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Criminal Appeal No. 120 of 1983, decided on 3rd April, 1985.

‑‑‑S. 307‑‑Conviction of accused challenged on ground that ocular evidence was discrepant‑‑Only discrepancy pointed out between evidence of complainant and injured prosecution witness not found to be material‑ At time of recording of evidence injured prosecution witness was seriously ill‑‑Statement of such witness indicating that it was difficult for him to remember facts and he could not answer some questions on account of lapse of memory‑‑Such discrepancy, held, not material and not effecting merits of case in circumstances.

‑‑‑S. 307‑‑Medical evidence‑‑Injured prosecution witness having two fire‑arm injuries on his person‑‑One of such injuries having a blackening whereas other having no blackening around it‑‑Site plan indicating that injured was fired at by accused within a distance of eleven feet‑ Held, presence of blackening on one injury lending support to testimony of injured prosecution witness and in no way contradicting ocular account‑‑ Distance between, victim and accused might have increased at time of second fire and as such no blackening on second injury was found‑‑No conflict between medical evidence and ocular account, therefore was found in circumstances.

‑‑‑S. 307‑‑Eye‑witnesses though related inter se, having absolutely no enmity or motive to falsely implicate accused‑‑Site plan prepared and produced by accused not helping his case‑‑Other documents produced by accused in his defence also not helping him‑‑F.I.R. lodged promptly and there being no chance of substitution of accused for real culprit by injured prosecution witness‑‑Occurrence taking place during day time‑‑One of injuries was caused to injured prosecution witness from a close range as such he was in a position to identify his assailant‑ Conviction of accused maintained in circumstances.

‑‑‑S. 307‑‑Document produced by accused in his defence only proving previous conviction of injured prosecution witness and eye‑witness under Arms Ordinance, Excise Act and under S. 411, P.P.C.‑‑Said convictions of both prosecution witnesses about a few years before occurrence, held, would not mean that they have falsely implicated accused.‑ [Witness].

(e) Penal Code (XLV of 1860)

‑‑‑S. 307‑‑Sentence‑‑Accused firing at injured prosecution witness twice causing grievous and dangerous to life injuries on his person‑‑Prayer for reduction of sentence of 7 years disallowed in circumstances Benefit of S. 382‑B, Cr.P.C. however, was given to accused.

Muhammad Sharif Butt for Appellant.

Rana Abdullah Khalid, for A.‑G. for the State.

Sardar Ata Ullah for the Complainant.

Date of hearing: 3rd April, 1985.

This is an appeal by Muhammad Ayub (23) against his conviction under section 307, P.P.C. by Mr. Fakhar Hayat, Senior Civil Judge with powers under Section 30, Bhakkar, vide judgment, dated 3‑3‑1984 for which he was sentenced to seven years' R.I. and a fine of Rs.5,000 or in default six months' R.I. Ghulam Rasool complainant filed Criminal Revision No. 577 of 1984, for enhancement of sentence which was ordered to be heard alongwith the appeal.

2. The occurrence in this case took place at 11‑00 a.m. on 19‑4‑1980, in the field of Kunja P.W. in village Awanwala, within the area of Rakh Mahota, about 18 miles from Police Station, Darya Khan, District Bhakkar. The case was registered vide formal F.I.R. Exh. P.B/1, at 1‑30 p.m. by M.H.C. Ghulam Abbas (not examined) on the basis of statement Exh. P. B. by Ghulam Rasool P. W.3 recorded by S.I. Muhammad Yaseen P.W.11, at 12‑30 p.m., at Adda Barkatwala. Ghulam Rasool P.W. in his statement Exh. P.B. stated that Muhammad Ayub accused had received Rs. 5,000 on credit from his brother Fateh Sher P.W., about one year before the present occurrence for setting up a medicine shop in Darya Khan. He did not return the said amount and as such, a day before the occurrence, he alongwith his brother Fateh Sher P.W. went to Ayub accused and demanded back the said amount. The accused asked them to come to their land in Rakh Mahota next day where he will pay the amount to them. It was further stated by him that on 19‑4‑1980, at about 11‑00 a.m., he alongwith Fateh Sher P.W. and Manzoor P.W., was proceeding to Rakh Mahota. When they were near the land of Kunja P.W., suddenly Ayub accused got up from the nearby wheat crop and fired two successive shots at Fateh Sher P.W. He was injured. He fell down and the accused ran away from the spot. The occurrence was witnessed by the complainant, Manzoor P.W. and Kunja P.W. Leaving Fateh Sher P.W: at the spot in the care of the witnesses, Ghulam Rasool went towards Police Station Darya Khan. He met S.I. Muhammad Yaseen P.W.11, at Adda Barkatwala and made statement Exh. P.8.

3. The police undertook investigation after registration of the case. The accused absconded after the occurrence. He was arrested on 9‑2‑1981 whereafter on 10‑2‑1981, he led to the recovery of revolver P.2 which was taken in possession vide memo. Exh. P.B. by H.C. Saif Ullah P.W.2 in the presence of Muhammad Tufail P.W.4 and F.C. Muhammad Hussain. Muhammad Yaseen P.W. after recording of the statement Exh. P.B., went to the spot and collected blood‑stained earth vide memo. Exh. P.C. He sent Fateh Sher P.W. for medical examination which was conducted by Dr. Muhammad Aslam on 19‑4‑1980 at about 4‑10 p.m. The Medical Officer noted two injuries on the person of Fateh Sher. Injury No.1 was a fire‑arm wound of entry 3/4 c.m. in diameter on the right side of the front of chest 6 c.m. above and lateral to the right nipple. The margins of this wound were blackened. The second injury was a fire‑arm wound 3/4 c.m. in diameter on the upper eye‑lid of left eye, which was congested and bruised. Both these injuries had been caused by fire‑arm, were kept under observation and were of within six hours' duration. The same Medical Officer after x‑ray found injuries to be grievous and dangerous to life.

