' This order will dispose of Criminal Appeal No,1332 of 2000 filed by Muhammad Umar complainant and injured P.W. In this Court against the judgment dated .13.6.2000 passed by learned judicial Magistrate Section 30, Lahore Cantt, whereby he acquitted the respondent Ihsan alias Qadri.
2. Brief facts of the case as narrated by the complainant Muhammad. Umar in his statement Exh.P.B, which Was recorded at 12-45 a.m on 9-9-1996 at Emergency Ward, Mayo Hospital, Lahore about an occurrence which took place on the same day at 10-30 p.m, are as under:-
3. According to Muhammad Umar complainant and injured witness, he was resident of Kotli Pir Abdul Rehman, Police Station Harbanspura, Lahore and was a labourer, that on 8-9-1996 at about 10-30 p.m he was present alongwith his brothers Muhammad Yaseen, Muhammad Younas in main bazar of Kotli Pir Abdul Rehman near the shop of Khalid Hardware and were talking with each other.
One Muhammad Ilyas and Muhammad Mushtaq were also standing there. Suddenly accused Ehsan alias Qadri who was resident of Mushtaq Colony, Kotli Pir Abdul Rehman came from the side of Tangawala Adda and passed from him. Thereafter while returning towards the complainant Ehsan alias Qadri accused respondent armed with fire-arm fired two shots hitting on his buttocks and he after receiving the same fell down on the ground. The brother of the injured tried to apprehend the accused but he succeeded to escape therefrom. According to the complainant the he had committed this offence in connivance with Haji Akbar, Shahid Nazir Butt and Mehar Jehangir alias Sando.
4. The motive behind this occurrence was that the above said three accused had fired at the brother of the complainant namely Muhammad Azam and in this regard case F.I.R. No,87 of 1996 was registered on 29-4-1996 in Police Station Harbanspura, under sections 324/148/149, P.P.C.
According to the complainant this occurrence was also witnessed by Muhammad Yaseen and Muhammad Younas, Muhammad Ilyas and Muhammad Ishfaq. The injured was medically examined on the same day at 11-45 p.m. He was brought to Hospital by his brother Muhammad Yaseen. Doctor found two injuries on his person which are as follows:-
1. Lacerated penetrating wound 0.5 c.m. x 0.3 c.m. On left thigh anteriorly about 4 c.m. Below the inquinal ligament with corresponding holes in Shalwar and Kamiz DNP. Margins of the wound irregular, bleeding from the wound.
2. Lacerated penerating wound 1 x 0.5 c.m. On left buttock 2 c.m. From midline at about the level of lower pole of sascrus D.N.P with corresponding hole in Shalwar. Margins of the wound oral inverted and lacerated.
5. Thereafter on 11-12-1996 Doctor had declared those injuries as Jaifa under section 337-D, P.P.C.
Respondent was arrested in this case on 12-9-1996. He led to the recovery of pistol P.1 vide memo.
Exh.P.0 from a room of his house. During the course of investigation blood-stained clothes of injured Muhammad Umar were taken into possession Vide memo. Exh.P.O. The Investigation Officer after registration of F.I.R. Also prepared site plan without scale Exh.P.F. He also got prepared site plan of recovery Ex.P.E. He challaned the respondent after completing the investigation.
6. Prosecution in order to prove its case has produced as many as 7 witnesses including eye- witnesses namely Muhammad Umar the complainant injured P.W. And his brother Muhammad Younas. Muhammad Yaseen the third brother of the injured was given up as being unnecessary, while Muhammad Ilyas and Ashfaq were given up by the Inspector Legal as having been won over.
The doctor who had conducted the medical examination has appeared as P.W.7 whose name is Dr. Fawad Mumtaz, Staff Officer to Chief Executive, Mayo Hospital, Lahore. Learned public prosecutor did not tender in evidence the report of the Fire-arm Expert and closed the prosecution evidence., Thereafter the statement of respondent was recorded under section 342, Cr.P.C. He did not opt to produce any defence evidence either in the form of any witness or any document in this regard. He also did not appear as his own defence witness as required under section 340(2), Cr .P. C
7. Learned counsel for the appellant has read before me the prosecution evidence and submits that in the instant case two eyewitnesses namely Muhammad Younas and Muhammad Umar (injured P.W.) had appeared. The Doctor Fawad Mumtaz had appeared as P.W.7 before the trial Court who conducted the medical examination on the person of Muhammad Umar P.W. That ocular account is corroborated by the medical evidence, that pistol was also got recovered from the respondent, that there was no reason to falsely implicate the present respondent in this case, that the reasoning given by the learned trial Court is totally wrong which he made for,the acquittal of the respondent.
8. On the other hand learned counsel for the respondent submits that there was no notice on the part of the respondent to have caused injuries on the person of Muhammad Umar P.W., that there is conflict between ocular account and the medical evidence, that the two independent witnesses namely Muhammad Ashfaq and Muhammad Ilyas have been given up by the prosecution. The presumption is that had they been produced by the, prosecution they would not have supported the prosecution case. He submits that both these witnesses have also made statements under section 164, Cr.P.C. In which they had exonerated the present respondent. Adds that Doctor had stated in cross-examination that injury on the person of injured P.W. Could be caused by 7 mm rifle.
He further submits that in the F.I.R. It was stated by the complainant that he received two injuries on his buttock while there is one injury on his buttock and other injury is on the front side near his testicles. He submits that prosecution has failed to prove its case against the present respondent.
