' KHAWAJA MUHAMMAD SHARIF, J.---This appeal is directed against the judgment dated 3-6-2003 passed by the learned Additional Sessions Judge, Gujrat whereby, after having tried the appellant, he was convicted under section 302(b), P.P.C. And sentenced to imprisonment for life with a further direction to pay a compensation of Rs,50,000 to the legal heirs of the deceased under section 544- A, Cr.P.C. In default whereof to further undergo S.I. For six months. Benefit of section 382-B, Cr.P.C.
Was also extended to the appellant. Criminal Revision No,732 of 2003 was filed by the complainant for enhancement of the conviction and sentence awarded to the appellant. Both these matters are being disposed of together through this single judgment.
2. Brief facts of the case, as given by the complainant Muhammad Haroon (P.W.1) in the F.I.R. Are that his deceased brother Idrees was running a General Store in the Main Bazar, at the time of occurrence complainant along with his deceased brother and mother were present at the said store when appellant armed with .222 bore rifle (along with acquitted accused vide separate judgment, namely, Muhammad Ilyas alias Shaku armed with .30 bore pistol) came there, there was exchange of hot words between both the parties, the said Ilyas called the deceased out of the shop to teach him lesson for abuses and appellant made firing upon him, the deceased fell down on the ground, the occurrence apart from complainant was also witnessed by his mother (not produced) and brother Awais (P.W.2), the injured was taken to the Civil Hospital where he succumbed to the injuries.
3. After having completed legal formalities, challan was submitted against the accused before the learned Court of competent jurisdiction, accused denied the charge and claimed trial, where, the prosecution, in order to prove its case against the accused, produced five witnesses during the trial.
4. Learned counsel for the appellant in support of this appeal submits that the occurrence had taken place during dark hours of the night and it was an witnessed occurrence; that the F.I.R. Was recorded after due deliberations and consultations; that there is conflict between the ocular account and the medical evidence; that as per prosecution case appellant was armed with .222 bore rifle but all the injuries, except injury No,6, were of .12 bore gun which belies the ocular account; that the recovery has been planted; that there is no report of Fire-arm Expert in this regard; that the prosecution has failed to prove its case against the appellant and that the appellant is entitled to acquittal by this Court.
5. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that the appellant made repeated shots upon the deceased; that there is no previous enmity between parties, so, no question for false implication or substitution arises; that mere statement of the doctor cannot discard the ocular account which was otherwise confidence- inspiring in view of the judgments referred to by learned counsel for the complainant and reported in Ghulam Ullah and another v. The State and another 1996 SCM R 1887; Abdur Rehman v. The State 1998 SCM R 1778; Wahid v. State PLD 2002 SC 62; Muhammad Hanif v. The State PLD 1993 SC 895; Yagoob Shah v. The State PLD 1976 SC 53; that at first appellant was awarded death sentence in absentia on 28-9-2000, the same was rewritten on a direction of the High Court and earlier judgment was reversed to life imprisonment on flimsy grounds after recording statement of the appellant under section 342, Cr.P.C.; that the prosecution has proved its case against the appellant beyond a shadow of doubt and that this appeal is liable to be dismissed.
6. I have heard learned counsel for the parties, have gone through the record with the able assistance of the learned counsel for the respective parties and have also given anxious consideration to the submissions made at the bar by the learned counsel for the parties.
7. The occurrence in this case had taken place on 28-2-1995 at 6-00 p.m., the matter was reported to the police at 7-30 p.m. In the Civil Hospital and formal F.I.R. Was recorded at 7-45 in the Police Station and the distance between the place of occurrence and the Police Station is two furlongs.
Two accused were mentioned in the F.I.R. Amongst whom one named, Ilyas was acquitted by the learned trial Court as there was no evidence against him through a separate judgment. As far as appellant is concerned, the allegation against him is that while armed with a .222 rifle he made firing on the deceased Idrees who received injuries and died at the spot.
8. The prosecution to prove its case produced Muhammad Haroon complainant who appeared as P.W.1. Although he is closely related to the deceased i,e, real brother yet he has no enmity or strong motive to falsely implicate the appellant in this case. Moreso, it is rare phenomenon that a real brother of the deceased would substitute the real culprit of the case. He has reasonably explained his presence at the place of occurrence and I see no reason not to accept his statement.
