This Criminal Appeal is filed by (1) Isteqbal (2) Nasir Khan, (3) Usman Khah, (4) Zahir Shah, (5)
Niamatullah (6) Badar Munir, (7) Mukaram Shah, and (8) Qalandar Shah, appellants, against the impugned judgment dated 14.10.2004 of the learned Additional Sessions Judge/I,zafi Zilla Qazi, Buner whereby he has convicted Appellants Nos, 1 to 6 u/S. 324/149 PPC to the sentence of 7 years R.I. each and payment of fine of Rs, 20,000/- or in default thereof to suffer further S.I. for 4 months.
The learned trial Judge has also convicted Appellants No, 1 to 6 u/S. 148 PPC to the sentence of two years R.I. each. Vide said impugned judgment the learned trial Judge has also convicted Appellants Nos, 7 and 8 u/S. 302/324/109 PPC for abetment to the sentence of two years R.I. each.
All the accused has been extended the benefit of Section 382-B Cr.P.C.
2. On 22.10.2004, this Court allowed bail to accused/appellants Mukaram Shah and Qalandar Shah, Appellants Nos, 7 and 8, keeping in view the short sentence.
3. The complainant Naveed Iqbal has also filed the connected Cr. Revision No, 216/2004 for enhancement of the sentences of the respondents (appellants), which is fixed before me in motion today. The connected Cr. Revision No, 216/2004 shall also stand disposed of through this single judgment in Cr. Appeal No, 827/2004.
4. Brief facts of the case are that Naveed Iqbal, complainant, in his report dated 17.4.2000 charged 10 accused (including Appellants Nos, 1 to 6) for firing at them and his companions whereas charged another 6 accused (including Appellants Nos, 7 and 8) for abetment. The fatal shots, which resulted into the death of Muhammad Zahid, deceased, and fire-arm injuries on the person of Sartaj Iqbal, were attributed to Bakht Biland Shah and Muqtada Shah alias Koka, respectively, who are absconders.
5. During trial accused Sajawal Shah alias Paoray was murdered, hence case against him stood abated. Similarly the application of accused Azizullah Khan, Abdul Mateen Khan, Ihsanullah Khan and Mumtaz Khan u/S. 265-K was accepted and the appeal of the complainant there against was also dismissed by this Court.
6. The prosecution case, as disclosed in the First Information Report, Ex. PA, lodged by Naveed Iqbal, complainant on 17.4.2000 at 18.40 hours is to the effect that he at 1800 hours alongwith his brothers Muhammad Zahid, Sartaja Iqbal and Afsar Iqbal were going to their fields and when reached near the house of Shamsho, the complainant party was fired at by accused Isteqbal Khan, Nasir Khan, Usman Khan, Zahir Shah, Bakht Biland Shah, Muqtada Shah alias Koka, Sajawal Shah alias Paporay, Behramand Shah, Niamatullah, Badar Munir and that from the firing of Bakht Biland Shah his brother Muhammad Zahid was hit on his front chest and left side neck and died on the spot whereas from the firing of Muqtada Shah alias Koka, his brother Sartaj Iqbal was injured on his left side neck. The complainant and his other companions escaped unhurt. The complainant further charged Azizullah Khan, Abdul Mateen Khan, Mumtaz Khan, Ihsanullah Khan, Mukaram Shah and Qalandar Shah for abetment on whose instigation the aforesaid 10 accused committed the offence. The complainant disposed that beside him the occurrence was also witnessed by Sarataj Iqbal, Afsar Iqbal and Mian Gul Zada. Motive was previous blood feud enmity.
7. At the trial the prosecution examined as many as 8 witnesses in support of its case. The injured eye-witnesses Sartaj Iqbal could not be produced at the trial due to his unfortunate alleged death at the hands of the accused party somewhere after the occurrence.
8. PW.1 Dr. Said Shah deposed that he had examined Sartaj. Iqbal, injured for his injuries and found fire-arm empty wound on the back of the left neck with exit wound on the left front of the neck.
PW.2 Dr. Sher Muhammad in his statement affirmed his report with regard to conducting examination on the dead body of Muhammad Zahid, which was having two entrance wounds with two exit wounds on the right side of the chest and left side of the chest.
