An Additional Sessions Judge, Lakki Marwat, after framing formal charge against the two accused; namely, Inamullah and Gul Zaroof, under Sections 324/34 PPC for attempting at the life of complainant Zarin Khan convicted and sentenced both the accused for five years R.I. and fine of Rs, 5,000/- each and in default of payment to suffer three months S.I. Benefit of section 382-B PPC was also extended to the accused.
2. Both of them have assailed the above mentioned judgment through Appeal Bearing No, 35/2009.
Similarly, Zareen Khan complainant has also challenged 'the said judgment in criminal revision No, 36 of 2009 with the prayer to enhance the sentence.
3. I intend to dispose off both these matters through this single judgment.
4. Facts leading to the above conviction and sentence are that Zareen Khan in the company of Rangeen Khan in injured condition reported the matter to this police in the police station that on 14/10/2009 they had gone to attend a Court at Lakki Marwat and after attending the same Court on their 'return, when they reached to the place of occurrence, i,e, Adda Taja Zai, they deboarded from Flying Coach and thereafter waiting for another vehicle when in the meanwhile three persons, namely, Malik Khan, Inamullah and Gul Zaroof appeared. Inamullah and Gul Zairoof were armed with .30 bore pistols while accused Malik Khan was empty handed. He directed the other accused/appellants to fire at the complainant and in obedience to that direction both of them fired at him which resulted in his injury. According to the complainant, the occurrence was witnessed by his father Rangeen Khan. The motive for the offence was previous blood feud.
5. After completion of challan, the case was put in Court. Formal charge was framed against both the accused and they were put to trial.
6. It is to be noted that these two appellants were earlier tried and convicted by Sessions Court but in appeal the case was remanded back for denovo trial.
7. In that earlier trial, co-accused Malik Khan was acquitted. After the remand in trial Court recorded the evidence of prosecution which consists of eight witnesses. Statements of both accused/appellants were also recorded under Section 342 Cr.P.C. Neither they appeared as their own witnesses nor produced defence evidence.
8. After hearing counsel for the parties, the impugned conviction and sentence was recorded by the learned Court below.
9. The counsel for both the parties addressed their arguments in this Court.
10.It is argued by the learned counsel for the appellants that it is not case of conviction because there are contradictions in the evidence in respect of medical evidence in the shape of number of injuries and the presence of alleged eye-witnesses on the spot as well as the time of recording of FIR. He further argued that 30 minutes consumed in report is fatal to the prosecution case. Both the accused and eye-witnesses are related interse and inimical towards the accused because of previous blood feud. It is also argued that the motive even if proved would not warrant conviction because motive cuts both the sides. If motive in the shape of previous enmity exists, it may persuade a person to commit offence and on the other hand it can persuade the other party to implicate persons who are innocent.
11.In response to the above contentions, counsel for the complainant argued that it is a day light occurrence which is witnessed by two competent witnesses, one injured and the other is his father.
Medical evidence corroborates the prosecution story. According to him, the FIR is promptly lodged and there is no doubt about the genuineness of accused and the medical evidence corroborates the prosecution version.
12.In the light of available record and arguments, I would first discuss the arguments of the learned counsel for the appellants with regard to medical evidence. According to him, the injury sheet of the injured speaks about one injury while medical report suggests two injures. I have perused both the documents, i.e injury sheet available on file, Ex.PW.8/2, and medical report (Ex.RPW.1/1). The injury sheet discloses one injury which is prepared by PW.8. The medical report Ex.RPW-1/1 shows two injuries which includes two entrance wounds and one exit wound. According to the counsel for appellants it contradicts the injury sheet. The injury sheet prepared by PW-8 discloses one injury. The injury has been admitted by PW-8 in cross-examination. The reply of counsel for complainant is that in fact the injuries were caused but due to flew of blood from one of the injury, and it was not probably possible for the PW concerned to notice it, so he did not mention it. Moreover, he also stated that doctor appeared as PW-1 and confirmed the two injuries. The relevant portion of the cross-examination is reproduced as under:-- "When the injury first occurs there the blood will definitely oozing from the wound its edges and margins will be radish. However, it also depends upon the blood volume in the injures when the discoloration occurs and epithelium grows from the margins to the other side".
