NISAR HUSSAIN KHAN, J. - Through this common judgment, I propose to dispose of Crl. A. No. 30- B/2012, titled, "Abid Usman v. The State etc." filed by appellant- convict against his conviction, Crl. R.
No. 10-B/2012, titled, "Hazrat Usman v. Abid Usman" filed by complainant for enhancement of sentence of convict-respondent Abid Usman and Crl. A. No. 34-B/2012, titled, "Hazrat Usman v. Niaz Ali Shah" filed by complainant against acquittal of respondent accused Niaz Ali Shah, all arising out from the same judgment of the learned Sessions Judge, Karak, dated 25.01.2012, in case F.I.R. No. 50, dated 29.04.2007, registered under Sections 324/148/149, P.P.C, at Police Station Sabir Abad, District Karak.
2. The resume of the facts leading to filing of these two criminal appeals and a criminal revision, is that Hairat 'U$ pairi,^cip of Zarin Badshah, in injured condition reported on 29.67 2007, at 10.35 a.m., in Police Station that on the same day, he alongwith his brother Shakeer and uncle Yaqeen Badshah, were going towards market Badin Khel, in connection with their personal work. When they reached at the place of occurrence, Jabbar son of Zar Gul Shah, armed with gun, commanded his co-accused Abid Usman , Rehmatullah sons of Shafi, and Niaz Ali Shah son of Kama! Badshah, who were a!50 armed with guns, to kill so that they should not escape. On his commanding order, all the three, started firing at thm, with intention to commit their Qatl-e-Amd. Complainant sustained injuries with the firing of accused Abid Usman, whereas, his companions escaped from the firing of rest of the accused. The accused fled away towards their house, after the occurrence. Apart from complainant, the occurrence was witnessed by Shakeel and Yaqeen Badshah. The motive of occurrence is a dispute about women folks and previous firing. On this report, case F.I.R, mentioned above was registered. {{PAGE BLURR}}
3. After completion of investigation, challan was put in Court, where the accused did not plead guilty and claimed trial, at the time of framing of charge. The prosecution produced eleven witnesses to prove the charge against the accused and thereafter closed its evidence. The statements of accused were recorded under Section 342, Cr.P.C., wherein, they denied the prosecution allegations and professed their innocence. They did not opt to produce defence evidence or to make statement on oath. On conclusion of trial, Niaz Ali Shah accused was acquitted of the charge, whereas, accused Abid Usman was convicted under Section 324, P.P.C, and sentenced to 5 years' R.I. And a fine of Rs. 20,000/- and in default to undergo 6 months S.I. He was also convicted under Section 337-D, P.P.C, and sentenced to 3 years' R.I. And was held liable to pay 1/3rd of the Diyat amount as "Arsh" to complainant. Benefit of Section 382-B, Cr.P.C, was extended to him. Both the sentences were ordered to run concurrently.
4. Feeling aggrieved from the judgment of the learned Trial Court, complainant has filed Crl. A. No. 34-B/12 against acquittal of respondent-accused Niaz All Shah while for enhancement of sentence of convict/respondent Abid Usman, he has filed Crl. R. No. 10-B/2012. Similarly, convict Abid Usman has filed Crl. A. No. 30-B/2012, against his conviction, therefore, all the three are going to be disposed of through this single judgment.
5. Learned counsel for appellant-convict Abid Usman, at the very outset, contended that leaving apart the merits of the case, the trial of appellant-convict has not been conducted by a Court of competent jurisdiction, as he was juvenile, so he should have been tried by the Juvenile Court.
Hence, the impugned judgment is liable to be set aside and case be sent to the Court of competent jurisdiction for trial de novo, In support of his arguments, he referred to a Birth Certificate, issued by Head Teacher G.P.S. Badin Khel District Karak. On merits, learned counsel argued that there are major contradictions in the statements of the PWs, which have been overlooked by the Trial Court; that ocular account contradicts the site plan as empties have been found on the left side of the accused, which is un-natural; that FSL report is delayed; that injured witness is not always a truthful witness; that motive is a double edged sword which Otherwise has not been proved, hence, appellant-convict Abid Usman deserves acquittal.
