2005 P Cr (PLP)

P.W.3 Khanzada disclosed himself as marginal witness to recovery memo. Exh.P.W.3/1 and Exh.P.W.3/2 vide which the I.O. had collected blood‑stained earth from the spot and 20 empties of 7.62 bore. The complainant Naveed Iqbal had also produced to the I.O. the blood stained Qamiz of the deceased. P.W.4 Noor Jamal Khan, A.S.‑I. in his statement disclosed that he on receipt of Murasila, registered F.I.R. No.218 against the accused. The complainant Naveed Iqbal was examined at the trial as P.W.5 and he deposed the same story of F.I.R. in his statement. He further disclosed that the site plan was prepared at his instance by the I.O. and that he had handed over the blood‑stained Qamiz of the deceased as well as of the injured. P.W.6 Mian Gul Zada while narrating the eye‑witness account in his statement deposed that on the day of occurrence Muhammad Zahid, deceased, Sartaj Iqbal, Naveed Iqbal and Afsar Iqbal were going on the way, when accused Bakht Biland Shah, Zahir Shah, Muqtada Shah, Sajawal Shah, Behramand Shah, Niamatullah, Badar Munir, Usman, Nasir, and Isteqbal opened firing at them. From the firing of Bakht Biland, Muhammad Zahid was hit and died whereas Sartaj Iqbal was hit from the firing of Sajawal Shah. He also named Abdul Mateen, Mukaram Shah, Qalandar Shah, Azizullah Khan, Mumtaz Khan and Ihsanullah or abetment and further stated that the I.O. in his presence inspected the spot, collected the blood‑stained earth and empty shells. P.W.7 Said Farosh Khan, S.‑I. in his statement disclosed that he recorded the report of the complainant in the shape of a Murasila and sent the same to the P.S. for registration of the case. He prepared the site plan, the inquest report and injuries sheet and also collected blood‑stained earth from the spot. He recovered 20 empty shells from the spot and other 7 empties were also recovered from the ambush where the accused were present. He also took into possession blood‑stained Qamiz of the injured Sartaj Iqbal and also of the deceased. He recorded the statements of the witnesses and obtained warrants under section 204, Cr.P.C. against the absconding accused following by proclamation notice under section 87, Cr.P.C. P.W.8 Sheikh. Farid Khan, Retired Inspector in his statement disclosed that he on receipt of information on wireless about the injured Sartaj Iqbal reached Daggar Hospital and recorded his statement under section 1.61, Cr.P.C. He also inspected the spot along with D.S.P. and then raided the house of the accused but they were not present. The accused in their statements under section 342, Cr.P.C. however, denied the charge and professed innocence.

9. The learned trial Court vide impugned judgment found the accused/appellants guilty of the charges under sections 324/149/109/302, P.P.C. and sentenced them accordingly.

10. I have heard the learned counsel for the parties and also perused the record of the case.

11. The main thrust of the arguments of the learned counsel for appellants is that the complainant had brought an exaggerated charge against all the members of the accused family; that the eye‑witnesses are closely related to the deceased and the injured as well as inimical towards the accused and that there is no evidence against appellants Nos.7 and 8 i.e. Mukararam Shah and Qalandar Shah for having played any role of abetment in the commission of offence.

12. The arguments of the learned counsel for the appellants to the extent of appellants Nos. 1 to 6 are however, not very convincing, as the perusal of the record indicates that the accused/appellants are directly charged in a promotly lodged F.I.R. by the complainant, whose statement at the trial is also in line with the contents of the F.I.R., suffering; from no material contradiction or improvement, although the defence has made a lengthy cross‑examination on him. So far as the exaggerated charge is concerned, this aspect of the case has already been properly answered by the trial Court in the light of the prosecution evidence, as firing was made at the complainant party from the house of the accused and naturally all the accused, being members of the same family, would have opened firing' at the complainant party keeping in view the number of empties recovered from the spot and the fact that when the police reached the spot within half an hour, all the accused were not present in the' house. A look at the statement of P.W.5 Naveed Iqbal suggests that the same is almost unchallenged, hence only on the basis of his relation with the deceased and the injured as well as previous blood feud enmity his statement could not be discarded, which otherwise is further fully corroborated by the circumstantial evidence in the case. The statement of P. W.6 Mian Gul Zada is also supporting the version of the complainant and is confidence‑inspiring, who although a relative of the complainant, met the complainant party in the way and saw the occurrence with his own eyes. According to the learned trial Judge, he escaped unhurt because he was following the complainant party at some distance and was going for bringing wood from his lands.

