' MUHAMMAD ALAM KHAN, J.--This judgment shall commonly dispose of Cr.Rev. No,32 of 2006, (Naseem Khan v. Murad Khan etc.); Cr.A.No, 62 of 2006 (Murad Khan etc. v. The State etc.) and Cr.A.
No,69 of 2006 (Naseem Khan v. Sarbilad etc;), as all these three matters have arisen out of the same judgment dated 6-9-2006 of the learned Additional Sessions Judge-III Bannu recorded in case F.I.R. No,67 dated 6-2-2004 under sections 324/ 148/149, P.P.C. Registered at police station Mandan, District Bannu and involve common question of law and facts.
2. The prosecution story as narrated by the complainant Naseem Khan in injured condition in his report lodged in the Emergency room of Civil Hospital Bannu is to the effect that on the eventual day, i.e, 6-2-2004 at 0900 hours, he was taking a small bag of flour to his house on a motorbike and when reached the village Chowk, saw his relatives Sirbuland, Zafar Ali, Murad Khan, sons of Sarfraz, Waris, Khawas, sons of Sirbuland and Naeem son of Zafar Ali, armed with Kalashnikovs. On seeing, Sirbuland asked him to stop but he did not and thus Sirbuland, Waris Khan, Khawas Khan and Naeem Khan effectively fired at him with which he was hit and fell down to the ground, while Zafar Ali Khan Murad Khan gave him Butt blows of Kalashnikovs. On hearing the reports of firing, Sultan Niaz his uncle was coming running from his house but on seeing him, Zafar Ali and Murad Khan let him free and followed Sultan Niaz who was running towards his house. Motive for the offence was given to be that father of the complainant had succeeded to win the Union Council Membership, while the nominiee of the accused named Naimatullah had remained unsuccessful.
He, therefore, charged all the accused for effectively firing and causing him injuries. The said report of Naseem Khan was affirmed by his uncle Sultan Niaz who further charged accused Zafar Ali and Murad Khan, for effectively firing at him and minor son Saddam, who was injured with their firing.
The F.I.R. Ibid was accordingly registered against the aforesaid accused.
3. After their arrest and completion of codel formalities. The accused were forwarded to the Court for trial where they did not plead guilty to the charge and processed innocence.
4. In order to prove its case against the accused, the prosecution examined eight witnesses. The accused, however, neither produced and defence witness nor opted to be examined on oath. The learned trial Judge on weighing the materials brought on record and hearing pro and contra arguments found accused Murad Khan and Zafar Ali Khan guilty of the offence charged with and , vide his impugned judgment, on conviction sentenced each of them as follows:--
(i) Under sections 324/34, P.P.C. On two counts to imprisonments for a period of four years with a fine of Rs,10,000, in default to suffer two months simple imprisonment;
(ii) Under section 337(ii), P.P.C. To two years with payments of `Arsh' to the tune of Rs,15000 in default to undergo two months simple imprisonment;
(iii) Under section 337-F(ii), P.P.C. On two counts to imprisonment for a period of two years as `Tazir' with payment of 'Daman' to the tune of Rs,8,000, in default to suffer two months simple imprisonment.
'The benefit under section 382-B, Cr.P.C. Was, however, given to each of them. Through the same judgment, the remaining accused, namely, Sarbuland Khan, Awaz Khan, Waris Khan and Naeem Khan were acquitted.
5. Through Criminal Appeal No,62 of 2006, the convicts Murad Khan and Zafar Ali Khan have challenged their conviction and sentences. Through Criminal Revision No,32/2006, the complainant Naseem Khan has prayed for enhancement of the sentences of the convict/appellants Murad Khan and Zafar Ali Khan, while through Criminal Appeal No,69/2006, the complainant Naseem Khan has prayed for awarding adequate sentences to the acquitted accused mentioned above.
