' TARIQ PARVEZ KHAN, J.--- Our this judgment is in support of our short orders, dated 23-11-204. It shall dispose of Criminal Appeal No,621 of 2003 filed by Ghulam Muhammad and Muhammad Anwar as both of them have been convicted and sentenced, former under section 324, P.P.C. To ten years' R.I. And to pay Rs,10, 000 as fine and in addition Rs,64,000 as Arsh to Muhammad Hanifa the injured and the whole amount of fine and Arsh is payable to said Muhammad Hanifa the injured.
' Latter has been convicted under sections 337-A(i) and 337-F(i), P.P.C. And sentence to four months' S.I. With fine of Rs,6,000 as Daman payable to Ahmad Sahib complainant of the case.
' This judgment will also dispose of Criminal Revision bearing No,119 of 2003 titled (Ahmad Sahib v.
Ghulam Muhammad and others) filed. For the enhancement of the sentence of the two appellants in Criminal Appeal No,621 of 2003.
' This single judgment of ours will also decide Criminal Appeal No,606 of 2003 filed by Ahmad Sahib complainant against the outright acquittal of Koka Khan respondent from the murder charge and against Muhammad Anwar who though convicted as aforesaid but acquitted of the murder charge. The three matters have been disposed of together because they are the outcome of single judgment of learned Additional Sessions Judge, Matta Swat recorded on 8-9-2003 who has convicted the two appellants but acquitted Koka Khan from the murder charge.
2. Brief facts can be summarized as under:-.- ' On 7-9-2001 at 4 p.m. Complainant Ahmad Sahib (P.W.4) who was himself injured reported the crime where he has charged Ghulam Muhammad, Koka Khan and Muhammad Anwar for causing death of Babuzai (deceased) brother-in-law of the complainant for causing fire-arm injuries to Muhammad Hanifa (P.W.6) son of the complainant and for receiving stone pelting injuries on his own person.
' It was stated in the report that on the day of occurrence at 3 p.m. Complainant, the deceased and his son Muhammad Hanifa were plucking walnut when in the meanwhile three accused, named above, all armed with fire-arms came to the spot and started altercating with them. Immediately with altercation the accused party is said to have started firing. With the fire shot of Koka Khan respondent Babuzai (deceased) was hit and with the firing of Ghulam Muhammad, P.W.
Muhammad Hanifa has sustained injuries whereas complainant himself sustained injuries when Muhammad Anwar accused pelted stones on him.
' Motive for the crime was land dispute pending in Civil Courts.
3. The dead body of the deceased was taken to the hospital and so was the injured where their injury-sheets were prepared and inquest report of the deceased.
4. Dr. Naqib Ahmad (P.W.10) has prepared the Medico-legal reports of Babuzai (deceased) which is Exh.P.W.10/2, of Muhammad Hanifa and of Ahmad Sahib.
'Deceased Babuzai has received three fire-arm inlet wounds and one fire-arm grazed wound.
Muhammad Hanifa sustained one fire-arm grazed wound on the left jaw whereas Ahmad Sahib was found having one lacerated wound on the head, browses, on the back and a' simple lacerated wound on the right hand finger.
' To prove the charge of attempt to commit Qatal-i-Amd for causing injuries prosecution examined in all nineteen witnesses., ' P.W.4 Ahmad Sahib is complainant of the case and an eyewitness. Besides him Shamozai brother of deceased Babuzai appeared as P.W.5 who was not named in the F.I.R. P.W. Muhammad Hanifa appeared as P.W.6.
5. Accused appellant, Ghulam Muhammad, was produced before Syed Asghar Shah (P.W.19) for recording his confessional statement who recorded the same which is Exh.P.W.19/3. The same was recorded on 11-9-2001.
6. During spot inspection when site plan Exh.P.W.11/3 was prepared, I.O. Has recovered six empties of kalashnikov from point No,4 attributed to Koka Khan respondent. Five empties of kalashnikov from point No,5, the place assigned to Ghulam Muhammad appellant.
7. Learned counsel appearing for the appellants in Criminal Appeal No,621 of 2003 vehemently argued` that occurrence has not taken place in the manner as alleged. His contention was that evidence of Ahmad Sahib and Muhammad Hanifa has been disbelieved qua participation in the crime against Koka Khan the respondent, therefore, same could not be believed against Ghulam Muhammad and Muhammad Anwar the appellants. He submits that statement of Shamozai (P.W.5) shall be outrightly excluded because he was not named in the F.I.R. And that statement of Muhammad Hanifa is not worthy of credence as he was belatedly examined by the police.
8. It was argued that according to the case of the prosecution the two injured namely, Ahmad Sahib and Muhammad Hanifa were in the hospital and the site plan was prepared at the instance of Shamozai which could not have been prepared because Shamozai was not named in the F.I.R.
' It was added that recovery of six empties at point No,4 and five empties at Point No,5 were planted.
