' MUHAMMAD SAFDAR KHAN SIKANDARI, J.---Badshah Khan accused/appellant was charged for murderous assault vide case F.I.R. No,184, dated 17-6-2008 of Police Station Ghoriwala, District Bannu registered under section 324/34, P.P.C. At the behest of complainant Habibullah. When tried, he was found guilty of the offence and thus on conviction under section 324, P.P.C. Was sentenced to rigorous imprisonment for five years with fine of rupees twenty thousand, in default to undergo six months simple imprisonment vide judgment, dated 12-11-2009 passed by the learned Additional Sessions Judge-V Bannu. He was also ordered to pay compensation amounting to Rupees fifty thousand to the complainant/victim under section 544-A, Cr.P.C., in default to suffer six months simple imprisonment. Through the same judgment, he was further convicted under section 337- F(iv), P.P.C. And sentenced to two years' R.I. And to pay Daman amounting to rupees twenty thousand. Through this Criminal Appeal No,53 of 2009, he has challenged his conviction and sentences. The complainant Habibullah is also aggrieved of the awarded conviction and sentences to the convict/appellant and has prayed for its enhancement through Criminal Revision No,1/2010. As both these matters have arisen out of the same judgment of the learned trial Judge, dated 12-11-2009, therefore, I propose to dispose it of by this single judgment.
2. Briefly stated facts of the case are that Habibullah complainant has lodged the report in injured condition in the emergency room of Civil Hospital Bannu on 17-6-2008 at 1025 hours to the effect that he was busy in cutting grass in his field when at about 0945 hours, Badshah Khan, Jameel Khan and Shakeel, sons of Mohabbat Khan, residents of Chak Karim duly armed with Kalashnikovs emerged on the scene and out of them, Shakeel and Jameel ordered Badshah Khan to fire and kill who under their command fired at the complainant with his kalashnikov with which he was seriously injured. Motive for the offence was stated to be previous blood feud enmity between the parties.
3. When arrested, the prosecution submitted complete challan against the accused/appellant and the requirements of section 265-C, Cr.P.C. Were complied with. He did not plead guilty and thus charge against him was framed under section 265-D, Cr.P.C. Wherein he professed innocence but did not wish to produce any defence evidence nor opted to examine himself on oath under section 340, Cr.P.C.
4. In order to prove its case against the accused/appellant, the prosecution produced and examined 12 witnesses whereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. After evaluating the materials brought on record, the learned trial Judge found the accused/appellant guilty of the offence and thus on conviction sentenced him as mentioned above. Hence these appeal and revision.
5. Counsel for accused/appellant contended that there are material contradictions between the statements of P. Ws. And the prosecution has miserably failed to establish the case. He further urged that the prosecution case is full of doubts and in this regard, he referred to the evidence recorded in the trial Court. He argued that the recovery of kalashnikov has been concocted by the prosecution and the conviction order is liable to be set aside.
6. On the contrary, counsel for complainant and State counsel vehemently argued that it is a case of broad-daylight and the accused being co-villager of the complainant were well identified and the report about the occurrence has been lodged promptly and there is no room left for consultation and deliberation and prosecution succeeded to prove the guilt of the accused on the basis of ocular evidence supported by medical evidence and recovery from the spot.
7. I have examined the record of the case thread barely and anxiously considered the valuable arguments advanced at the bar.
8. The injured complainant has claimed the time of occurrence on 17-6-2008 at 0945 hours at broad-daylight time in between the village Abadi in the fields. Soon after the occurrence, the victim was shifted to DHQ Hospital Bannu for treatment for saving his life and also did lodge the report at 1025 hours, therefore, the promptitude in lodging and averting the report in the shape of Murasila indicates that no room was left for consultation and deliberation or false implication of the accused/appellant in the instant case.
9. In order to establish the motive duly claimed by the complainant in his report, the Investigating Agency succeeded to procure a host of previously registered copies of F.I.Rs about the enmity existing between the parties which clearly reveal that previous grudge culminate into the present occurrence.
