Cr. Appeal No.58 of 2004.

Date of Hearing 26.03.09 & 07.04.2009.

Appellant Haji Gahno Gujjar through Mr. Amanullah          G. Malik, `advocate.

Respondent The State through Mr.Ali Haider          Dareshani, Advocate.

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JUDGMENT.

ARSHAD NOOR KHAN, J.- By this appeal, the appellant has challenged the judgment dated 31.5.2004 passed by the learned Assistant Sessions Judge, Ghotki in Sessions Case No.122 of 2001(State v Haji Gahno) whereby he has been convicted and sentenced under Section 337-F(i) and sentenced to suffer 5 years R.I and fine of Rs.16000/- as arsh and 5% of Dayat amount as well as 4 years conviction under Section 337-F(i) and fine of Rs.4000/- as daman and arsh amounting to Rs.20000/-, if recovered be paid to the injured and in default whereof it will be recovered as land revenue under Section 331(3), PPC.

The facts leading to the present application in brief are that on 20.6.1997 the complainant Muhammad Paryal was present at his house and his wife Mst.Shahzadi had some altercation with his mother, which annoyed to the appellant, who inflicted injury from the back side of the hatchet on the head of his wife Mst.Shahazadi and on intervention of the complainant he fled away from there by abusing him. The complainant therefore went to Police Station alongwith the injured, who had injury on her skull and blood was oozing from the said injury and the letter was given to him by the police officials for medical examination and he went to the hospital where she was provided medical treatment. Thereafter the FIR was registered on 8.4.2000. After usual investigation, challan against the appellant was sent in Court to stand trial. After receipt of the challan and compliance of Section 265-(c), Cr.P.C charge against the appellant was framed on 30.5.2001 vide Ex.2 to which he pleaded not guilty and claimed trial vide plea Ex.3. After framing the charge, the prosecution examined PW PC Hashim, who is the mashir of inspection memo of the injuries, who produced mashirnama of injury vide Ex.4-A. PW 2 Muhammad Paryal son of Raza Muhammad, who is also the complainant of the present case as Ex.5, who produced copy of FIR vide Ex.5-A. PW 3 Mst.Shahzadi wife of Muhammad Paryal vide Ex.6. PW 4 Mst.Hasina wife of Raza Muhammad vide Ex.8. PW 5 wrongly mentioned as PW 4 Muhammad Sharif I.O who produced the letter issued by the MLO vide Ex.9-A, inspection memo of the place of incident vide Ex.9(b). PW 6 Mukhtiar Ahmed SIP vide Ex.10. PW 7JUmo alias Jamaluddin vide Ex.11, PW 8 Dr.Ghulam Asghar MLO vide Ex.12, who produced the MLO vide Ex.12-A an the letter addressed to the SHO dated 27.6.2007 vide Ex.12(b), letter dated 15.3.2004 vide Ex.12(c). Prosecution closed its side, as such the statement of the appellant was recorded under Section 342(1), CR.P.C in which he denied all the allegation of the case of the prosecution and pleaded innocence.

After hearing of the learned counsel for the parties, the learned trial Court convicted and sentenced the appellant as stated above.

I have heard Mr.Amanullan Malik, learned counsel for the appellant and Mr.Ali Haider Dareshani, learned State counsel.

The learned counsel for the appellant vehemently contended that there is inordinate delay of about 3 years in registration of the FIR, which is very fatal to the case of the prosecution and that Mst.Hasina, who is mother of the complainant has not supported the version of the injured and that the medical evidence available on record, is contradictory to the ocular evidence available on record, which inflicting a major dent in the case of the prosecution and that there is enmity between the complainant and the appellant over the agricultural land as such the appellant has been implicated because of enmity just to grab his agricultural land by the complainant and learned trial Court wrongly convicted and sentenced to the appellant.

The learned State counsel vehemently refuted the arguments advanced on behalf of the appellant and has contended that the ocular evidence available on record, is fully substantiated through the medical evidence and since the ocular evidence and medical evidence is in consonance with each other, the learned trial Court rightly appraised said evidence thereby convicting the appellant. He further contended that delay in registration of the FIR has not been questioned by the defence side in the cross examination of the complainant, therefore, the said delay if any, is of no much significance.

