The appellant Flag Nawaz has filed this appeal against the judgment dated 22-2-1997 passed by the learned Additional Sessions Judge, Mianwali, whereby he acquitted the respondents Nos.2 and 3, who were accused in case F.I.R. No,164 of 1990, dated 7-11-1990 registered by the appellant under section 324, P.P.C. With Police Station Daod ICheil, District Mianwali, on the allegations that on the day of occurrence he was sowing wheat in his field with the help of tractor whereas Abdul Ghaffar and Muhammad Iqbal, his cousins were watering their adjacent land. At about 11-30 a.m.
Muhammad Iqbal, respondent armed with .12-bore gun, Muhammad Farooq respondent armed with 7. Mm rifle emerged there. They gave out Lalkara to the appellant that they will teach him a lesson. Muhammad lqbal, respondent made shot with his rifle which hit' Appellant on the wrist of his left hand, second shot hit him on the left side of his ribs i,e, left flank and third shot made by him was missed. The appellant received injuries during the said occurrence as stated above.
Subsequently the case was registered against the respondents. Motive for the occurrence was regarding the passing of tractor by the appellant from the land of respondent lqbal which was forbidden by him due to which an altercation took place and the appellant abused Muhammad Iqbal and also gave him slap. Due to this grudge respondents have injured the appellant by firing.
2. After the occurrence case was registered and investigation into the crime commenced.
Investigation was finalized and challan was submitted in the Court, which took cognizance and on 22-2-1997 concluded the trial and convicted respondent Muhammad Iqbal under section 337-F(v), P.P.C. And sentenced him to four years' R.I. With a fine of Rs, 5,000 as fine. In default of payment of fine he was directed to further undergo three months' R.I. Muhammad Farooq, respondent No,3 was also convicted and sentenced by the Trial Court under section 324, P.P.C. To two years' R.I. And fine of Rs,1,000, in default whereof to undergo one month's R.I. The respondents filed appeal against conviction before the learned Sessions Judge, which was heard and decided by the learned Additional Sessions Judge, who vide the impugned judgment acquitted the respondents of the charge. Hence this appeal.
3.. Contentions of learned counsel for the appellant are that the appellant appeared as P.W. I and has stated that the respondent. No,I lqbal was armed with .12_-bore gun while Farooq. .Was armed with rifle 7 mm. They raised Lalkara and .Fired at the appellant, who received injuries, as mentioned above. This fact has been supported by the statements of Abdul Ghaffar P.W.2. Both the P. Ws. Were cross-examined at length.. Both of them are consistent on the material point. F.I.R. Was lodged without - any delay. Names of respondents Nos. 1 and 2 have been mentioned. Previous enmity does not exist between the parties. Their statements are also corroborated by the recovery of weapons which matched with the empty recovered, by the Forensic Science Laboratory report.
Hence the case is fully prayed against the respondents and the trial Court has rightly convicted the respondents but the learned Appellate Court has passe a judgment, which is not supported by the evidence and record, and the same is liable to be set aside by accepting this appeal and by maintaining the judgment of the Trial Court.
4. Learned A.A.-G. Has also adopted arguments of learned counsel for the appellant and has contended that the enmity between the appellant and respondent No,1 did not exist. The judgment of the Appellate Court is not supported by the evidence on record and is liable to be set aside.
5. On the other hand learned counsel appearing on behalf of the respondents Nos. 1 and 2 has opposed this appeal on the grounds that the case is totally false and respondents Nos.1 and 2 have been involved due to previous enmity. Both the witnesses are not confidence-inspiring. Respondent counsel further contended that there are material contradictions between the 'tatements of the witnesses on the material point; hence the statements are not sufficient to connect the respondents with the commission of crime. According to learned counsel for respondents both the witnesses are related inter se and cannot be relied upon without corroboration, which is lacking in this case. He further contends that the medical evidence is not in line with the ocular account as the injury has been noticed on the inner side of the arm and the complainant claims that he was carrying a "KUPPA" in his hand and if he had having a "KUPPA" in his hand how the injury could be caused as has been stated by the complainant from the north side. In these circumstances according to learned counsel for the respondents the injury has been received by the appellant due to firing being made by the hunters as is admitted that it was a hunting session and firing was being made by the hunters. It is further contended that the complainant and the other witnesses are not truthful witnesses and they cannot be relied upon. It is further contended that this is an appeal against acquittal and criterion is different, hence the appeal may be dismissed and the judgment passed by the leavened Additional Sessions Judge, which is well-reasoned may be maintained. He further contends that the recovery has been made in the presence of police witnesses which is in violation of the section 103, Cr.P.C. He relies upon:-
(1) 2000 SCM R 683, (2) 2000 PCr.L.1 1324, (3) 2000 PCr.LJ 1329, (4) 1997 PCr.LJ 1231, (5) and 1995 SCM R 855.