13.The above portion of the cross-examination means that may be due to flow of blood from one wound, the second injury was not noticed by PW.8. The Medical Expert while appearing as PM/ has given reasonable deposition before the Court which corroborates the allegations of complainant regarding the injuries. As far as the location of injury is concerned, the stand of learned counsel for appellants is that both the injuries were on the left buttock laterally. According to him keeping in view the location of the injured in standing position and different duration, the location of injury on the body of injured was not possible at all. I do not agree with these arguments of the learned counsel for the appellants because in such like situation, one would not stand static but would move in order to make himself secure. There are so many judgments recorded by the Superior Courts on this point.
14.The first case law I would refer is Saeedullah Khan Vs. The State (1986 SCM R 1027), wherein it has been held:-- "that the shot hit deceased on back and had come out from front, whereas ocular testimony described shot to have been received by deceased from front of chest; It has been further held that:-- "it is undoubtedly true that Mst. Gul Mewa was hit with the shot fired by the appellants on her back and the bullet passed through her body and came out from the front side from her chest. However, in his deposition in the Court, Muzaffar Khan complainant described the injuries received by the deceased in the reverse order, namely, that the shot hit her from the front on her chest. It seems that he was not contradicted by confrontation with what he stated in the FIR. The other eyewitness, namely, Mueen Badshah while describing the occurrence stated with regard to the injuries received by the complainant." It has been also held that:-- "again in the cross-examination he categorically stated that the deceased was hit from the front and the bullet passed through her body emerging from her back. Confronted with his police statement, he replied: "By mistake I stated before the police that the bullet struck her in the back and passed out from front. It is incorrect that I have changed statement to be in line with the medical evidence." The conclusion drawn was:-- "that after considering the evidence on the record, we are inclined to agree with the view taken by the trial Court that the description of the manner in which the injury was sustained by the deceased was the result of confusion and excitement generated by the dramatic circumstances in which the offence was committed."
15.In another case, the Apex Court in the case of Abdur Rauf Vs. The State and others reported in 2003 SCM R 522 has held that the conflict in ocular testimony and medical evidence would not affect the prosecution case. The relevant portion whereof is reproduced below:-- "We may observe that the minor discrepancies in the medical evidence relating to the seat of injuries would also not negate the direct evidence as the witnesses are not supposed to give photo picture of each detail of injuries in such situation, therefore, the conflict of nature of ocular account with medical as pointed out being not material would have no adverse effect on the prosecution case."
16.The other case relied upon is Wazir Khel alias Wazir Gul Vs. Nawab Khan and another (PLJ 2002 Cr.C.(Peshawar) 1387(DB), wherein the same principles were laid down as enunciated in the case of Abdur Rahman Vs. State (PLJ 1999 SC 86). The observations made therein are:-- . "It is true that three fire shots are attributed to the appellant but the fact cannot be lost sight of that ocular account of an incident has preference over the medical evidence when there is overwhelming evidence on record to connect an accused person with the guilt. This discrepancy is not vital to the prosecution case. The possibility of one fire shot having gone stray cannot be excluded in the circumstances of the case. Ata Muhammad and another appellants Vs. The State respondent (1995 SCM R 599)."
17.Keeping in view the medical evidence and that of ocular account as against the author of injury sheet and the above observations of the Apex Court, I am of the opinion that the discrepancies, if any, are of minor in nature and immaterial. The medical evidence as given by the doctor in the trial Court fully corroborates the ocular account and the eye-witnesses both in respect of seat of injuries and number of injuries, therefore, this Court believe the same and does not agree with the learned counsel for the appellant. It is also to be noted that the complainant in his report has mentioned to have received two fire shots at the hands of the appellants which hit him meaning thereby that the medical evidence supports the testimony of the injured PW in respect of number of shots and number of fires. As stated above, the omission in the injury sheets might be the result of two reasons, one oozing of blood from the injury and second is that the injury was on the buttock which is private part and the injured might be reluctant being "Pukhtoon" to show it to the Police Official. It is also noted that from the evidence on the file, it is not proved that injury on the body of the injured is self-inflicted, nor this plea is taken in defence nor question is asked in the cross-examination from the Doctor.