I have considered the arguments advanced on behalf of the parties and have gone through the entire evidence available on record.

According to the version of the complainant in the FIR the appellant attacked on his wife Mst.Shahzadi and inflicted back side hatchet injury on her skull and due to intervention of complainant Muhammad Paryal he escaped from there. According to the FIR complainant brought her at Police Station and obtained letter in the name of MLO for examination of the injuries and the MLO examined her injuries. It is therefore, evident from the contents of the FIR that it was the first assertion of the complainant that the appellant attacked on his wife Mst.Shahzadi from back side of the hatchet and because of the said contents of the FIR, the charge was also framed against the appellant thereby mentioning the infliction of injuries to PW Mst.Shahzadi from back side of the hatchet. The complainant in his statement before the trial Court has stated that his wife Mst.Shahzadi sustained two injuries one injury on her head through sharp side of the hatchet, which resulted in injury NO.1 and the other injury was caused with blunt side of the hatchet, which Mst.Shahzadi sustained on her shoulder. The said evidence of the complainant appears to be an improvement in the case of the prosecution. The prosecution has also examined Dr.Ghulam Asghar who examined the injured and in his statement he deposed about sustaining of two injuries by the injured. The injury No.1 has been stated by him to be incised wound 05 cm x 01 cm x bone expose deep on right occipital region of skull. The second injury, which has been sustained by him is abrasion 01 cm x 1/2 cm and skin deep on top of right shoulder. The injuries deposed by the medical officer are fully conflicted with ocular evidence available on record. The MLO has also opined that injury No.1 was caused by sharp edged weapon while the injury No.2 was caused with hard and blunt substance. The opinion of the Doctor is fully in conflict with the occular evidence available on record as deposed by PW Muhammad Paryal and Mst.Shahzadi who both have deposed about the inflicting of the injuries on the head of Mst.Shahzadi from the back side of the hatchet. If version of the Doctor is accepted then the question arises as to how the injured sustained sharp edged injury which fact is also shrouded in mystery for the reasons that medical officer after examination of the injured did not send the medical certificate to the SHO of the concerned Police Station but after more than two years of the incident the said medical certificate was handed over by the MLO to the complainant, which fact has also been admitted by the complainant and the MLO as well as the I.O in their statements before the trial Court about the handing over of medical certificate after the span of two years, which is of much sufficance and adversely reflecting on the veracity of the medical certificate and also raised the question as to how the medical officer acted beyond his limit by handing over the original medical certificate to the complainant, instead of sending it to the SHO which shows some thing behind the curtain.

The glaring fact of the present case is that the FIR was registered on 8.4.2000 whereas the incident allegedly took place on 20.6.1997 and after the delay of about 3 years the complainant awakened from his sweet slumber and approach to the Police Station to register the FIR for the offence which was committed about 3 years earlier for which no reasonable and plausible explanation has been brought on record by the prosecution side regarding registration of the FIR after such an inordinate delay. The same is also very meaningful and shows the malafide act of the complainant because of the reason that there is a dispute between the complainant and the appellant over the agricultural land and the said fact has also been admitted by the complainant in his cross examination by deposing that “It is correct to suggest that there is dispute between him and accused Gahno over the agricultural land which is in his possession. It is correct to suggest that such Civil Suit regarding their agricultural land is pending in the Court of Civil Judge, Ghotki.” The said admission of the complainant also shows that the cause of dispute in between both the brothers is agricultural land which is in possession of the complainant, for which, civil suit is also pending, as such the false implication of the appellant could not be ruled out. The mother of the complainant namely Mst.Hasina has also not supported the case of the prosecution by deposing that no such injuries were sustained by injured Mst.Shahzadi. All these circumstances if read together, would constitute it a case of highly doubtful in nature.

The learned trial Court did not appraise the evidence available on record in its true perspective and convicted and sentenced the appellant wrongly. The appeal is therefore allowed. The judgment passed by the learned Assistant Sessions Judge, Ghotki dated 31.5.2004 thereby convicting the appellant, is set aside and he is acquitted from the charge. The appellant is present on bail, his bail bond stands discharged.

JUDGE

Akber.

Approved for reporting.