' LAL JAN KHATTAK, J.---Through this single judgment, we intend to dispose of Criminal Appeal No.8- M of 2012, Criminal Appeal No.21-M of 2012 and Criminal Revision No.7-M of 2012, as all the three matters sprout from one and the same judgment dated 13-1-2013 of the learned Additional Sessions Judge/Izafi Zilla Qazi, Malakand at Dargai, delivered in case F.I.R. No.199 dated 24-8-2008, registered under sections 302/324/114/34, P.P.C. At Police Station Dargai.
2. Criminal Appeal No.8-M of 2012 has been filed by appellant Hidayat-ur-Rehman, whereby he has been convicted and sentenced for imprisonment of life with payment of compensation of Rs.2,00,000 to the legal heirs of the deceased, or in default thereof to further undergo simple imprisonment for six months. Benefits under section 382-B, Cr.P.C. Have been extended to him.
3. Criminal Appeal No.21-M of 2012 has been filed by appellant Rehmat Ullah against the acquittal of respondents-accused Gohar Rehman, Atta-ur-Rehman, Ghawar Khan and Muhammad Islam, while in Criminal Revision Petition No.7 of 2012, enhancement of sentence from imprisonment of life to normal penalty of death to convict Hidayat-ur-Rehman has been sought by the petitioner.
4. Brief facts of the case are that on 24-8-2008. Hazrat Ullah son of Guldad Khan reported to IHC Sardar Hussain in Emergency Ward of Civil Hospital Dargai to the effect that his maternal uncle Nisar had a dispute over land With the sons of one Shazar Gul. For resolution of the dispute, there had been convened a Jirga in the Hujra of Ameer Rehman, where he was present to serve the Jirga members. During the Jirga proceedings some altercation took place, whereupon accused Ghawar, Islam caught hold of Nisar, Jamil and Roidad and commanded their companions to fire on which he (Hazrat Ullah) came to rescue his maternal uncles and in the meanwhile, Kaki Jan, Hidayat-ur- Rehman, Atta-ur-Rehman and Zia-ur-Rehman resorted to firing with Kalashnikovs, as a result he sustained injuries with the fire shots of accused Hidayat-ur-Rehman at his left thigh. After the firing accused decamped from the spot in their vehicles. The occurrence was stated to be witnessed by Rehmatullah, Abdullah etc. It is worth to mention that the injured Hazrat Ullah later on succumbed to his injuries in the hospital and the section of law was changed from 324, P.P.C. To 302, P.P.C.
5. On arrest of the accused and completion of the investigation, the case was put in Court for trial which indicted the accused for commission of the offence to which they pleaded not guilty and preferred to face the trial. Prosecution, in order to bring home guilt to the accused, produced and examined as many as nine witnesses, whereafter statement of the accused were recorded wherein they professed innocence. The accused except Hidayat-ur-Rehman did not produce any evidence in their defence nor examined themselves on oath. Hidayat-ur-Rehman examined himself on oath and in defence produced some documents relating to case F.I.R. No.200 dated 24-8-2008 registered under section 324/34, P.P.C. At Police Station Dargai. After conclusion of the case and hearing the learned counsel for the parties the learned trial Court found accused Hidayat-ur- Rehman guilty of the offence and on conviction, sentenced him as mentioned above, while the other co-accused who faced the trial were acquitted of the charge. Both the parties have now impugned the judgment dated 13-1-2013 through their appeals as well as criminal revision.
6. Learned counsel for the appellant-convict contended that while not considering the cross version given in F.I.R. No.200 dated 24-8-2008, lodged by accused Zia-ur-Rehman qua the same incident, the learned trial Court has committed a gross illegality which is sufficient to annul its judgment. Reliance in this regard was placed on 2011 SCM R 323, 2010 PCr.LJ 661, unreported judgment of this Court delivered in Criminal Appeal No.884 of 2010, decided on 9-8-2011 and 2008 PCr.LJ 424. It was further contended that the deceased had died in the hospital after quite long time of the occurrence and keeping-in view the injury sustained by him, his death could not have been caused due to the injury he received. Much emphasis was laid by the learned counsel for the appellant that the site plan contradicts the ocular version, as per report the occurrence had taken place in the Hujra of one Ameer Rehman while in the site plan Exh.PB, the occurrence is shown to have been taken place in open place. It was also argued that two persons cannot catch hold of three persons as is stated in the F.I.R. Learned counsel argued that for the glaring contradictions available in the prosecution evidence, which are neither minor in nature, nor are ignorable, the prosecution case has become doubtful, therefore, the appeal me acceptance.
7.
As against the above, learned counsel for the complainant contended that not only participation of the appellant-convict in the murder of deceased has fully been proved but the acquitted accused too are fully connected with the case through cogent evidence. He submitted that the ocular account has been corroborated through circumstantial and medical evidence and there was no legal justification to either award lesser penalty to the convict or acquit the respondent-accused.