PW.3 Khanzada disclosed himself as marginal witness to recovery memo Ex. PW3/1 and Ex. PW-3/2 vide which the I.O. had collected blood stained earth from the spot and 20 empties of 7.62 bore. The complainant Naveed Iqbal had also produced to the I.O. the blood stained qamiz of the deceased.
PW.4 Noor Jamal Khan, ASI in his statement disclosed that he on receipt of murasila, registered FIR No, 218 against the accused.
The complainant Naveed Iqbal was examined at the trial as PW-5 and he deposed the same story of FIR in his statement. He further disclosed that the site-plan was prepared at his instance by the I.O. and that he had handed over the blood-stained qamiz of the deceased as well as of the injured.
PW 6 Mian Gul Zada while narrating the eye-witness account in his statement deposed that on the day of occurrence Muhammad Zahid, deceased, Sartaj Iqbal, Naveed Iqbal and Afsar Iqbal were going on the way, when accused Bakht Biland Shah, Zahir Shah. Muqtada Shah. Salawal Shah, Behramand Shah, Niamatullah. Badar Munir. Usman. Nasir and Isteqbal opened firing at them.
From the firing of Bakht Biland, Muhammad Zahid was hit and died whereas Sartaj Iqbal was hit from the firing of Sajawal Shah. He also named Abdul Mateen, Mukarram Shah, Qalandar Shah, Azizullah Khan, Mumtaz Khan and Ihsanullah for abetment and further stated that the I.O. in his presence inspected the spot, collected the blood stained earth and empty shells.
PW-.7 Said Farosh Khdn, SI in his statement disclosed that he recorded the report of the complainant in the shape of a murasila and sent the same to the PS for registration of the case. He prepared the site-plan, the inquest report and injuries sheet and also collected blood stained earth from the spot. He recovered 20 empty shells from the spot and other 7 empties were also recovered from the ambush where the accused were present. He also took into possession blood stained qamiz of the injured Sartaj Iqbal and also of the deceased. He recorded the statements of the. witnesses and obtained warrants u/S. 204 Cr.P.C. against the absconding accused following by proclamation notice u/S. 87 Cr.P.C. PW-8 Sheikh Farid Khan, Retired Inspector in his statement disclosed that he on receipt of information on wireless about the injured Sartaj Iqbal reached Daggar Hospital and recorded his statement u/S: 161 Cr.P.C. He also inspected the spot alongwith DSP and then raided the house of the accused but they were not present.
The accused in their statement u/S. 342 Cr.P.C. however denied the charge and professed innocence.
9. The learned trial Court vide impugned judgment found the accused/appellants guilty of the charges u/S. 324/149/109/302 PPC and sentenced them accordingly.
10. I have heard the learned counsel for the parties and also perused the record of the case.
11. The main thrust of the arguments of the learned counsel for appellants is that the complainant has brought an exaggerated charge against all the members of the accused family; that the eye- witnesses are closely related to the deceased and the injured as well as inimical towards the accused and that there is no evidence against Appellants Nos, 7 and 8 i,e, Mukarram Shah and Qalandar Shah for having played any role of abetment in the commission of the offence.
12. The arguments of the learned counsel for the appellants to the extent of Appellants Nos, 1 to 6 are however not very convincing, as the perusal of the record indicates that the accused/appellants are directly charged in a promptly lodged FIR by the complainant, whose statement at the trial is also in line with the contents of FIR, suffering from no material contradiction or improvement, although the defense has made a lengthy cross examination on him. So far as the exaggerated charge is concerned, this aspect of the case has already been properly answered by the trial Court in the light of the prosecution evidence, as firing was made at the complainant party from the house of the accused and naturally all the accused, being members of the same family, would have opened firing at the complainant party keeping in view the number of empties recovered from the spot and the fact that when the police reached the spot within half an hour, all the accused were not present in the house. A look at the statement of PW-5 Naveed Iqbal suggests that the same is almost unchallenged, hence only on the basis of his relation which the deceased and the injured as well as previous blood feud enmity his statement could not be discarded, which otherwise is further fully corroborated by the circumstantial evidence in the case. The statement of PW-6 Mian Gul Zada is also supporting the version of the complainant and confidence inspiring, who although a relative of the complainant, met the complainant party in the way and saw the occurrence with his own eyes. According to the learned trial Judge, he escaped unhurt because he was following the complainant party at some distance and was going for bringing wood from his lands.
