2005 PLP 465 (YLR)

Shortly narrated the facts of the prosecution case are, that on the night of occurrence i.e. 25‑6‑2001 complainant Noor Ali Shah while in injured condition, lodged a report in Police Station, Tajori, District Lakki Marwat to the effect that on the said night, complainant along with his wife Mst. Shamina P.W. had gone to the house of his father‑in‑law. On return at 2340 hours, they found Bahadur Sher and his son Shamsher present in their house. A bulb of 100 watts was lit in the house. Bahadur Sher was armed with Kalashnikov and Shamsher was armed with 303 bore rifle. Bahadur Sher fired at the complainant with his Kalashnikov as a result whereof complainant was hit on his left arm. However, Mst. Shamina escaped unhurt. After the occurrence, both the accused succeeded to run away from the spot. Motive leading to the incident was stated to be a money dispute. On this report, a case was registered vide F.I.R. No.143 dated 25‑6‑2001 at Police Station, Tajori under sections 324/34, P.P.C.

2. P.W. Imtiaz Khan, A.S.‑I. recorded report, prepared injury sheet of the complainant and referred him to Rural Health Centre Tajori for medical treatment. The witness in hand proceeded to the spot but due to darkness, postponed the investigation. On the following day i.e. 26‑6‑2001 he visited the spot, prepared site plan at the pointation of Mst. Shamina P.W. and took into possession one electric bulb of 100 watts. He also took into possession blood‑stained shirt belonging to complainant and a phial sent by the doctor and sent the same to F.S.L., Peshawar. All these items were taken into possession vide memo. Exh.P.W.1/1 in presence of marginal witnesses. Accused Shamsher was arrested on 8‑7‑2001 whereas accused Bahadur Sher was arrested on 6‑8‑2001 by S.H.O., Sardar Nawaz Khan P.W. After finalization of the investigation, challan was submitted against the accused.

3. Formal charge against the accused was framed on 4‑3‑2002 to which they pleaded not guilty and claimed trial. In order to prove its case against the accused, prosecution produced eight witnesses in all. Dr. Abdur Rehman, Senior Medical Officer, Rural Health Centre, Tajori examined Noor Ali Shah complainant on 26‑6‑2001 at 1220 hours and found the following injuries:‑ (1) Fire‑arm entrance wound 5 x 5 c.m. on the lateral aspect of left forearem " above wrist joint. (2) Fire‑arm exit wound 6 x 6 c.m. on the anterior medial aspect of left fore‑arm on wrist joint 1/2" below wound No. 1. (3) Fire‑arm exit wound 5 x 5 c.m. on the anterior aspect of left upper arm 4" above elbow joint.

4. The injured was referred to D.H.Q. Hospital, Bannu where he remained under the treatment of Dr. Abdur Rehman Qureshi, Incharge Orthopedic Department.

5. The accused when examined under section 342, Cr.P.C. repudiated the prosecution allegations and claimed to have been falsely charged. Accused Bahadur Sher denied his abscondance and stated that during the days of occurrence, he had gone to Afghanistan to visit shrines and on return to the village, coming to know of the charge, voluntarily surrendered before the police. They neither appeared as their own witnesses on Oath as required under section 340(2), Cr.P.C. nor produced any evidence in defence.

6. The learned trial Court on conclusion of the trial, found accused Bahadur Sher guilty of the offence and while convicting him under section 324, P.P.C., sentenced him to suffer five years R. I. and fine of Rs.50,000 or in default thereof, to further undergo six months S.I. vide his judgment dated 17‑6‑2004. Half of the amount of fine, on realization, was ordered to be paid to complainant as compensation under section 544‑A, Cr.P.C. Benefit of section 382‑B, Cr.P.C. was extended to him. However, accused Shamsher was acquitted of the charge per the impugned judgment.

7. Bahadur Sher appellant has filed Criminal Appeal No.58 of 2004 and complainant Noor Ali Shah has filed Cr. Appeal No.65 of 2004 against acquittal of accused Shamsher and Cr. Revision No.38 of 2004 seeking enhancement of sentence awarded to appellant Bahadar Sher. Since all three matters are the outcome of one and the same judgment, therefore, I propose to dispose them of through this single judgment.

8. Mr. Sultan Shehryar Marwat, Advocate for appellant Bahadar Sher contended that the learned trial Judge has not taken into consideration the entire facts of the case while delivering the impugned judgment and that the complainant has made deliberate dishonest improvements so much so that he had charged the appellant for making firing upon him and his wife Mst. Shamina with a Kalashnikov in the F.I.R. but at the time of trial, he deposed that he was fired at by the appellant by a DB .12 bore shotgun. This improvement was made with sole object to bring the prosecution version in conformity with the medical evidence. The learned counsel also maintained that no blood was recovered from the spot at the time of spot inspection which tends to suggest that the occurrence had not taken place as alleged and the possibility of the complainant having received injuries somewhere else at the hands of his enemies, cannot be ruled out. The learned counsel further submitted that motive has not been satisfactorily proved and there was no occasion for the appellant to have fired at the complainant. Concluding the arguments, the learned counsel contended that the alleged occurrence is totally an unseen occurrence which has taken place during dark hours of night and thus the identity of culprits is impossible. Reliance was placed on Aurangzeb v. The State and another 1999 PCr.LJ 230 Peshawar and Muhammad Jehangir alias Badshah and another v. The State 1995 SCMR 1715.

