2025 PLP 2143 (YLR)

Raza Ali Khan, J.

Both the titled appeals have been directed against the consolidated judgment of the Shariat Appellate Bench of the High Court (hereinafter to be referred as High Court) dated 04.04.2024, passed in Cr. Appeals Nos. 84 and 89 of 2022.

2. The combined facts of both the titled appeals are that an FIR No. 256/13, was registered at the City Police Station, Mirpur, based on the complaint of Umar Daraz. The complainant alleged that on 19-10-2013, at 22:45 hours, while he and Muhammad Ishtiaq were sitting in his drawing room, the accused-respondents, namely Amjad and Shahzad, entered the premises. Amjad was armed with a 12-bore gun, while Shahzad carried a 30-bore pistol. The accused-respondents opened fire, injuring both the complainant and Muhammad Ishtiaq in their upper thighs. After the incident the accused-respondents fled the house while continuing to fire indiscriminately. The occurrence was witnessed by Muhammad Ishtiaq and other family members who arrived later and observed the accused fleeing. The injured complainant was shifted to DHQ Hospital, Mirpur, for medical treatment. Following the registration of the FIR, the accused-respondents were apprehended by the police. Upon completion of the investigation, the challan under Section 173 of the Code of Criminal Procedure, 1898 (Cr.P.C.), was submitted to the competent court. The accused were charged under Sections 452, 337-F(iii), 324 of the Azad Penal Code (APC), and Section 13 of the Arms Ordinance, 1965. Statements of the accused persons were recorded under Section 242 Cr.P.C., where they pleaded not guilty and claimed innocence. The trial court directed the prosecution to produce evidence in support of its case. After an extensive trial spanning approximately eight years, the prosecution concluded its evidence. The learned Additional Tehsil Court of Criminal Jurisdiction, Mirpur, after hearing the arguments of both parties, delivered its judgment on 26-02-2022. While convicting the accused-respondents, the Court awarded the following sentences:- Under section 452, APC for five years simple imprisonment along with fine of Rs.10,000/-, in default of payment of same, they shall undergo 02 months S.I. Under section 13/20/65, Arms Ordinance for one year simple imprisonment along with fine of Rs.1000/-, in default of payment of fine, they shall undergo one month S.I. Under section 337/F-3,APC for sentence of Daman of Rs.100,000/-(one lac) was awarded and till the payment of the same, they shall remain under S.I and under section 337/F-3, APC for 02 years S.I. Under section 324, APC for seven years simple imprisonment along with fine of Rs.30,000/, in default of payment of fine, they shall undergo 03 months S.I. Feeling aggrieved and dissatisfied with the judgment of the trial Court, the convict-appellants preferred an appeal before the District Criminal Court, Mirpur. The learned 1st Appellate Court after hearing the learned counsel for the parties, upheld the judgment of the trial Court vide judgment dated 20.05.2022. Feeling dissatisfied with the judgment of the District Criminal Court, both parties preferred appeal before the learned High Court. The learned High Court after necessary proceedings, dismissed both the appeals vide impugned judgment dated 04.04.2024. Hence, these appeals.

3. Mr. Zulfiqar Ahmed Raja, the learned Advocate appearing for the convict-appellants, submitted that the judgments passed by the learned courts below, as well as the High Court are against law, the facts of the case, and settled principles established by superior courts. He contended that the judgments passed by the Courts below to the extent of convict-appellants, are legally flawed, unwarranted, and unsupported by factual and medical evidence on record. He argued that the impugned judgments are based on conjectures and surmises, contrary to celebrated principles of criminal justice, and therefore not maintainable. The learned counsel emphasized that discrepancies in the prosecution's evidence and failure to prove the case beyond any shadow of doubt render the judgments unsustainable. He pointed out that superior courts have acquitted accused persons in similar cases, citing precedents including 2007 PLJ 150, 2002 PLJ 32, 2001 PCr.LJ 524 and 2014 SCR

735. Furthermore, the learned Advocate argued that a conviction under Section 324 APC for causing hurt cannot be sustained unless the victim/injured appears as a witness and proves the case beyond any shadow of doubt, which was not done in this case. The learned counsel highlighted contradictions between the ocular and medical evidence, discrepancies in the statements of prosecution witnesses under Section 161 Cr.P.C., and ambiguities in the medical report prepared by PW-8, the doctor. He further submitted that the recovery memo. was not substantiated by the evidence of the recovery witness (PW-5) and that the testimony of the investigating officer (PW-9) failed to support the prosecution's version. He also raised doubts about the presence of eye-witnesses at the scene and plausibility of the incident occurring in a residential house at night, without a clear source of light. He contended that the prosecution failed to establish a motive, which is a critical element in criminal cases, and argued that unproven motives create substantial doubt in the prosecution's case. Additionally, the learned Advocate pointed out that the convict-appellants have already served a significant portion of their sentences and have no prior convictions. He argued that the trial Court erred in appreciating contradictions in the prosecution's evidence, failed to consider that the recoveries of incriminating articles were dubious, and overlooked significant facts that cast doubt on the prosecution's narrative. He submitted that in the criminal justice system, even the slightest doubt must benefit the accused. Based on these arguments, the learned counsel prayed for the impugned judgments to be set aside, emphasizing that the prosecution's case is fabricated, contradictory, and unsupported by credible evidence.