18.Now coming to the time consumed in lodging of the FIR, the stand of the learned counsel for the appellants is that keeping in view the distance between the place of occurrence and police station i,e, 6/7 kilometers, the report is lodged with delay and has made it suspicious because of possibility of consultation for false implication of the appellants. In order to resolve this dispute, reference made be made to the FIR according to which the occurrence took place on 14/1/2000 at 1100 hours while the incident was reported by the complainant at 1130 hours and thus the report was made with a delay of 30 minutes. Now question arises as to whether this time of thirty minutes is not warranted keeping in view the distance between the, two places. As stated above, the distance between the place of occurrence and the police station is 6/7 Kilometers. It is also a fact that the complainant was injured accompanied by his father. He was not a healthy man and arranging for transport to approach police station for the lodging of report required time and in my opinion the complainant party has promptly covered the distance of 6/7 kilometers in order to reach the police station. The FIR lodged after thirty minutes of the incident is more than prompt and thus the element of consultation or false implication is ruled out altogether. In the case reported as Abdus Sattar Vs. Muhammad Anwar (PLJ 1974 S.C.134) in which the FIR was lodged after two hours, it was held that:-- "The first information report in this case appears to have been made without any avoidable delay at 11 p.m. by Abdus Sattar, after traveling seven miles to police station Jatli. This circumstance also inclines us to the view that this is not a case where it can be said that it was an unwitnessed crime, and that the names of the enemies of Abdus Sattar or Lambardar Karam Dad were falsely mentioned as the culprits as a result of consultation and manipulations".
19.As stated above, the report was lodged after thirty minutes of the incidence in the police station which was at a distance of 6/7 kilometers which is by itself explanatory and in view of the above rulings of the Superior Courts will not adversely affect the case of the prosecution. Thus the argument of the learned counsel for The appellants in this respect is turned down.
20.The last argument is in respect of the evidence of injured and his father. According to the contention of the learned counsel for the appellant, one of the PW is father of the injured and the complainant party was inimical towards the accused, therefore, the PWs being related and inimical cannot be relied safely being highly interested. In this connection, I may point out that it is a settled principle of law that even an interested witness can be believed if his testimony is corroborated by other evidence. Mere relationship is not enough to discard the other evidence. The settled principle is that the Court at the most is required to ascertain as to whether the witness saw the occurrence and was in a position to give evidence and whether he should be believed without corroboration or not. The evidence of an interested witness cannot be disbelieved unless any ill- will on his part with the accused is brought on record. It has also been held in a number of judgments of the Superior Courts that related witness may be relied when found truthful with contest in other circumstances of the case. On the contrary, inimical or interest witness cannot be stopped from deposition because the Court has to see whether the said testimony is in consonance with the material evidence which is otherwise confidence inspiring. Reference in this context may be made to the case of Abdul Majeed Vs. The State reported in 1969 P.Cr.L.J. 1168 wherein it has been held that:-- "if the intention' is that interested testimony should under no circumstances be relied upon unless it is corroborated, we have no hesitation 'in disagreeing with it. In this way, the inference would be that the interested witness needs corroboration always if the circumstances otherwise suggests."
21.Similar principle has been given by the Apex Court in the case of Ibrahim Vs. The State reported in 1969 P.Cr.L.J. 1565 wherein it has been held:-- "that it is true that these witnesses had enmity with the accused persons but that alone did not justify the rejection of their evidence and the High Court could properly require corroboration of their evidence before accepting it."
22.Similarly, in the case of Shahzado Vs. The State (PLD 1977 Supreme Court 413), it has been observed that:-- "there is no doubt that the witnesses were interested in the prosecution of the accused and inimical against them. But that fact alone is not sufficient to altogether discard their evidence. It has to be properly sifted and weighed with the necessary care and caution before rejecting the chaff and accepting the grain in the light of facts of each case."
23. In short, the appellants have failed to bring on record any material to stamp both the PWs with material ill-will for false implication. Their evidence, is in consonance with the medical evidence and other circumstances and they cannot be discarded simply because of their enmity and relation inters and this the arguments of the learned counsel for the appellants are of no avail.
24. The upshot of my above discussion is that the appeal filed by the appellants is without merit which deserve dismissal.
25.The other, matter is the criminal revision filed by the complainant party for enhancement of the sentence awarded to the convict appellants.
26.After hearing arguments of the learned counsel for the petitioner, I have come to the conclusion that he has made no case for enhancement and failed to prove breach of any principle of law with regard to the award of sentence. Keeping in view the nature of evidence, the trial Court awarded the sentence which is correct and needs no interference and hence the revision petition is liable to be dismissed.
27.The overall result is that both the appeal and revision are dismissed.