13. The learned counsel for the appellants tried to take advantage of a sentence in the cross‑examination of P.W.6 wherein he has stated that the present accused/appellants Nos. 1 to 6 were making aerial firing. After going through the whole cross‑examination of the witness it is evident that he has used these words in the sense that the shots of some accused proved fatal whereas the firing of some of the accused was ineffective. As stated above, the statement of P.W.6 is credible and on all material aspects of the case, suggesting that the accused/appellants have committed the offence in question, his slight contradiction with the complainant that some of the accused were making aerial firing, would not be taken so serious so as to discard his whole statement, keeping in view the dictum laid down by the august, Supreme Court of Pakistan in the case reported in 2004 SCMR 477, in the following words:‑‑ "We have noted a few contradictions in their statements which can be ignored safely being insignificant and minor in nature. `If a witness makes any contradiction, improvements, or other facts which may adversely reflect on his credibility would not by itself be sufficient to reject his testimony as a whole. Court can rely upon a portion of his testimony if it is corroborated by other reliable evidence, or circumstances. If any authority is required reference can be made to Muhammad Yaqoob v. the State 1992 SCMR 1983, Mokha v. Zulfiqar PLD 19711 SC 10, Zakir Khan v., The State 1995 SCMR 1793 and Roshan v. The State PLD 177 SC 557. "

14. So far as the number of injuries on .the person of the deceased and the injured as well as the number of accused are concerned, the same is also not of much help to the defence as the medical evidence is always treated to be of confirmatory nature, as has been held by the august Supreme, Court of Pakistan in the case of Dildar Hussain v. Muhammad Afzal alias Chala and 3 others PLD 2004 SC 663 as under:‑‑‑ "As far as the medical evidence is concerned, it is always treated to be in the nature of confirmatory and it does not identify the accused involved in the commission of offence, in view of the law laid down by this Court in the case of the State v. Muhammad Sharif and 3 others 1995 SCMR 635. " Similar would be the answer to the contention of the learned counsel for the appellants that the empties have not been sent to F.S.L. for ascertaining as to whether the same have been fired from one weapon or more, as the nature of the Expert report is also a sort of confirmatory evidence and could not be a substitute to direct evidence, particularly when no question has been asked from the eye‑witnesses, whether it is the act of one man or more. In view of the direct charge against appellants Nos. 1 to 6, the reliable eye‑witness account furnished by P.Ws.5 and 6; the recovery of blood‑stained earth from the spot, the blood‑stained clothes of the deceased and the injured, the recoveries made from the spot, the medical evidence the site plan, and motive behind the occurrence, it can be said with certainty without any dint of doubt that the prosecution has successfully established its case against appellants Nos. 1 to 6 beyond any shadow of reasonable doubt.

15. The case against appellants Nos.7 and 8 namely Mukarram Shah and Qalandar Shah is however, not proved as there is no evidence, against them to, show that in fact they have extended any help to the other accused in their criminal act and thus, made any abetment.

16. The accused/appellants Nos. 1 to 6 are, however, not charged for the fatal shots resulting into the death of Muhammad Zahid, deceased and Sartaj Iqbal P.W. and are only charged for ineffective firing upon the complainant and his other companions, therefore, the quantum of sentence in my view requires some modification. The conviction and sentence of 7 years' R.I. each of appellants Nos. 1 to 6 is thus, reduced to the sentence of 4 years' R.I. each and the fine of Rs.20,000 is reduced to that of Rs.10,000 each or in default thereof to suffer two months' S.I. the conviction of the appellants Nos.1 to 6, under section 148, P.P.C. is maintained. Both the sentences shall run concurrently and the benefit of section 382‑B, Cr.P.C. shall remain extended to them. Keeping in view the fact that the prosecution has not proved its case against appellants Nos.7 and 8 beyond any shadow of reasonable doubt, they are thus, liable to be acquitted of the charge.

17. For the aforesaid reasons, this appeal is dismissed qua appellants Nos. 1 to 6 while reducing the quantum of sentence to the extent stated above whereas the appeal is accepted qua appellants Nos.7 and 8, Mukarram Shah and Qalandar Shah. The impugned judgment of the trial Court is set aside qua them and they are acquitted of the charge. They shall be released from jail forthwith if not required in any other case. The connected Criminal Revision No.216 of 2004 due to reduction in the quantum of sentence has therefore, become infructuous and is hereby dismissed. H.B.T./292/P Order accordingly.