' Venue of the crime was also doubted by arguing that no blood was recovered from point No,1 where deceased was initially hit except that it was recovered at point 1-A where the deceased had fallen. Venue is also challenged by stating that no trail of blood was found between point No,1 and point No,1-A. It was also argued that no blood was recovered from the place of injured Muhammad Hanifa.
9. Learned counsel has taken us to the site plan to which points were added on 9-10-2001 and later on 20-10-2001 when certain bullet mark& were allegedly noticed on the door of the mosque and on its wall. It was argued that all this addition to the site plan was made to bring in conformity the ocular account with the .Scene of crime and to establish that the occurrence has taken place as shown in the site plan.
' It was also argued that although admittedly large number of co-villagers were present on the scene of crime but none was cited as a witness. It was argued that complainant Ahmad Sahib who was shown at point No,2 and was close to the assailants has not sustained any fire-arm .Injury whin will reflect on his absence.
' Contention is raised that since after the receipt of fire-arm injuries deceased has fallen at point 1- A in the entrance of the house of Ibrahim, Ibrahim should have been examined, as a witness. Lastly it was submitted that explanation tendered by Ahmad Sahib for his escape that he took shelter in the water channel is not believable because according to Shamozai the witness, no sooner the firing started they started running away from the spot.
10. Arguing in support of acquittal of Koka Khan, learned counsel appearing for him stated that where trial Court has acquitted the accused and has given reasons in support thereof, such finding of acquittal shall not be disturbed unless the judgment of acquittal is unreasonable, artificial, fanciful and has caused injustice. It was argued on behalf of Koka Khan respondent that he has been falsely involved as he is the elder of the family and a practising lawyer and that recovery of six empties from his possession are planted. Reference was made to the statement of Muhammad Jamal (P.W.12) who admitted in cross-examination that no empty was recovered in his presence but it was Shakeel, Shamozai and Abdur Rahim who told him that they picked up the empties from the spot and that the empties were in the hands of the S.H.O. It was argued that there is no independent corroboration in support of charge against Koka Khan respondent. The learned counsel cited number of judgments including PLD 1981 SC 12, 1996 SCMR 1411, PLD 2001 Pesh. 1, 1981 SCMR 795, PLD 1986 Pesh. 188, PLD 1981 SC 12, PLD 1990 Pesh. 10 and PLD 1993 Pesh. 152 in support of his contentions by submitting that Appellate Court while hearing appeal against acquittal even if concludes that different view of the evidence is possible it shall not substitute its view to the finding of acquittal recorded by the trial Judge. These judgments were also on the point that injured witnesses shall not be out rightly believed unless their evidence is corroborated. Also on the point that empties recovered from the spot were never sent to the Fire - arm Expert to find out if they were the outcome of one weapon or more. It was lastly argued on behalf of Koka that there is double presumption of innocence once initial i,e, every accused person is presumed to be innocent unless proved guilty and the second presumption in his favor is because of his acquittal recorded by the trial Judge.
11. Learned counsel representing the complainant and the learned counsel representing the State however, both argued that accused-appellants and respondents were charged in promptly lodged F.I.R., that they were assigned individual role, that learned trial Court has wrongly disbelieved the evidence of the same witnesses in respect of acquitted accused Koka that there is ample corroboration to the statements of two injured witnesses namely, Ahmad Sahib and Muhammad Hanifa in the form of injuries on their persons supported by medical evidence and the recovery of empties, that in absence of blood feud between the parties there was no question why the appellants and respondent Koka shall be falsely charged.
12. Defence has also relied on confession of Ghulam Muhammad by stating that he has set up the plea of self-defence which benefit shall not only be given to him but also to his co-accused.
13. Since venue of crime is challenged, therefore, we will first discuss whether the site of the crime can be doubted.
14. As we have mentioned in the preceding paras that deceased Babuzai has received three fire- arm entry wounds and one grazed firearm wound but with no exit and so is the case of Muhammad Hanifa who has received single entry wound on his jaw. In absence of a corresponding exit wound it is quite explainable that the blood would not come out and would go into the body cavities.
' Even otherwise venue of the crime is doubted where either occurrence has taken place at night time or there exists substantial doubt in the presence of the eye-witnesses.
15. As argued before and somewhat conceded that presence of Muhammad Hanifa and for that matter Ahmad Sahib cannot be disputed since both of them have received fire-arm injuries. Fire- arm injuries would be, therefore, a stamp of their presence on the scene of crime though may not be stamp of truth.
Even otherwise if defence doubts the venue of the crime they have to show as to what advantage the prosecution would gain by shifting the venue of the crime from one place to the other.
16. The statements of the eye-witnesses have not been challenged that immediately before the occurrence they were present on the scene of crime plucking and collecting walnuts. It is admitted by accused Ghulam Muhammad in his confessional statement that walnut trees were their joint property and were under dispute.
17. Ahmad Sahib (P.W.4) who,is complainant of this case has stated that out of the three accused, Koka and Ghulam Muhammad respondents were armed with kalashnikov. Whereas Muhammad Anwar was empty-handed. He stated that firing was made on them in the thoroughfare which is corroborated by the site plan. Not only Ahmad Sahib but Muhammad Hanifa has also categorically stated that with the fire shots of acquitted accused Koka, deceased Babuzai was hit. They have unanimously stated that with the fire shot of Ghulam Muhammad, Muhammad Hanifa was hit on his jaw.