While summing up his arguments, the learned counsel submitted that criminal appeal against acquittal and criminal revision for enhancement of the sentence be accepted while the appeal against conviction be dismissed.
8. Learned Deputy Advocate-General has adopted the arguments of the learned counsel for the complainant.
9. We have heard learned counsel for the parties and gone through the record of the case.
10. Perusal of the record would reveal that the occurrence had taken place at 10:55 hours, while it was reported to police in the hospital at 11:40 hours, within a short span of forty-five minutes which promptly lodged report excludes any sort of consultation etc. For false implication of the accused which is very rare phenomenon.
11. Regarding the controversy over the place of occurrence as raised by the learned counsel for the convict, suffice it to say that site plan has never been considered as a substantive piece of evidence because it is a corroboratory factor. Description of the place of instant crime as a hujra does not necessarily equate it with a place within a boundary wall. Of-course, in common parlance and in village life, hujra means a building in which people sit together for discussion on issues but it is not an absolute rule that a place other than a building and not surrounded by boundary walls cannot be termed as a hujra. Even otherwise, the site plan of the occurrence is supportive of the fact that the occurrence had taken place thereon because empties had been recovered therefrom and blood-stained earth has also been taken into custody by the Investigating Officer from this place. Therefore, it is successfully proved by the prosecution that the incident had occurred on the place known as hujra of Ameer Rehman.
12. The ocular account of the occurrence has been furnished by P.W.4 Rehmatullah and P.W.5, Roidad Khan. Both these witnesses have been cited in the promptly lodged F.I.R., therefore, their evidence would carry weight. Both have countenanced the initial version given by the deceased in his F.I.R. They were subjected to lengthy cross-examination but nothing was extracted from them which could have caused any serious dent in their evidence. Apart from the direct testimony furnished by the aforesaid two P. W's the initial report was made by the deceased himself to P.W.6 Sardar Hussain in an injured condition in the hospital. At the time of his report, the injured was in full senses who reported the matter in an eloquence manner assigning the role of effective shot at him to the appellant-convict. The statement of injured-deceased cannot be discarded on any account as the same gets full corroboration from ocular, circumstantial and his medical evidence. The victim later on had succumbed to his injury on 15-9-2008 in the hospital. Learned counsel for the appellant-convict laid much emphasis on the point that as the injured was hit on 24-8-2008 and he had expired on 15-9-2008, therefore, it cannot be said with certainty that the cause of his death was the injury sustained by him on 24-8-2008. This contention of the learned counsel for the appellant has no force in it, as the deceased had sustained injury on his thigh which though is not a vital organ of the human body but thereunder lies main artery which carries blood away from heart and is a main branch of aorta that further divides in arterioles. In case the main artery is damaged, that can cause death of an injured. Therefore, contention of the learned counsel to the above effect is not tenable.
13. So far as contention of the learned counsel that the cross-case figuring in F.I.R. No.200 has not been considered by the learned trial Court, suffice it to say that it is well-settled that mere lodging a cross-case would not be enough to claim exoneration from a criminal liability unless and until it specifically pleaded and proved through worth reliable and confidence-inspiring evidence. The referred F.I.R. No.200 dated 24-8-2008 has been lodged by accused Ziar-ur-Rehman but neither in the occurrence embodied in the ibid F.I.R. There is mention of the injury suffered by the deceased Hazrat Ullah nor lodger of the F.I.R., namely Zia-ur-Rehman appeared before the Court to prove the contents of his F.I.R. Therefore, mere lodging of a report, without giving full detail of the occurrence or casualties suffered by the opposite side, would not term the subsequent report as cross-case and the opposite side cannot take any advantage thereunder. Besides the above, the appellant- convict Hidayat-ur-Rehman has remained fugitive from Law for quite long time without providing any plausible explanation thereto, therefore, his such subsequent conduct is also a corroboratory factor to his involvement in the case. The prosecution has successfully proved its case beyond any shadow of doubt against him The evidence produced by the prosecution qua the convict is worth reliable and confidence-inspiring. The authorities cited by the learned counsel for the appellant- convict are of marginal importance and are not applicable to the facts and circumstances of the instant case. The learned trial Court has thoroughly assessed and scrutinized the case evidence, whereafter the accused was found guilty of the offence. We found no illegality in the judgment of conviction recorded by the learned trial Court which is hereby maintained.
14. So far as the criminal revision for enhancement or sentence to the convict is concerned, suffice it to say that in the given circumstances of the case, the sentence is correct and there will be no justification for its enhancement. Likewise, the appeal against acquittal too deserve to be dismissed as the prosecution has not proved its case qua the acquitted accused beyond any shadow of doubt and their acquittal on the benefit of doubt was legal.
15. Nutshell of the above is that both the appeals as well as the criminal revision petition are dismissed.
Appeals and .