' KHAWAJA MUHAMMAD SAEED, J.---This appeal is directed against the judgment of the Shariat Court dated 26-7-2002.
2. The present appeal is the outcome of F.I.R. No,141 of 1993 registered at Police Station Bhimber on 10-10-1993. In the report it was alleged by Muhammad Siddique, complainant, that he heard noise that Haji Muhammad Shafi is being beaten by the appellant Master Muhammad Siddique. He ran towards the place of occurrence. When he reached near the house of one Sheikh Asghar, he found Haji Muhammad Shafi lying in drain. One Maroof son of Barkat Ali and Muhammad Zafar son of Haji Aslam, were there; while the appellant had run away from the place of occurrence. Haji Muhammad Sahfi disclosed to the others that he was on his way to Mosque in order to offer 'Maghrib' prayer when appellant stopped him in the way and hurled a stone on his left shoulder and also gave him a fist blow on his nose. He thereafter fell down and became unconscious. He further told them that in the morning the daughters of the appellant Master Muhammad Siddique and one Jalal Din were abusing each other in presence of the appellant when he asked them not to abuse each other. Haji Muhammad Shafi told the complainant and others that perhaps on account of this reason the appellant felt his insult and committed the occurrence.
3. On the basis of this report a case under section 341. A.P.C. And section 15, I.P.L. Was registered against the convict-appellant. After completion of the investigation he was sent to face trial before Tehsil Court of Criminal Jurisdiction Bhimber on 12-1-1994 vide challan number 6/94. At the end of the trial, the Tehsil Criminal Court vide this judgment dated 22-9-2001 convicted the appellant and sentenced him to Rs,500 fine under section 341, A.P.C. And in default of payment of fine to undergo 10 days simple imprisonment and under section 15, I.P.L. He was awarded the sentence of Rs,40,000 'Hakoomat-e-Adal'.
4. The appellant filed an appeal against the above-referred conviction order passed by Tehsil Criminal Court Bhimber before the District Criminal Court Bhimber. The said Court partly allowed the appeal and set aside his conviction under section 341, A.P.C., however, maintained the sentence of Rs,40,000 'Hakoomat-e-Adal' under section 15 I.P.L. Vide its judgment dated 31-1-2002. The appellant deposited Rs,40,000 in Tehsil Criminal Court, however, challenged the findings of District Criminal Court in appeal before the Shariat Court on 28-3-2002. A cross-appeal was filed by injured Muhammad Shafi on 6-5-2002, in the Shariat Court. As both the appeals were related to the same occurrence, therefore, were disposed of by the Shariat Court through a consolidated order dated 26-7-2002. The learned Chief Justice of the Shariat Court set aside the judgment of District Criminal Court. Bhimber and once again awarded the sentence of one month's simple imprisonment to the appellant with Rs,500 as fine for the offence under section 341, A.P.C. And directed that the amount of fine shall be paid to victim Haji Muhammad Shafi. The appellant was also convicted and sentenced to fine of Rs,1,00,000 as Hakoomat-e-Adar . Out of this amount the fine of Rs,20,000 was imposed for causing injury upon the head and Rs,80,000 for other tw'o injuries found on the person of victim Haji Muhammad Shafi. This judgment of the learned Chief Justice of the Shariat Court has been assailed before us in the present appeal.
5. Mr. Mujahid Hussain Naqvi, the learned counsel for the complainant, raised a preliminary objection that the appeal of the appellant in the present form is not maintainable as it has not been properly instituted. While elaborating his point of view he argued that under the Supreme Court Rules the appellant was required to append with his memo. Of appeal an affidavit. He cited Order 22, rule 13 of the Supreme Court Rules wherein it is laid down that provisions contained in the preceding order in this part of the rules shall, with necessary modifications and additions, apply even to criminal appeals. According to the learned counsel under. Order XIII, rule 3(iii) the appellant was bound to file affidavit in support of allegations of fact as prescribed by rule 4 of Order XVII. As no affidavit has been filed by him, therefore, without entering into the merits of the case the appeal is liable to be dismissed.