10. Complainant Habibullah was examined as P.W.8 in the Court and he was subjected to lengthy cross-examination but the defence badly failed to shatter his credibility. Right from his lodgment of report about the incident upto deposition in the Court, his charge against the assailant except some negligible omissions which clearly shows that the occurrence has taken place in the manner as alleged by the complainant. In view of the previous enmity with the accused/appellant, the Court will then look for corroboration of his testimony for fulfilment of this sine qua non ingredient.
The prosecution produced and examined Hameed Ali as P.W.9. Who without any exaggeration supported the version put forth by complainant. Though P.W.9 is related to complainant, but being a natural witness, his credibility will not be considered doubtful, because the site plan clearly indicates his presence on the spot and has seen the occurrence with his own eyes. Moreover, name of P.W.9. Did appear in the F.I.R. And in view of 2002 SCMR 1999, the deposition of P.W.9. Does not come under the definition of interested witness.
11. Soon after the firing by the accused/appellant at complainant, scuffle ensued between the parties and Hameed Ali also participated and snatched the weapon of offence, i,e,, kalashnikov along with fitted magazine containing 10 (ten) live rounds from accused/appellant and handed it over to P.W.7 Sadullah Khan Sub-Inspector when he attracted to the spot, and, thereafter, produced to the Investigating Officer for taking possession on recovery memo. Exh.P.W.511.
12. P.W.1., Doctor Noor Saycd has examined the victim and found one entry wound with corresponding exist would which clearly tells about the nature and dimension of injury of the injury sustained by the complainant. The stamp of injury on the victim will be seen only in the context of corroboration of occurrence, however, it is not a substantive piece of evidence and confirms that occurrence has taken place in the manner as alleged by the complainant and eye-witness (P.W.9).
13. Accused/appellant is charged directly in the F.I.R. Without any delay fatal for prosecution. At the time of lodging the report by complainant, accused/appellant was also taken to hospital whereof he has also lodged the report in daily diary No,31 of the same date against the injured complainant of that case and alleged sickle blows to him by the complainant and this fact on record further shows the presence of accused on the spot duly supported by site plan at the instance of P.W.9 and later on endorsed by the victim when discharged from the hospital. At the time of firing by the accused from point No,2, the complainant was busy in cutting the gross at point No,
1. Present pole apart at a distance of 14 paces from one another, therefore, the injuries sustained by the accused/appellant with the hands of complainant does not appeal to mind and, if any, probably it would have been caused 'during scuffle when P.W.9. Took part in the bloody game at the time of snatching of Kalashnikov from accused/appellant and the stance taken by him strengthens the mode of presence of accused/appellant at the spot. In this view of the matter, statement of accused was recorded under section 342, Cr.P.C. But the story devised by him seems to be concocted in order to save his skin from the charge, therefore, from the very beginning the Investigating Agency did not pay heed to his report but as much as the accused/appellant assigned the role of causing injury by P.W.9. To him (complainant) which does not ring true.
14. In view of the aforementioned reasons, I have been led to the conclusion that the prosecution is able to bring home guilt of the accused beyond any shadow of reasonable doubt. Both the statements of injured P.W. And P.W.9 are consistent and in consonance with one another. The prompt report, preparation of site plan Exh.PB at the instance of eyewitnesses, recovery of grass and Kalashnikov supports the version of prosecution. The occurrence has taken place at board- daylight and question of mistaken identity also does not arise. The trial Court has very well scrutinized the materials available on record and has reached to the correct conclusion about the merits for the case, therefore, the sentence awarded to accused/appellant does not warrant interference and hence the appeal against conviction is hereby dismissed.
15. The complainant has also sought the enhancement of the awarded conviction and sentence, but in view of the balanced judgment passed by the trial Court, I do not deem it appropriate to enhance it in view of peculiar circumstances of the case and hence the revision petition shall also stand dismissed.