6. Conversely, learned counsel for the complainant took strong exception to the certificate so issued by the Head Teacher and contended that no such plea was taken by the appellant-convict at the proper stage, hence, it is not tenable at such a belated stage and findings of conviction cannot be reversed merely on the vague contention of the appellant. On merits, learned counsel for the complainant argued that there is no major contradiction which may negate the prosecution case, whereas, minor discrepancies are natural because witnesses were examined after about four years of the occurrence; that learned Trial Court has properly appreciated the evidence and convicted the appellant Abid Usman. He also sought conviction of acquitted accused Niaz Ali Shah and enhancement of sentence of convict Abid Usman.
7. Learned counsel for respondent-accused Niaz Ali Shah argued that there is no evidence against Niaz Ali Shah; that there is manipulation in the case; that CMH report of injured complainant has not been brought on the record and motive has not been proved, hence, respondent- accused was rightly acquitted by the Trial Court.
8. I have given my anxious given consideration to , the respective arguments of the learned counsel for the parties and scanned the record with their assistance.
9. As regard the preliminary objection of the learned counsel for the appellant, it appears from the record that appellant-convict has never taken plea of his tender age, at the very initial stage of the case before the I.O. Nor he has urged such ground in his bail applications. Thereafter, he was supposed to raise such plea before the Trial Court. Had he taken such plea, the Trial Court would have proceeded under Section 7 of the Juvenile Justice System Ordinance, 2000, to ascertain his actual age but he did not do the same. At the time of framing of charge, his age has been recorded as about 21 years on 16.04.2010, whereas the date of occurrence is 29.04.2007. So in view of these dates, his age comes up about 18 years, at the time of occurrence. The difference of 13 days may be overlooked because no exact date of birth has been given by the appellant at the time of framing of charge and his age was mentioned about 21 years. On the other hand, he has annexed a birth certificate issued by the Head Teacher of GPS Badin Khel, which is not his domain.
Rather, a School Head Master/Teacher, can issue a School Leaving Certificate, wherein date of birth of the student is normally mentioned, but instead thereof, Head Teacher has allegedly issued the birth certificate, which is the sole function of Local council/Union Council where the entries of births and deaths of the people of concerned area are recorded. This certificate itself is sufficient to create doubt about the plea of the appellant, hence this arguments of the learned counsel for the appellant is turned down.
10. Now coming to the merits of the case, the prosecution case rests on the statements of eleven PWs. The resume of their evidence is as follow:--- PW.1 is Mir Dad Khan, ASI, who took over the custody of acquitted accused Niaz Ali Shah, arrested by Ghalib Nawaz, SHO and produced him before the learned Judicial Magistrate for obtaining his physical remand and interrogated him. He arrested appellant- convict Abid Usman and produced him before the Judicial Magistrate for' police custody and after completion of investigation, handed over the case file to the SHO for submission of supplementary challan against the accused. PW.2 is Raham Zaman No. 245, who escorted injured Hazrat Usman with injury sheet to the doctor and later on, handed over bloodstained garments of the injured to the Anar Bad Shah on the spot. PW.3 is Abdul Latif, SI, KB, who formally transferred the accused from Punjab to District Karak, as he was arrested therein case F.I.R. No. 386, registered under Section 365-B, P.P.C, and issued his card of arrest Exh.PW.3/1. Hakeem Khan son of Mashal Khan is PW.4, who stood marginal witness to recovery memo. Exh.PW.4/1, vide which the I.O. Recovered and took into possession 2 empties of 7.62 bore, freshly discharged from the place of Rehmatullah and 2 empties of 7.62 bore from the place of accused Niaz Ali Shah (both acquitted co-accused). This PW was re-examined wherein he stated that 2 empties of 7.62 bore were also recovered from the place of convict- appellant Abid Usman, which he inadvertently could not point out in his earlier statement. Doctor Shafi Muhammad was