' MAZHAR ALAM KHAN MIANKHEL, J.---Through this single judgment, Criminal Appeal No, 405 of 2010 filed by the appellant against his conviction and Criminal Revision No, 73 of 2010 filed by the complainant/petitioner for enhancement of sentence are being disposed of as both arise out of the same judgment.
2. The convict-appellant herein has questioned his conviction under sections 324 and 337-D, P.P.C.
Recorded in case F.I.R. No, 566 dated 21-8-2006, Police Station Akora Khattak, Nowshera. The appellant on conviction under section 324, P.P.C. Was sentenced to two years' R.I. With a fine of Rs, 20,000 or in default of payment of fine to undergo simple imprisonment for two months and under section 337-D, P.P.C. To one year's R.I. And to pay Arsh which shall be 1/3rd of Diyat (1/3rd of Rs,6,43,760) to the complainant in lump sum.
3. The occurrence as reported by the complainant Muntazir Shah that while he was on his way to the mosque for offering 'Asar' prayers the appellant along with Nisar intercepted him and the appellant attacked him with the fire-arm in his possession and resultantly he was injured. The motive for the occurrence was also given by the complainant that some 4/5 months prior to the present occurrence, the accused facing trial and a relative of complainant namely, Asad had a brawl. In the last, he has also referred the presence of the P.Ws, namely, Liaqat Ali Shah, his brother and Qamar Ali Shah, who allegedly witnessed the occurrence.
4. The report of the complainant was recorded' in the hospital and then he was referred for medical treatment. The case was investigated and after the arrest of the appellant and his co-accused Nisar, they were tried by the Court of learned Additional Sessions Judge-IV, Nowshera and ultimately the appellant was convicted for the punishment referred above whereas his co- accused Nisar was acquitted of the charge.
5. Learned counsel for the appellant submitted that accused being innocent has falsely been implicated by the complainant. It was an unseen occurrence, no empty or blood was recovered from the spot. The very presence of the P.Ws. At the spot becomes doubtful if the story of the complainant is believed. Though the motive was also alleged by the complainant but failed to prove the same and thereby requested for acceptance of appeal by acquitting the appellant.
6. Learned counsel for the complainant in support of his case submitted that the appellant along with co-accused were directly nominated by the complainant and the occurrence was also seen by the two witnesses and there was no question of misidentification of the accused as it was a daylight occurrence. He further submitted that the case against the appellant was proved, so the sentence awarded by the trial Court was not in commensuration with the nature of offence and requested for enhancement of the same. Learned State counsel also endorsed the arguments of the learned counsel for the complainant.
7. Learned counsel for the parties were heard and record of the case was perused.
8. The case of the prosecution basically rests on the statements of complainant recorded as P.W.2 and the statement of Liaqat Ali Shah P.W.3, the brother of the complainant who as an eye-witness has given the ocular account of the occurrence. The story put forth by the complainant on the face of it seems to be full of doubts which required very careful examination. While referring to the occurrence in his report he never mentioned the presence of the two P.Ws as he has stated in his report that when he was going to offer his 'Asar' prayers, he was attacked by the appellant and his co-accused and he mentioned the P.Ws in the last leg of his report that the same was witnessed by Liaqat Ali Shah, his brother and one Qamar Ali Shah. The presence of the complainant, the accused and the witnesses as shown in the site plan prepared at the instance of the complainant would again make it impossible to understand that why the witnesses were spared by the accused as the motive alleged by the complainant was also very much there against P.W.3 Liaqat Ali Shah, the brother of the complainant. The close distance between the complainant, P.Ws. And the accused as shown in the site plan would again lead to a presumption that the two accused within the close range could have easily been overpowered by the three persons i.e, complainant and the two witnesses or at least their must have been scuffle grappling and resultantly, the witnesses, specially P.W.3 Liaqat Ali Shah and the two accused might have received some injures. As the same would have been the natural reaction by a brother present on the spot and in his presence his another brother is attacked as narrated by the complainant in his report and statement before the Court.
9. If the injury on the person of the complainant is considered, that was never explained by the complainant to the police that on which part of the body he received injury. No blood from the spot was recovered by the police and similarly no empty from the spot was recovered. The nature of injury was also not proved on the record as the doctor who examined the complainant was never produced in the Court. The statement of Dr. Fahim (P.W.6) would not be helpful to the complainant or prosecution as he had initially examined him while posted at DHQ Hospital, Nowshera and referred him to the LRH, Peshawar. However, he had recorded the size of single inlet wound 1 x 1 cm.
While declaring the injury to be grievous without explaining the nature of the same, he based his opinion on the discharge slip of LRH Peshawar. The account given by the complainant again becomes doubtful when Dr. Fahim admitted in his cross-examination that the size of fire-arm injury would depend on the distance from where the person was fired. The relevant portion of the statement of the doctor is reproduced below:-- "It is correct that according to recognized medical jurisprudence whenever the injury is caused from the close range the wound would be bigger in a size and whenever the person is hit from the longer distance size of the wound would be small".
TOORAN LAW CHAIVISER, KH.JZDAR (HAS At /3.1.1 SASOL:1)
AL5110C.1',.Tr: 0G I COURT
10. The presence of the witnesses at the spot again cannot be believed so lightly and creates doubts as per version of the complainant, the occurrence was witnessed by his brother Liaqat Ali Shah (P.W.3) but his presence as well as the presence of other eye-witness Qamar Ali Shah was never explained by any of them as to what for and why they were present, at the spot at relevant time. So, when their presence at the spot is not proved their statement would not be worth- consideration. The presence of the witnesses if seen from this angle, that in a situation like one narrated by the complainant as within a close distance of 6/7 paces, the brother of a person present on the spot keeps himself away and even no attempt to overpower the accused is made by him. The presence of P.W.3 can well be questioned as to why he did not accompany his injured brother to the hospital.
11. The complainant has alleged motive for the occurrence but evidence on the record would reveal that it goes un-established. The brawl referred to some 4/5 months prior to the occurrence with the relative of the complainant namely, Asad was neither reported to police nor any other evidence in this regard was produced. No doubt, under the law, absence of motive cannot be a ground for acquittal but the motive once alleged and set up then that requires to be proved by the prosecution. The false implication of the appellant and his acquitted co-accused cannot be ruled out as in a murder case wherein the complainant of the present case i.e, Muntazir Shah was sentenced to life imprisonment which was reported by the present appellant Ajmal and was witnessed by the acquitted co- accused Nisar.
12. Mere abscondence of the accused, in absence of any material evidence connecting him with the commission of offence, cannot be made basis for conviction as abscondence alone does not establish guilt of the accused unless corroborated by other cogent evidence.
13. So, in view of the discussion made above, the prosecution failed to prove its case beyond any reasonable doubt against the appellant. Hence this appeal is allowed, conviction, sentence and fine imposed upon the appellant Ajmal vide impugned judgment dated 22-4-2010 is set aside and the appellant is acquitted of the charges levelled against him. He be released from custody forthwith if not required in any other case.
' Revision Petition No, 73 of 2010 for enhancement of sentence filed by the complainant in the circumstances is dismissed.
' These are the reasons for my short order of even date i.e, 26-7-2010.