2007 P Cr (PLP)

SAID MAROOF KHAN, J.

The appellant Abdullah Khan and his co-accused Ajab Khan, Taj Ali and Shehzad Khan were tried by the learned Additional Sessions Judge-V, Bannu under sections 324/ 337-F(v)/34, P.P.C. in case F.I.R. No.103, dated 12-6-2004 registered at Police Station Domail, District Bannu. At the conclusion of the trial, vide judgment, dated 16-5-2006, the appellant Abdullah Khan was convicted of offence under section 324, P.P.C. and sentenced to suffer rigorous imprisonment for five years and also to pay a fine of Rs.30,000 or in default to suffer simple imprisonment for three months. He was further convicted under section 337-F(v), P.P.C. and sentenced to suffer rigorouq imprisonment for one year and also held liable to pay Rs.50,000 as Daman to the complainant in lump sum or in five equal monthly instalments. In view of section 337-Y(2), P.P.C. the appellant was directed to be kept in jail till payment of Daman. Benefit of section 382-B, Cr.P.C. was given to him. His three co-accused were, however, extended the benefit of doubt and acquitted. Being aggrieved of his conviction and sentence Abdullah Khan has filed Criminal Appeal No.22 of 2006 while the complainant Asghar -Khan has filed Criminal Appeal No.26 of 2006 challenging the acquittal of the three co-accused and he also filed Criminal Revision No.20 of 2006 for enhancement of sentence of Abdullah Khan convict-appellant. This judgment shall dispose of all the three matters.

2. The case of the prosecution is that on the day of occurrence i.e. 12-6-2004 at 6=30 a. m. the complainant Asghar Khan and his brother Akhtar Khan were going to Danday Kaley for "Dars-e-Islami" and when they reached highway bridge at Azim Kaley Chowk they saw the convict-appellant Abdullah Khan armed with .30 bore pistol and his three co-accused Ajab Khan, Shehzad Khan and Taj Ali armed with kalashnikovs who were present there. On seeing the complainant party all the four accused fired at them with their respective weapons and as a result of firing of convict Abdullah Khan the complainant was hit and he fell down whereas his brother luckily escaped unhurt. That besides the complainant his above named brother had witnessed the occurrence. The motive for the offence was stated to be previous ill-will.

3. The injured Asghar Khan was immediately taken to the hospital at village Naurang wherefrom he was referred to D.H.Q. Hospital Bannu for treatment. His report was recorded in the hospital at Bannu by Ayub Khan, A.S.-I. in the shape of Murasila Exh.P.W.4/1 on the same day at 8-25 a.m. The Murasila was sent to Police Station Domail where the case was registered against the convict-appellant Abdullah Khan and his three co-accused named above. On completion of investigation challan was submitted in Court for trial of the accused.

4. At the trial the prosecution, in order to prove its case, examined thirteen witnesses in all including Asghar Khan complainant (P.W.9), his brother Akbtar Khan (P.W.10) and P. W.3 Dr. Altaf Hussain who had examined the complainant Asghar Khan on 12-6-2004 and found three fire-arm entrance wounds of 1/3" x 1/3" on his chest and one other entrance wound of the same dimension on his back. The convict-appellant and his co-accused when examined under section 342, Cr.P.C. denied the allegation of the prosecution and slated that they are innocent and falsely charged. However, they did not produce any evidence in defence nor recorded their statements under section 340(2), Cr.P.C. On conclusion of the trial the learned trial Judge convicted and sentenced the appellant Abdullah Khan and acquitted the three accused as stated above vide judgment dated 16-5-2006.

5. Mr. Gauhar Zaman Kundi learned counsel for Abdullah Khan convict-appellant contended that the two eye-witnesses in this case are brothers inter se and there are material contradictions and improvements in their statements and that their testimony being not corroborated by any independent and reliable evidence could not be implicitly relied upon. That soon after the occurrence the two nephews of the complainant were attracted to the spot but they were not produced and examined as P.Ws. and, therefore, the presumption would be that had they been examined as P.Ws. they, would not have supported the prosecution version. That there is delay of two hours in lodging the report and that this fact casts serious doubt about the genuineness of the prosecution version. That the motive for the offence neither existed nor it was specifically stated in the F.I.R. It was further argued that before recording confession of the convict-appellant the learned Magistrate having recorded the confession had not given sufficient time to the appellant for thinking and as such the retracted confession could not be made the basis of his conviction. With regard to abscondence of the convict-appellant the learned counsel submitted that abscondence for a period of four months is not a corroborative piece of evidence establishing the guilt of the convict-appellant. Concluding his arguments the learned counsel maintained, that the occurrence had not taken place in the manner as disclosed in the F.I.R. and that while acquitting the three co-accused the learned trial Court had disbelieved the prosecution evidence, therefore, there was no justification for conviction of Abdullah Khan appellant on the basis of same evidence.

