2002 PLP 872 (MLD)

Date of hearing: 12th December, 2001. Najibullah Khan, appellant, stood trial in the Court of learned Additional Sessions Judge, Bannu under section 324, P.P.C. for causing fire‑arm injuries to Ba1.Nawaz, complainant and was found guilty of the charge. The learned trial Court, therefore, convicted and sentenced the accused/appellant under section 324, P.P.C. to 4 years' R.I. or in default thereof to undergo one year R.I. He was further convicted under section 337‑D, P.P.C. and sentenced to 3 years' R.I. and to pay Arsh, i.e. 1/3rd of the Diyat, amounting to Rs.92,

333. He was also convicted under section 337‑F (v) P.P.C. and sentenced to one year R.I. and to pay a fine of Rs.50,000 as Daman. The compensation of Arsh and Daman was ordered to be paid by the accused in lump sum or in five equal instalments. Till payment of the above amount, the accused/appellant is to remain under simple imprisonment. The sentences were ordered to run concurrently and the benefit of section 382‑B, Cr.P‑C was given to the accused/appellant:

2. Discontent with the abovesaid conviction and sentences, the accused/appellant has filed the instant appeal against the impugned judgment dated 19‑5‑2001 of the learned trial Court.

3. The complainant Bal Nawaz has also file the connected Criminal Revision No.7 of 2001 against the impugned judgment of the learned trial Court and has prayed for enhancement of the sentence of the accused/respondent Najibullah Khan..

4. The appeal as well as the criminal revision both are disposed of x through this single judgment in Criminal Appeal No. 18 of 2001.

5. The story as narrated by the complainant Bal Nawaz in injured condition to the police in Police Station Ghoriwala is to the defeat that on 28‑12‑1998 at about 10‑15 a.m. he alongwith Hamayun son of Mali Khan, his co‑villager visited the shop of a barber situated near the Petrol Pump of Mohammad Noor Khan for the purpose of shave, however, due to non‑availability of space he came out of the shop and was standing in front of the shop of a tailor when irk the meanwhile accused Najibullah, duly armed with a pistol',, came there and started naming him. At the same time he fired at him with the pistol with which he was hit on the thigh etc. and got injured. The accused after commission of the offence decamped from the spot. The complainant disclosed no previous enmity of the parties behind the occurrence in his report. The occurrence was stated to have also witnessed by the said Hamayun.

6. Sardar Nawaz, A.S.‑I. (P.W.4) recorded the report of the complainant in the police station vide F.I.R., Exp. PA, prepared the injury‑sheet of the complainant, Exh.PL/1, sent the injured to the hospital for treatment and himself proceeded to the spot in the company of P.W. Hamayun, where at his pointation he prepared the site‑plan, Exh.PB. During spot inspection, the Investigating Officer took into possession blood‑stained earth from the place of injured, a spent bullet of .30 bore and two empties of .30 bore, freshly discharged vide recovery memo. Exh. PD. He also took into possession blood‑stained Shalwar and shirt of the injured, sent by the doctor from the hospital, through recovery memo. Exh. PD. He searched the accused but he was not available and then applied for proceedings under section 204, Cr.P.C. against him. The blood‑stained articles were sent to the F.S.L.

7. Dr. Malik Niaz, P.W.1, examined the complainant Bal Nawaz on 28‑12‑1998 at 11‑30 a.m. and found two fire‑arm entry wounds on the person of the complainant i.e. on left thigh laterally and on back of spine at the level of 4th lumber with exit wounds at posterio‑medially and on left lumber region anterio‑laterally.

8. The accused was arrested in the case on 3‑11‑1999 and on 6‑11‑1999, P.W.5 Bashir Ahmad, S.H.O., Police Station Ghoriwala submitted supplementary challan against him.

9. At the trial the prosecution examined as many' as 10 witnesses to prove its case against the appellant. Except Bal Nawaz, who recorded his statement as P.W.8, the rest of the PWs, who were formal police witnesses, recorded their statements to the extent of their involvement with the investigation and other proceedings of the case.

10. The learned trial Judge after conclusion of the trial awarded conviction and sentences to the appellant as stated in the first paragraph of this judgment.

