' NISAR HUSSAIN KHAN, J.---Appellant has questioned the judgment of learned Additional Sessions Judge, Karak at Takht-e-Nasrati, dated 28-5-2011, whereby he was convicted under section 337- F(ii), P.P.C. And sentenced to 2 years' R.I. With payment of "Daman" to the tune of Rs,20,000 in case F.I.R. No,290, dated 12-11-2009, registered under section 324, P.P.C., at Police Station Yaqoob Khan Shaheed Karak.
2. Prosecution case as per F.I.R., is that on the day of occurrence at 8-00 a.m., complainant Khalid Rehman along with Gul Shah Miran, was waiting for vehicle on the road side, near his house. In the meanwhile, his cousin Noor Ali (appellant-convict), duly armed, came there and asked him as to why he has taken over possession of the property. Complainant replied that he should bring arbitrators of his choice and they should settle the dispute. During altercation, accused got infuriated and started firing at the complainant, with intention to commit his murder, as a result of which, he sustained injuries on his left hand and thigh and fell down. The occurrence was witnessed by Gul Miran Shah, his companion and victim himself. Motive for the occurrence is a property disputed. Report of complainant was recorded by Muhammad Farid MHC, in emergency room of the hospital, which was reduced into murasila Exh.PA, on the basis of. Which F.I.R was registered.
3. After completion of investigation, challan was, submitted in the Trial Court, where prosecution examined ten witnesses to prove the charge against the appellant. Statement of appellant- accused under section 342, Cr.P.C. Was recorded, wherein he professed his innocence. However, he did not opt to be examined on oath under section 340(2), Cr.P.C. Or to produce any defence, evidence. After hearing the Prosecutor and the defence, appellant was convicted and sentenced, by the Trial Court, as mentioned above, hence, this appeal.
4. Learned counsel for the appellant-convict argued that witness of the F.I.R Gul Shah Miran was examined as P.W.7, who did not support the prosecution case; that no bullet or pellet has been recovered from the injuries of the victim; that no' impartial person has been cited as witness, hence, the prosecution has failed to prove its case against the appellant, who is entitled for acquittal.
5. Conversely, learned counsel for the respondent-complainant contended that appellant is directly charged for effective firing on the complainant; that complainant and accused are cousins inter se, so there is no question of misidentification, particularly, when it was a day light occurrence; that blood has been recovered from the place of occurrence; that medical report also supports the prosecution version, whereas, P.W. Gul Shah Miran was won over, so was declared hostile, hence, his statement cannot be considered for acquittal of appellant.
6. I have scanned the record and evidence of the prosecution in light of the respective arguments of the learned counsel for the parties addressed at the bar.
7. According to F.I.R., appellant is singularly charged for effective firing. It is a broad daylight occurrence and appellant and complainant both are cousins inter se, so question of mistaken identity does not arise.
' The version of complainant is corroborated by medical evidence. According to medico legal report of injured complainant (Exh.P.W.1/1), there is a firearm entry wound of 1/4" x 1/4", on left lateral side of his left thigh. Second, graze firearm injury of 1/2" x 1/2" on thumb of his left hand and third graze firearm wound of 1/2" x 1/2", on index finger of his left hand. His blood-stained trouser P.2, was taken into possession vide recovery memo Exh.PC. Similarly, blood was also secured from the crime venue vide recovery memo Exh.PC./1. Bloodstained trouser and bloodstained articles were sent to the FSL, report whereof Exh.PZ, reveals that it was a human blood and of the same group. All these pieces of circumstantial evidence corroborate the ocular account furnished by injured complainant.
8. The contention of learned defence counsel that Gul Shah Miran has not supported the prosecution case, so appellant is entitled for acquittal is not tenable. Said P.W. Gul Shah Miran was examined as P.W.7, who stated in his examination-in-chief that on the day of occurrence he heard the report of fire shots and saw the people running away. He later on, came to know that he has been cited as eye-witness in the case, whereas, he has not seen, the accused while firing at the complainant. When he made this statement, he was declared hostile by the Trial Court on the request of prosecution and prosecutor was allowed to cross-examine name. In cross-examination Gul Shah Miran, admitted his relation with the appellant, as both the families have cross marriages inter se. He admitted in cross-examination that site plan was prepared on his potation by Investigating Officer, but with some twisted story. Had there been any mala fide on the part of complainant, he could have abandoned him, but he took the risk to examine him. And when he made statement against the F.I.R version, he was declared hostile and was cross-examined by prosecution. Such witness who has drifted from his earlier stance and has given altogether a different version during the trial, cannot be worthy of credence. If he has made false concession in favour of the accused and compromised his own integrity, his veracity is unquestionably vanished.
