' IMTIAZ ALI, J.----Through this common judgment, we propose to decide Criminal Appeal No,555 of 2007 and Criminal Revision No,159 of 2007 both arising from common judgment dated 12-7-2007 in session Case No,74/SC decided by learned Additional Sessions Judge-III, Charsadda for offence under sections 302/324/148/149, P.P.C. Whereby appellant Muhammad Khan has been found guilty of the charges levelled against him, convicted and sentenced under section 302(b), P.P.C. For life imprisonment as well as fine of Rs,one lac under section 544-A, Cr.P.C. To be paid to the legal heirs of deceased Tasreef Khan. In default of payment of fine appellant is to undergo further S.I. For six months. In addition to that on account of vicarious liability appellant has also been found guilty under section 324, P.P.C. Read with sections 337-A (ii), P.P.C. And 337-D, P.P.C. Hence convicted and sentenced to undergo R.I. For 7 years as well as fine of Rs,50,000 as compensation to the injured. In default whereby he is to further undergo S.I. For 3 months. Sentences have been ordered to run concurrently and benefit of section 382-B, Cr.P.C. Has also been extended to appellant.
2. Brief facts of the case as narrated in the F.I.R. Complainant along with her husband Tasreef Khan brothers Noman, Aman and brother-in-law Zabita Khan were proceeding to the house of one Raza Khan for offering Fateha. On reaching the place of occurrence, appellant accompanied by his son namely Nadeem, Sheraz, Arif, Alam and Naif (absconding accused) who were present duly armed with deadly weapons, started firing at complainant party with the intention to commit Qatl-e-amd as a result whereof Tasreef Khan, husband of the complainant died on the spot while complainant and her above named brothers along with a passerby namely Ajab Khan sustained injuries. Motive alleged by the complainant was dispute over landed property. On aforesaid report of complainant instant case was registered against appellant and his five sons.
3. After completion of investigation present appellant was sent for trial while challan under section 512, Cr.P.C. Was submitted against the absconding accused. On conclusion of trial appellant was found guilty hence, convicted and sentenced in the manner and to extent stated above.
4. To prove its case prosecution examined as many as 13 P.Ws. Dr. Fazli Akbar (P.W.1) conducted the post-mortem examination of dead body of deceased Tasreef and found the following injuries on the person of deceased:--
(I) One fire-arm entry wound on forehead 1/4 " in size circular in shape.
(2) One fire-arm exit wound on back of scalp bleeding from both wounds, 1/3" in size.
(3) One fire-arm entry wound on back at lumber region with no exit X-Ray done, bullet is stuck in vertebral column not removed.
(4) Fire-arm graze wound on back at lumber region one inch towards left side of vertebral column.
' In his opinion, death was caused as a result of firearm injuries caused to the vital organs i.e, brain and spinal card.
5. Dr.Iltaf-ur-Rehman (P.W.2) medically examined injured Mst. Azra, Aman and Noman besides Ajab Khan. According to his testimony Mst. Azra had sustained, one fire-arm entry wound on left lower limb above knee joint on lateral aspect. Aman Khan was found to have sustained one entry wound below right eyelid. So far as injured Noman was concerned as per testimony of P.W.2 he sustained lacerated wound about 4" long and about 1-1/2" deep on top of scalp, apart from bruises on back of right shoulder and lacerated multiple wound on dorsal of left hand. A firea-rm entry wound at left buttock was found upon injured Ajab Khan. P.W.2 in his cross-examination in response to a question of counsel for accused, admitted that on the same day he had examined appellant, his report whereof was P.W.2/D-1. P.W.3 escorted the dead body of Tasreef while P.W.4 identified the same. P.W.5 submitted challan against the accused facing trial while P.W.6 had reduced the complete shape of murasila Exh.PA/1. Other material witness is Sardar Muhammad S.-I. Examined as P.W.11 who had conducted investigation in the case and also prepared site plan Exh.PB on the pointation of complainant as eye witness and vide recovery memo. Exh.P.W.8/2 recovered and took into possession 06 empties of .32 bore and 3 empties of .30 bore, freshly discharged. From the complainant side 'Mst. Azra (complainant) and injured Aman Khan appeared as P.Ws.9 and 10 who deposed in support of the case of prosecution.
6. After close of prosecution evidence statement of accused was recorded under section 342, Cr.P.C. Wherein he denied all the allegations of prosecution and claimed his innocence but did not wish to produce evidence in his defence or to be examined on oath.
7. Before proceeding further with the case it may be pointed out that occurrence in the present case took place on 10-12-2004 at 8-00 a.m. While report was made on the same date at 8-25 a.m.
On the same day at 9-00 a.m. Another F.I.R. No, 1747 was registered at the instance of present appellant under sections 324/148/149, P.P.C. containing counter version of the present occurrence whereby appellant charged deceased Tasreef Khan and others from the complainant side for attempting at his life whereby he sustained injury on his leg. His wife and other inmates of the house were cited as eye witnesses in the said F.I.R.
8. We have heard learned counsel for appellant and learned State counsel assisted by learned counsel for complainant and have perused the record/evidence with their assistance.