examined PW.5, who endorsed medico legal report of complainant and stated that he found 5 cm entry wound on the left hypochondrium and an exit wound on the left lumber region posteriorly of 1 inch long along with averted margin. All these formal witnesses were subjected to cross-examination by defence but nothing beneficial for the accused could be extracted. PW.8 is complainant Hazrat Usman who reiterated the same story which was averred in his original report. Similarly, Yaqeen Badshah the eye-witness of the occurrence was examined as PW.7, who corroborated the complainant on material particulars and reiterated the same version as given in the F.I.R Both these witnesses were also subjected to long and searching test of cross- examination but no dent in the stance of prosecution could be created which may shatter the edifice of prosecution case. PW.8 was Muhammad Farid IHC, who registered case vide F.I.R. Exh.PA, on the report of the complainant. Anar Badshah, ASI was examined as PW.9, who investigated the case. He proceeded to the spot, prepared the site plan Exh.PB, at the instance of complainant and eye-witness. During spot inspection he recovered and took into possession blood through cotton Exh. P.3, bloodstained pebbles Exh. P.5 from the place of injured Hazrat Usman vide recovery avoiding their lawful arrest vide applications Exh.PW.9/1 and Exh.PW.9/2. Blood-stained pebbles, bloodstained cotton and garments alongwith 6 empties of 7.62 bore were sent to the FSL for analysis by him, result whereof was placed on record as Exh.PK and Exh.PK/1. He also recorded statements of witnesses under Section 161, Cr.P.C, and on conclusion of investigation; he handed over the case file to the SHO for submission of challan against the accused. This witness was also cross-examined. Eid Azad DFC was examined as SW, in respect of verification of death of two PWs Muhammad Niaz Khan, SHO and Muhammad Riaz, IHC. PW. To Gharib Nawaz endorsed the submission of challan against the accused. Likewise, Ayub Khan (Rtd.) SHO (PW.11) stated that he submitted supplementary challan against accused Abid Usman. This witness was not cross- examined by defence. {{LAST LINES ARE BLUR}}
11. The careful perusal of the F.I.R, divulges that accused Jatibar is charged for commanding "Lalkara", whereas rest of the accused have obliged him. However, role of effective firing has been assigned to appellant convict Abid Usman. Thus, without dilating upon the evidence qua the other accused, suffice it to say that when no injury has been attributed to rest of the accused, their participation, apparently in the crime, was questionable on the basis of which, there was doubt about their role in the crime that's why the Trial Court extended the benefit of doubt in their favour.
By now the principle of falsus in uno, falsus in omnibus has been done away with. Rather the Courts while appreciating evidence, apply the principle of sifting the grain from the chaff and in light thereof the Trial Court came to the conclusion that it was appellant-convict Abid Usman, who committed the crime and caused injuries to complainant. Learned counsel for the appellant- complainant has tried to create mountain out of mole by arguing that there are major contradictions in prosecution evidence but when one goes through the evidence, there seems no such contradiction which may negate the basic fabric of the prosecution story. By now it is settled law that those contradictions in the prosecution evidence are considered as fatal which totally negates the prosecution case. Mere cosmetic discrepancies occurring in the statement of the PWs, which are otherwise natural one would not be considered as fatal. Rather, such-like discrepancies in the statements of the PWs are inherent proof of their truthfuIness-that they have come forward- with natural account of the events, without being tutored or fabrication, In the instant case, Undisputedly, the accused had absconded for about 4 years and thereafter were arrested and then the PWs were examined. After the passage of long time, when witnesses were subjected to lengthy and searching cross-examination by a skillful hand, such discrepancies do creep in from the simple and rustic villagers, who are never used to such tricky questions nor are mindful about the nature and consequences of answers thereof. The Courts are never supposed to decide the matter in a mechanical manner by taking such discrepancies as a tool to dislodge a genuine case.