11. I have heard the learned counsel for the parties and have also gone through the record of the case carefully.

12. As is evident from the contents of the F.I.R, the complainant has simply stated that due to non‑availability of sufficient space in the shop of the barber, he came out of the shop and in the meanwhile accused Najibullah came there duly armed, started altercation and consequently fired at him. He has never said that either the accused/appellant was also present altercation had place inside the shop of the changed his stance by saying that in the shop of the barber he was sitting when the accused came there and used provocatory words on which he altercated with him and then for his own security he left the shots without getting share and came out of the shop. Such an improvement in the circumstances of the case, when the prosecution has not produced any other witness to the occurrence, is material, and could be considered to be an afterthought to provide justification for a motive, as the story narrated in the F.I.R. clearly suggests that there was no motive for the accused/appellant to attempt at the life of the complainant.

13. The complainant though has departed in his statement from the version given in the F. I. R, yet has left the cause of said altercation more mysterious as for what reason the altercation between them had started in the barber shop in absence of any previous ill‑will between them. No witness in support of this assertion has been produced either from the shop of the barber at least to prove the veracity of the complainant to the later on developed cause of enmity or through the accompanied witness with the complainant, whose name has been duly mentioned in the F.I.R. as eye‑witness. It is also interesting to note that in the F.I.R., the complainant had described Hamayun as his co‑villager, but at the trial stated that said Hamayun is his minor cousin. The learned counsel for the prosecution abandoned this witness on account of his minority and also as unnecessary witness. He was very much necessary and if was a minor even then he should have been produced before the learned trial Court for making a proper observation as to whether said Hamayun was so minor that his statement could not be accepted in evidence. From the evidence on record it is, however, clear that Hamayun was not of such a tender age. As on one hand it was he on whose pointation the investigating Officer prepared the site‑plan in the case, but on the other hand it, was who he, who thumb‑impressed the recovery memos. as a marginal witness.

14. Another important aspect of the case is that the accused/appellant was admittedly of a young age at the time of occurrence whereas the complainant was over 40 years of age. As stated above, the complainant not only changed his version in the F.I.R. about taking place of an altercation inside the shop of the barber, but also exaggerated to the extent that when he came out of the` shop of the barber he stood by the side of his motorcycle when in the meanwhile the I accused came after him. This is not mentioned in the F.I.R. nor the presence of the motorcycle in the site‑plan has been shown. If the complainant at the‑time of occurrence was standing by the side of his motorcycle then at least ate would have taken shelter behind the said motorcycle from the second shot fired by the accused/appellant, which was but natural in the circumstances of the case. Similarly, if the complainant was standing by the side of his motor‑cycle, then he would not have sustained injuries on the lateral thigh region. All these facts show that the complainant was not standing by the side of his motorcycle at the time of the alleged firing and, therefore, he has rendered himself as highly unreliable and not trustworthy witness of the occurrence. He has fully concealed the manner in which the alleged occurrence took place. The prosecution has, therefore, concealed material facts to be brought on record, which makes the case against the accused/appellant as doubtful, entitling him to the extension of benefit as of right. When the veracity of a solitary injured eye‑witness becomes doubtful, the other circumstantial/incriminating evidence also loses its weight for connecting an accused with the commission of the offence. True, solitary statement of one injured witness is sufficient for conviction, but it is equally true that when an eye‑witness is cited in the F.I.R., his production at the trial becomes necessary when the prosecution intends to depart from the version set forth in the First Information Report. Reliance could be placed on the authorities reported in 1972 SCMR 286 and1987 SCMR

71. Mere statement of the complainant that P.W. Hamayun is a child is not sufficient unless he is produced before the Court for a proper assessment in this regard. Similarly, the learned trial Court has awarded conviction to the appellant under section 337‑D and 337‑F, P.P.C. but without framing any specific charge against him. This aspect also goes in favour of the accused/appellant.

15. From the above I am, therefore, of the view that the prosecution has not been able to prove its case against the accused/appellant beyond any shadow of reasonable doubt and the impugned judgment of the learned trial Court whereby he accused/appellant has been held guilty of the charge is thus liable to be set aside. Hence the appeal in hand is accepted, the impugned judgment of the learned trial Court and the consequent conviction and sentence of the appellant are set aside and he is acquitted of the charge. He shall be released from jail forthwith, if not required in any other case. The criminal revision automatically fails, hence dismissed. N.H.Q./437/P Appeal accepted.