' MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---The appellant in this appeal has assailed the judgment dated 25th June, 2013 passed by the learned Sessions Judge, (Ad hoc), Quetta, whereby, he was convicted and sentenced under section 324 of the Pakistan Penal Code, 1860 (P.P.C.) for five years' rigorous imprisonment (R.I) with fine of Rs,5,000 in default whereof to suffer simple imprisonment (S.I.) for two months', the benefit under section 382-B, Cr.P.C. Was extended in favour of the appellant/convict.
2. The stated facts, precisely are that the appellant was booked in a case registered vide F.I.R. No,72 of 2011, under section 324, P.P.C. With Quaid-e-Abad Police Station, Quetta on 12-11-2011, on Fard-e- Bayan of complainant Syed Muhammad Hashim, wherein, it was alleged that the appellant Manzoor Hussain was already extending threats to him on telephone and on fateful day at about 10-20 p.m. He was sitting in front of his home with his friend Shoukat Ali, when accused made firing upon him, resultantly he received three bullet injuries. The appellant was arrested on next day and on completion of usual investigation, the challan was submitted against him before the trial Court.
The prosecution to substantiate the charge and to bring guilt at home against him, produced as many as eleven (11) witnesses. On conclusion of trial, the accused was examined under section 342, Cr.P.C. Wherein once again he professed his innocence and recorded his statement on under section 340(2), Cr.P.C. Initially he intended to produce defence witnesses but subsequently only one defence witness namely Zakir Hussain was produced and examined. On conclusion of trial the appellant/accused was convicted and sentenced for above stated term.
3. Mr. Adnan Ejaz, learned counsel for the appellant, at the very outset contended that the appellant was serving in the police department as constable and he was on duty at the time of alleged occurrence, though, he did not dispute the injuries caused to the complainant and stated that due to target killing of Hazara community in the city, the complainant was injured by some unknown persons but just to settle the personal account the complainant nominated him in the instant case.
The learned counsel referred to the depositions of prosecution witnesses and certain discrepancies in their court statements. He mainly relied upon deposition of prosecution witnesses, who are police personnel. He finally referred the statement of Investigating Officer and stated that the prosecution has given up the material witnesses whose names were initially included in a calendar of witnesses and Investigating Officer viz Abdul Ghaffar SI appeared as P.W.11, admitted in cross- examination that given up prosecution witnesses were favouring the appellant/convict, thus, an adverse presumption as provided under Article 129(g) of Qanun-e-Shahadat Order, 1984 ("the Order, 1984") will be drawn against the prosecution, as such, withholding the material evidence leads to the conclusion that the given up evidence was not in line with the allegation levelled by the prosecution. He added that in view of glaring contradictions and discrepancies in the testimonies of witnesses, it can be concluded that appellant was falsely roped towards commission of the offence that too, when no motive was alleged by the prosecution/complainant, therefore, the trial Court instead of extending the benefit of doubt to the appellant, convicted him against the norms of justice. He finally urged for acquittal of the appellant/convict.
4. Mr. Dawood Kasi, Advocate appearing on behalf of the complainant opposed the contentions and stated that since the plea of alibi was introduced by the appellant/accused during the trial, therefore, he could not take the benefit of minor discrepancies and instead of questioning the veracity of prosecution witnesses, he had to prove his plea of alibi i,e, his absence from, the place of occurrence. In support of 'his contentions he referred the reported judgments of Sarfaraz alias Sappi v. The State 2000 SCM R 1758 and Muhammad Hayat v. Abdus Salam 2001 PCr.LJ 557.
5. Mr. Abdul Karim Malghani, learned counsel for the State, while, adopting the arguments advanced by the learned counsel for the complainant and in addition stated that the appellant has failed to point - out any misreading and non-reading of evidence by the trial Court to warrant any interference by this court, therefore, the appeal is liable to be dismissed.
6. I have heard the learned counsel for the parties and have gone through the record, result whereof reveals that the accused/appellant was serving as a police constable at the relevant time and during the course of trial he introduced a special plea of alibi. The cross-examination manifests that injuries by means of fire-arm sustained by the complainant are not disputed by the defence. The plea of alibi was taken with the suggestion that the complainant might have got injured by some unknown persons due to deteriorated law and order situation in the city, in which the Hazara community is mainly targeted. The appellant was on duty in special mobile No,2 of Police. Line, Quetta and they were on patrolling at the relevant time. However, the mala fide of false implication was further suggested to the prosecution witnesses that the complainant's brother viz Syed Muhammad was involved in human trafficking, whereas, he received an amount of Rs,600,000 from two persons namely, Aziz and Ramzan and the appellant once met the father of the complainant for negotiation with demand to return the amount paid to his said son Syed Muhammad, who had already gone abroad, when during the negotiation, some altercation took place and hot words were exchanged, thus, due to anger of previous dispute he was nominated in the case. Since, the injuries of complainant/P.W.1 are not disputed by the defence, in addition the statement of Dr. Abdul Rasheed Jamali .Appeared as P.W.10 corroborated the fire-arm injuries sustained by the complainant. There are three other eye-witnesses namely Shaukat, Mukhtar Hussain and Hussain Ali, who fully implicated the A appellant/convict. The perusal of record further reveals that the learned trial Court vide order dated 5th March, 2013 had allowed the prosecution to give up certain prosecution witnesses as they were won over by the defence. The application was strongly contested by the defence and the learned trial Court finally allowed the prosecution to give up the said witnesses, however, with the observation that the accused can produce them in his defence. When the appellant/convict was examined under section 342, Cr.P.C, in reply to question No,13 he answered that he wants to produce defence witnesses but later, only one witness namely Zakir Hussain .Was produced as D.W.1, who deposed in favour of defence only to the extent that a brother of the complainant namely Syed Muhammad was involved in human trafficking, as he too had paid an amount of Rs,300,000 to him, but in respect of injuries of the complainant the D.W. Stated that he was informed by the people that complainant was. Injured being an object of target killing. Thus, the statement of said D.W. Is of no avail to the appellant/convict being hearsay, which is not admissible in evidence.
