2004 PLP 1982 (MLD)

On 22-9-1996 at 10 a.m. a report was recorded by Ainullah (P.W.9) when crime was reported to him by complainant Sharif Khan (P.W.6). P.W.6 Sharif Khan is cousin of Saidal (P.W.5), latter has received fire-arm injury on his head.

2. According to the report made, occurrence took place at 9 a.m.When complainant Sharif Khan, Saidal Khan and Naseer Khan had left their village and were proceedings towards their fields. They found in the fields, Waris Khan the appellant, his three sons namely, Sanaullah the acquitted accused, Ehsanullah and Samiullah the co-convicts. 13 empties of Klashinkov were recovered from the spot. The role of effective firing was attributed to Waris Khan the appellant.

3. Vide judgment dated 11-12-2003 learned Sessions Judge at Kohat acquitted Sanaullah but convicted Waris Khan the appellant under section 324/34, P.P.C. To eight years' R.I. With a fine of Rs.50,000 and the fine if realized Rs.30,000 were ordered to be paid to injured Saidal under section 544-A, Cr.P.C. And in default to undergo one year S.I. Co-convicts/co-appellants Ehsanullah and Samiullah have also been found guilty under section 324/34, P.P.C. And they have been sentenced to five years' R.I. Each and a fine of Rs.20,000 each, in default to six months' S.I. They all have been given the benefit of section 382-B, Cr.P.C.

4. To prove the charge, prosecution examined two eye-witnesses namely, Saidal the injured and Sharif Khan the complainant.

5. I have heard learned counsel for the appellant, learned counsel appearing for the complainant, Mr. Akhtar Naveed D.A.-G. For State and with their assistance and help have gone through the record.

6. Learned counsel appearing for the appellants has argued that somewhat same evidence has been disbelieved against Sanaullah the acquitted accused, that Waris Khan is father of the three co-accused and is an old man of nearing 70 years of age who has been falsely attributed the effective shot, that according to the statement of injured, he was fired at from a distance of 100 paces whereas according to the site-plan the distance between the victim and Waris Khan appellant is 17 paces. It is argued that Saidal frankly stated in his examination-in-chief that at the time of occurrence he was all alone and has thus excluded the presence of Sharif Khan and Naseer at the spot. Further it is submitted that Naseer who was present outside the Court when P.Ws.5 and 6 were examined but Naseer was abandoned as unnecessary but a presumption shall be drawn against the prosecution that had he been examined he would not have supported the case of the prosecution.

7. Much stress has been placed on section 265-C, Cr.P.C. Which tequires that the trial Judge shall supply statements and documents to the accused mentioned therein which also includes the statements of witnesses recorded under sections 161 and 164, Cr.P.C. He argues that in this case statement of Saidal recorded by the police was not provided to the accused; therefore, defence of the accused was prejudiced. Reliance is placed on PLD 2003 Quetta

77. It is argued that Saidal though allegedly injured in an occurrence which took placed on 22-9-1996 but he never appeared before the police nor did the police summon him to record his statement except that he appeared for the first time before the trial Judge in the year 2003. It is argued that requirement of section 265-C, Cr.P.C. Being mandatory in nature, its violation and non-observance has vitiated the trial.

8. Learned counsel for the appellant has also argued that Sharif Khan complainant was not present on the scene and his presence has been excluded even by the injured witness, therefore, the very foundational document of the prosecution namely F.I.R., is fabricated, and false. It is argued that Sharif Khan complainant admitted to be Ex-Army personnel who stated that Waris Khan appellant was armed with Klashinkov but no empty of Klashinkov were recovered. It is submitted that it was an unwitnessed crime and because of enmity though young sons were allegedly present but falsely the effective role is assigned to father namely, Waris Khan, the appellant.

9. Learned counsel appearing for the complainant states that under section 365-F, Cr.P.C. The Court can ask the complainant regarding any witness who can give evidence and is conversant with the facts of the case to support the prosecution's case. His submission is that such power is independent of section 265-C, Cr.P.C. On evidentiary value of the statement of Saidal reliance is placed on NLR 1987 Cr. Cases 32 where it was ruled that mere non-examination of a witness by the police would not mean that statement of such person shall not be taken as evidence.