9. Mr. Farooq Akhtar, Advocate appearing on behalf of the State assisted by Mr. Khawaja Muhammad Khan, Advocate for the complainant, on the other hand, supported the impugned judgment qua conviction of the appellant and maintained that sentence awarded to the appellant is grossly inadequate and invites interference of this Court. In support of the submissions, reliance was placed on Muhammad Hafeez v. The State 2002 SCMR 1251; Rahim Shah v. The State and another 2004 PCr.LJ 1129 Peshawar and Saddique and others v. The State 2003 PCr. LJ 609.

10. I have heard at length the arguments of learned counsel for the parties with reference to the material available on record and the case‑law cited at the bar.

11. The prosecution case mainly rests on the statements of Noor Ali Shah complainant and his wife Mst. Shamina. Both the witnesses have charged the appellant for causing fire‑arm injuries to complainant Noor Ali Shah who happens to be real brother of the appellant and reside in a joint house. A careful scrutiny of their statements would reveal that these are not only worthy of credence and confidence inspiring but consistent and straight forward having the ring of truth and innocence. They faced the test of cross‑ examination successfully and nothing advantageous could be elicited. The contradictions and infirmities pointed out by the learned counsel for the appellant are minor and inconsequential. The mere fact that in the F.I.R. the appellant is alleged to have used Kalashnikov in the commission of the crime but at the trial DB shotgun has been introduced, is not fatal to the prosecution. It appears to be an omission oil the part of the police. The crime in question having taken place on the night of occurrence at 2340 hours, the matter was reported to the police with promptitude. No time has been consumed for consultations and deliberations. The medical evidence furnished by Dr. Abdur Rehman (P. W .1) and Dr. Abdur Rehman Qureshi (P.W.5) fully supports the charge. A strong motive has been alleged against the appellant which is a money dispute. The motive is furnished in the F.I.R. as well as in the statement of complainant. The motive has beer established satisfactorily. Anyhow, it is not denied that mere absence or weakness of motive would not come in the way of prosecution if the case is otherwise proved by reliable evidence. Motive is not considered a sine qua non for proving the offence and mere absence of motive is no ground to doubt the truth of prosecution case as held in Government of Sindh v. Sobharo 1993 SCMR 585.

12. No doubt it is true that the abscondance at the most can be taken as corroborative of the charge and not the evidence of the charge and in absence of C any other corroborative evidence, this evidence even if found convincing, would not be sufficient by itself to warrant the conviction of the accused person, but in the instant case, the abscondance of the appellant would go a long way to corroborate and strengthen the truth of the prosecution version as held in Aminaullah v. The State PLD 1976 SC 632.

13. Learned counsel for the appellant vehemently submitted that no blood has been recovered from the scene of occurrence which is indicative of the fact that the occurrence had not taken place in the manner as alleged and the possibility of the appellant having been fired at by his enemies, cannot be excluded in the circumstances of the case. The submission carries no weight. A perusal of the record would show that due to darkness, investigation was postponed and it was carried out on the following day of the occurrence. As such, the possibility of the blood having vanished cannot be excluded.

14. Having heard the learned counsel for the parties in the light of evidence on the file, I am of the considered opinion that the prosecution has been successful in proving its case against appellant Bahadur Sher to its hilt beyond shadow of doubt and the appellant has been rightly convicted and sentenced. The case‑law cited on behalf of the appellant is distinguishable anal proceeds on different facts. It does note promote the case of the appellant in any, manner.

15. Adverting to Criminal Revision No.38 of 2004 preferred on behalf of Noor Ali Shah, complainant, I find that appellant has been awarded appropriate sentence and no case for enhancement has been made out.

16. So far as the case of Shamsher acquitted co‑accused is concerned, it may be observed that no overt‑act whatsoever has been attributed to him as rightly contended by his counsel, Mr. Abdul Latif Khan Baloch, Advocate. He has not taken any step which would indicate that he shared common intention with his father Bahadur Sher appellant. His mere presence at the spot would not be sufficient to lead to an inference that he had a hand in the offence alleged. He has been acquitted of the charge for valid reasons and no exception can be taken to it.

17. In the wake of above discussion, finding no substance in Cr. Appeals Nos.58 and 65 of 2004 and Cr. Revision No.38 of 2004, I dismiss the same. Appeals and revision dismissed. H.B.T./284/P