Notwithstanding the fact that he was subjected to lengthy cross-examination but nothing could be shaken from his testimony.
9. There is yet another eye-witness of the case, namely Muhammad Awais (P.W.2) who appeared before the learned trial Court in support of the prosecution case. He also remained consistent on all material particulars of the case and nothing could be shaken from his testimony despite his cross- examination to which he was subjected during the trial. He corroborated the statement of the above eye-witness on the main points.. Although he is also real brother of the deceased yet he has no enmity with the appellant to falsely depose against him. He has also reasonably proved his presence at the spot to have witnessed the occurrence. This Court seems his testimony to be worthy of credence. Mother of the deceased was given up as unnecessary.
10. So far as medical evidence is concerned, Dr. Khalid Pervez appeared as P.W.9 who found seventeen injuries on his person. During the course of cross-examination he stated that except injury No,6 all other injuries were of .12 bore gun. The argument of the learned counsel for the complainant that mere statement of the doctor cannot discard the ocular account which was otherwise confidence-inspiring, having intrinsic value and having come through an unimpeachable sources, has force. He has rightly relied upon Ghulam Ullah and another v. The State and another 1996 SCM R 1887; Abdur Rehman v.The State 1998 SCM R 1778; Wahid v. State PLD 2002 SC 62; Muhammad Hanif v.The State PLD 1993 SC 895; Yagoob Shah v. The State PLD 1976 SC
53. In Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484, the apex Court of the country in the judicial hierarchy, while dilating upon the point of contradiction between the medical evidence and the ocular account in an appeal against acquittal and while setting aside the acquittal of the respondents, at page 1073, held as under:- " It would be seen that the deposition of the witness was seeking corroboration from the medical evidence to the extent of nature and seat of injuries and the presence of lacerated and incised wounds found on the person of the deceased, would suggest the use of fire-arm and sharp-edged weapon in the occurrence, therefore, the conflict of medical evidence with ocular account, if any, as pointed out by the High Court was only to the extent of statement of doctor according to which one shot was fired. The material contradictions and discrepancies in the evidence in a criminal case may create doubt in the prosecution case and if the eye-witnesses are inimical and interested, this doubt may lead to reasonable possibility of the witnesses being not truthful or an inference can be drawn that they by suppressing the truth, made a dishonest statement but it is settled proposition of law that mere relationship or enmity is not sufficient to discard the evidence of a natural witness or hold him not truthful and trustworthy. This is not an inflexible rule that in all circumstances, such contradictions and discrepancies in the evidence must be treated to be injurious to the credibility of a witness and his evidence must be excluded from consideration or he must be held not truthful witness rather the ultimate test of veracity of a witness is the inherent merit of his own statement....". (Emphasis supplied).
11. The Hon'ble Supreme Court in yet another case reported in Asim v. The State 2005 SCM R 417, while commenting on contradiction between ocular account and medical evidence, at page 421, held as under:-- Assuming that if the medical evidence is contradictory toocular evidence it would have no bearing on the prosecution case. Besides it medical evidence is always considered as confirmatory evidence and if there is contradiction in ocular and medical evidence, former will overweigh to latter. Muhammad Hanif v. The State PLD 1993 SC 895. It may also be borne in mind that in criminal case it is not the quantity but quality of evidence which matters. As it has been held in Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663 and Allah Bakhsh v. Shammi PLD 1980 SC 225...."
(Emphasis supplied).
12. After having sifted grain from the chaff and after having applied independent judicial mind, this Court is of the considered view that the prosecution has proved its case against the appellant beyond a shadow of doubt to sustain conviction against the appellant. I have gone through the impugned judgment and the reasoning given therein coupled with the fact that the appellant has already undergone agony of trial and appeal for a period of about ten years it will not be proper to issue notice F to the appellant for enhancement of sentence keeping in view the principle of expectancy of life. Resultantly, this appeal has no merit which is accordingly dismissed after having maintained the conviction and sentence awarded to the appellant by the learned trial Court vide the G impugned judgment, in to. For afore-referred reasons, Criminal Revision No,732 of 2003 is dismissed.