6. I have heard arguments of both the sides and perused the record. Admittedly Haq Nawaz, P.W,1 the appellant was injured and Muhammad Iqbal-respondent No,1 has been ascribed a specific role that at the time of occurrence he made two shots by his rifle 7 mm which hit the complainant on the wrist of left hand and left ribs i.e left flank. One shot fired by Muhammad Farooq-respondent did not hit the appellant.
' The matter was reported to the police and names of both the respondents were mentioned in the F.I.R. Abdul Ghaffar (P.W.2),. The other eye-witness claims that he was also present at the spot and was watering his lands. Injuries are specifically ascribed to Muhammad Iqbal. The two eyewitnesses have been subjected to lengthy cross-examination. The defence has failed to shatter their statements. Both the witnesses are consistent on the role ascribed to the respondents.
Medical evidence also shows fire-are injury on the seat given by the appellant/ complainant during his statement under section 154, Cr.P.C. And his statement before the. Trial Court as P. W.1, Contradiction being explained by the learned counsel for the defence that injury No,1 which is on the inner aspect of the left fire-arm could not be caused as stated by P.W.1/appellant. ,Contention of learned counsel for the respondents is not supported by the evidence on the record. The complainant was sowing seeds and he was not standing at that time, hence while sowing seeds the hand has to be moved anti receiving of injury on the inner aspect of the left forearm could not be ruled out. Other two injuries are reported that injury No,2 on the back side of the arm is exit wound of injury No,1 while the third injury is on left side of back of trunk. Hence two injuries have been found on the person of Haq Nawaz as has been alleged by him in the statement before police as well as before the Court. There is no contradiction in the medical evidence, which is also in line with the ocular account. The conduct of the complainant regarding levelling allegations against respondent No,1 regarding causing of injury with gun 7 mm is very clear and in spite of presence of respondent No,3 at the spot and in presence of two more injuries on his person, he did not level any allegation against respondent No,3. The ocular account furnished by him is fully supported by the medical evidence. Hence it cannot be said that there is contradiction in the medical evidence and the ocular account. Moreover, suggestion has been made by the accused during their statements under section 342, Cr.P.C. That one Muhammad Nawaz belonging to `brothery' of the complainant and brother of the accused was accused and respondents Nos.2 and 3 had enmity with Muhammad Nawaz, therefore, he has involved them in this case as Haq Nawaz received nothing away as has been alleged by him but he has received injuries in the hunting session by some shots fired by the hunters. This suggestion has been denied by both the witnesses during the cross- examination and defence version that they have been involved falsely by the complainant in this case on the asking of Muhammad Nawaz is not supported by any material evidence on the case, which ultimately failed. From the perusal of statements of both the witnesses this fact is not borne out from the record that the respondents had no motive with the appellant and motive alleged has not been proved. Defence version not impressed me as there was no reason with the appellant to falsely involve the respondents in this case in the absence of any direct evidence by the complainant, hence the involvement of the respondent No,1 in the occurrence is supported by the medical evidence and the recovery, though it has been made in presence of police witnesses in violation of section 103, Cr.P.C. Yet this cannot be made basis for the disbelieving of recovery evidence which is otherwise sufficient to corroborate the ocular account. Even ocular account is sufficiently corroborated by the medical evidence. Hence judgment to the extent of Muhammad Iqbal passed by the learned Additional Sessions Judge is based on conjectures and surmises hence the same is set aside. The conviction and sentence passed against him by the Trial Court is hereby maintained.
7. However, Farooq-respondent No,3, though was shown to be present at the spot while armed with 7 mm rifle yet he admittedly had not caused any injury to the appellant or the witnesses. His participation in the occurrence has not been proved and it is also doubtful whether he shared common intention with respondent. No,2 at the relevant time of occurrence or not. His co-accused Iqbal fired twice but he did not fire at the appellant/complainant during the occurrence. Medical evidence and the other evidence available on the record does not support the prosecution version to the extent of Farooq except statements of two eye-witnesses. As Iqbal-respondent No,2 has been acquitted by the learned Additional Sessions Judge and in the absence of any material evidence in the support of defence version I am net inclined to set aside the judgment passed by the learned Trial Court. Hence conviction and sentence passed against him is maintained and to this extent the judgment of learned Additional Sessions Judge is set aside.
' However, judgment of the learned Additional Sessions Judge to the extent of respondent No,3.- Muhammad Farooq is upheld and the conviction and sentence passed against him by the trial Court is set aside.
8. Accordingly the appeal is accepted against respondent No,2 and is dismissed to the extent of respondent No,3.