4. Mr. Abdul Wahid Amir, the learned Advocate for the complainant-appellant, argued that the impugned judgments passed by the Courts below are justified and should be upheld, as the prosecution has successfully proved its case beyond any shadow of doubt. He contended that the trial and appellate Courts correctly attributed the offence under Section 324, APC to the appellants. The evidence, including oral, ocular, medical, and documentary, corroborates the prosecution's version. The learned counsel emphasized that the appellants inflicted severe injuries on the complainant, leading to the loss of a leg, this highlights the brutality of their actions and warrants enhanced punishment. He submitted that the sentence under Section 324 APC should be increased from 7 years to 10 years, along with a separate conviction under Section 336 APC, as sought in a separate appeal. He argued that the prosecution's evidence, including the motive, was accurately proved, and the objections raised by the appellants' counsel were rightly refuted by the trial court. The learned counsel further asserted that the appellants are habitual offenders involved in various criminal activities, including narcotics, attempted murder, and possession of illicit arms. This renders them undeserving of any leniency in terms of acquittal or reduction of sentence. In view of the overwhelming evidence and the appellants' criminal background, he prayed for the dismissal of the appellants' appeal. He also sought the enhancement of sentences as requested in appeal filed by the complainant.

5. Mr. Ahmed Saad Khan, the learned Assistant Advocate-General, appearing for the State, contended that the judgment of the Shariat Appellate Bench dated 04-04-2024, along with the judgments of the District Criminal Court, Mirpur, dated 20-05-2022, and the Additional Tehsil Criminal Court-II, Mirpur, dated 26-02-2022, are contrary to law and facts in awarding a meager sentence of seven years under Section 324 APC. He submitted that the prosecution has conclusively proved its case beyond any shadow of doubt, and the courts below were obligated to impose maximum punishment of ten years under Section 324 APC. Despite acknowledging the commission of the offence under Section 324 APC, the learned Courts below adopted a lenient view based on minor discrepancies in the evidence, which is unjustified. He argued that the trial court failed to properly analyze the evidence and overlooked established principles set by the superior Courts, thereby committing misreading and non-reading of evidence. He further submitted that the appellants, being hardened and dangerous criminals, with multiple criminal cases pending against them, do not deserve any leniency. The appellants trespassed into the complainant's drawing room and inflicted injuries causing permanent disability, which necessitates the imposition of the maximum punishment under Sections 324 and 336 APC. He emphasized that the prosecution's case was supported by cogent ocular, medical, and documentary evidence, leaving no lacunae, and therefore, the leniency shown by the Courts below is unwarranted, and the appellants are liable to be awarded the maximum punishment.

6. Upon a meticulous examination of the record, it transpires that the prosecution's narrative against the convict-appellants/respondents, namely Amjad alias Abi and Shahzad alias Dawood, is centered around an incident that transpired on October 19, 2013. According to the complainant, while he and Muhammad Ishtiaq were present in the drawing room of the complainant's residence at Chamba Mohr, at approximately 10:45 PM, the accused forcibly entered the premises. Amjad alias Abi was armed with a 12-bore gun, while Shahzad alias Dawood carried a 30-bore pistol. With an evident intent to kill, the accused indiscriminately opened fire, inflicting grievous injuries upon the complainant's thighs. The incident was reportedly witnessed by the complainant himself and Muhammad Ishtiaq. The prosecution further alleged that the motive for this act was rooted in a prior enmity between the parties. Subsequently, the trial court convicted the appellants under Sections 324, 452, 337/F-3 APC and Section 13 of the Arms Ordinance. This conviction was upheld by the first appellate court through its judgment dated May 20, 2022. The appellants later filed a second appeal challenging the conviction and sentence, while the complainant sought an enhancement of the punishment imposed on the appellants before the High Court but both appeals were dismissed. The primary question before this court is whether the sentences awarded to the convict-appellants/respondents are justified! Upon thorough analysis, it is evident that the primary and most significant prosecution witness is Muhammad Ishtiaq who also got injured during the incident. His statement as the complainant and the contents of the initial report unequivocally affirm his presence at the time of the incident and his direct observation of the occurrence. In his judicial deposition recorded on 31-03-2014, the witness provided a comprehensive account encompassing the date, time, and place of the incident, as well as the manner in which the convicts entered the drawing room armed with a pistol and shotgun, inflicted gunshot injuries on Umar Daraz, and fled from the scene. He also identified the appellants and detailed their respective roles in the commission of the offense. Additionally, he narrated the subsequent arrival of witnesses Tahir (later dropped) and Sajawal, their efforts to transport the injured to the hospital, and the recording of the injured statement by the police. The witness further described the actions undertaken by law enforcement at the crime scene post-occurrence. During cross-examination, the witness affirmed material details, stating that his residence is one house away from the complainant's home. Witness Sajawal is the complainant's paternal uncle, and their houses are situated opposite each other. He further disclosed that in his presence, the complainant's statement was recorded at the hospital and duly signed. The complainant had returned from England approximately one month prior to the incident. Sajawal and Tahir arrived at the crime scene immediately after hearing the gunshots. The complainant had also informed him about a quarrel that had taken place two to three weeks before the occurrence.