10. Learned Deputy Advocate-General states that Waris Khan appellant is directly charged for effective firing by Saidal injured who was hit on his head and that prosecution has fully proved the case.

11. I will first take up the case of Ehsanullah and Samiullah the two appellants. According to the statement of Saidal (P.W.5) they did not fire at him except Waris Khan their father whereas Sharif Khan stated that these two appellants fired afterwards thai too in the air. Thirteen empties of Klashnikov were recovered from the spot, were though sent to the Fire-Arms Expert but no opinion given if they were fired from one weapon or more. Keeping in view the role attributed to them by the two witnesses out of which the presence of Sharif Khan has been put into doubt even by Saidal P.W., it is not safe to maintain the conviction and sentence of the two appellants namely Ehsanullah and Samiullah. Their conviction and sentences are, therefore, set aside and they are acquitted of the charge. They be set free from jail forthwith, if not required in any other case.

12. Waris Khan appellant is the single accused charged for effective 1B firing which has caused fire-arm injury on the head of Saidal.

13. According to the statement of Saidal he remained unconscious for five months but in support whereof his such bald statement is not supported by any medical evidence. He has admitted to be presently working as driver in Abu Dhabi which means that he has not lost any Udw or Salahiyyat-i-Udw nor is incapacitated in his day to day working.

14. Sharif Khan's presence has been excluded by Saidal, therefore, no reliance can be placed on his statement, therefore, his statement is outrightly excluded.

15. I am left with statement of Saidal who himself has sustained firearm injury and for such injury has charged Waris Khan the appellant.

16. Non-examination under section 161, Cr.P.C. Could be attributed to the incompetence of the police for which complainant shall not suffer. Even otherwise it is not mandatory that statement of a witness shall in all cases be recorded under section 161, Cr.P.C. Had it been mandatory, it would have been provided under section 161, Cr.P.C. Itself that unless a person is examined under section 161, Cr.P.C. He Cannot appear as a witness which is not the case.

17. I agree with the learned counsel for the complainant that section 265-F, Cr.P.C. Caters for such situation where the Court may ascertain from the complainant the name of any person likely to be acquainted with the facts of the case and to be able to give evidence for prosecution. The main consideration for the Courts is that whether because of non-examination under section 161, Cr.P.C. Any prejudice is caused to the accused but because in the very F.I.R. And at the time of surrender/arrest appellant Waris knew that he was charged for causing fire-arm injuries to Saidal who was still living, he is presumed to be in knowledge that Saidal will appear against him and will give evidence. Therefore, it is held that neither any prejudice is caused to the defence asit was not taken by surprise nor on ground of non-examination by the IG police statement of Saidal injured witness shall be excluded.

18. Certain other irregularities in examination of accused under section 342, Cr.P.C. Were pointed out but because of acquittal of Ehsanullah and Samiullah as recorded above, such irregularities have become inconsequential.

19. Now, I deal with the question of sentence as has been awarded to Waris Khan appellant.

20. It is not denied that Waris Khan is father of his co-accused and a man of advance age. The nature of enmity and its extent has not been highlighted by the prosecution. Except the statement of Saidal that he remained unconscious for five months, there is no medical evidence that he remained unconscious for such long time. He has sustained single fire-arm injury though on his head but admittedly pursuing his regular life, in fact serving as a driver in Abu Dhabi.

21. In this view of the matter, I partially allow the appeal of Waris Khan appellant. His conviction under section 324/34, P.P.C. Is maintained but the sentence of eight years R.I. Is reduced to five years R.I. And similarly the fine of Rs.50,000 is reduced to Rs.30,000, half of which is actually compensation under section 544-A, Cr.P.C. Payable to Saidal complainant which shall be recoverable as arrears of land revenue. Benefit of section 382-B, Cr.P.C. Stands extended to him.

22. Because of my order of today in this criminal appeal, revision filed by Sharif Khan for enhancement of the sentence of the appellant in this appeal has become infructuous and is, therefore, dismissed. H.B.T./212/P Order accordingly.