6. On the other hand, Ch. Muhammad Ibrahim Zia, the learned counsel for the appellant, argued that an affidavit has been filed by the appellant to testify that the true copy of appeal has been sent to respondents in a prepaid envelope with acknowledgement due. The affidavit was sworn at Muzaffarabad on 29-7-2002. He further argued that all the questions of fact which have been pressed in appeal by his client are borne out from the record of the case, therefore, even if affidavit is not filed it shall not make any difference. On facts of the case it was argued by the learned counsel for the defence that the prosecution has failed to prove any case against the appellants beyond shadow of doubt. According to him, interested witnesses were produced by the prosecution and no satisfactory explanation has been furnished for not, producing independent witnesses in support of the prosecution version. Alternatively he argued that the evidence given by the prosecution witnesses is full of discrepancies, moreover, inadmissible medical report and that statement of Medical. Officer, have been taken into consideration. In the light of these material facts, according to the learned counsel, his client is entitled to the benefit of doubt. He further, argued that it is an admitted fact on the record that parties were inimical to each other and on account of past animosity his client has been involved in this false case. He also criticised the conduct of the Courts below in placing reliance upon the statement, of Subedar Jalal Din who is the real brother of alleged victim Haji Muhammad Shafi and has introduced a new story. According to him, it was the legal rights of his client to Cross-examine the prosecution witnesses but in the absence of the learned counsel of his client the statement of Subedar Jalal Din was recorded, whom be refused to cross-examine due to the absence of his counsel. The learned counsel also placed reliance upon certain case-law in support of his contention wherein it is laid down that prosecution has to prove all the ingredients of the offence strictly to , exclude . The possibility of innocence of an accused.
7. On merits, Mr. Mujahid Hussain Naqvi, the learned counsel for Haji Muhammad Shafi, defended the judgment under challenge. He denied that there was any enmity between the parties.
According to him, his client was on his way to mosque. For 'Maghribi prayer when suddenly the convict appellant launched an assault upon him and caused injuries upon his person. He further argued that those who reached the spot due to the hue and cry of the 'victim were natural witnesses and were produced in the Court as P.Ws.. According to him, the appellant should have asked his counsel to remain present in the Court on the date fixed for recording the evidence of the prosecution witness Subedar Jalal Din. If the counsel of the appellant was not present before the Court on the date when this prosecution witness was produced before it then he should blame none but himself or his counsel. According to the learned counsel, even though Jalal Din, the prosecution witness, is the real brother of victim Haji Muhammad Shafi, but he has narrated the, true facts in the Court. The Courts below, therefore, were justified in law in placing reliance upon his statement. He also placed reliance upon. a case titled Noor Ahmed and. Others v. The State (1992 SCR 1), wherein it is laid down that no specific number of witnesses is necessary to prove a criminal case; solitary witness: is sufficient if his statement is corroborated by other circumstances.
8. We have considered the respective arguments of the learned counsel for the parties and minutely gone through the record of the case. In this case we have noticed that an affidavit of service effected upon respondents through registered A.D. Receipt is filed by the appellant. He has not filed any affidavit in support of the ground raised by .Him in his appeal. The appellant has raised some general grounds. However, some allegations of fact have been agitated in para C, D, E and G of the appeal.
9. In para (C) it is alleged by the appellant that in the light of the prosecution version the evidence of eye- witnesses was available but none of them was produced by the prosecution which makes the whole story of the prosecution concocted and false. In ground (0) it is alleged that the Courts below fell id error while placing reliance upon self-contradictory and inadmissible Medical Report as well as the statement of Medical Officer. In ground (E) it is alleged that the enmity between the parties was an admitted fact which was not taken into consideration by the Courts below; and in ground (G) it is alleged that the Court below have wrongly relied upon the statement of Subedar Jalal Din, who is the real brother_of injured person Muhammad Shafi. Moreover, it is alleged that the appellant was deprived of his legal right of cross-examining this witness.