6. On the contrary, Syed Abid Hussain Bukhari learned State counsel 'supported the impugned judgment contending that the convict-appellant is directly charged in the F.I.R. for effective firing at the complainant and that as per evidence on record his guilt is established beyond doubt, therefore, he was rightly convicted and sentenced by the learned trial Judge. Mr. Sanaullah Khan Gandapur learned counsel for Asghar Khan complainant, however, contended that in view of the facts and circumstances of the case the sentence awarded to the convict-appellant is not appropriate and, therefore, it should be enhanced. Further submitted that the three acquitted accused shared common intention in commission of the offence and that their presence at the spot and their role of ineffective firing at the complainant and his brother is proved on record, therefore, their acquittal was absolutely wrong and illegal and that they are liable to be convicted and sentenced for offence punishable under section 324/34, P.P.C.

7. I have considered the arguments of learned counsel for the parties and perused the record of the case. The contention of the learned counsel for the appellant that nephews of the injured P.W. were not examined to support the prosecution version and, therefore, adverse inference should be drawn against the prosecution is devoid of force because the nephews of the complainant were not eye-witnesses of the occurrence. As per record the complainant Asghar Khan and his brother Akhtar Khan had witnessed the occurrence and both of them had appeared as P.Ws. In the F.I.R. as well as in his Court statement the complainant Asghar Khan (P.W.9) had specifically charged the convict-appellant Abdullah Khan for effective firing at him with a pistol. His brother Akhtar Khan (P.W.10) was named in the F.I.R. to be an eye-witness of the occurrence and in his statement at the trial he (P.W.10) has fully supported the prosecution version. Both the witnesses were thoroughly cross-examined but in their lengthy cross-examination nothing material could be brought on record to shatter their testimony. They are consistent in that on the day of occurrence at about 6-30 a.m. the convict-appellant Abdullah Khan had effectively .fired at the complainant with a .30 bore pistol. No doubt there are some minor discrepancies in their statements but the same are not fatal to the prosecution case as both the witnesses are supporting each other regarding material aspects of the case. They have given a true account of the incident regarding effective firing by the convict-appellant. It was a broad-daylight occurrence and there was no possibility of mistaken identity. The complainant party had no enmity with any other person. Even otherwise there was no justification for false involvement of the convict-appellant.

8. No doubt the report was made after two hours of the occurrence but this circumstance alone cannot damage the prosecution case because it is clear from the record that soon after the occurrence the complainant/ injured was taken to the hospital at Naurang but due to his serious condition the doctor available there referred him to District Headquarter Hospital Bannu where the matter was reported to the police/casualty staff. The delay in making the report had occurred due to serious condition of the complainant. The contention of the learned counsel with regard to motive is equally devoid of substance. The allegation and proof of the motive is not a legal requirement for conviction of an accused. It is well-settled law that the motive by itself does not prove or disprove any assertion. The absence or weakness of motive is not helpful to the accused against whom direct unimpeachable evidence is available. The acquittal of the three co-accused also does not detract credibility of the ocular account provided by the complainant (P.W.9) and P.W.10. The co-accused were acquitted by way of abundant caution by giving them the benefit of doubt as they were not assigned the role of effective firing whereas the appellant stands charged for effective firing and as such the rule of consistency is not applicable to him.

9. The direct evidence furnished by P.W.9 and P.W.10 is not suffering from any inherent or significant defect. There is no evidence on record suggesting that the involvement of the appellant is on account of some ulterior motives. The mere fact that P.W.10 is the real brother of the complainant (P.W.9) by itself alone is not a sufficient ground for disbelieving his testimony. The medical evidence is consistent with the testimony of P.W.9 and P.W.10 because according to doctor's report and his statement four fire-arm entrance wounds of 1/3" x 1/3" were found on the person of the complainant. The nature and dimension of the c injuries clearly indicate that all the wounds have been caused with one weapon. The recovery of three empties of .30 bore from the place of occurrence is an additional piece of evidence supporting the prosecution version. The report of Arms Expert Exh.P.K. also reveals that all the three empties were fired from one and the same .30 bore weapon. The unexplained abscondence of the convict-appellant for a period of four months is a strong piece of corroborative evidence indicating his guilt. The prosecution case against the convict-appellant stands proved by direct evidence as well as medical evidence, recoveries from the spot and abscondence of the appellant, therefore, he was rightly convicted and sentenced by the learned trial Judge. The learned counsel for the convict-appellant has failed to point out any illegality in the impugned judgment' warranting interference by this Court.

10. So far as the connected criminal revision is concerned, the learned counsel for the complainant has failed to make out any case for enhancement of sentence of the convict-appellant. The appellant has been awarded legal sentence which was appropriate in the circumstances of the case and calls for no interference. The connected appeal against the acquittal of the three co-accused is also meritless as their guilt is not proved beyond doubt so they were rightly acquitted. Both the appeals as well as connected criminal revision are, therefore, dismissed and conviction and sentence of the convict-appellant is upheld. H.B.T./46/P Appeal dismissed.