' SADIQ HUSSAIN BHATTI, J.---Muhammad Ismail son of Sono Khan Bhangwar, the appellant has been convicted for offences under sections 324, P.P.C., 337-F(vi), P.P.C. And 337-F(iii), P.P.C. Vide judgment dated 31-5-2013 handed down by the learned 1st Additional District and Sessions Judge, Shaheed Benazir Abad in S.C. No.143 of 2005, awarding him sentences as herein below:--
(i) Under section 324, P.P. C., R.I for seven years and fine of Rs.25,000.
(ii) Under section 337-F(vi), P.P.C., RI for seven years and fine of Rs.25,000.
(iii) Under section 337-F(iii), P.P.C., RI for three years and fine of Rs.10,000. in case of default of payment of fines, the appellant/accused has to suffer R.I. For six months more in each section, mentioned above. Furthermore, the appellant/accused to pay Rs.1,00,000 (Rupees One Lac only) as compensation to the injured. Shah Ali as provided under section 544-A, Cr.P.C.
And in default of payment of compensation the appellant/accused shall undergo RI for six months more.
2. All the convictions and sentences awarded to the appellant/accused will run concurrently, with benefit of section of`382-B, Cr. P. C .
3. Appellant/Accused Muhammad Ismail Bhangwar has challenged his conviction and sentence before this Court through this Criminal Appeal No.S-62 of 2013, praying therein to set aside the aforesaid convictions and sentences and acquit from all charges.
4. According to the prosecution's case as unfolded in the F.I.R. No.48 of 2005 registered at Police Station 'B' Section, Nawabshah on 10-7-2005 at 3.15 p.m., by Complainant Allah Dino Bhangwar, which reads as under:-- "Complaint is that we' in all are three brothers. Shah Ali aged about 43 years is my elder brother.
We have brotherly dispute with Adam Khan Bhangwar, who is our cousin.-- Yesterday on 9-7- 2005, my brother Shah Ali had come to Nawabshah Town on his motorcycle for some work. I and my relative Muhammad Essa son of Hamzo Khan Bhangwar went together on motorcycle to Nawbshah for some work and on the way my brother Shah Ali met with us, who after finishing work proceeded for village and we were also going together on our motorcycle for our village through Sui Gas Link Road. When at about 5 p.m. In evening reached road adjacent to village Choudhry Barkat Ali and saw (1) Muhammad Ismail son of Sono Khan Bhangwar having pistol in his hand, (2) Adam Khan son of Muhammad Hayat Bhangwar having hatchet in his hand and two unidentified persons, one was with rifle and other had double barrel gun. The accused person asked my brother to stop and we also reached on our motorcycle at some distance behind and saw that accused Muhammad Ismail Bhangwar abused my brother asking that there are so many brothery problems with you. Today we would not spare you and kill you and aforesaid accused challenging us asked us not to come near to them and due to fear of weapons we did not go near and within our sight accused Muhammad Ismail Bhangwar straightly fired at my brother Shah Ali from pistol who cried and fell down on the road. Accused Adam Khan caused hatchet blows on his legs and arms. The unidentified persons also caused butt blows of weapons to my brother Shah Ali. Then we raised cries murder murder and requested the accused to spare life of our brother and then accused went away with their weapons towards Southern side concealing in the cotton crop. We saw that our brother Shah Ali had pistols bullet injuries on right side and left side on both the legs and below the ankle, which were bleeding and had also injuries on his right and left sides of elbows of arms, which were bleeding. Then we brought my brother Shah All to Civil Hospital, Nawabshah for immediate medical treatment and obtained letter for immediate treatment from PS B-Section, Nawabshah."
5. During the investigation, Police arrested the appellant/accused Muhammad Ismail, Adam Khan and after usual investigation submitted charge against them.
6. Before commencement of actual trial, the trial Court provided the requisite documents to both the accused as provided under section 265-C, Cr.P.C. Vide Exh.
1. On 25-5-2006 Charge Exh.2 was framed against both the accused persons, in which there are no specific accusations against the co-accused Adam Khan. Charge Exh.2 is reproduced as under:- "That you accused on 9-7-2005 at about 5-00 p.m.. At the road near village Choudhry Barkat Ali, Taluka and District Nawabshah did an act by firing at Shah Ali son of Yar Muhammad Bhangwar brother of Complainant Allah Bux Bhangwar with such intention and under such circumstances that if by that act you had caused the death of injured Shah An Bhangwar you would have been guilty of the murder and thereby you committed an offence punishable under section 324, P. P. C.
Read with section 34, P. P. C. Within the cognizance of this Court."
