P L D 2007 Peshawar 17 (PLP)

IJAZ-UL-HASSAN KHAN, J.

Appellant Asar Ali, was tried along with his father Tale Zar and brother Sarbali Khan, (acquitted co-accused) by learned Additional Sessions Judge/Izafi Zillah Qazi, Matta, Swat, on the charge of having, on 18-12-2004, at 16-00 hours, attempted at the life of Muhammad Zada, complainant, by firing. At the conclusion of trial, having been found guilty, vide judgment dated 23-11-2005, the appellant was convicted under section 324, P.P.C. and sentenced to suffer 5 years' R.I. The appellant was also directed to pay Rs.80,000 as `Arsh' to complainant under section 337(d), P.P.C. or in default to remain in jail till payment or `Arsh'. Benefit of section 382-B, Cr.P.C. was accorded to the appellant. However, co-accused Tale Zar and Sarbali were extended benefit of doubt and acquitted of the charge.

2. While questioning the legality of the aforesaid judgment, the appellant has filed Criminal Appeal No.808 of 2005. Complainant Muhammad Zada has also filed Criminal Revision No.189 of 2005, seeking enhancement in the amount of `Arsh' and the sentence awarded to accused-respondent. This judgment shall dispose of both the matters.

3. Facts of the case in brief are, that on the fateful day, at about' 16-00 hours, complainant Muhammad Zada was present near his house in village `Sarbanda' Matta Swat, when his cousins Asar Ali and Sarbali, sons of Tale Zar, duly armed with Klashnikovs, appeared there and abused the complainant. On asking about the reason, they started firing at the complainant, as a result of which complainant was hit with the firing of Asar Ali. After accomplishing the mission, the accused made good their escape. Jehanzada and Fateh Khan were stated to have witnessed the occurrence. A dispute over landed property was said to be the motive for the turmoil.

4. On receipt of information regarding the occurrence and arrival of an injured to Civil Hospital, Matta, S.-I. Feroze Khan (P.W.6) rushed to the hospital, recoded the formal report (Exh. PA/ 1) at 18-00 hours at the instance of complainant Muhammad Zada (P.W.4) and dispatched the same to Police Station, where it was incorporated into F.I.R. (Exh.P.A.) by Bahruddin Khan (P.W.1), Incharge Investigation Police Station, Matta. He also prepared injury statement Exh.P.W.6/1 of the complainant and referred him to the medical officer for examination. As the darkness had prevailed and it was raining heavily, the Investigating Officer reached the spot on the following day of the occurrence. He prepared site plain (Exh.PB) at the pointation of eye-witnesses. During the spot inspection, he recovered four empties of 7.62 bore and sealed the same into recovery memo. (Exh.P.W.2/1), in presence of marginal witnesses. The blood-stained earth could not be collected due to heavy rain. In the meanwhile, blood-stained shirt of the complainant was brought from the hospital. It was taken into possession and sent to the office of Chemical Examiner, Peshawar for opinion. The report (Exh.PZ) was placed on file. Accused Asar Ali was arrested on 3-1-2005, when his post arrest bail was recalled by the Court of Session. At the instance of the accused, one Afzal Khan son of Pardes, produced a Klashnikov to the Investigating Officer. This was stated to be the crime weapon. It was taken into possession vide recovery memo. (Exh.P.W.5/2) in presence of marginal witnesses. The crime weapon and the empties recovered from the spot, were sent to the Fire-arm Expert, Peshawar for opinion. The report whereof is Exh.PZ/1. After completion of the investigation challan was submitted against the accused to face trial.

5. The prosecution, in order to prove the charge, produced seven witnesses in all. Complainant Muhammad Zada (P.W.4) and his cousin Fateh Khan (P.W.3) furnished eye-witness account of the occurrence and charged the appellant for the commission of crime. Dr. Mian Sahib Jan (P.W.7), Medical Officer,. Tehsil Headquarter Hospital Matta Swat, examined injured Muhammad Zada on 18-12-2004 at 18-00 hours and found one fire arm injury on the person of the complainant. The accused and acquitted co-accused, in their statements recorded under section 342, Cr.P.C. refuted the prosecution allegations, professed innocence and claimed to have been falsely charged. They did not opt to appear in the witness box under section 340(2), Cr.P.C. In defence, they produced Afzal Khan son of Pardes as D.W.1.