13. The learned counsel for the appellants tried to take advantage of a sentence in the cross examination of PW-6 wherein he has stated that the present accused/Appellants Nos, 1 to 6 were making aerial firing. After going through the whole cross-examination of the witness it is evident that he has used these words in the sense that the shots of some accused proved fatal whereas the firing of some of the accused was ineffective. As stated above, the statement of PW-6 is credible and confidence inspiring on all material aspects of the case, suggesting that the accused/appellants have committed 'the offence in question, his slight contradiction with the complainant that some of the accused were making aerial firing, would not be taken so serious so as to discard his whole statement, keeping in view the dictum laid down by the august Supreme Court of Pakistan in the case reported in 2004 SCM R 477, in the following words:-- "We have noted a few contradictions in their statements which can be ignored safely being insignificant and minor in nature. "If a witness makes any contradiction, improvements, or other facts which may adversely reflect on his credibility would not by itself be sufficient to reject his testimony as whole. Court can rely upon a portion of his testimony if it is corroborated by other reliable evidence, or circumstances." If any authority is required reference can be made to Muhammad Yaqoob u. The State 1992 SCM R 1983, Mokha v. Zulfiqar PLD 1978 SC 10, Zakir Khan v. The State 1995 SCM R 1793 and Roshan v. The State PLD 1977 SC 557."
14.So far as the number of injuries on the person of the deceased and the injured as well as the number of accused are concerned, the same is also not of much help to the defense as the medical evidence is always treated to be of confirmity nature, as has been held by the august Supreme Court of Pakistan in the case of Dildar Hussain vs. Muhammad Afzall alias Chala and 3 others (PLD 2004 Supreme Court 663) as under:-- "As far as the medical evidence is concerned, it is always treated to be in the nature of confirmatory and it does not identify the'accused involved in the commission of offence, in view of the law laid down by this Court in the case of the State v. Muhammad Sharif and three others (1995 SCM R 635)."
Similar would be the answer to the contention of the learned counsel for the appellants that the empties have not been sent to the FSL for ascertaining as to whether the same have been fired from one weapon or more, as the nature of the Expert report is also a sort of confirmatory evidence and could not 'be a substitute to direct evidence, particularly when no question has been asked from the eye-witnesses, whether it is the act of one man or more.
In view of the direct charge against Appellants Nos, 1 to 6, the reliable eye-witness account furnished by PW-5 and 6, the recovery of bloodstained earth from the spot, the blood stained clothes of the deceased and the injured, the recoveries made from the spot, the medical evidence, the site-plan, and motive behind the occurrence, it can be said with certainty without any dint of doubt that the prosecution has successfully established its case against Appellants Nos, 1 to 6 beyond any shadow of reasonable doubt.
15. The case against Appellants Nos, 7 and 8 namely Mukarram Shah and Qalandar Shah is however not proved as there is no evidence against them to show that in fact they have extended any help to the other accused in their criminal act and thus made any abetment.
16.The accused/Appellants Nos, 1 to 6 are, however, not charged for the fatal shots resulting into the death of Muhammad Zahid, deceased and Sartaj Iqbal PW and are only charged for ineffective firing upon the complainant and his other companions, therefore, the quantum of sentence in my view requires some modification. The conviction and sentence of 7 years R.I. each of Appellants Nos, 1 to 6 is thus reduced to the sentence of 1 years R.I. each and the fine of Rs, 20,000/- is reduced to that of Rs, 10,000/-each or in default thereof to suffer two months S.I. The conviction of the Appellants Nos, 1 to 6, u/S. 148 PPC is maintained. Both the sentences shall run concurrently and the benefit of Section 382-B Cr.P.C. shall remain extended to them. Keeping in view the fact that the prosecution has not proved its case against Appellants Nos, 7 and 8 beyond any shadow of reasonable doubt, they are thus liable to be acquitted of the charge.
17.For the aforesaid reasons, this appeal is dismissed qua Appellants Nos, 1 to 6 while reducing the quantum of sentence to the extent stated above whereas the appeal is accepted qua Appellants Nos, 7 and 8, Mukarram Shah and Qalandar Shah. The impugned judgment of the trial Court is set aside qua them and they are acquitted of the charge. They shall be released from jail forthwith if not required in any other case. The connected Cr. Revision No, 216/2004 due to reduction in the quantum of sentence has therefore become infructuous and is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.