ATTA MUHAMMAD Versus State

1. RAHMAT HUSSAIN JAFFRI, J.--- Brief facts giving rise to the present appeal are that on 21-2-2000 at 9-00 a.m. complainant Imdad Hussain was going to Pir Koko mountain on a bicycle when he was intercepted by the appellant and two unknown persons armed with pistol and Lathi who had muffled their faces. The appellant was armed with rifle. They were standing on the road while standing there, the appellant fired three shots at the complainant out of them two were missed but the third fire could not be fired from the rifle because the bullet was jammed in it. The complainant raised cries on which P.Ws. Mureed Hussain and Manzoor came. They challenged the accused and thereafter they ran away. The complainant went to village to inform his Nek Mard, who directed him to lodge report, therefore, he went to police station and lodged the F.I.R. at 4-30 p.m.

2. The police reached the place of incident, secured two empty bullets, arrested the appellant and secured his licenced rifle from his possession. After completing the usual investigation the appellant was challaned in the Court.

3. The learned 1st Additional Sessions Judge tried the appellant, convicted him for offence punishable under section 324, P.P.C., sentenced him to suffer R.I. for three years and fine of Rs.5,000 or in default thereof to suffer R.I. for three months. The appellant was further convicted for offence punishable under section 504, P.P.C. and sentenced to suffer R.I. for one year. All the sentences were ordered to run concurrently under the impugned judgment, dated 22-12-2000.

4. I have heard the Advocate for the appellant, State Counsel and perused the record of this case very carefully. The latter has not supported the impugned judgment

5. At the trial the prosecution examined four witnesses P.W. 1 was complainant Imdad, he gave the same details of the incident as mentioned in the earlier part of the judgment. In cross-examination he admitted that the appellant appeared from babul trees which were at the distance of 20-25 paces; that the appellant fired first shot when he was on bicycle and then he fell down; that the appellant fired from a distance of 20-25 paces; that the P.Ws. attracted within 2-3 minutes of the fire-arm shots; that he went to police station at 10-00 a.m. for lodging the F.I.R.; that the police visited the scene of incident on the third day of the incident and that the police recorded the statement of P.Ws. on the day of the incident.

6. The statement of the complainant on material particulars has not been supported and corroborated, by only eye-witness Manzoor Hussain who is cousin of the complainant as he disclosed that on the day of incident he along with Mureed were going to mountain when he saw the appellant firing at the complainant. In the cross-examination he admitted that two persons, who had muffled their faces were not armed with any weapon; that the appellant firing at the complainant from a distance of 40-50 paces; that the other culprits were at the distance of 15-20 paces from the appellant. The third witness Mureed has not been examined who is an independent witness thus, the statement of complainant and Manzoor is neither supported nor corroborated by Mureed Hussain. The contradiction mentioned above carries weight, because of the fact that there is delay in the lodging of the F.I.R. as the incident took place at 9-00 a.m. and report was lodged at 4-30 p.m. The complainant admitted that he went to his Nek Mard Ghous Bux who advised him to lodge the report and then at 10 a.m. he went to police station for lodging the report. Thus there is no explanation of the complainant in between 10-00 a.m. and 4-30 p.m. Thus unexplained delay caused serious doubt about the prosecution story keeping in view the material contradiction in the evidence and non-examination of Mureed. Further the statement of complainant is also not supported by his Nek Mard Ghous Bux as he has not been examined.

7. The complainant further stated that the statements of witnesses were recorded on the day of the incident but his statement was neither supported nor corroborated by the Investigating Officer as he stated that he recorded the statements after about 2-3 days of the incident. Thus, there is unexplained delay in recording the statements which also affect the veracity of the witnesses.

8. As regards the place of firing by the appellant, the complainant alleged that the firing was made from 20-25 paces from him whereas P.W. Manzoor deposed that it was made from 40-50 paces. The complainant alleged that fire was made when the appellant was on the road whereas the Mashir disclosed that the empty bullet shells were secured from Babul trees. Thus, on this point also the statement of the complainant is also not supported with regard to actual place of appellant.

9. As regards the arrest of the appellant the Mashir deposed that he was arrested from road while he was going whereas the Investigating Officer P.W.4 deposed that he was waiting for a bus. The crime-empties and rifle allegedly secured from the appellant were not sealed. They were also not sent to Ballistic Expert to ascertain as to whether the licensed rifle of the appellant was used in the commission of crime.

10. After considering the material available on record, I am of the considered view that the prosecution has failed to prove the case against the appellant beyond any reasonable doubt therefore, he is entitled to the benefit of doubt which was accordingly given to him at the time of passing short order, dated 6-7-2007 by which I had allowed the appeal. These are the reasons of the said short order.

11. N.H.Q./A-9/K ???????????????????????????????????????????????????????????????????????????????????? Appeal accepted.