7. Though the charge was framed against the accused on 25-5-2006 but strangely mentioned against co-accused Adam Khan that proceedings against him abated on 9-12-2010. Now as per charge Exh.2 the allegations against accused are punishable under sections 324, 34, P.P.C.
8. Prosecution examined seven P.Ws. In order to prove its case.
9. P.W.1, Allah Dino Bhangwar, examined as Exh.8, he deposed that on 9-7-2005, his brother injured Shah Ali came to City Nawabshah with his personal work, after finishing his work he was returning back on his motorcycle and when reached near village Ch. Barkat, he along with Muhammad Essa were almost following him on their motorcycle and were at some distance from him, they saw accused Muhammad Ismail armed with Pistol, accused Adam armed with hatchet, accused Ishaque having Rifle in his hands, accused Sono armed with Double Barrel Gun. He further deposed that he saw accused Ismail tried to stop the Motorcycle of his brother Shah Ali, but before he could stop his Motorcycle accused Ismail fired at him from his Pistol the shot struck injured Shah Ali, who on receiving the injury fell down along with his Motorcycle, thereafter co-accused Adam caused hatchet blows, to Shah Ali, whereas co-accused Ishaque and Sono gave butt blows to injured Shah Ali with their respective weapons. Complainant Allah Dino further testified that at that juncture they tried to intervene and save Shah Ali being killed at their hands, but accused being armed threatened them not to go near them, else will face the same consequences. Complainant raised cries and thereafter accused made good their escape in nearby cotton crop. Complainant Allah Dino further deposed that he saw his brother Shah Ali had suffered firearm injuries over his both legs below knee joints as well as injuries over his left arm above elbow and hatchet injuries at right thigh. He immediately removed the injured to hospital in a Rickshaw. From where he went to Police Station "B" Section, Nawabshah wherefrom he got a letter for treatment and M.C. And thereafter he lodged the F.I.R. Against the accused. He produced the F.I.R. As Exh.8-A and acknowledged its correctness and his signatures on it. He correctly identified the accused Ismail and co-accused Adam present in the Court.
10. Whereas in the cross-examination, he deposed that he did not disclose the particulars of Shah Ali's Motorcycle before Police. He reached Nawabshah at about 3-00 p.m and met Shah Ali at 3-30 p.m. P.W. Essa was with him at that time, P.W. Essa is his paternal Uncle. He denied the suggestion that there was dispute between P.W. Essa and present accused and were not on visiting terms. He deposed that Police Station "B" Section, Nawabshah is situated at a distance of 2 kilometer from place of vardat. The accused persons were standing beside the road and they were at a distance of 70 feet away from the accused at the time of incident. He replied to a question that during the incident accused Ismail fired about five Pistol shot at his brother Shah Ali. The injured Shah Ali received 8 to 10 hatchet injuries over his persori and also informed that he did not count the number of firearm injuries over his brother's person. He agreed to the suggestion that place of incident is a busy road and the traffic flows round the clock. He also agreed that Khaskheli Village is situated near the place of incident, but he cannot say how many persons had gathered at the place of vardat on hearing the fire-arm reports. He also deposed that after the incident he left his paternal Uncle Essa at the place of vardat to guard the injured and he went to City to fetch the Rickshaw and came back and brought Rickshaw within 15 minutes and shifted the injured to hospital at about 6-30 p.m. He also deposed that he cannot say at what time Police reached hospital. He denied the suggestion that he lodged the F.I.R. Of this case on the next day of the incident. He also denied the suggestion that he lodged the F.I.R. After deliberations and consultations with his relatives. At the time of lodging of F.I.R., P.W. Essa was with him and they went to Police Station on Motorcycle. He also deposed that injured Shah Ali remained at PMCH Hospital for only one night and thereafter he was shifted to Zoiab Medical Center. He admitted as correct that accused persons have enmity with them (Complainant Party) before the incident. He also admitted as correct that due to enmity a private faisla was also held by their Sardar between the Parties. He also admitted that he did not disclose before Police that two unidentified persons were present at the time of incident, but clarified that had mentioned the same in the F.I.R. At its own accord. He denied the suggestion that his brother Shah Ali had received injuries at the hands of Ishaque and Sono and two unidentified persons, but he after due deliberations and consultations nominated the present accused falsely.
11. P.W.2, Dr. Amanullah, MLO, PMCH, examined as Exh.9. He deposed that on 9-7-2005, he was posted as MLO at PMCH, Nawabshah. On that day, he received injured Shah Ali son of Yar Muhammad Bhangwar, by Police Station "B" Section vide letter No.947 for examination, treatment and certificate. On examination of the above named injured, he found in all eight injuries out of them five injuries were caused by firearm whereas rest three injuries were caused by sharp cutting weapon and hard blunt substance.