10. Before going through the merits of the case it appears necessary to attend first the legal objection raised by the learned counsel for the complainant that without filing an affidavit as required by rule 4 of Order XVII of the Supreme Court Rules, the appeal is incompetent and liable to be dismissed on this ground. Order XIII rule 3, sub-rule (iii) of the Supreme Court Rules, 1978 is as follows:-- "The affidavit, in support of the allegations of fact prescribed by rule 4 of Order XVII is to be appended"
' Order XVII rule 4 reads as under:-- "A petition not relating, to any appeal of which the record has been registered in the Registry, and any other petition containing allegations of fact which cannot be verified by reference to the registered record of any certificate or duly authenticated statement of the Court appealed from, shall be supported by affidavit. Where the petitioner prosecutes his petition in person, the said affidavit shall be sworn by the petitioner himself and shall state that, to the best of the deponent's knowledge, information and belief, the allegations contained in the petition are true. Where the petitioner is represented by an Advocate-onRecord, the said affidavit may be sworn by such Advocate-on- ' Record, and shall, besides stating that to the best of deponent's knowledge, information and belief the allegations contained in the petition are true, show how the deponent obtained his instruction and the information enabling him to present the petition."
11. The appellant availed the right of appeal before this Court, therefore, in routine the record of the case as maintained by the Courts below was summoned. Muhammad Shafi, the injured person in the occurrence, has stated that the occurrence was witnessed by the wives of Muhammad Siddique and Headmaster Sohbat. Except these two ladies no other person was present at the place of occurrence. Both these ladies were neither cited nor produced in the Court as eye- witnesses of the occurrence, therefore, the allegation of fact pleaded by the appellant in para (C) that the eye-witnesses were available but none of them was produced by the prosecution is proved from the statement of Muhammad Shafi. Subedar Jalal Din in his statement has admitted that Muhammad Shafi in his real brother. He has disclosed himself to be an eyewitnesses. This witness was not cross-examined as, according to the appellant, his counsel was not available. The allegation of fact pleaded by the appellant in ground (G), therefore, is supported by the record.
From the statement of Subedar Jalal Din and Muhammad Shafi, the injured person, it becomes clear that the appellant and injured Muhammad Shafi due to quarrel of their ladies exchanged abuses in the morning, therefore, the allegation of fact that there was an enmity between the complainant party and the accused appellant is a fact proved on record.
12. In these circumstances as these were the only allegations of fact which are verified by the record, therefore, even if affidavit is not filed by the appellant that shall not make any difference in the present case. Under rule 4 of Order XVII the grounds taken in the petition or appeal which cannot be verified 'by reference to the registered record shall be supported by an affidavit to the effect that to the best of his knowledge, information and belief the allegations contained in the petition or appeal are true but if the petitioner or appellant is represented by an Advocateon- Record, the affidavit may be sworn by such Advocate-on-Record who besides stating that to the best of the deponents knowledge, information and belief, the allegation contained in the petition are true shall also deposed that how he obtained the instruction and information enabling him to present the petition or appeal from his client. In the present case as the allegations of fact are supported by the record, therefore, the preliminary objection has no bearing on the facts of the present case.
13. After deciding the preliminary objection we would like to attend the case against the appellant on merits. Muhammad Shafi, the injured person in the occurrence, has stated that the occurrence was witnessed by two ladies who were wives of Muhammad Siddique and Headmaster B Sohbat.
