' MUHAMMAD SAFDAR KHAN SIKANDARI, J.---This criminal appeal in hand has been directed against the impugned judgment dated 29-6-2006, passed by learned Additional Sessions Judge-V, Bannu, whereof accused/appellants, namely Muhammad Yaqoob (now dead) son of Abdul Salam and Wahabuddin (acquitted on the basis of compromise) son of Nizamuddin were sentenced under sections 302/34, 324/34 and 337- F(v), P.P.C. For life imprisonment, five years imprisonment and one year imprisonment each accused respectively on each count with fine of Rs,1,00,000, Rs,5,000 and Rs,15,000 each accused under section 544-A, Cr.P.C. As compensation to the legal heirs of deceased and Daman to Mati-ur-Rasool injured or in default of payment of fine to undergo one month S.I. Further.
2. The above named appellants stood charged in case F.I.R. No,3 dated 11-1-2005 registered under sections 302/324/34, P.P.C. In Police Station, Cantt: District Bannu.
3. Succinct facts forming the background of the prosecution case are to the effect that Hanif ur Rahman lodged the report in the shape of mursila before the police wherein he alleged that after attending the Court he along with his brother Shafiq ur Rahman, religions student Mati ur Rasool and Hazrat Ahmad started going to Miraj ul Uloom. Maulana Shafiq ur Rahman and Mati ur Rasool (student) sat on his own motorcycle whereof the complainant and Hazrat Ahmad boareded the Quinqi Rickshaw. Shafiq ur Rehman was going ahead while driving the motorbike followed by them in Quinqi Rickshaw. At 10-00 a.m, when they reached near Masoori Nika shrine, accused Rubaz, Muhammad Yagoob, Wahabuddin and Riazuddin emerged from shrine side duly armed with 30 bore pistols and fired at Shafiq ur Rahman and Mati ur Rasool with the intention to kill them and resultantly Shafiq ur Rahman and Mati ur Rasool got hit and fell down. The accused decamped from the spot. The complainant took his brother and companion to the hospital, however, while reaching the hospital, Shafiq ur Rahman succumbed to the injuries whereof Mati ur Rasool was not able to give the statement. Motive as described by the complainant is the dispute over the shops of Miraj ul Uloom and hence the charge against the above named accused.
4. After the arrest of the above named accused/appellants, completion of investigation, submitting the complete challan in the Court, framing charge, recording the evidence of totally fifteen P. Ws.
And hearing the arguments of the counsel for both the parties including the S.P.P, the trial Court passed the impugned judgment which aggrieved the convict/appellant for filing the instant appeal against their conviction under section 410, Cr.P.C. Having felt aggrieved from the said judgment, also impugned it by the complainant for enhancement of the sentence under section 439, Cr.P.C.
5. Counsel for the appellant contended that the presence of P.W.6 on the spot is doubtful and prosecution badly failed to prove the case against the accused/appellants and hence the appellants are entitled to acquittal. He further urged before us that the injured witness was examined by the police after 21/22 days and during this period he made consultation with the complainant and police to manipulate a false case against the accused/appellants and as such his evidence is doubtful and not worth reliance. He argued further that the motive for culminating the occurrence is not proved which goes in favour of defence. He went on to argue that the defence plea is not plausible hence discussed by the trial Court and verdict passed suffers from infirmities which is the result of non-appraisal of evidence on the file. He contended that non- production of Hazrat Ahmad in the trial Court infers adversely against prosecution and the doubts created in the statements of P.Ws. 6 and 7 will benefit the accused/appellants.
6. Conversely, complainant counsel vehemently contended that the motive is very much established as the litigation over shops of Miraj ul Uloom continues between the parties since long before the occurrence which culminated into the murder of the deceased and injuries to the eyewitness Mati ur Rasool. He contended that ocular testimony of P.W.6 is corroborated by the testimony or an injured witness of unimpeachable source. He argued that four accused were nominated in the F.I.R. For firing at the deceased and injured and the stamps of injuries on them and the positive result about the empties fired from pistols commensurate with the ocular account of P.Ws. Counsel for complainant urged before us that burden of proof lies on prosecution to prove the case beyond the shadow of doubt but the plea taken by the defence will not be considered in juxtaposition being not believable and concocted story, therefore, the awarding of sentence to the accused/appellants by trial Court is justifiable and does not call for interference rather it warrants enhancement.
7. The submissions addressed at the bar were carefully viewed in the light of evidence coupled with other materials available before us and the findings on each aspect of the case is as follows.
8. As envisaged from the murasila the complainant has claimed the time of occurrence as 10-00 a.m. The occurrence has taken place on busy road situated in between Bannu city and Cant. Both the deceased then injured and injured P.W. Mati ur Rasool were rushed to the hospital to save their lives and the report was lodged about the occurrence in emergency ward at 10-20 p.m. Thus the report is lodged promptly within twenty minutes leaving no room for consultation and deliberation on the part of complainant. Promptly lodged report/ F.I.R. Is itself a corroborative piece of evidence.