6. Learned counsel for the convict/ appellants argued that the impugned judgment of conviction is not in consonance with the settled principles governing dispensation of justice in criminal matters and is the result of mis-appreciation and non-appreciation of material evidence brought on record. He urged that when on the same set of evidence, co-accused Sarbuland, Awaz Khan, Waris Khan and Naeem Khan were acquitted, then it Was the demand of equity and principle of parity to have also acquitted the convict/appellants. That from circumstances of the case, it was proved that Sultan Niaz P.W. Was not present on the spot at the time of occurrence and thus his deposition was not required to have been acted upon. His submission was that the ocular account was not in conformity with the medical evidence; that the P.Ws. Have contradicted each other on material particulars; that the motive as set forth in the initial report was not proved during trial; that the alleged abscondence of the appellants was not established at trial as the relevant witness was not produced and that the testimony of P.W. Naseem Khan complainant (P.W.6) suffers from material infirmities, multiple contradictions and numerous improvements and exaggerations and thus it was not enough to have been made basis for conviction of the appellants.
7. The learned Deputy Advocate-General representing the State supported the impugned judgment in toto and adopted the arguments of the learned counsel for the complainant.
8. The learned counsel for the complainant opposed the appeal of the convict-appellants and prayed for enhancement of their sentences on the grounds that once the prosecution had succeeded in proving its case to the hilt, the convicts were not entitled to any leniency. He submitted that the occurrence had taken place in the village chowk in a broad day light in a very high handed manner and the offence under 324, P.P.C. Having been proved, so on conviction the awarding of four years sentence to each of the convicts, in the circumstances of the case, do not commensurate with the crime committed by them and the manner in which the same was committed.
9. Learned counsel for the complainant/appellant appearing in the appeal against acquittal argued that the learned trial Judge had failed to appreciate the prosecution evidence in its true perspective, as the case was duly proved against all the accused and thus the acquittal of the respondents was not warranted. He urged that the statements of injured witnesses were in line with the medical evidence and, therefore, the respondents were not entitled to outright acquittal.
10. I have anxiously considered the arguments advanced at the bar and thoroughly examined record of the case.
11. Perusal of the record show that the prosecution has duly proved the case against the two convict/appellants Murad Khan and Zafar Ali Khan, sons of Sarfraz Khan. Complainant and Sultan Niaz Khan have deposed against the convict/appellants and have given a consistent version in which the actual firing was attributed to them. Motive on the record had duly been A proved and the recovery of empties from the spot further augment the case of the prosecution. Besides also, the medical evidence is in line with the injuries on the complainant Naseem Khan and injured Sadam Khan and they have received injuries on the leg and lacerated wounds on the left side and right side of the head. The witnesses have been subject to lengthy cross-examination but nothing has been squeezed out from their months to shatter their testimony as given in their statements before the trial Court.
12. As far as the enhancement of sentence is concerned, the learned trial Court has awarded sentence to the two accused-appellants which commensurate with the offence they have committed and need no interference.
13. Regarding the appeal against acquittal, it is observed that the accused!' respondents Sarbiland son of Sarfaraz, Awan Khan and Waris Khan, sons of Sarbiland and Naeem Khan son of Zafar Ali have been rightly extended the benefit of doubt by the learned trial Court by acquitting them of the charge, on the ground that although the complainant Naseem Khan charged all the accused for the commission of the offence, but Sultan Niaz P. W, being an eye-witness of the occurrence who appeared as P.W.7 has charged only Zafar Ali and Murad Khan for beating Naseem Khan with the Butt of their Kalashnikovs and firing on minor .Sadam who was hit with the firing of these two appellants, but has not named or shown the presence of the other accused. Once an acquittal is earned by the accused/ respondents, then strong and exceptional grounds have to be shown for interference in the acquittal order.
14. The impugned judgment of the trial Court is strictly in accordance with the facts of the case and in accordance with the established principles of appreciation of evidence which calls for no interference, as the learned Judge has minutely taken all the material aspects of the case while drawing the impugned conclusion and is thus maintained.
15. In view of the facts and circumstances of the case narrated above, while maintaining the judgment of the trial Court, Criminal Appeal No,62 of 2006, titled Murad Khan v. The State etc. (Appeal against Conviction), Criminal Appeal No,69/2006, titled Naseem Khan v. Sarbiland etc. (Appeal against acquittal)and Crimianl Revision No,32 of 2006, titled Naseem Khan v. Murad Khan etc. (Revision Pro enhancement of sentences of Murad Khan and Zafar Ali Khan convict/appellants), are dismissed.
16. Above are the reasons for my short order dated 19-6-2008.