He has specifically stated that except these two ladies no other person was present at the place of occurrence. Both these ladies were neither cited as witnesses nor were produced by the prosecution. It is true that prosecution is not bound to produce all the persons who have seen the occurrence, as prosecution witnesses, however, if a material witness is withheld then the inference is to be drawn against the prosecution that such a witness was not supporting the case of the prosecution. Muhammad Siddique and Subedar Jalal Din both have narrated new story than the one which was narrated by injured Muhammad Shafi, therefore, their evidence does not provide corroboration to the statement of Muhammad Shafi. Moreover the statement of Muhammad Siddique is based on hearsay; therefore, the same to the extent of occurrence is inadmissible in evidence. He has also contradicted the F.I.R. Exh.'PA' which was lodged by him at Police Choki Ali Beg Certain material improvement, which were made by him in his Court statement, were put to him but no satisfactory explanation was furnished. Maroof Hussain was declared hostile however, from his statement it is clear that the complainant and the lccused party had exchanged hot words prior to the occurrence. He further stated that he heard the noise in the street which attracted him to the place of occurrence where he found Haji Muhammad Shafi in an injured condition and that he helped Haji Muhammad Shafi to reach his house. Subedar Jalal Din has given a different version which is in conflict with the statement of Muhammad Shafi and Muhammad Siddique. Another witness Ghulam Azam was also declared hostile. He is not the witness of occurrence. However, according to him, the parties are related to each other and belong to the same tribe. According to him, he was going to offer 'Maghrib' prayer when he found Haji Muhammad Shafi on the ground in an injured condition. Muhammad Yaqoob is the witness of recovery of the,apparels of Haji Muhammad Shafi which were stained with blood. According to him, these apparels were seized by the police from their house and the relevant documents were prepared tnere. So far as the medical evidence is concerned we have noticed that in the calendar of witness Dr. Maroof Hussain and then Dr. Arshid Mehmood were mentioned as P.Ws. Later on the name of Arshid Mehmood was erased and the name of Dr. Hamid Malik was substituted. Dr. Malik has stated that the injured person was neither admitted in the hospital nor it was necessary.
According to him, he has given the opinion about his injury on the basis of X-ray which was not appended by him with his Medical report nor is shown to him in the Court. According to him, he was not permanently posted in Panjari Hospital; rather in leave arrangement he was posted there.
On account of this reason initially he refused to give any medial report, however, later on under the order of D.H.O. He gave the report Exh.'P.J'.
14. We have noticed discrepancies in the statements of prosecution witnesses. We are quite clear in our mind that the fate of a criminal case does not totally depend upon the existence of discrepancies in the statements of prosecution witnesses, therefore, on the basis of contradictions in the statements of prosecution witnesses we don't think that this is a case of acquittal. In the light of the statements of prosecution witnesses the occurrence took place at 'Maghrib' time. How occurrence took place is a question which cannot be determined in the light of, the prosecution evidence because there is' no other evidence except the statement of Muhammad Shafi that he was on his way to offer 'Maghrib' prayer when appellant Master Muhammad Siddique stopped him in the way and hurled a stone on his left shoulder and also gave him fist blow on the nose. The first part of the statement is not supported by, any other witness, therefore, in our view, the learned District Court of Criminal Jurisdiction Bhimber was justified in law in passing order of acquittal of the appellant in offence under section 341, A.P.C. However, from the statements of other witnesses it is proved that Muhammad Shafi got injured on the day of occurrence. Material witnesses were two ladies but those were not produced by the prosecution. In ordinary law when E best evidence is not produced in the Court the inference is to be drawn against the party withholding such evidence.
However, all the witnesses have blamed the appellant that even after the occurrence he came out F with a hatchet from his house and started threatening Muhammad Shafi to dire consequences.
15. In the light of the peculiar facts of this case, in our view, the trial Court and the First Appellate Court had rightly awarded the appellant sentence of "Hakoomat-e-Adal' amounting to Rs,40,000, There was no justification for enhancing this amount from Rs,40,000 to 1,00,000. We, therefore, while partly allowing the appeal, set aside the order passed by the learned Chief Justice of the Shariat Court dated 26-7-2002, and restore the orders passed by Tehsil Criminal Court, Bhimber dated 22- 9-2001 and District Criminal Court, Bhimber dated 31-1-2002, whereby Master Muhammad Siddique was sentenced to 'Hakoomat-e-Adal' amounting to 'Rs,40,000, which amount he had already deposited in Tehsil Criminal Court, Bhimber. The amount of 'Hakoomat-e-Adal' shall be paid to the injured person Haji Muhammad Shafi.
Sentence reduced.