7. The objection of the learned counsel for the appellant/convict in respect of absence of motive is to be dealt in view of dictum laid down by the Hon'ble Apex Court. It is established principle of criminal administration of justice that the absence of motive is not helpful in presence of unimpeachable ocular evidence, while, the substitution of perpetrator of crime is very rare phenomenon. Reference is made to the reported judgment rendered by the Hon'ble apex Court in Wali Muhammad v. The State 1984 SCM R 540.
' No cavil is left in view of the obiter dicta of the Hon'ble apex Court that the motive is not always necessary but once it is alleged by the prosecution, then it is to be proved beyond any doubt. In the instant case, when injuries caused to the complainant by the appellant are proved by means of ocular evidence and corroborated by medical testimony, the requirement of motive and its discovery is totally irrelevant. I would like to observe at this very juncture that extending benefit of doubt to accused is his right and withholding it is non-exercise of jurisdiction for which the court owes a duty to explain as to why accused is not being given the benefit of doubt if it is oozing from the case in which the accused is involved. The prosecution case cannot be strengthened on basis of weaknesses of the defence and the benefit of a minor doubt shall necessarily be extended in favour of the accused.
8. The learned counsel mainly contended that material witnesses were given up by the prosecution, therefore, subject to the provision of Article 129(g) of the Order, 1984, inference may be drawn that if they would have appeared in the court they might have disclosed true picture of the incident with reference to the absence of the appellant/convict from the place of occurrence. The arguments so advanced by the learned counsel carry no weight, firstly for the reason that the law governing the administration of criminal justice does not cast a duty upon the prosecution to produce all the witnesses because it is the quality of the evidence but not quantity, which matters.
Reference in this behalf is made to the case of Allah Bakhsh v. Shammi and others PLD 1980 SC 225.
Thus, the defence is always at liberty to summon a prosecution witness, who has been given up with an object to unearth true facts before the court. The relevant provision of section 265-F(7) of Criminal Procedure Code (Cr.P.C.) becomes applicable and it would be helpful to reproduce the same to better understand the controversy:- "265-F. Evidence for prosecution.
(7) if the accused or any one or several accused, after entering on his defence, applied to the Court to issue any process for compelling the attendance of any witness for examination of the production of any document or other thing, the Court shall issue such process unless it considers that the application is made for the purpose of vexation or delay or defeating the ends of justice such ground shall be recorded by the Court in writing".
' The provision of Article 129(g) of Qanun-e-Shahadat Order, 1984 is applicable in the instant case, and it would be advantageous to reproduce the same it reads as follow:--
129. Court may presume existence of certain facts. Court may presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations: (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; The Investigating Officer was subjected to cross-examination and confronted with statements recorded under section 161, Cr.P.C. Of given up witness resultantly, some explanation came on record in voluntary stated narrations which are reproduced hereunder:-- {{URDU TEXT }} The reasonable explanation offered by the Investigating Officer for removing any confusion is to be considered and resolved in accordance with the balance of circumstances, the voluntarily stated narration (supra) are providing a reasonable explanation for not producing the given up witnesses, thus, it is not a statement under section 161, Cr.P.C. But the statement on oath before the Court subject to cross-examination from the other side, which is to be considered for recording the conviction or acquittal of the accused. Thus the adverse presumption as covered under Article 129(g) of the Order, 1984 can be drawn against the appellant/convict that the given up witnesses were not ready to authenticate his plea of alibi. Therefore, the appellant/convict did not produce the said witnesses nor requested the court as envisaged under section 265-F(7) of Cr.P.C. For summoning said witnesses, even he did not feel necessary to produce or to request the court to summon any documentary evidence like Roznamcha or Koth register (Arm register) of Police Line, Quetta to authenticate his special plea of alibi. The plea of false implication as well as alibi were left unattended by the defence, even no reasonable explanation was brought on record for not leading the evidence on such crucial points, which could have adversely affected the prosecution case, but the same was not done, therefore, a /is is not to be adjudicated on basis of surmises and conjectures or speculations drawn on basis of articulate defence but shall strictly be decided on basis of evidence available on record, thus, statement of Investigating Officer or any other document when read in evidence shall be read in tow, hence, the statement of Investigating Officer, which provided sufficient explanation is of no avail to the defence.