' Non-examination of co-villagers who were present either at the time of firing or who had come after the firing, is conveniently explainable as both the parties appear to be sufficiently influential as Koka accused is an Advocate on the accused side whereas Rani Zai (P.W.2) who is brother of the deceased is also an Advocate. Nobody come forward to earn the enmity of either party either by appearing in support or against them.
18. Evidence of Muhammad Hanifa and Ahmad Sahib has been believed by the trial Court but for their own injuries and on such strength the two appellants Ghulam Muhammad and Muhammad Anwar have been accordingly convicted and sentenced. By each of the two witnesses each of the two accused is charged and for injuries on the person of deceased Babuzai the acquitted accused Koka is charged. Thus, it will be the case of single accused regarding each of the victims.
19. There is no previous enmity between the parties except land dispute.
' Even the presence of deceased Babuzai, Ahmad Sahib complainant and that of Muhammad Hanifa P.W. Has been admitted by the confessor Ghulam Muhammad.
' It is also admitted by the confessor that when the parties confronted each other they altercated on the plucking walnut, therefore, not only the presence of witnesses and the deceased is admitted but also the altercation and the cause of altercation i,e, plucking of walnut.#
20. Contention of the defence that Ahmad Sahib could not have been escaped is unfounded because in the site plan there are two straight lines showing the road and dotted line on both sides which is generally shown to indicate either a foot-path or a water channel. It is not even suggested to the witnesses that there is no water channel on the spot.
21. Since we are in conformity with the finding of the learned trial Judge and also because the presence of P.Ws. Muhammad Hanifa and Ahmad Sahib on the spot is not seriously doubted by the defence for which the two appellants have been convicted and sentenced, we would now see the judgment of the trial Court acquitting Koka the respondent.
22. Learned, trial Judge has disbelieved the statement of Shamozai (P.W.5) and we do not have any cudgel with such finding simply on the ground that Shamozai was not mentioned in the. F.I.R. And if present, his presence could not have been omitted by the complainant because he is the brother of the deceased.
' Learned trial Judge in his judgment has admitted that Ahmad Sahib (P.W.6) and Muhammad Hanifa (P.W.4) are unanimous in their evidence against the accused, but for very unclear reasons which do not appear to be legal reasons, benefit of doubt has been given to Koka.
23. We could not find how to distinguish the statements of Muhammad Hanifa and Ahmad Sahib qua the convicted accused and the acquitted accused.
' Mere non-recovery of blood from the place of the deceased where he was hit and since injuries to the deceased it attributed to Koka the only respondent but ocular evidence directly charges him, there is no reason to disbelieve the two injured eye-witnesses for role attributed to Koka the respondent. Reasons for acquittal of accused Koka given by the trial Court are that no weapon of offence was recovered from him, secondly, that nobody from co-villagers were produced, thirdly, that Ibrahim whose house is situated nearby was not examined and fourthly, that the victims are inter-related and such were the grounds which prevailed before the learned trial Judge regarding acquittal of Koka respondent.
' In our humble view all these .Grounds were similarly available against Ghulam Muhammad and Muhammad Anwar the convicts.
24. Not that any of the above grounds taken into consideration was in any manner solid or legal but it appears that the learned trial Judge was persuaded by the factum that respondent Koka is a practicing lawyer and he has tried to acquit the accused respondent by stretching and by pressing into service reasons which were not reasonable.
25. Since it is admitted by the parties that before the actual firing there were altercations between them and Muhammad Anwar was not armed and there is background of civil litigation, therefore, it is concluded that occurrence took place at the spur of moment. Each of the accused would, therefore, where proved guilty will be responsible for his individual act.
26. Ghulam Muhammad has caused fire-arm injuries on the jaw of Muhammad Hanifa P.W.
Whereas Muhammad Anwar has caused stone injuries to Ahmad Sahib; therefore, they have been individually rightly convicted and sentenced. Their appeal is, therefore, dismissed.
' Unshaken evidence of the two eye-witnesses who were both injured duly supported by medical evidence by itself is sufficient to award conviction to Koka the acquitted accused.
27. We, therefore, while upholding the judgment of conviction and sentence in Criminal Appeal No,621 of 2003 against Ghulam Muhammad and Muhammad Anwar, would allow the Criminal Appeal No,606 of 2003 filed against acquittal of Koka respondent but to his extent only as he is responsible for his individual act causing death of deceased Babuzai. His acquittal is set aside and he is convicted and sentenced under section 302(b), P.P.C. To life imprisonment and to pay a fine of Rs,50,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Which shall be recoverable as arrears of land revenue.
' We have avoided to award capital punishment to Koka respondent for the reasons i,e, there were no blood feud, the firing preceded by altercation between the parties which occurred at the moment.
' Above are the reasons for our short orders of even date.