' SYED YAHYA ZAHID GILANI, J.---The appellants Muhammad Raziq Khan and his son Mushtaq Khan were tried in case F.I.R. No,137, dated 5-5-2007 of Police Station Mandan, Bannu, in the Court of Mr. Muhammad Amin Kundi, Additional Sessions Judge-IV, Bannu, in Sessions case No,111 of 2007, who convicted them vide judgment, dated 9-2-2008 firstly; under section 324/34, P.P.C. And sentenced each of them to three years' R.I., with a fine of Rs,2000 each or in default, to suffer two months' S.I., and secondly; under sections 337-D/34, P.P.C. And sentenced each of them to undergo three years'
R.I. And pay Rs,10,000 each as Daman to the injured complainant Lal Shahbaz and this is their appeal against conviction.
2. Reportedly, Lal Shahbaz complainant was present in the vicinity of this house at "Mall Mandi" on 5-5-2007. It was 5 a.m. The convicts-appellants Raziq Khan and his son Mushtaq Khan arrived duly armed with kalashnikovs and jointly fired at him because of the incident of grappling and exchange of abuses having taken place among them a few days ago. Lal Shahbaz got injured and his version was recorded in the shape of murasila, in the Civil Hospital, Bannu at 5-45 a.m., whereupon the case was registered.
3. The convict Raziq Khan was arrested on the day of occurrence and the convict Mushtaq Khan was arrested on 24-10-2007. Both were tried together and prosecution endeavored to prove its case by producing twelve witnesses including the ocular testimony of injured complainant, coupled with the documentary evidence and circumstantial evidence. It is important to mention at the outset that the site-plan was prepared by the Investigating- Officer on his own observations because. The complainant was seriously injured and there was no other eye-witness nominated in the F.I.R. However, the complainant's spot related information was recorded by the Investigating Officer on the back side of the site-plan Exh.P.W.12/1 after about one month and ten days of the occurrence when he was discharged from the hospital, but surprisingly, the Investigating Officer did not incorporate the stated points on the face of site-plan, which indeed is an omission at the part of the Investigating Officer. The accused did not produce any defence evidence, however, referred to another F.I.R. No,138 of the same date with the allegations that it was lodged by the brother of Muhammad Raziq Khan convict-appellant namely Noor Rehman alias Balbal, against the complainant and his companies who had allegedly ineffectively fired at him and the complainant of the present case might have been injured in that cross firing and the present convicts-appellants were falsely charged, but this theory was not accepted by the trial Court who convicted both the appellants.
4. During arguments before this Court, learned counsel for the convicts-appellants argued that it is a case of two versions because of cross F.I.R. No,138 but this aspect of the case was not appreciated by the trial Court. He added that when two theories are available on record, one favoring prosecution and other the accused, then the theory favourable to the accused was to be accepted. In this respect he placed reliance on a case from Karachi jurisdiction reported in Allah Dad v. The State (2005 PCr.LJ 1405 Karachi). He further argued that the medical evidence is in conflict with the version of complainant inasmuch as time of occurrence is concerned, because according to the medicolegal report and statement of Dr. Ilyas (P.W.6), the complainant was examined late at evening time and not in the morning when the occurrence allegedly took place and P.W.5 Azad Khan FC has also supported the statement of doctor. The circumstantial evidence also does not support the complainant. Two persons have been charged for one injury and the convicts - appellants could not be convicted under section 337-D, P.P.C. Because the victim has received injury in abdominal cavity which is not part of the trunk and the offence of Jaifah does not constitute. In this respect, he placed reliance on another judgment from Karachi jurisdiction reported in Muhammad Akram alias Laloo. v. The State (2008 PCr.LJ 1569 Karachi). Lastly, he submitted that the motive has been alleged but not proved, Muhammad Raziq convict-appellant did not abscond and Mushtaq convict's short absence is not abscondence. He concluded that the prosecution has not proved its case to the hilt and the convicts-appellants deserve acquittal under benefit of doubt.
5. Conversely, counsel for the complainant and the State counsel argued that the cross version, though alleged, but not substantiated with documentary evidence, hence, of no avail. Clerical mistakes in medicolegal report about timings were adhered to by the doctor (13:W.6) to cover up his negligence and Azad Khan FC P.W.5 has given wrong concessions to accused which should not mislead the Court because other evidence clarifies that injured complainant has rightly referred the timings. Similarly, omission of the Investigating Officer that he did not show the information provided by the complainant in the site-plan, would also not create any hurdle in the way of Court in administering substantial justice. They added that ocular testimony of victim corroborated by the medical evidence and FSL reports coupled with the recoveries from spot, the motive and abscondence of Musthaq accused accumulatively prove the prosecution case beyond doubt and hence, the conviction and sentence is valid which may be upheld.
