Mst. Shamim Akhtar and daughters-in-law Mst. Arif Jan and Mubarak Jan went from his house to cut grass and when reached "Rakh-Chahari" they were waylaid by the accused. Khani Zaman accused caught hold of Mir Zaman while accused Haider Zaman gave him a knife blow on his left arm. Mst. Shamim Akhtar who raised alarm by then was fired at by accused Saifur Rehman P.W. Mir Zaman had disclosed the motive that Lal Khan had asked for the hand of Mst. Shamim Akhtar for his son Saifur Rehman accused but he refused. That he could not go to the police station for report because of the fear of the accused and on the arrival of Muhammad Aslam A.S.I. On the spot he lodged the report copy Exh.P.W.1/1. Mst. Shamim Akhtar in her Court statement has similarly charged accused Khani Zaman for catching hold of her father Mir Zaman and accused Haider Zaman for giving him stab wounds on his left hand and accused Saifur Rehman for effectively firing a gunshot at her. She was hit on the left hand which had been later on imputated. Mst. Shamim Akhtar has also stated that her hand was being sought for accused Siafur Rehman but her father had refused the offer. At the time of the cancellation of the F.I.R. Case (No,83, dated 22-10-1986) on the recommendations of the police, as P.W. Mir Zaman was himself in jail in the counter-murder case Mst. Shamim Akhtar moved the present complaint (Exh.P.W.3/1) before the Ilaqa Magistrate on 24-11-1986. P.W. Mubarak Jan also made a statement before the trial Court and corroborated the evidence of P.Ws. Mir Zaman and Mst. Shamim Akhtar on all material particulars.
5. The evidence made by Dr. Jumma Khan has fully proved the factum that P.W. Mir Zaman had sustained one incised wound 3" x 1/2" x skin deep on the front of the left forearm with multiple linear incised wounds on left shoulder blade and some abrasions while Mst. Shamim Akhtar sustained one fire shot entrance injury 3" x 2" on the front of the left forarm below the elbow-joint with an exit of 4" x 3" on the back of the left elbow-joint with fracture of the bone and an incised wound 1" x 1/2" x skin deep on the front of the right forearm.
6. Both the injured persons have named accused Haider Zaman for giving stab wound to P.W. Mir Zaman and accused Saifur Rehman for causing gunshot injuries to Mst. Shamim Akhtar. The doctor has overruled the possibility that any of these injuries could be self-inflicted. The non-existence of blackening/charring marks on the entrance wound caused to Mst. Shamim Akhtar would suggest that the shot had been fired from a distance. The learned Additional Sessions Judge, as it appears from his judgment, has been much impressed by the opinion of hte local police forwarded on the cancellation of F.I.R. Case lodged by P.W. Mir Zaman and concurred with their conclusion, that after the murder of Muhammad Younas deceased Mst. Shamim Akhtar had been fired at in her own dwelling house by the sons of Mir Zaman, i,e,, her brothers so that the situation may got balanced.
He in this context referred to the recovery of blood from the house of Mir Zaman but quite conveniently ignored this important fact, that Mst. Shamim Akhtar had been taken to the house before the arrival of Muhammad Aslam, A.S.I. And when the Investigating Officer visited the house he found Mst. Shamim Akhtar lying on a cot and in all probabilities this can be said that blood had oozjped down from the wounds sustained by the lady. The conclusion so derived at is an imagination which is far remote and the learned Additional Sessions Judge, without caring much for the strong qualitative prosecution evidence, consisting of the statments of two injured persons and a doctor had unnecessarily drawn it in collaboration with the police opinion.
7. We shall, in the circumstances, be constrained to hold that the prosecution have been able to bring home guilt of accused Haider Zaman and Saifur Rehman in the case beyond any reasonable doubt. P.W. Mir Zaman for his stab injuries has singally charged accused Haider Zaman. He had also sustained some abrasions on the left shoulder and 5th lumbar spine but did not attribute these injuries to any person. The stab wounds were declared simple and the X-ray did not detect also any fracture. Accordingly, we shall hold guilty accused Haider Zaman of voluntarily causing hurts by means of stabbing to P.W. Mir Zaman, convict him under section 324, P.P.C. And punish the accused with the sentence of rigorous imprisonment for a term of three months with fine of Rs,2,000 or one month's R.I. In default. Accused Haider Zaman shall further pay compensation amount in the sum of Rs,3,000 to P.W. Mir Zaman as required by section 544-A, Cr.P.C. For causing him the aforesaid hurts and in default of such payment suffer further imprisonment for a period of two months.
8. The prosecution have failed to prove that the firing act of accused Saifur Rehman which caused injuries to Mst. Shamim Akhtar on the left arm (later on imputated) was done with such intention or knowledge, and under such circumstances that, if accused Saifur Rehman by that act had caused death, he would have been guilty of the offence of murder, his case would not, therefore, be that of an attempt to murder which may fall under section 307, P.P.C. It is rather in the evidence that accused Saifur Rehman did not repeat firing after the first shot. We would, therefore, convict the accused under section 326, P.P.C. For the commission of an offence of voluntarily causing grievous hurt to Mst. Shamim Akhtar by means of shooting. The left forearm of Mst. Shamim Akhtar had been amputated because of the fire-shot injuries. She is an unmarried girl of 19/20 years of age and has been made permanently disabled for the rest of her life by his wanton act on the part of the accused. Mst. Shamim Akhtar did not state anything about the existence of the incised wound on the right forearm or by whom it had been caused. We would thus order that accused Saifur Rehman shall undergo rigorous imprisonment for a term of 7 years with fine of rs.5,000 and one year's R.I. In default thereof. He shall also pay compensation amount in the sum of Rs,10,000 to Mst.
Shamim Akhtar as required by section 544-A, Cr.P.C. For causing her the said gunshot injuries and in default of payment undergo further imprisonment for a period of six months. As we find no evidence that the acts of causing injuries to P.W. Mir Zaman and his daughter Mst. Shamim Akhtar by accused Haider Zaman and Saifur Rehman had been done by the two accused in furtherance of common mention, each of such accused has been thus held individually liable for his own criminal transaction. Simiarly, we do not find any evidence on the charge of catching hold of P.W.
Mir Zaman by the acquitted accused, namely Khani Zaman when accused Haider Zaman gave him stab injuries and would as such maintain his order of acquittal. Accused Haider Zaman and Saifur Rehman shall be committed to custody.
9. This may be mentioned here, that on the same day a case under section 302/34, P.P.C. Has been registered at Police Station Nara vide F.I.R. No,82 on the report of accused Haider Zaman relating to the mruder of his brother named Muhammad Younas in which P.W. Mir Zaman was charged alongwith his two sons and a relation. P.W. Mir Zaman on the conclusion of the trial in that case was acquitted by the learned Additional Sessions Judge while the co-accused have been convicted and an appeal on their behalf is simultaneously pending before us for decision. We have, however, observed that the venue in both these cases is almost the same, whereas it seems the parties who happened to be very closely related inter se but unfortunately had no good terms during those days, got confronted with each other and the criminal transaction started in which Muhammad Younas deceased got killed on one side and P.Ws. Mir Zaman and Mst. Shamim Akhtar of this case received injuries on the other side. We are, however, unable to determine this fact as which of the party initiated the transaction.