There was no previous blood feud enmity between the parties, therefore, in view of the dictum of apex Court, even the delay, if occurred in lodging the report, would not matter. PLD 1987 SC Page 136 is relied.
9. The P.Ws. Have alleged the motive to be the dispute over the shops. Asking certain question for the P.Ws. Regarding Court case on the day of occurrence itself proves the motive. Moreover, the documents and judgments of various Courts are indicative towards this fact that there was the dispute between the parties over the shops of Miraj ul Uloom, therefore, thus the motive set up by the complainant is proved to the hilt and it is supportive circumstances in favour of prosecution.
Authority, if needed, reference can be made to 2007 SCM R 1535.
10. P.W.6, Hanif ur Rahman complainant is the brother of the deceased but he has no previous blood feud enmity with accused, therefore, the testimony put forth by this P.Ws. Is creditworthy because the defence has failed to point out any ill will on his part. P.W.6 is lengthly cross-examined by the defence but we failed to find out any single iota of doubt in his statement nor any discrepancy was available in his deposition. He is natural witness to the occurrence and credibility is attached to his veracity. The mere relationship of P.W.6 with the deceased in absence of established hostility would not discard his testimony. Reference can be made in regard to a titled case, Noor Muhammad v. The State, 2005 SCM R 1958.
11. Similarly, the statement of injured witness Mati ur Rasool examined as P.W.7 has fully supported the version advanced by P.W.6. This P.W. Is neither the close relative of deceased nor inimical towards the accused. His injury suggest his presence on the spot beyond reasonable doubt, therefore, his deposing carries weight under the definition of natural and trustworthy witness. This P.W. Too was cross-examined at length but the defence bitterly failed to bring any contradictions in the statement from his mouth and steadily remained consistent with the statement of P.W.6.
Making scrutinized appraisal of his statement of it does not matter that he was examined after 20/21 days later under section 161, Cr.P.C. But that statement, in view of 2005 PCr. LJ 988, is not a substantial piece of evidence and same can be used by defence to bring out of the truthfulness of a witness whose statement was recorded by the Investigating Officer under this section and produced in the Court in support of prosecution version, therefore, this delay in recording his statement is not deliberate but beyond his control as the was under treatment in Peshawar and striving for existence. P.W.7 has fully corroborated the testimony of P.W.6 on material particulars and without hesitation can be considered for the conviction of the accused/appellants. In this way as discussed about all the eye-witnesses have given a consistent statement corroborating each other with no contradiction or was important has safely their -deposition can be much basis for the capital punishment. Reliance may be placed on 2008 SCJ 170.
12. P.W.2, Dr. Bashir Hussain Shah has conducted autopsy on the deceased and found five entry wounds and five exit wounds, all of them caused from front side except wound No,9 which is from back but in view of plethora of authorities of Superior Courts in this regard held that human being changes his position due to critical situation while firing at him and do not adhere to the ground like statute, therefore, receiving injuries from different angles is natural phenomenon and will not make the medical evidence defective. Moreover, medical evidence is nothing but an idea which can indicate towards this fact that actually injuries are caused to victim by any means likely to be considered for corroboration of ocular account and does not identify the accused involved in the Commission of offence. Placed reliance on PLD 2004 SC 663.
13. P.W.1 Dr. Abdul Wadood has examined P.W.7 and has found injuries on his body, therefore, the medical evidence clearly establishes that deceased died due to fire-arm injuries and P.W.7 has also sustained five fire-arm injuries and has corroborated the ocular account as circumstantial evidence.
14. Site plan prepared by the Investigating Officer in presence of eye-witness clearly support the ocular account, though site plan itself is not a substantive piece of evidence but can given an idea about the venue of occurrence and facilitates the understanding of merits of the case while assessing different points denoting the accused and the witnesses as well as the recovery of incriminating articles.
15. Five empties were picked up by the Investigating Officer from point No,0 near the place of accused at Serial Nos.5 to 8 and the ballistic expert report was received in positive commensuration with four pistols by four accused, therefore, this piece of circumstantial evidence support the ocular account put forth by P.W.6 and 7 and thus the prosecution succeeded in proving the charge against the accused beyond any shadow of doubt.
16. In view of what, we have observed aforementioned, we have been led to the conclusion that the trial Court has very well appreciated the evidence of P. Ws. Coupled with other materials on record and has correctly held the accused responsible for the murder of deceased Shafiq ur Rahman and caused injuries to P.W. Mati ur Rasool and the sentences awarded to the accused does not warrant interference and hence the appeal against conviction is hereby dismissed.
17. As no specific role for inflicting particular injury to the deceased or injured P.W. Has been attributed to the particular accused/ appellants nor the accused/appellants had previous blood feud enmity with complainant party and the occurrence merely culminated due to civil litigation between the parties, therefore, the above referred factum will be considered as a mitigation circumstances and as such the revision petition for enhancement of sentence is hereby dismissed.