The accused was challaned after completion of the investigation.

4. The prosecution, during the trial, examined 11 witnesses in all. Ghulam Rasool P.W.3, Fateh Sher injured P.W.6 and Manzoor Hussain P.W.7 supported the prosecution case by furnishing ocular account of the occurrence. Kunja P.W.8, an eye‑witness, did not support the prosecution and was declared hostile. Dr. Muhammad Aslam P.W.4 furnished medical evidence in this case. H.C. Saif Ullah P.W.2 and Muhammad Tufail P.W.4 supported the recovery of revolver P.2. The case was investigated by S.I. Muhammad Yaseen P.W.11.

The accused when examined under section 342, Cr.P.C., denied recovery of revolver P.2 and attributed this case on account of enmity. It was stated by him that he was employed in Army and was arrested during training from Attock Centre. He examined Faiz Muhammad D.W.1 who had prepared the site plan Exh. D.F. of the place of occurrence at the instance of the accused. He stated that no path passed from near the place of occurrence. The learned counsel for the accused tendered in evidence documents Exh. D.A. to Exh. D.E.

The learned trial Judge placed reliance on the evidence of the eye‑witnesses and convicted the accused as stated above.

5. I have gone through the evidence on record of this case with the assistance of the learned counsel for the appellant as well as the State. It is contended by the learned counsel for the appellant that the two eye‑witnesses were related to Fateh her injured P.W. and therefore, no reliance should be placed on their evidence. It was contended that the eye‑witnesses were discrepant in their statements during the trial. I have carefully gone through the evidence of Fateh Sher injured P.W.6, Ghulam Rasool P.W.3 and Manzoor Hussain P.W.7. The only discrepancy pointed out by the learned counsel between the evidence of Ghulam Rasool P.W.3 and Fateh Sher P.W.6 was that according to Ghulam Rasool, they had gone to Ayub accused a day earlier at about 8‑00 a.m. but according to Fateh Sher, they had gone there at 1‑00 p.m. I do not find it a material discrepancy. The record indicates that Fateh Sher P.W. was seriously ill at the time his statement was recorded during the trial. He was brought on a cot. His statement indicates that he could remember facts with difficulty and could not answer a few questions on account of lapse of memory. This discrepancy is, therefore, not material and does not affect the merits of the case. Kunja P.W. was declared hostile. I have considered his evidence and in my view, he has been won over by the accused and therefore, did not support the prosecution case. It was next contended by the learned counsel for the appellant that Fateh Sher P.W. stated that the Investigating Officer recorded his statement at the place of occurrence but the said statement is not forthcoming. In my view, Fateh Sher P.W. was not clear about the said statement in his mind on account of his illness. It was vehemently argued by the learned counsel for the appellant that the medical evidence did not support the ocular account because injury No.1 had a blackening whereas injury No.2 had no blackening around it. The site plan indicates that Ayub accused had fired at Fateh Sher from a distance of about two Karams i.e. within distance of eleven feet. Thus the presence of blackening on injury No.1 lends support to the statement of Fateh Sher and in no way, contradicts the ocular account. The distance between the injured and the accused might have increased at the time of second fire as a result of which there was no blackening on injury No. 2. In my view, there is no conflict between the medical evidence and the ocular account. The eye‑witnesses though related inter se had absolutely no enmity or motive to falsely implicate Ayub accused in the instant case. I have gone through the evidence of Faiz Muhammad D.W.1. The plan Exh. D.F. prepared by him was of no help to the accused. The documents Exh. D.A., Exh. D. B., and Exh. D.E. only proved previous conviction of Fateh Sher P.Ws. in Arms Ordinance case, Excise Act case in the year 1976 and in a case under section 411, P.P.C. in the year 1973. The document Exh. D.C. indicates that Ghulam Rasool P.W. was convicted in an Arms Ordinance case in the year 1978. Even if Ghulam Rasool and Fateh Sher P.Ws were convicted about a few years before the present occurrence, that would not mean that they falsely implicated Ayub accused in the instant case. The F.I.R. was lodged without any delay and it cannot be said that the present accused was substituted for the real culprit by at-least Fateh Sher injured P.W. The occurrence took place during day time. One of the injuries was caused to Fateh Sher from a close distance. He was, therefore, in a position to identify his assailant.

6. In view of the above, I find no merits in this appeal which is accordingly dismissed.

7. The learned counsel after full arguments in the appeal stated that he does not wish to challenge the conviction of the appellant and prayed for reduction in his sentence. I have considered this aspect of the case as well. Ayub accused fired twice at Fateh Sher P.W. causing grievous and dangerous to life injuries on his person. I, therefore, do not consider it a fit case for reduction in sentence. As such, the conviction and sentence of the appellant is maintained. The appellant will, however, be given the benefit of section 382‑B, Cr.P.C. at the time of computation of his sentence in prison.

8. In view of the above, Criminal Revision No.577 of 1984 is dismissed in limine.

M. A. K.

Revision dismissed.

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