' This criminal appeal is filed by (1) Isteqbal (2) Nasir Khan, (3) Osman Khan, (4) Zahir Shah, (5)
Naimatullah (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/Izafi Zilla Qazi, Buner whereby he has convicted appellants Nos.1 to 6 under section 324/149, P.P.C. 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 Nos.1 to &under section 148, P.P.C. 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 under sections 302/324/109, P.P.C. 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 Criminal Revision No,216. Of 2004 for enhancement of the sentences of respondents (appellants), which is fixed before me in motion today. The connected Criminal Revision No,216 of 2004 shall also stand disposed of through this single judgment in Criminal Appeal No,827 of 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 him 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 Muqatada 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 under section 265-K was accepted and the appeal of the complainant thereagainst was also dismissed by this Court.
6. The prosecution case, as disclosed in the first information report Exh.P.A., lodged by Naveed Iqbal, complainant on 17-4-2000 at 18-40 hours is to the effect that he at 18-00 hours along with 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 deposed that beside him the occurrente was also witnessed by Sartaj 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-witness 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. P.W.1 Dr. Said Shah deposed that he had examined Sartaj Iqbal, injured for his injuries and found fire-arm entry wound on the back of the left neck with exit wound on the left front of the neck.
' P.W.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.
' P.W.3 Khanzada disclosed himself as marginal witness to recovery memo. Exh.P.W.3/1 and Exh.P.W.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 bloodstained Qamiz of the deceased.
' P.W.4 Noor Jamal Khan, A.S.-I. In his statement disclosed that he on receipt of Murasila, registered F.I.R. No,218 against the accused.
' The complainant Naveed Iqbal was examined at the trial as P.W.5 and he deposed the same story of. F.I.R. 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.
' P.W.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, Sajawal 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, Mukaram Shah,- Qalandar Shah, Azizullah Khan, Mumtaz Khan and Ihsanullah or abetment and further stated that the I.O. In his presence inspected the spot, collected the blood-stained earth and empty shells.
' P.W.7 Said Farosh Khan, S.-I. In his statement disclosed that he recorded the report of the complainant in the shape of a Murasila and sent the same to the P.S. 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 under section 204, Cr.P.C. Against the absconding accused following by proclamation notice under section 87, Cr.P.C.
' P.W.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 under section 161, Cr.P.C. He also inspected the spot along with D.S.P. And then raided the house of the accused but they were not present.
' The accused in their statements under section 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 under sections 324/149/109/302, P.P.C. 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 had 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, Mukararam Shah and Qalandar Shah for having played any role of abetment in the commission of 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 F.I.R. By the complainant, whose statement at the trial is also in line with the contents of the F.I.R., suffering from no material contradiction or improvement, although the defence 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 A 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 P.W.5 Naveed Iqbal suggests that the same is almost unchallenged, hence only on the basis of his relation with 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 P.W.6 Mian Gul Zada is also supporting the version of the complainant and is 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 P.W.6 wherein he has stated that the present accused/appellants Nos.1 to 6 were making aerial firing. After going through the whole cross-examihation 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 P.W.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 B 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 a 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 v. 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 defence as the medical evidence is always treated to be of confirmatory nature, as has been held by the august Supreme Court of Pakistan in the case of Dildar Hussain v. Muhammad Afzal alias Chala and 3 others PLD 2004 SC 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 3 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 ro F.S.L. 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 P.Ws.5 and 6, the recovery of blood-stained 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 E 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 P.W. And are only charged for ineffective firing upon the F 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 4 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, under section 148, P.P.C. 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 C shall be released from jail forthwith if not required in any other case.
' The connected Criminal Revision No,216 of 2004 due to reduction in the quantum of sentence has therefore, become in fructuous and is hereby dismissed.