9. Learned counsel for petitioner contended that P.Ws.9 and 10 have suppressed injury sustained by appellant in the same occurrence besides according to him injuries sustained by P.Ws.9 and 10 only establish their presence on the spot but do not in ipso facto sanctify their testimony as against the appellant. He was also of the view that as against number of injuries sustained by the complainant party number of accused was too large which suggested exaggeration on the part of complainant party in that for 5/6 injuries appellant along with his five sons have been charged. It was also contended by learned counsel that non-production of Ajab Khan injured who was otherwise an un-interested person and injured Noman was fatal to the case of complainant and adverse inference should have been drawn on account of their non-examination. In support of his above submissions he relied upon 1996 SCMR 1411, PLD 1986 Peshawar 188, PLD 1990 Peshawar 10, 1985 SCMR 1715, 1998 SCMR 1823 and 2004 SCMR 959.
10. As against this learned counsel for the State as well as that of complainant asserted that guilt of present appellant is established from the record because not only he had confirmed his presence at the time and place of occurrence by lodging the cross-case but also because in such case he had cited his two sons as witnesses to the occurrence which established the fact that he along with his two sons namely Nadeem and Sheraz (absconding accused) had formed unlawful assembly to commit the offence for which they have been charged. The acquittal of complainant party from the case registered under the cross F.I.R. And such acquittal having been maintained by this Court proves that the same was a concocted case and so- called injury sustained by appellant was self-inflicted one. Statements of two injured eye- witnesses P.Ws.9 and 10, are consistent on all material points and despite searching cross-examination no substantial damage has been caused to their stance. In support of their arguments, learned counsel for complainant relied upon 2002 PCr.LJ 992, 2000 YLR 1634 and 2000 SCMR 383.
11. The contention of learned counsel for appellant with regard to suppression of injury caused to appellant by said P. Ws. Is of no material consequence because on spot inspection except for empties found from the places/points attributed to the accused party, no other empties were recovered from the spot. This coupled with the fact that complainant party stood acquitted in the cross-case and keeping in view nature of alleged injury and the fact the appellant as per medical report produced by P.W.2 was examined by doctor at 10-30 a.m. i.e, after a delay of about 2/3 hours after the alleged occurrence, probability of such injury being self-inflicted cannot be ruled out.
Even otherwise testimony of injured witnesses has to be given due credence if the same stands the test of cross-examination and is also corroborated by medical evidence and other circumstances of the case. Mere non-production of P.W. Noman and Ajab Khan could not be made ground for throwing away strong evidence produced by prosecution to establish the guilt of appellant, except that appellant could not be burdened with the injuries caused to them. The only relevance of cross-case in the present case would have been creation of doubt as to who was the aggressor and which party was aggressed upon, but in the circumstances of the present case when deceased was being accompanied by his wife it could not be visualized C that they had come to the spot with the intention of picking a fight with the appellant side. Instead, the case of prosecution stands strengthened by existence of so-called cross-case which conclusively proves the presence of appellant on spot.
12. As to the contention of learned counsel for appellant that number of injuries do not commensurate with the number of accused charged in the case, suffice to say that injuries caused are only of those bullets which reached their target but the locale of the injuries coupled with the fact that the same were sustained by four persons, present at a distance from each other, and also the number of empties recovered, support the case of prosecution that it was job of more than one person. Besides other co-accused are not before us and question of their involvement in the commission of offence shall be determined if and when they are arrested and put to trial. Presently we are concernqd only with the role of appellant and so far as he is concerned six empties have been recovered from close vicinity of the point wherefrom he allegedly opened fire. The judgments relied upon by learned counsel for appellant in this behalf were delivered in materially different facts and circumstances and are not applicable to the case in hand. As to the alleged exaggerations, Maxim "Falsus in uno falsus in omnibus" has not been accepted by the superior courts in Pakistan as a rule of universal application, the courts instead are required to sift grain from chaff while accepting or rejecting the evidence of witnesses.
13. In the present case where F.I.R. Was promptly lodged with the names of all the accused and the witnesses. Testimony of eye-witnesses, having stamp of injuries upon their person, whose testimony was natural and confidence-inspiring could not be taken lightly and the minor contradictions or even exaggerations could not take away probative force of ocular testimony.
Moreso, when such evidence was corroborated by medical evidence, motive and abscondence of all the co-accused. The principle that merely because the P. Ws. Had stamp of fire-arm injuries on their person does not per se tantamount to truthfulness of said witnesses, is well entrenched, but subject to qualification that such principle will apply only where testimony of such witnesses otherwise does not ring true and is not corroborated by other piece of evidence which is not the case here. For placing reliance on such evidence corroboration can be sought from any circumstances in the case which could satisfy the mind of the court that the witnesses have spoken the truth.
14. The guilt of present appellant is, therefore, proved through eye-witness account, site plan showing presence of appellant as well as injured/complainant along with recovery of blood and empties from the spot, medical report i.e, post mortem in respect of deceased and medico-legal report in respect of injured/ complainant, in addition to lodging of cross F.I.R. By appellant confirming his presence on the spot.
15. After appraisal of entire evidence available on record as well as the case law cited at the bar we are of the firm opinion that charge against appellant has been established by the prosecution.
Learned trial court has rightly convicted and sentenced the appellant, therefore, finding no illegality or infirmity in the impugned judgment, we while maintaining the same dismiss the present Appeal No,555 of 2007 filed by Muhammad Khan.
16. As we have dismissed the appeal while maintaining sentence awarded by learned trial Court, resultantly Criminal Revision No,159 of 2007 filed by Mst. Azra complainant for enhancement of sentence also stands dismissed.