1989 P Cr (PLP)

This criminal appeal arises from the judgment of learned Magistrate Section 30, Bahawalnagar, whereby he on 27‑4‑1988, while acquitting four co -accused namely Naseer Ahmad, Muhammad Yousaf, Muhammad Hussain and Muhammad Ashraf, convicted Shahid Mehmood and Shafqat Javed appellants under section 307/452/34, P.P.C. and sentenced them to 5 years' R.I. each and a fine of Rs.2,000 in default thereof 6 months' S.I. each under section 307/34, P.P.C. and 2 years' R.I. each under section 452, P.P.C. with tae direction that the sentences shall run concurrently.

2. The charges against the appellants and their co-accused were that they after having made preparation to cause hurt, criminally trespassed into the house of Safdar Hussain P.W.2, and fired shot hitting Muhammad Asif P.W.4 on his right knee. They denied the charges and claimed to be tried.

3. To prove its case, prosecution produced 8 witnesses. Dr. Javed Iqbal P.W.8 medically examined Muhammad Asif P.W. on 30‑6‑1986 and found following injuries on his person: (1) "A circular lacerated wound 5 x 5 c.m. x skin deep in front of right knee with a circular ring of black marking around injury No.1 on Shalwar with clotted blood in the wound. (2) A circular lacerated wound .7 x .7 c.m. x skin deep on lateral aspect of right knee 3 c.m. lateral to injury No.1 with ring of black marking around injury. There was a corresponding hole on Shalwar with clotted blood in the wound." The injuries were caused by fire‑arm and were simple in nature. Safdar Hussain P.W.2 and Muhammad Asif P.W.4 have given the ocular account of the occurrence. Muhammad Asif P.W.4 stated that the appellants alongwith 4 acquitted accused had entered into the house of Safdar Hussain. Shahid Mehmood fired shot aiming at Safdar Hussain. The shot missed and instead hit him. According to him Shafqat Javed was carrying stick with him. It may be noted here that Shafqat Javed had not caused any injury with the stick to anyone. Safdar Hussain P.W.2 supported Muhammad Asif P.W.4. On 10‑7‑1986 Shahid Mehmood, Shafqat Javed were arrested by Sana Ullah S.I. P.W.7. On the same day, he led to the recovery of pistol Exh.P.l from his house which was taken into possession vide memo. Exh.P.B. attested by Khadim Hussain P.W.3 and Muhammad Shari (not produced). The recovery was effected by Sana Ullah S.I. P.W.7. The rest of the evidence is of formal nature.

4. When examined under section 342, Cr.P.C. the appellants denied all the incriminating circumstances. Muhammad Hussain acquitted accused gave evidence on oath in disproof of the charges against him. No other witness was produced in defence.

5. Believing the ocular evidence furnished by the two aforesaid eye witnesses, the trial Court has convicted and sentenced the appellants as stated above.

6. Learned counsel for the appellants submits that the prosecution has failed to prove its case beyond reasonable doubts; that the statements of the two eye‑witnesses have not been acted upon against the 4 acquitted accused; that the statement of Safdar Hussain was recorded 22 days after the occurrence; that without recording examination‑in‑chief, the trial Court allowed the learned counsel for the appellants to cross‑examine him and that the statements of the 2 eye‑witnesses suffer from contradictions. Learned counsel for the State has supported the judgment of the trial Court.

7. I have considered the submissions made by the learned counsel for the parties with care. I feel persuaded to agree with the learned counsel for the appellants. The record of the trial Court shows that examination‑in‑chief of Safdar Hussain P.W.2 was not recorded by the trial Court and he was simply cross‑examined by the defence counsel. It seems to me that when he appeared before the Court, he was allowed to be cross‑examined by the defence counsel under the impression as if his examination‑in‑chief had already been recorded and as such, the statement made by him in cross‑examination cannot be termed as legal evidence because the evidence includes examination‑in‑chief and as well. After having excluded the statement of Safdar Hussain from consideration, their remains statement of Muhammad As if P.W.4, the injured witness in field. I rind that he had implicated six persons in the occurrence out of whom four have been acquitted; that he has given self‑contradictory statement, inasmuch as, he stated that Shafqat Javed was armed with a stick but subsequently he stated that Shafqat Jared had been firing during the occurrence. On careful examination of his statement I feel that he is not a dependable witness and as such rule of prudence requires independent corroboration of his statement qua the appellant which is not available. Pursuant to the above discussion, the appeal is allowed and while giving benefit of doubt to the appellants, they are acquitted of the charges. Shahid Mehmood shall be released forthwith, if not required to be detained in some other case and Shafqat Javed stands discharged of the bail bonds. SA./S‑372/L Appeal accepted