6. First of all, I shall discuss the point of cross versions. Counter version of the accused in criminal case can be taken into account when it is proved. Mere allegations in the statement of accused or suggestions to P. Ws. Cannot be sufficient to prove the cross version. Furthermore, if A authentic documentary evidence is available about the counter version but it is withheld, neither produced nor proved, it reflects on weakness of the cross version. In the instant case, although a copy of F.I.R.
No,138 has been referred and some oral reference pertaining thereto has been brought on record during cross-examination, but it has been totally ignored that the said cross case is based on documentary evidence which could be easily proved by producing relevant certified copies being part of the public record under Article 85(3) of Qanun-e-Shahadat Order, 1984, the oral evidence pertaining to the aforesaid documents would be inadmissible in evidence under Article 70 of Qanun-e-Shahadat Order, 1984. In absence of proved documentary evidence, the alleged counter version cannot be studied in juxtaposition with the facts and B circumstances of the present case for drawing apt and appropriate conclusions. In the case of Allah Dad v. The State (2005 PCr.LJ 1405), referred by learned counsel for the convicts-appellants, it is clearly mentioned in para.9 that if in final analysis the defence plea is proved, then the prosecution case is shattered and discarded, but this part of the judgment containing decisive opinion could not be properly understood by learned counsel for the appellants while referring it in his support. I, therefore, conclude that since the counter version of cross case alleged by the accused could since not be proved according to law, it cannot shatter or discard the prosecution case.
7. Before touching other points, I would take up the technical objection of learned counsel for the convicts-appellants that since the victim had received injury in abdomen and the abdomen is not part of the trunk of the human body, the appellants could not be convicted for the offence of "Jaifah" as defined in section 337-C, P.P.C. For conviction under section 337-D, P.P.C. In this respect, he has placed reliance on the case of Muhammad Akram alias Laloo v. The State (2008 PCr.LJ 1569). It is sorry to note that his reference to the cited case is again misconceived because in this judgment, it has not been declared that abdomen is not the part of trunk.
8. It is mentioned in section 337-C, P.P.C. That whoever causes jurh in which the injury extends to the body cavity of the trunk, is said to cause jaifah. There is no ambiguity in this definition. According to Chambers Dictionary, abdomen is the part of body between diaphragm and pelvis in mammals body which is also called belly and thorax is the part of the body between the head and abdomen which is normally called chest. The word trunk means the stem of a tree and in the body of an animal, it denotes the portion of body apart from head and limbs. These dictionary meaning unequivocally denote that the word trunk includes both the thorax and abdomen of human body, excluding the head and limbs therefore, I turn down the interpretation of learned counsel for the convicts-appellant that the firearm injury received by the victim in abdomen, which has perforated the body making entrance and'exit holes, does not fall in the definition of jaifah.
9. Next, I shall discuss the conflict of timings alleged in F.I.R. Qua the timings mentioned in the medicolegal report and those referred by the doctor. In the murasila Exh.P.W.9/1 the date of occurrence is 5-5-2007 and time of report is 0545 hours. The time of occurrence mentioned in the body of murasila is 0500 hours. The scribe of murasila Gul Shahbaz HC was examined as P.W.9 who has categorically deposed that the contents of murasila have been correctly recorded. He was cross examined and he repeated that the injured had come to Casualty at 0545 hours. This murasila was taken to Police Station by P.W.1 Akram Khan who, in reply to a cross question, answered that he delivered murasila at Police Station at 0635 hours, which was incorporated in the F.I.R. Exh.P.W.4/1 and the case was registered at 0645 hours. Muhammad Tahir Shah DSP Rural (P.W.12) was posted as S.H.O. At Police Station Mandan in the days of occurrence. He incorporated murasila into F.I.R. And registered the case. In cross-examination he stated that after registration of the case, he reached the spot at 0650 hours and returned back at 1400 hours. The injured complainant when himself came in the witness box as (P.W.10), he categorically stated in his examination-inchief that the occurrence took place at 0500 hours and was shifted to hospital where he lodged the report. All these P. Ws. Were cross examined but the factum of incident, having taken place in the morning was not at all challenged nor they were cross examined on this point.
When defence fails to cross examine the witnesses on a specific portion of the statements of witnesses in examination-in-chief, such unchallenged statement is deemed to have been admitted by the defence, as held in the case of Sheraz, Tufail v. The State (2007 SCM R 518 (b)).
