' MUHAMMAD RAZA KHAN, J.---The appellant Raidullah has been convicted under section 324, P.P.C.
By the learned Additional Sessions Judge-II, Lakki Marwat on 30-6-2005 and sentenced to seven years' R.I. With a fine of Rs,50,000. In default whereof to suffer further six months' R.I. And he was also convicted and sentenced under section 337-D, P.P.C. To seven years' R.I., and to Arsh for Rs,1,00,000, payable to the complainant/respondent as compensation. Benefit of section 382-B, Cr.P.C. Was extended.
2. In the background of this conviction lies F.I.R. No,67 dated 27-5-2003 Police Station Ghazni Khel where the complainant Asmatullah (now respondent No,2) had charged the present appellant and his brother (absconding accused Faridullah) for having fired at the complainant and his father Sher Afzal at about 1830 hours with their Kalashnikovs whereby the complainant Asmatullah was injured and his father escaped unhurt. The appellant was arrested after one month and ten days and thereafter he faced the trial. The prosecution produced eight witnesses and one witness P.W.4 was re-examined whereafter the statement of the accused was recorded and by the impugned judgment the conviction, as aforesaid, was recorded.
3. Learned counsel for the appellant attacked the impugned judgment on various counts. Firstly that no blood was recovered at the site assigned to the injured P.W. And no empty was recovered at the place assigned to the accused, therefore, the venue of the occurrence and the mode of occurrence was different than the prosecution story. While reading the statement of the P.Ws., particularly P.W.6, the learned counsel for the appellant pointed out that the entire story was focused against the absconding accused Faridullah, as the injured specifically charges him for the first, second and third shot and, therefore, there was no role attributed to the appellant. Thirdly that the story of presence of the accused from 6 a.m. To 6 p.m. Was unbelievable that the complainant and his father shall be out in the open fields for 12 hours and the accused shall be waiting indefinitely throughout the day for their arrival, therefore, it was argued that the story was illogical and the real facts have been suppressed. Fourthly it was alleged that the complainant party was busy in rooting-out the bushes from the fields but neither the implements were produced to the Investigating Officer nor the said site was shown to him which indicated that the picture was pointed merely to fill in the gaps. Fifthly that the exaggerated involvement of the appellant along with absconding accused Faridullah merely amounted to the widening of the net and so this type of exaggeration shall dilute the statement even the injured witness. Sixthly that the evidence indicates about the holding of certain arbitration proceedings where the complainant Asmatullah was penalized by the imposition of fine which indicates about the innocence of the appellant at the local inquiry. Lastly it was argued that the appellant had not committed any overt act to prove the attempt to commit 'Qatl-e-Amd' and for the purpose of proof of common intention the necessary ingredients like the motive, preparation etc., has not been established and the mere presence, even if presumed, would not be deemed to prove the common intention.
4. Learned counsel for the respondent/complainant argued that even if the presence of the father of the complainant is excluded for the sack of arguments, the solitary statement of the injured witness supported by medical opinion will be sufficient to prove the guilt because anybody receiving the injury himself would never exonerate the real assailants for charging the innocent ones. However, it was stated that the presence of the father of the complainant was duly established by the evidence and his statement could not be shattered despite lengthy cross- examination. The learned counsel further added that it will be wrong to presume that only three fires were shot because it has been established that in fact shots were fired. Similarly it will also be incorrect to believe that the charge was directed against the absconding accused only. In fact both the accused were charged for the effective firing. It is noticed that the role of first and second shot was attributed to the absconding accused Faridullah but the third fire was never assigned to him, which was effective and the complainant fell down on the ground after receiving the said shot.
He also pointed out that the reference to the earlier arbitration does not indicate that only the complainant Asmatullah was found but the other party was also directed by the arbitration council to approach the complainant party as "Nanawaty" i.e,, surrender for begging pardon. The learned counsel for the complainant further argued that statement of P.W.3 in cross-examination regarding voluntary surrendered of the appellant to the police was not correct because the record would indicate that he was arrested during the process of "Nakabandi". He also pointed out to the statement of Sher Afzal appearing as P.W.7 that "Faridullah has fired only one shot at my son who fell down with that fire-shot". .It was also pointed out that the deficiencies of the prosecution case were supplied in the cross-examination where P.W.8 was asked about the attempt to murder him and he explained that "the second fire-shot of the occurrence fired by Faridullah was fired at me. At the time when the above said fire-shot was made at me, I was at a distance of 40 paces from my son. I did not lay down on the ground but ran towards my son"
5. Analyzing the record, in view of the above extracts from the arguments, leads to the conclusion that the occurrence took place at day light and the identification of the accused was not impossible. The report was promptly lodged keeping in view the distance and the arrangement of vehicle in a state of panic. The P.W. Sher Afzal being father of the complainant was rider to the F.I.R.
And, therefore, his presence at the scene of occurrence cannot be doubted. The injuries on the complainant, as confirmed by the medical evidence, shall exclude the possibility of false implications. The examination-in-chief of some of the witnesses was in the abstract form and several confusions could be pointed out therein but in cross-examination many ambiguities have been properly explained with minute details. The extraordinary lengthy cross-examination of the witness could not shatter the prosecution story. The witnesses were firm on the main facts whereas the minor discrepancies are natural and ignorable rather such omissions provide strength to the testimony of the witnesses. No two persons can appreciate certain things in the same manner.
There has to be minor deviations but despite that the witnesses remained consistent on the major events. The earlier occurrence of firing between the parties was compromised where the arbitrators have provided conditions on both the parties which mean that they did not entirely exonerate either of them. The charge of effective firing was attributed to the appellant by the complainant as well as by his father and particularly the injury at the body cavity amounting to Jaifa whereby viscera was reportedly protruding. The evidence has sufficiently proved the participation of the appellant in the crime. Although major damage of murder was not caused but the pressing of trigger, even ineffectively, while aiming at the vital part of the body, leaves no doubt about the intention to kill.
6. With regard to quantum of punishment, it can be held that the punishment of seven years' R.I.
Was quite justified in view of the effective firing, common intention and injury leading to the body cavity. There is no justification to interfere with the said conviction and sentence. This appeal is, therefore, dismissed.