6. Mr. Jalaluddin Akbar Azam, Advocate for the appellant, in support of the appeal, contended that trial Court has not appreciated the evidence in its true perspective; that evidence furnished by eye-witnesses does not command respect; that ocular evidence being incompatible with the medical evidence suffers from inherent infirmity and defect; that the delay in the report points to the concoction of the case, based on consultation and deliberation; that the appellant had no motive of his own to commit the crime; that the site plan also makes the identity of the assailant doubtful; that acquittal of the co-accused renders the. prosecution case doubtful and that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt and for that matter the impugned judgment of the trial Court is erroneous and is ,,the result of misreading and non-reading of the evidence on record. To substantiate the contentions, reliance was placed on Habibullah and others v. The State PLD 1969 SC 127, Malik Din and another. v. Muhammad Aslam PLD 1969 SC 136, Muhammad Jehangir alias Badshah and another v. The State 1995 SCMR 1715, Muhammad Shafqat Baig v. Ch. Mazhar Hussian Minhas, Additional District Judge, Rawalpindi and others 1995 SCMR 1720 and Mst. Jallan v. Muhammad Riaz and others PLD 2003 SC 644.

7. Mr. Sajid Ali, Advocate, representing the State, assisted by Mr. Shad Muhammad Khan, Advocate, for the complainant, on the other hand, contended that accused-respondent acted in a brutal manner and fired at the complainant with intent to take his life and as such, learned trial Judge had no justifiable reason to take lenient view of the matter and punish the accused-respondent for five years. The learned counsel also maintained that amount of `Arsh' awarded to the complainant is grossly inadequate and does not commensurate with the gravity of offence.

8. After having heard learned counsel for the parties, in the light of the material on record, I find no difficulty in holding that the prosecution case against the appellant stands proved beyond any shadow of doubt and evidence produced by the eye-witnesses command respect.

9. The occurrence in the present case had taken place on 18-12-2004 at 16-00 hours while the F.I.R. was recorded in Civil Hospital, Matta at 18-00 hours, the same day, on the statement of complainant Muhammad Zada (P.W.4) in which he fully supported the prosecution version and charged the appellant for firing at him effectively.

10. The ocular testimony furnished by complainant Muhammad Zada and his cousin Fateh Khan P.Ws. was found to be trustworthy by the trial Court. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any shadow of doubt. The prosecution has fully proved its case by producing cogent and convincing evidence to the extent that it was the appellant who fired at the complainant effectively. Though the witnesses were cross-examined, yet their evidence was not shattered at all. Both the witnesses have categorically stated at the trial that Asar Ali and his brother Sarbali started firing at the complainant, as a result of which complainant was hit with the firing of Asar Ali and collapsed on the ground. I see no reason to disbelieve them. The Court B has to see the quality of the evidence and not the quantity and if the ocular account is confidence-inspiring having its intrinsic value, then the same can be relied upon to sustain conviction.

11. Having adjudged the matter from all angles, I am of the view that this is a case where F.I.R. was lodged within two hours by the complainant. The promptitude in lodging of the F.I.R. itself would rule out the possibility of consultation and deliberation. The accused were specifically named and a definite role was assigned to each one of them. The said role stands corroborated by the medical evidence. I find no difficulty in holding that the prosecution case against the appellant stands proved beyond reasonable doubt and the weight and quality of the prosecution evidence and its evaluation are in consonance with the legal principles governing criminal justice. The ocular account, promptly lodged F.I.R., medical evidence, recoveries, positive report Exh.PZ and Exh.PZ/1 of the Experts, motive and absconsion of the appellant fully prove the prosecution case.

12. So far as the cases cited by learned counsel for the appellants are concerned, each criminal case stands on its own footings. The facts and ircumstances in one case may not be quite similar on all fours to the other. There may be circumstances so as to give benefit of doubt to the accused, but in the instant case, I am fully satisfied that the prosecution has been successful in proving its case against the appellant and no exception can be taken to the judgment of trial Court. The trial Court has recorded a detailed and well-reasoned judgment, which warrants no interference. The appeal fails, which is hereby dismissed. Adverting to the Criminal Revision No.189/2005, I am of the view that accused respondent has been convicted and sentenced properly and adequately and no good ground exists justifying enhancement in the sentence. The Criminal Revision also fails, which is hereby dismissed. S.M.B./181/P Appeal and revision dismissed.