Rather, the Courts are supposed to go in depth of the evidence and assess it at the touch stone of natural course of events and human conduct in normal pursuit of the society by scrutinizing its intrinsic worth and if comes to the conclusion on their on assessment that such an occurrence had in fact taken place, it become an obligation to redress the grievance of aggrieved party. AI though, accused is considered a beloved child of the Court but at the same time the aggrieved party is also not to be treated as an alien, as it is the who approaches the Court for redressal of his grievance against aggression of accused. If in a genuine case the grievance of the victim is not redressed, the people get frustrated from the judicial system and turn wild for lynching, which situation becomes more alarming. Though, the benefit of doubt is to be extended to the accused, but that doubt should be such which may inherently affect the prosecution case and pricks the mind of the Court about genuineness of the allegations. At the same time, mere artificial or any hypothetical doubts, should not be made basis for acquittal of accused. The penal laws carry muIti-dimensional impact at different levels. First and foremost is to punish the culprit and to pacify the victim. The punishment so inflicted acts as a deterrent to the criminals and resultantly it brings about peace and tranquility and transforms the society in to civilized one. In this era of moral bankruptcy, when there are complaints of fabrication and concoction of false charges, at the same time there are instances of intrigues and tampering in prosecution case by the accused in connivance with police to get them of the hook. The culprit who gets acquitted by his on intrigues and tricks, becomes more dangerous for society, and consequently is spoiled for all times to come. The Courts having been cast upon with the duty of fair dispensation of justice are to keep the scale of justice balanced for both the parties in such a way that one party should not get benefit at the cost of other. By assessing the instant case at the touch stone, as discussed above, the learned Trial Court has rightly concluded about the guilt of appellant Abid Usman and acquittal of co-accused Niaz Ali Shah, to which no exception can be taken.
12. Now coming to the sentence awarded to appellant-convict Abid Usman. He has also been convicted under Section 337-D, P.P.C. The defining clause of "Jaifah" is provided in Section 337-C, P.P.C., which is reproduced herein below:- "337-C. Jaifah:- (1) Whoever causes jurh in which the injury extends to the body cavity of the trunk, is said to cause jaifah".
The bare reading of the section clearly suggests that if the injury extends to the body cavity of the trunk, the offender shall be liable to punishment under Section 337-D, P.P.C. When one goes through the medical report of injured complainant, there is no reference or opinion of doctor that the injury extended to the body cavity of the trunk. Instead thereof, there is mere reference of an entry and exit wound in the report. The prosecution has failed to bring on record anything in black and white to substantiate that the injury has caused any damage or affected the body cavity of the trunk of injured complainant. Thus in absence of any such evidence, the accused may not be convicted on mere presumption that locale of the injury might have affected the cavity of the trunk of the victim, In absence of any cogent evidence in this regard, the conviction recorded under Section 337-D, P.P.C, is not sustainable. Resultantly, the appellant is acquitted from the charge of 337-D, P.P.C However, by virtue of second part of Section 324, P.P.C., i.e is also liable to punishment for the hurt caused, In view of medical report of the injured, he sustained fire-arm injury which caused entry as well as exit and the bullet injury cannot be termed to cause rupture of skin or intisidn of flesh.
Rather, it would be a laceration of the flesh, falling within the ambit of Section 337-F(i.e), P.P.C., "Mutalahima", as neither the bone has been shown to be exposed nor fracture has been caused.
The basic punishment provided for Section 337-F(i.e), P.P.C, is "Daman" whereas the punishment of imprisonment is discretionary, In view of single fire-arm injury and in absence of any previous criminal record of the appellant convict, he is convicted under Section 337-F(i.e), P.P.C, and sentenced to pay Rs. 50,000/- as "Daman" which shall be recoverable in lump sum. The sentence awarded under Section 324, P.P.C, by the Trial Court is maintained. On expiry of substantive punishment of appellant-Convict under Section 324, P.P.C., he shall not be released until payment of amount of Daman.
13. Consequently, Crl. A. No. 30'-B/2012, is dismissed with above modification in the impugned judgment Similarly, Crl. A. No. 34-B/2012 and Crl. R. No. 10-B/2012, are dismissed.