' The plea of alibi being special plea is required to be introduced as soon as possible, when there is sufficient evidence available with the defence to prove its plea. It is to be produced during course of investigation, in case of failure of Investigating Officer to do the needful, same is to be brought on record with interference of remanding court or thereafter by the trial Court. Reference is made to the case of Allah Wadhoyo v. The State 2001 SCM R 25.
9. The learned counsel for the appellant has also contended that the contradictions in the testimonies of prosecution witnesses shall necessarily be resolved in favour of the defence. I am in agreement with the learned counsel for the appellant/convict to the extent , of the proposition that contradictions in the statements of prosecution witnesses are always fatal to the prosecution case.
But irrespective of veracity of the defence version, a distinction is always to be made between minor inconsistencies or variance in the testimony of witness from the contradiction in the evidence. Only such statement shall be termed as contradictory, which are either destructive of each other or they are totally different to the extent that two versions cannot be reconciled. Such contradiction shall always lead to the benefit of defence, however, the variance of testimony of witnesses or inconsistencies on the point shall not lead to such conclusion, which are not material in nature and do not introduce or suggest a totally different version to the prostcution case. The minor discrepancies in the instant case are not of such nature which could bring the case within the exception supra. In rendering this J view I am supported by the reported judgment of Hon'ble apex Court Sarfaraz alias Sappi v. The State 2000 SCM R 1758. Relevant passage whereof is reproduced hereunder:- "In the cross-examination of both the P. Ws. i. e: Ahmed Khan and Sakhawat Hussain their above version was not shaken at all inasmuch as concerning the incriminating portion of their testimbnies there was no sufficient impeachment. Resultantly, we have to form a positive opinion that incriminating portion of the evidence is consistent, coherent, trust worthy as well as natural i,e, free from any exaggeration. However, we may mention here that if in cross-examination intrinsic value of incriminating evidence of a witness has not been shaken his statement cannot be discarded for minor contradictions reference may be made to the case of Mushtaq alias Shaman v. The State PLD 1995 SC 46".
10. This is the case of attempt to commit "Qatl-e-amd" whereas, section 324, P.P.C. Has, its own scheme of sentence which has two parts. By virtue of first part the perpetrator of crime shall be punished with imprisonment which may extend to 10 years, if he does any act with such intention or knowledge and under such circumstances that he by that act caused "Qatl", he would be guilty of "Qatl-e-amd". There is no punishment of Arsh or Daman, provided for the offence falling within the ambit of first part of section 324, P P.C. While in the second part, if any hurt is caused in the process of such act, the offender shall be liable to punishment provided for the hurt caused, in addition to the imprisonment and fine, mentioned in part first. The bare reading of section 324, P.P.C. Would confirm that the act of the attempt should be with such intention or knowledge and under the circumstances in which the attempt has been made. Thus, for awarding Ta'zir in cases of hurt reference is made to the verdict of the Hon'ble Supreme Court in the case of Haji Maa Din v. The State 1998 SCM R 1528, relevant portion whereof is reproduced as under:- "8. It is sufficient to refer to section 337-N(2) of P.P.C. Which provides, amongst other, the cases/circumstances in which punishment of imprisonment is to be awarded as Ta'zir. The factor to be seen for awarding Ta'zir punishment or. The facts, and circumstances of the case, the nature of the injury/hurt caused, the weapon used and the brutal or shocking manner in which the offence has been committed which is outrageous to the public conscience, or adversely affecting harmony amongst different sections of the people"
Thus, in view of dictum laid down by the Hon'ble apex. Court in the case of Haji Maa Din supra, the facts and circumstances in the instant case coupled with the intention of the accused are to be scrutinized with care and caution like sifting grain from chaff, while doing so, then again it is concluded that the accused while carrying the intention of murder of the complainant, initially took a lethal weapon with him and then furtively slipped from his official duty and came to the place of occurrence, where soon after his arrival and without uttering a single word, he fired repeated gunshots upon the complainant. It was the sheer luck of the complainant that by the grace of Almighty Allah he survived, although he was seriously injured by sustaining injuries on the left side of his chest and on his left arm and leg. Though the perpetrator could not succeed in achieving the object of death of complainant, but by doing so, his intention was not only shown but was also completed. The first part of section 324, P.P.C. Will come into play and the accused is liable to be dealt within the purview of scheme of law. This exercise was already undertaken as according to the rule of prudence and scheme of law by the trial Court and the appellant/convict was rightly convicted which does not warrant any interference by this Court.
' Therefore, the judgment dated 25th June, 2013 passed by the learned Additional Sessions Judge Ad hoc Quetta is upheld and appeal is dismissed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.