He defends the order of the learned trial Court. He has also relied upon 1999 SCM R 40 and 2000 SCM R 1058. He submits that in number of such like cases where an acquittal has taken place by any competent Court of law then for converting the same into conviction there should be very special circumstances. Order of acquittal cannot be converted into conviction unless the same is perverse, fanciful or against the record.
9. No one has entered appearance on behalf of the State.
10. I have heard the learned counsel for the parties at a great length, I have also gone through the evidence with their assistance. In the instant case the motive behind the present occurrence was that prior to the present occurrence, Haji, Akbar, Shahid Nazir Butt and Mehar Jehangir alias Sando were involved in case under sections 324/148/149, P.P.C. Vide F.I.R. 'No,87 of 1996 registered in Police Station Harbanspura Lahore on 29-4-1996 for causing injuries on the person of Muhammad Azam the real brother of Muhammad Umar injured complainant. These three persons were also mentioned as abetters along with respondent Ehsan alias Qadri but they were not challaned in this case. It is an admitted fact that complainant/appellant had no enmity whatsoever against the present respondent. Not a single suggestion in this regard has been made by the defence counsel during the trial. So there is no question of false implication in this case. Muhammad Yaseen eye- witness who took the injured to the Hospital was real brother of an injured P.W. He was given up by the prosecution as unnecessary. As far as Muhammad Ashfaq and Ilyas P.Ws. Were concerned they were given up as having been won over. No prosecution in this regard. Learned counsel while arguing the case before me had stated that they had also made statements under section 164, Cr.P.C. Exonerating the respondent. These statements were , never' tendered or produced before the learned trial Court neither the Magistrate who had recorded these statements was produced nor Muhammad Ilyas and Muhammad Ashfaq were produced by the respondent as defence witnesses. These statements are also not the part of the judicial record of this case. The star witness in this case is Muhammad Umar, the complainant and injured P.W. The occurrence had taken place at 10-30 p.m, complaint was recorded in the Emergencey Ward of Mayo Hospital, Lahore, where complainant was got admitted by his brother, on 12-45 p.m. The formal F.I.R. Was recorded in the Police Station Harbanspura, Lahore on the same night at 4-45 a.m. Respondent is the only accused in this case. There are two injuries on the person of the injured P.W. If the complainant wanted to falsely implicate he could have implicated another person as accused alongwith the respondent because there was scope in this regard. As far as contradiction, as stated by the learned counsel for the respondent between ocular account and medical evidence is concerned, it may be stated here that Muhammad Umar complainant was cross-examined by the learned counsel of the defence on 15-2-2000 and he himself got proved through cross- examination that there were two injuries on his person, one, on his buttock and other one near his testicles. As far as statement of P.W.3 recorded in Urdu is concerned, I would like to refer the same below:- {{URDU TEXT}} This contradiction as himself been clarified and explained by the learned counsel for the defence.
As far as argument of the learned counsel for the respondent, that Doctor Fawad Mumtaz, during cross-examination had stated that the injuries on the person of Muhammad Umar could have been caused by 7 mm rifle is concerned, it is merely an opinion in the air. The injured P.W. While recording the complaint which formed the basis of F.I.R. Never stated that with which weapon the respondent was armed but the word used was (fire-arm). Muhammad Umar is star witness of the prosecution case.
' Respondent is only accused in this case. There is no question of substitution and there is no question of false implication of respondent in this case. I have gone through the order of the learned trial Court. The reasoning given by the learned trial Court is against the record and perverse. No sound reasoning have been given by the learned trial Court for disbelieving the statement of Muhammad Umar P.W. Through unrelated witnesses have not been produced in this case and two real brothers Muhammad Umar complainant injured P.W. And Muhammad Younas real brothers have been produced but they cannot be termed as interested witnesses because the definitions of the interested witness is that he is not only related- to complainant or the deceased but he should also be inimical towards the accused person which fact is not present. As has been observed above that there was not an iota of evidence on the record that the present appellant had any or hostility against the respondent. Recovery of weapon was also affected but no crime empty was recovered from the spot. According to the report of Fire-arm Expert which is on judicial record, the weapon got recovered from the respondent was ,in working condition. Judgments cited by the learned counsel for the respondent are not applicable in this case. The ocular account in this case is fully corroborated with medical evidence. I have no hesitation in my mind to state here that it was the respondent who caused injuries on the person of the present appellant. Prosecution has proved its case against the respondent to its hilt and beyond any shadow of doubt. In this view of the matter, order passed by the learned Magistrate section 30 on 13-6-2000 is set aside and respondent is convicted as ander:- ' He is convicted for attempting Qatle-amd under section 324 P.P.C. And is sentenced to undergo 7 years R.I with a fine of Rs, 30,000 or in default six months R.I.
' As far as injury caused to the injured P.W. Muhammad Umar is concerned, that was declared by Doctor Fawwad Mumtaz, as Jaifah, punishable under section 337-D, P.P.C. Operation in this regard was also conducted on the person of injured Muhammad Umar and i,e, Exh.P.G/1, so respondent is also convicted under section 337-D, P.P.C. And is sentenced to undergo 7 years' R.I with further direction to pay Arsh amounting to 1/3rd of Diyat, prevalent at the time of occurrence.
' Respondent is already in custody as per direction of this Court because he was not appearing before this Court. He shall be sent to the judicial lock-up to serve out his sentence. All the sentences are ordered to run concurrently with the benefit of section 382-B , Cr.P.C. As per announcement today.