GUL ZAMAN Versus STATE

ALI HUSSAIN QAZILBASH, J.‑‑ This is an appeal by leave from the judgment of a learned Division Bench of the Peshawar High Court, dated 19‑5‑1982, whereby the State appeal against the acquittal of the appellants was accepted and they were convicted under section 307/34, P.P.C. and sentenced to three years' R.I. each and a fine of Rs.2,000 or in default to six months' further S.I. The fine on recovery was ordered to be paid to the complainant as compensation under section 544‑A, Cr. P. C.

2. The facts as given in the F.I.R. are that on 8‑1‑1977 at 8‑00 in the morning the complainant was present in his 'arhat' situate in Wand Bidyal, Police Station Kalu Khan, Tehsil Swabi, District Mardan, when Gul Zaman and Farhad appellants of village Yaqoobi arrived there duly armed with topaks and started cutting the 'pupa' of the complainant's field. When they were asked to refrain from doing so, both the appellants started firing with topaks at Muhammad Wahab complainant, as a result of which he was hit and fell down on the ground. Shamroz and Muqaddar Shah were present at the spot and had witnessed the occurrence. The motive given in the F.I.R. was dispute between the parties over the land situate in village Wand Bidyal .

3. Shamroz and Muqaddar Shah then took Muhammad Wahab, the injured P.W., to Police Post Yar Hussain, where the report was recorded at 10‑00 a.m. by Muhammad Iqbal A.S.I. by way of a Murasla which was later on sent to the police station where the formal F.I.R. Exh.P.A. was drawn. Muhammad Iqbal then proceeded to the spot, prepared the site plan and took into possession blood stained earth from the spot as per memo Exh.P.E. He also prepared the injury statement of the complainant Exh.P.C., took into possession three empty cartridges of .12 bore vide memo Exh.P and also took into possession blood‑stained shirt belonging to the complainant having corresponding cuts and a phial containing pellets. The complainant was sent to the hospital for medical treatment and after the completion of the investigation, the appellants were put to trial.

4. The trial in this case was conducted by Magistrate 1st Class with powers under section 30, Cr.P. C. Swabi. He recorded the statements of five witnesses including that of Lady Doctor Farkhanda Jadoon who examined Muhammad Wahab, the injured P.W., and found as many as four fire‑arm entrance wounds of various dimensions on different parts of the body of the injured P. W. She opined that the injuries on the person of Muhammad Wahab P.W. were grievous. The appellants though admitted their presence in their own 'arhat' adjacent to the spot but denied to have fired at the injured P.W. As to the recovery of three empty shells of .12 bore, eight pieces of cardboard and one spade from the spot besides the blood‑stained earth, they stated that the same was recovered from near the Burji situated in their field and as a matter of fact the complainant had started firing at them and thereafter they went towards their 'arhat'. Finally they deposed that they were innocent and had been falsely charged. The learned Magistrate vide his order, dated 21‑8‑1978, after considering the evidence acquitted the appellants by giving them the benefit of doubt. On appeal by the State in the High Court, the findings of the Magistrate were set aside and the appellants were convicted as stated earlier.

5. Leave in this case was granted to re‑appraise the ocular evidence.

6. We have heard the learned counsel for the parties and have gone through the evidence and the judgments of the Courts below and we find that the findings arrived at by the learned Appellate Court are unexceptionable. Admittedly, it is a daylight occurrence, the report of which was made without any delay. Since the parties are the residents of the same village, the question of mistaken identity of the assailants does not arise. Muhammad Wahab (P.W.1) is injured and his presence at the spot, therefore, cannot be questioned. Muqaddar Shah (P.W.2) is, of course, related to Muhammad Wahab, the injured P.W. , but there is nothing on the record to suggest that there was any acute enmity between the parties and, therefore, the appellants have been falsely implicated. There is nothing on the record either to doubt the presence of Muqaddar Shah P.W. at the relevant time. Both the witnesses have directly charged the appellants for firing at Muhammad Wahab effectively and this has been corroborated by the medical evidence in that Muhammad Wahab P. W . has as many as four fire‑arm entrance wounds of various dimensions on different parts of his body. The contention of the learned counsel for the appellants that motive has not proved is also incorrect inasmuch as both the witnesses had deposed that firing was made at the injured P:W. by the appellants as a result of dispute over cutting of 'pulla'. The perusal of the order of the learned Magistrate has revealed that he has misread the evidence in that his observation that self‑defence is preferable from the circumstances is neither discernible from the trend of cross‑examination of the witnesses nor from the statements of the appellants under section 342, Cr. P. C . This shows that he did not apply his mind to the facts of the case at all and thus has arrived at a wrong conclusion by ignoring the evidence in record.

7. As the record stands, we think the prosecution has established its case against the appellants beyond a reasonable doubt and the learned Judges of the High Court were justified in reversing the findings of the Magistrate. The appeal is thus dismissed.

8. The appellants are on bail. The bail order is recalled and they are directed to surrender themselves to the relevant authorities to undergo the remaining period of their sentence.

M.Y.H./G‑76/S Appeal dismissed.