10. In this background, when we go through the medicolegal report Exh.P.W.6/1, although we find that time of arrival has been mentioned therein as 5-45 p.m. By Doctor Ilyas Hassan P.W.6. Who also remained stuck to this entry in his statement recorded in Court. In cross-examination, he stated that the injured was brought to the hospital at 0445 hours. This time is also wrong because he has admitted in the cross-examination that first of all the police recorded the statement of the injured and thereafter, he examined him. Soon after arrival of the injured to the Casualty, the police and he simultaneously entertained the injured, however, the police first recorded his statement. If we study this part of cross-examination of P.W.6 Dr. Muhammad Ilyas in juxtaposition with the statement of scribe of murasila Gul Shahbaz HC P.W.9 and the other documents like murasila Exh.P.W.9/1 and F.I.R. Exh.P.W.4/1 referred above, it becomes crystal clear that the murasila was recorded in the morning which leads to the firm conclusion that the doctor was inadvertently mistaken while writing the time of arrival of the victim as 0545 p.m. And he again erred when he said in the first sentence of cross-examination that the injured was brought to the hospital at 0445 hours. Here, it is very pertinent to mention that in cross-examination, the doctor has clarified that because of the abdominal firearm injury received by the victim, "the omentum of his abdomen was protruded". This being the nature of injury sustained by the victim at 5 a.m., could it be possible for the victim to waste time up to evening and arrive in the hospital at 5-45 p.m., as it is written by the doctor in medicolegal report. Simple answer of a man of ordinary prudence in this regard would be in negative. So, it can safely be held that the words "P.M." written by the doctor could be an inadvertent mistake and nothing else. Holding so, it further becomes manifest that the accused party availed benefit of the aforesaid mistake in medicolegal report Exh.P.W.6/1 and procured concessions from Azad Khan FC (P.W.5) who, after medical examination of the injured, took medicolegal documents and blood stained shirt to deliver them to the Investigating Officer. He has shown all this activity done at late evening timings. Such a growing tendency of police witnesses, especially the. Foot Constables, making obliging concessions in favour of defence, has been deprecated by Honourable apex Court in the case Bagu v. The State (PLD 1972 SC 77) and the Provincial Governments were directed to check such propensities on part of their own subordinate police constables.
11. In a similar case decided by Abbottabad Bench of this Court titled Arif v. The State (PLD 2006 Pesh. 5), it was held that inadvertent error through which word "P.M." instead of "A.M." was written, cannot benefit defence to discredit P. Ws.
12. It was the duty of prosecution to have appropriately clarified the error in timings mentioned in the medicolegal report, but if the complainant's counsel and the prosecutor did not pay attention in this direction, the Presiding Officer of the Court could not be free from the responsibility to ensure that all proper and necessary steps are carried out to unveil the truth. However, as discussed above, proved facts on record which have been discussed above, make it abundantly clear that the words "P.M." written in column of timings of the arrival of victim in the hospital was a clerical mistake and inadvertently written instead of the words "A.M.". The doctor was not asked to clarify it during his examination in Court and he continued to adhere to his written material, it could be to conceal his error which being manifest on record as error and mistake, cannot create doubt in prosecution case. Further, it is also clear on the face of record that Foot Constable Azad Khan (P.W.5) has given obliging concessions in favour of accused by referring evening timings instead of morning timings. Therefore, I take the mistaken error and obliging concessions out of consideration.
13. Now coming to the merits of the case, Lal Shahbaz complainant (P. W.10) is the solitary but injured witness of this case who has no previous blood feud or other serious enmity with the accused party to falsely drag the convicts in this case to substitute for some other real culprit.
Immediate motive for the assault, that a few days ago he had grappled and exchanged abuses with the accused, is convincing. He has G stated that both the accused used Kalashnikovs to fire at him. This part of his statement is corroborated by recovery of five empties and two bullets recovered from the spot which were identified and confirmed by the FSL report Exh.P.W.12/4 to be of 7.62 MM. The complainant, has charged two persons for firing. Although he had received single entrance wound, but the same FSL report Exh.P.W.12/4 further confirms that the five empties recovered from the spot were not only of 7.62 bore but those were fired from two different weapons.
So, this part of his statement also stands corroborated by the independent source of circumstantial evidence. As far as the venue of occurrence is concerned, the blood stained grass and earth recovered from the spot was of human origin as per FSL report Exh.P.W.12/3 and it has group matching with the blood of victim detected on his shirt which also had cut marks at the place relevant to his injury. The Investigating Officer's omission to indicate the relevant points in the site-plan which were described by the complainant and duly recorded at the back of site-plan Exh.P.W.12/1 H should not harm the case of complainant who has faced attempt at his life, because it is not his fault and otherwise, his narration is appearing to be true and straight forward. He was suggested that there was some cross firing, but the complainant has refuted the suggestion emphatically and added that F.I.R. No,138 was lodged only to create the impression of a cross case which is totally false because nobody got injured in that case. As discussed above, since no record of that case was exhibited and proved for consideration in accordance with law, the plea collapses on adverse presumption. The abscondence of Musthaq accused further I augments the case against him.
14. In the light of above discussion, it is safely concluded that the statement of injured witness, based on a promptly lodged F.I.R. About this day light occurrence, duly supported by circumstantial and medical evidence, sufficiently proves the prosecution case beyond doubt because parties were known to each other and there is no question of misidentification or substitution of the real culprits. The trial Court has, therefore, rightly convicted both the appellants and the sentence is also appropriate, which is upheld. The appeal is dismissed.