' Appellant Abdul Ghaffar and his brother-in-law co-accused Abdul Sattar (since acquitted), were tried by learned Additional Sessions Judge, Peshawar, under sections 324/337-F(2)/34, P.P.C. In case F.I.R. No,291, dated 13-4-1999, registered at Police Station Gul Bahar, Peshawar, at the behest of complainant Umer Gul. At the conclusion of trial, vide judgment, dated 2-2-2005, appellant was convicted under section 324, P.P.C. And sentenced to suffer 4 years' R.I. Plus fine of Rs,50,000 or in default thereof to' undergo S.I. For three months. He was also convicted under section 337-F(2), P.P.C. And sentenced to two years' R.I. And held liable to pay Rs,50,000 as 'Daman' payable to the complainant. In view of section 337-Y(2), P.P.C., appellant was directed to be kept in jail till Daman' is paid in full. Both the sentences were ordered to run concurrently. Benefit of section 382-B, Cr.P.C.
Was accorded to the appellant. Co-accused Abdul Sattar was however, extended benefit of doubt and acquitted of the charge.
2. The accused-appellant has preferred instant Criminal Appeal No,91 of 2005, assailing his conviction and sentences. Complainant Umer Gul P.W. Has also. Filed a connected Criminal Revision No,32 of 2005 for enhancement of sentences of the accused-appellant. This judgment shall dispose of both the matters.
3. Case of the prosecution in brief is that on the night of occurrence i,e, 13-4-1999, at 8-45 p.m., complainant Umer Gul, accompanied by his relatives Akbar Hussain (not produced) and Salahuddin P. Ws. Was on the way from Ganj City to Mohallah Islamabad Peshawar. On reaching the spot, they were confronted by Abdul Ghaffar and Abdul Sattar accused. On seeing the complainant, Abdul Ghaffar, at the instigation of Abdul Sattar, took out a pistol and started firing at the complainant, as a result whereof'complainant was hit on foot. The existence of bad blood between two families over estrangement of Mst. Basmina, sister of Abdul Ghaffar with complainant Umer Gul, was stated to be the motive leading to the incident.
4. Injured Umer Gul was immediately removed to Lady Reading Hospital, Peshawar, for treatment.
S.-I. Khan Abbas Khan (P.W.2) recorded the report at the instance of the injured, prepared his injury sheet, took into possession blood-stained Shalwar' of the injured and after completion of investigation submitted complete challan in Court.
5. At the trial, the prosecution, in order to prove its case, produced six witnesses in all. Dr. Rajwali Khan (P.W.6) on 13-4-1999, at 9-30 p.m., examined timer Gul and found fire-arm entry wound on 'left leg below knee with exit on the same leg above the ankle.
6. The accused in their statements recorded under section 342, Cr.P.C. Denied the prosecution allegations and claimed to have been falsely charged. They produced. Muhammad Anwar, Azizullah and Sultan Muhammad in defence.
7. The learned trial Judge, after appreciating and evaluating the evidence brought on record in the light of the arguments of the parties, through his judgment dated 2-2-2005, convicted and sentenced the appellant as mentioned above.
8. Mr. Shamoon Ahmad Bajwa, Advocate, learned counsel for the appellant, criticized the impugned judgment mainly on the ground that there are material contradictions in the statements of prosecution witnesses and they did not corroborate each other on material particulars; that the trial Court has overlooked the material favoring the appellant and discarded the same in a manner uncalled for and unwarranted in law and that conclusion arrived at by the trial Court is against evidence, law and judicial principles and also suffers from the defect of misreading and non-reading of evidence. He also urged that the medical evidence and site plan totally falsify the prosecution version and the motive has not been satisfactorily proved. Concluding the arguments the learned counsel urged that the evidence produced by the defence has been ignored and kept aside without any justifiable reason which has resulted in complete failure of justice.
9. Contrarily, Mr. Shah Nawaz Khan, Advocate, learned counsel appearing on behalf of the State assisted by Malik Haroon Iqbal, Advocate, for the complainant, supported the impugned judgment qua conviction of the appellant and maintained that having regard to facts and, circumstances of the case, learned trial Judge had no justification to take lenient view of the matter and award lesser sentences to the appellant. They prayed for enhancement of the sentences. To augment the contentions, reliance was placed on Abdul Ghafoor v. The State 2000 SCM R 919; Irshad Ahmad and others v. The State and others PLD 1996 SC 138 and Rahim Shah v. The State and another 2004 ,PCr.LJ (Peshawar) 1129.
10. It may be observed that prosecution case mainly rests on the statement, of complainant Umer Gul and Salahuddin P.Ws., medical evidence and motive. The complainant and Salahuddin have fully supported the prosecution version and charged the appellant for causing him fire-arm injury.
Both the witnesses have consistently adhered to the prosecution version, word by word. Manner and mode, of occurrence has been consistently described by them. They were cross-examined at a considerable length by the defence but miserably failed to derive any advantage out of the whole exercise. No doubt there are some minor discrepancies in their statements but those are inconsequential and not fatal to the case. The medical evidence is in complete harmony with the prosecution version, inasmuch as fire-arm entry wound was found on the person of the complainant. It has been vehemently contended by the learned counsel for the appellant that the wound was self-inflicted. The submission is devoid of force. The most significant feature of the case is that the occurrence has taken place at 8-45 p.m. And the matter was reported to the police at 9-40 p.m. Without loss of time There is no possibility of consultation and deliberation. After going through the evidence and 'accompanying material as brought on record by the prosecution, there remains no doubt to believe that it was the appellant who fired at the complainant causing him injury. The trial Court has given very sound and cogent reasons for acceptance of the presence of the complainant and Salahuddin P.Ws. At the time of occurrence and for believing their testimony.
Its finding in my view is based on correct and proper ahalysis/appraisal of evidence on record. I also agree with learned State Counsel that statements of defence witnesses have been discarded for valid and cogent reasons. The plea of alibi taken by the appellant seems to be an afterthought.
It may not be out of place to mention here that the said plea was not taken by the appellant when he applied for bail before arrest before the Court of Session, Peshawar.
11. The acquittal of co-accused Abdul Sattar does not detract the credibility of ocular version provided by complainant and Salahuddin P.Ws. Co-accused was acquitted on the ground that only role of proverbial Lalkara' was attributed to him and the main role of firing was assigned to the appellant.
12. As seen above, sister of the appellant is married to Umer Gul complainant. The relations between the couple are not cordial due to stated ill-treatment of the complainant. Mst. Basmina has left the abode of the complainant and started living in the house of her parents. The existence of bad blood between the two families is stated to be the motive. The parties are involved in criminal litigation. The motive has been satisfactorily established.
13. The overall assessm ent of the evidence made by the learned trial Judge and the findings arrived at by him apparently do not call for an interference by this Court and as such it cannot be said that a grave miscarriage of justice has accrued and/or that the trial Court has exercised jurisdiction illegally or with material irregularity. The testimony of the complainant and Salahuddin P. Ws. Has rightly been relied and made basis of conviction of the appellant. The learned counsel for the appellant has failed to point out any illegality by way of misreading or non-reading of the evidence by the learned trial Court warranting interference by this Court in its appellate jurisdiction.
The appeal fails which is hereby dismissed.
' Adverting to the connected criminal revision, I find that no case for enhancement of sentences has been made out. The submission of learned State Counsel that the impugned order qua sentences of the accused-appellant is bad in the eye of law and is not sustainable does not carry weight. The accused appellant has been awarded legal sentences which are appropriate in the circumstances of the case and hardly call for interference. The criminal revision fails which also stands dismissed.
Appeal and .