7. The second significant prosecution witness is Sajawal, whose testimony confirms the proximity of his residence to the complainant's house, separated by a seven-to-eight-foot alley. This witness testified that he heard gunshots, came outside, and identified the appellants as they were exiting the scene while firing. He stated that when the shots were fired, he came outside. Shahzad and Amjad were firing as they fled. Amjad carried a 12-bore shotgun, and Shahzad had a pistol. The accused exited while he entered the premises and found Umar Daraz injured. The testimony substantiates that Sajawal observed the convicts-appellants firing inside the drawing room and subsequently saw them exiting the scene. The injured, Umar Daraz, testified that the gunshots struck the upper portions of his thighs. His testimony aligns with the medical report (Exh-PH) and the evidence provided by Dr. Yasir Sarfraz, CMO. The medical officer, in his initial testimony, stated, "The injured had two firearm wounds on the inner side of the left thigh and one wound on the inner side of the right thigh." During cross-examination, he clarified, "The medical report documents five injuries in total and the discrepancy in my initial statement regarding the number of injuries was an inadvertent error". The complainant sustained significant injuries as detailed in the medical report (Ex.PH), which records two entry wounds (0.5 cm each) on the medial aspect of the left thigh, with one exit wound; one entry wound (0.5 cm) on the medial aspect of the right thigh; one entry wound (0.5 cm) on the lateral aspect of the right thigh; one exit wound (1 cm) on the lateral aspect of the left thigh; and an abrasion on the scrotum. The injuries resulted in massive blood loss, generalized body pain, and a suspected sciatic nerve injury which cause right foot drop. The injuries were classified as "Jurah Ghair Jaifa Mutalahima" caused by firearm weapons. Considering the gravity of the injuries and the manner of the occurrence the trial concluded that the appellants fall within the category of "hardened, desperate, and dangerous criminals" as defined under Section 337/N(2) APC. Consequently, the appellants were sentenced to imprisonment and ordered to pay daman as per Section 337/F-(iii) APC. The testimonies and corroborative evidence collectively establish the appellants' culpability in the commission of the offense beyond any shadow of doubt. According to the principle laid down by this Apex Court, sole ocular account is sufficient for conviction. The case law titled Zahir Hussain Shah v. Shah Nawaz Khan and others, is quite clear in this regard: "...Where ocular evidence is reliable and satisfactory conviction in law can be recorded on such evidence alone without any further corroboration." This Court in a case reported as Liaqat Hussain and another v. Ulfat Khan and another, reiterated the same principle as follows: "As far as the corroboration is concerned, it does not mean that the corroboration should be from an independent witness but anything in the circumstances, which tends to satisfy the Court that each interested witness has spoken truth. The corroboration need not necessarily be of the same probative force. The corroboration can be from any circumstance satisfying the Court.

8. The learned counsel for the appellants argued that the incident occurred at night light and the eye-witnesses failed to mention any source of light, rendering their testimony unreliable. Although, the incident occurred at 22:45 house on 19-10-2013, this objection alone does not discredit the witness's testimony. Firstly, the evidence The learned counsel for the appellants argued that establishes that the incident took place inside the drawing room. Secondly, the appellants' counsel failed to question the witnesses about the source of light during cross-examination. Thirdly, the investigating officer to inquire about the source of light constitutes a procedural lapse, which does not undermine the substantive evidence. Lastly, witness Ishtiaq's inside the drawing room during the incident is corroborated by the other evidence, and his testimony remains credible and consistent.

