P L D 1997 Peshawar 184 (PLP)

The nature of injury was kept under observation and duration of injury was opined as 1 to 2 hours. Kind of weapon used: Blast injury. SAJJAD HUSSAIN SHAH: , (1) Multiple penetrating wounds 1/4" x 1/4" in Dia over (left) knee‑joints. (2) Multiple penetrating wounds over left leg anteriorly. (3) Crush four fingers left foot. (4) Two wounds right buttocks. (5) Wounds right hand. (6) Penetrating wound right knee joint. (7) Penetrating wounds right foot. The nature of injury was kept under observation and duration of injury was opined as 1 to 2 hours. Kind of weapon used: Blast injury. P.W.11 Abdul Rahim Khan, S.H.O. has conducted the entire investigation of the case and after completion of the investigation has submitted the complete challan to the Court. P.W.12 Jehangir Ali Shah, H.C., P.W.13 Iqbal Hussain Shah, H.C. are the marginal witnesses to memos. Exh.P.W.1 I/2 and P.W.11/1 while P.W.14 Muhammad Nawaz presented the three injured to the Doctor. alongwith injury sheets and delivered the medico‑legal reports of the injured to the I.O.

6. The appellants when examined under section 342, Cr.P.C. denied the prosecution, case and claimed innocence.

7. The learned counsel for the appellants after going through the entire prosecution evidence, criticized the impugned judgment on the following four grounds:‑‑ (i) That evidence of inimical witnesses must get strongest corroboration from independent sources. (ii) Identification of accused at night time in absence of visual identification of good quality such as sufficient light, unobstructed view of the offender brings the evidence in the category of suspected evidence. (iii) If an offence is committed in a planned manner like in this case and dark hours of night are selected for commission of offence, the assailants would take all possible precautions to conceal their identity. (iv) Whether offences fall under sections 337(iii)‑D, P.P.G. 337‑F(iii) and 337‑T, P.P.C. being not scheduled offences are triable by the Judge Special Court.

8. Learned counsel for the convict‑appellants vehemently contended that due to blood‑feud enmity, there was a long‑standing enmity between the parties and so the conviction cannot be maintained on statements of such inimical witness. He argued that mere presence of injured witnesses on the spot would not be sufficient to presume that they had made true statements unless supported by a strong independent corroboration, which is lacking in the present case.

9. The place of occurrence is the outer‑gate of the house of the complainant, who alongwith his other two brothers were asleep in their respective rooms of the house when they heard the sound of a Rocket‑Launcher fire. They awoke‑up and rushed to the outer‑gate and on its opening a hand- grenade was exploded in‑between them, injuring them and when lying on the ground in injured condition, claim to have seen/identified the' appellants bring at them with klashnikovs in the light of a bulb.

10. The prosecution's case is that a hand‑grenade was tied with the h of the gate of the house which was stringed with a copper wile with the pin of the hand‑grenade and thus when the door was opened, the hand‑grenade of exploded. In such state of affair, when in such a manner, the commission of offence was arranged, it does not appeal to the common sense that appellant of who have selected dark hours of night for commission of the offence would not take all possible precautions to conceal their identity, and expose themselves to the witnesses by standing close to the electric bulb. Weight of evidence depends upon rules of common sense which negates the version put‑forth by the prosecution evidence in this case.

11. The record of the case shows that there was previous 1lostility bet tic parties who admitted the same. The role attributed to the present appellants by P.W.2 Munawar Hussain Shah, P.W.3 Riaz Hussain Shah and P.W.4 Sajjad Hussain Shah is that at the relevant time, they were seen by them firing at them with klashnikovs and had also fired the Rocket‑Launcher and band‑grenade and had caused the injuries to them by means of it. In the given circumstances, the evidence of said injured witnesses needed independent corroboration. Admittedly, the women folk were present in the house at the tithe of occurrence but none of them was cited or examined as witness against the appellants.

12. Complainant in the F.I.R. has specifically mentioned teat he awok-up hearing the blast sound of rocket launcher, the question arises that a man hp is not an Expert in Explosives, how can differentiate on hearing a sound of Explosive about its kind and. description and such a specific reference about of description of weapon used give rise to the suspicion that the report was the promptly lodged but lodged after preliminary investigation not promptly lodged but lodged after preliminary investigation.

13. Besides the conviction and sentences passed under the Explosive Substances Act, the learned trial Judge also convicted and sentenced appellants under section 337‑F(iii), 337‑D and 337‑T, P.P.C. and had awarded various sentences in shape of Arsh and Daman as narrated above. The sections of law are not included in the Schedule appended to the Suppression of Terrorist Activities (Special Courts) Act (Act XV of 1975) and, therefore cannot be termed as scheduled offences. Under section 4 0l the said jurisdiction of the Special Court has been given which is as under'‑‑ ' (1) Notwithstanding anything contained in the Code, the scheduled offense shall be triable exclusively by a Special Court. (2) If, in the course of a trial before the Special Court, the Court is opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence." Thus it is crystal clear from the provisions of this section that the jurisdiction of the Special Courts constituted under the Act extended only to the trial of the offences mentioned in the Schedule. Suppression of Terrorist Activities (Special Courts) Act is a special law conferring exclusive jurisdiction on the Special- Courts constituted under the said Act to try only those cases which are mentioned in the Schedule. The offences under sections 337‑F(iii), 337‑D and 337‑T, P.P.C. are not included in the Schedule, therefore, the learned Judge has exceeded his jurisdiction while dealing with the said sections of law.

14. Learned counsel for the State while criticizing the impugned judgment too was of the firm view that in the situation put forth by the prosecution, identification of the accused/appellants was not at all possible because due to the explosion of hand‑grenade there must a cloud of dust and smoke. He further contended that the injured eye‑witnesses had stated in their statements that appellants were firing at them with their kalashnikovs but not a single spent bullet of 7.62 bore was recovered from the spot and further contended that even the trial has not believed the factum of firing by the appellant and if this aspect of firing by the appellants is removed from the prosecution case,, then in that case, there was no occasion of identifying the appellants by the injured witnesses who were lying on the ground in injured condition.

15. Learned counsel for the complainant, however, strongly supported the impugned judgment by arguing that motive in the case has 'not been denied. Place of occurrence was admitted and circumstantial evidence in the shape of recoveries supported the prosecution case and medical evidence is also in line with the prosecution version.

16. Having regard to the above circumstances, we are of the view that the case against the appellants is not free from doubt. The benefit of doubt is, therefore, extended to them and they are acquitted from the charge. The convict appellants be released forthwith if not wanted in any other cause. Their appeal is accordingly accepted, while Criminal Appeal No.76 of 1996 and Criminal Revision No. 12 of 1996 fails and stands dismissed accordingly. N.H.Q./21471P Appeal accepted 111.0