2004 PLP 1609 (YLR)

2. Brief facts of the case are that Allah Wasaya complainant got lodged F. I. R. No.241 of 1998, dated 15‑10‑1998 against the petitioner at Police Station Kala. District D.G. Khan under section 324/34, P.P.C., in which, he alleged that on the same day at about 8‑00 a.m. he alongwith his brother Bashir Ahmad, Manager, U.B.L., Branch Kala was sitting in front of' Al‑Farooq Electric Store. All of a sudden, the present petitioner Muhammad Farooq alias Farooqi armed with pistol .30 bore alongwith Yaqoob Ali armed with rifle appeared there. Both of them gave a threat to Bashir Ahmad brother of the complainant and declared that they would teach him a lesson for involving in a theft case of pesticides. On this Muhammad Farooq alias Farooqi fired with his pistol hitting on the right side of hip of Bashir Ahmad. Bashir Ahmad fell down and became unconscious. Occurrence was seen by Ghulam Shabbir and Khaliq Javed alongwith other villagers, who also tried to catch hold the accused persons but they threatened them with dire consequences. Motive behind the occurrence was that the pesticides of the complainant and his brother were stolen from their shop and a suspicion was shown on Muhammad Farooq alias Farooqi.

3. On receipt of the report under section 173, Cr.P.C. learned trial Court supplied the copies of the statements of witnesses recorded under section 161, Cr. P.C. as well as other documents required under section 241‑C, Cr.P.C. and framed the charge against the petitioner which was denied by him and he claimed to be tried.

4. The prosecution in order to prove the guilt of the accused/petitioner produced as many as 6 witnesses.

5. Allah Wasaya complainant P.W.1 appeared and supported the prosecution version while injured Bashir Ahmad appeared as P.W.2 and also supported the prosecution case. Ghulam Shabbir is another eye‑witness, who appeared as P.W.3 and P.W.4‑Dr. Amjad Ali had medically examined the injured P.W. while Abdul Kareem‑P.W.5 had recorded the F.I.R. and P.W.6‑Bashir Hussain had investigated the case.

6. After the conclusion of prosecution evidence, statement of accused/petitioner was recorded under section 342, Cr.P.C., in which, he had denied the allegations.

7. Learned counsel for the petitioner contends that both the impugned judgments are based on surmises and conjectures being not supported by the evidence on the record. It is further contended that both the Courts below have failed to appreciate the evidence though the prosecution evidence was not sufficient, to connect the petitioner with the commission of crime. It is also contended that the accused/petitioner was Charged under section 324, P.P.C. and the learned Additional Sessions Judge has committed material illegality by convicting the appellant under section 337‑F(v), P.P.C. as the charge had not been framed under the same provisions and the case of the petitioner has been prejudiced, who is liable to be acquitted.

8. On the other hand, learned counsel for the State opposes this petition on the ground that both the judgments are based on evidence on record and no illegality has been committed by both the Courts below.

9. I have heard the learned counsel for the parties and also perused the record. Bashir Ahmad injured P.W.2 has categorically stated that he alongwith his brother was sitting in front of Al‑Farooq Electric Store when the petitioner alongwith his co‑accused came there and fired straight at him. He was subjected to lengthy cross examination. He had also supported the motive part in the evidence. He also stated that due to the injury received by him he is unable to move as his hip bone was fractured. Similarly P.W.1 has fully supported the prosecution case. Ghulam Shabbir who is another eye‑witness had also A made a statement in line with the statement of injured P.W. There is nothing on the record to show that all the three witnesses had any motive or grudge to falsely implicate the petitioner in the present case. There is no previous enmity between the parties. Though the P.Ws. are related with each other yet mere relationship is not sufficient to declare that the witnesses are interested witnesses unless the witnesses had any motive to falsely implicate the accused.

10. Dr. Amjad Ali, Medical Officer District Health Unit while appearing as P.W.4 supported the ocular account A regarding the seat and nature of injuries caused by fire‑arm. It was kept under observation for X‑Ray and according to X‑Ray report (Exh.P.A.) the hip bone was broken. In such circumstances, I do not find any illegality in the impugned judgments committed by both the Courts below as both the Courts have considered the evidence on the record.

11. The objection raised by learned counsel for the petitioner that the learned Appellate Court could not convict the petitioner under section 337‑F(v), P.P.C. is misconceived as it has been specifically provided under section 324, P.P.C. itself that:‑‑ ".... if hurt is caused to any person by such act, the offender shall in addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused." Moreover under section 237, Cr.P.C. the accused charged with one offence can be convicted under another. Admittedly, offence under section 337‑F(v), P.P.C. provides lesser punishment than offence under section 324, P.P.C. Thus, no illegality has been committed.

12. However, as the petitioner is facing the agony of trial since 1998 and has already served out more than two and a half years in jail as under trial prisoner and after his conviction it will not be in the interest of justice to send him in jail for serving out the remaining sentence. However, the direction of payment of Arsh amount equivalent to 1/3rd of Diyat amount is maintained.

13. For the foregoing reasons the impugned judgments of conviction are maintained but the sentence of imprison ment is reduced to the same period already undergone by him in jail in this case. However, the amount of Arsh shall be payable to the injured P.W., in default whereof the petitioner shall be sent to jail and treated in accordance with law. The petitioner is presently on bail as his sentence was suspended by this Court vide order dated 28‑8‑2001. The learned trial Court shall take necessary steps for recovery of Arsh amount from the petitioner and its payment to the injured P.W. H.B.T./M‑116/L Order accordingly.