If he can make a false statement for one party, he can equally make it for the sake of other. For safe dispensation of criminal justice, statement of such witness can simply be discarded. It may not be used in favour of either party. By applying this principle, statement of P.W. Gul Shah Miran, being a hostile witness is discarded and is not taken into consideration.
9. Now we are left with the statement of complainant and other corroborative pieces of circumstantial evidence. Article 17 of the Qanune-Shahadat Order, 1984, provides guidance for competency and number of witnesses to prove the causes. It postulates that in matters pertaining to financial and future obligations, if reduced into writing, it shall be attested by two men or one man and two women. Whereas, in all other matters, the Court may accept or act on the testimony of one man or one woman. Admittedly, it is a criminal case, where the requirement of two men or one man and two women, as provided in Article 17 of the ibid Order, would not be attracted. Thus, single witness is sufficient to prove a criminal case, if his testimony rings true, is worthy of credence and corroborated by other circumstantial evidence. In the instant case, complainant himself is the eye-witness, having stamps of injuries on his person, who cannot be expected to substantiate the appellant, who is also his real cousin, for the real culprit. In such like cases, statement of injured witness corroborated by medical evidence is sufficient for recording conviction against the accused. Complainant has given a straightforward account of the events and he has been subjected to the test of searching cross-examination, but nothing beneficial for defence, could be extracted. Thus, in view of the evidence on record, prosecution has successfully brought the guilt home of the appellant.
10. Though, the F.I.R. Was registered under section 324, P.P.C. And accordingly charge was also framed thereunder. But after recording evidence, learned Trial Court convicted the appellant under section 337-F(ii), P.P.C. Keeping in view the seat of injuries, being on non-vital parts of the body of victim, and non-repetition for fire shots by the appellant, when the victim was at his mercy, intention to kill, is missing, hence, learned Trial Court was justified to record conviction under section 337-F(ii), P.P.C. While convicting the appellant learned Trial Court has also awarded him sentence of imprisonment. The bare perusal of the clauses of section 337-F, P.P.C., transpires that the basic punishment provided for all kinds of "Ghayr-Jaifah" is "Daman", whereas, punishment of imprisonment is discretionary. The discretion of the Court, in this regard, is regulated by the non- obstante clause of section 337-N(2), P.P.C., which for ready reference, is reproduced, herein below:- - ' S.337-N,(1)....
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(d) ........................................................
2. Notwithstanding anything contained in this chapter in all cases for hurt, the Court may, having regard to the kind of hurt caused by him in addition to payment of arsh, award Ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal (or the offence has been committed by him in the name or on the pretext of the honour.
11. According to this clause, the Court may award punishment of Ta'azir to an offender, who is a previous convict, habitual, hardened, desperate or dangerous criminal or the offence has been committed by him in the name or on the pretext of the honour. The prosecution has failed to bring on record about the previous history and antecedents of the appellant, that he is also liable to punishment of Ta'azir, as well. Although, on the face of it, "Daman" is not mentioned in clause (2) of section 337-N, P.P.C., but when this exception has been provided for the injury of "Shajjah" and "Jaifha" which are severe in nature, it can hardly be assumed that the same cannot be applied in cases of "GhayrJaifah". Rather, to elucidate this proposition, the opening part of clause (2) of the ibid section is very much clear, which provides that "Notwithstanding anything contained in this Chapter in all, cases of hurt", which covers all kinds of hurts and the exception provided herein can be employed for cases of "Ghayr-Jaifah" as well to facilitate the smooth and safe dispensation of criminal justice.
12. Thus, in view of lack of evidence, against the appellant, warranting punishment of Ta'azir, by partially allowing his appeal, conviction under section 337-F(ii), P.P.C. Is maintained, while sentence of imprisonment is set aside. Whereas, the amount of "Daman" is increased from Rs,20,000 to Rs,30,000, which shall be paid by appellant-convict in lump sum to the victim in the Trial Court, and till payment of "Daman" he shall be kept in Jail.