9. The learned counsel for the appellant raised several objections including the abandonment of a witness, the exclusion of family members as witnesses failure to investigate witness Ishtiaq, allegations of false implication due to personal enmity, non-recovery of pellets, discrepancies in the medical report, absence of forensic blood analysis, non-recovery of blood from the crime scene, lack of examination of medical specialists, inconsistencies between Court statements and statements under Section 161 Cr.P.C. of the witnesses and procedural and investigative flaws. Even if these objections are considered valid and the testimony of other witnesses is overlooked, the clear and reliable account of witness Ishtiaq alone forms a robust legal basis for the appellants' conviction. This Court in a case reported as Masood Hussain and others v. Ghazanfar Ali and others, dealt with the same matter while observing as under: - "We have no quarrel with the learned counsel for the complainant that the testimony of prosecution witnesses cannot be discarded merely on the ground of relationship with the complainant or the deceased. We also have no quarrel with the proposition argued by him that in a criminal case even the conviction can be based on the statement of a solitary witness. Let us make it clear that the conviction can be based on the statement of such a person whose presence at the spot is not disputed and who was in a position to identify the offenders and against whom it cannot be said that there was any possibility of substitution by him. In such a case, the statement of such person could be accepted without corroboration. But in the present case there are exaggerations in the statements of eye-witnesses and their velocity on account of material contradictions in their statements keeping in view their enmity with the accused party, is doubtful."

10. Regarding the objection to the collection of blood from the crime scene, the discrepancy between the drawing room and the bedroom is acknowledged. However, given the proximity of the two areas, it is plausible that blood may have spilled from one to the other, and this does not constitute a significant defect capable of disproving the occurrence. Regarding medical evidence, the medical officer initially mentioned three injuries, while the medical report (Exh-PA) documented five injuries. During cross-examination, the medical officer clarified that the reference to three injuries was a clerical error, and the medical report accurately recorded five injuries.

11. Another contention of the learned Advocate pertain to the recovery of pallets from the sealed parcel. Although pellets were not recovered from the sealed parcel, the record confirms their recovery and seizure. This minor inconsistency does not materially impact the prosecution's case. The argument of the learned counsel for the appellant that there are material contradictions in the statement of the witnesses which cannot be lightly ignored, also holds no substance, as in our view, although some discrepancies have been found in the statement of the witnesses but cannot be held fatal for the prosecution's case. Such inconsistences are natural and expected, given that the statements were recorded three years to four years after the incident and the witnesses are not expected to provide a parrot like statements and Courts have consistently affirmed the slight variations lend credibility to their testimonies rather than detract from them. It is well settled now that the legal proceedings, minor contradictions and variations in evidence are often encountered, particularly when the testimony of witness is involved. These inconsistencies do not automatically render a witness's testimony incredible or unreliable. The key principle is that minor contradictions or natural variations in witness testimony should fundamentally undermine the core of the prosecution case. The law required that reasonable doubt is established for a conviction to be overturned or a case to fail. A reasonable doubt is one that a prudent person, after careful consideration of all evidence, could leave about the guilt of the accused. However, not every doubt or minor uncertainty raised by the defence will suffice to create reasonable doubt. The standard of proof required is not absolute certainly, but rather poof that leaves no room for a reasonable doubt about the accused's guilt. The credibility of a witness is determined by considering the totality of testimony in light of the surrounding circumstances, if the core facts of the testimony remain consistent and plausible, and there is not substantial shift in material facts, minor contradictions do not usually render the testimony incredible.

12. Even otherwise, if any mitigating factor exists in the case, such as lapses on the part of the investigating authorities, including the failure to send the weapon of offense for forensic examination and the non-recovery of pellets from the sealed parcel, the benefit of such factors has already been extended to the convict-appellants. At this stage, these benefits cannot be reconsidered or re-granted. Our view is fortified by the judgment of the Supreme Court of Pakistan, titled Muhammad Islam v. State, wherein, it has been held as under: - "We have heard the learned Advocate Supreme Court for the petitioner-convict at some length but could not find any infirmity, legal or factual, in the concurrent findings of guilt recorded against the petitioner. The benefit of mitigating circumstances available on record has already been extended to the said convict as he stood punished only with the sentence of imprisonment for life." Regarding the appeal filed by the complainant seeking enhancement of the sentence, we find no merit in it. The trial Court has already awarded an appropriate and reasonable punishment, which reflects due consideration of all relevant factors. The sentence cannot be disturbed merely on grounds that have already been adequately addressed by the lower courts. Therefore, we find no reason to interfere with the concurrent findings of the courts below. Consequently, the appeals stand dismissed, and the judgments of all the lower courts are hereby upheld. JK/20/SC(AJ&K) Appeals dismissed.