12. The injured was admitted as indoor patient, where he developed complication as such he was shifted to Zoib Private Medical Center, Nawabshah for further better treatment by the relatives of the injured. The said injured underwent Tracheostomy and also leg surgery and remained unconscious for a long time. Dr. Amanullah further deposed that he has been visiting the injured Shah All admitted at Zoib Private Medical Center and found him still in semi-consciousness with lateral "GCS" scare and no power of speech. Final opinion they kept guarded for establishment of any scientific sequence in between his injuries mentioned in the provisional report and present situation of disabilities.
13. According to the Final Certificate, he declared the injuries sustained by injured Shah Ali as under:-- Injury No.1 Firearm Injuries Nos.2, 3, 4 and 5 Firearm {{TABLE}} Injury No.6 Injury No.7 Injury No.8 Sharp cutting weapon Hard blunt substance Hard blunt substance
14. He opined that above injuries were caused by firearm, sharp cutting weapon and hard blunt substance. They were simple as well as grievous.
15. In cross-examination, this P.W. Deposed that injured had no head injury. He admitted as correct that he cannot say as to by which injury the condition of injured deteriorated which caused loss of his speech. He admitted that usually when complications developed during treatment the patient is referred to some better equipped hospital. He produced provisional Medical Certificate as Exh.9- A and Final Medical Certificate as Exh.9-B.
16. P.W.3, Dr. Shahbuddin Brohi, Assistant. Professor Surgery PMCH Hospital, Nawabshah deposed that injured was referred to him on 10-7-2005. He was found by him in critical conditions and was unconscious. Having difficulty in breathing. He was resurrected and Tracheotomy was given to relieve his difficulty in breathing. CT Scan was done, which showed diffused axonal injury. The injured had leg injuries as well. He remained in unconscious state for about three months. Presently he is in vegetate condition and purposefully not responding to any command and was weeping all the time. He clarified that diffuse axonal injury means no localized impact over the brain. He admitted that present condition of the patient can be due to paralysis.
17. P.W.5, Muhammad Essa, examined as Exh.12. He repeated the same version as deposed by Complainant Allah Dino. He deposed that the Complainant Allah Dino and injured Shah Ali are his uncle. When they were returning back to their village on Motorcycles injured Shah Ali was proceeding little ahead of them. He saw all the above named accused persons duly armed and accused Ismail fired at them which struck injured Shah Ali. Co-accused Adam caused hatchet blow to Shah Ali on his person. All accused persons threatened the P.Ws. Not to go near them.
Consequently, they did not go near the accused persons, who later fled away. They went near the injured and found injuries on his person and immediately, shifted him to hospital for treatment. He also deposed that village Ch. Barkat is near place of vardat. The village Ch. Barkat consisted of about 20 houses. During the incident nobody from village Ch. Barkat arrived at the place of vardat.
Accused Ismail fired three Pistol shots at injured Shah Ali and two shots at P.Ws. He denied the suggestion that prior to this incident injured Shah Ali had suffered paralysis attack and the present accused had not attacked him.
18. P.W.6, Rano Bhangwar examined at Ex.13 has deposed that on 10-7-2005 he along with police visited the place of vardat which was pointed out by complainant, which was near the house of one Mubeen Khaskheli. Police prepared the memos. And obtained his signatures and that of co- mashir Subuk Ali. He produced Memo. As Exh.13-A. He also produced the memo. Of the injuries on the person of injured Shah Ali as Exh.13-B. He further deposed that on 9-7-2005 Police in his presence arrested accused Ismail and Adam and prepared the Memo. Of arrest, which he produced as Exh.13-C. He also deposed that Police had secured 3 bullets from place of incident in his presence and prepared such Memo, which he produced as Exh.13-D.
19. In the cross-examination, he admitted as correct that Police did not read over any memo. To him and was simply asked by Police to sign the same. He also admitted as correct that accused persons were in fact not arrested by Police in his presence. He also admitted that recovery of hatchet and Iron Bar did not take place before him.
20. P.W.7, SIO Sikandar Ali Wagon of Police Station "B" Section, Nawabshah, examined as Exh.15, has deposed that on 10-7-2005 he was posted as SIO at Police Station "B" Section, Nawabshah. On that day, he received the copy of the F.I.R. Of this case and took up the investigation of this case and prepared the Memos. As mentioned above during interrogation accused Ismail produced one pointed Iron Rod whereas co-accused Adam produced one hatchet from sugarcane bushes and after completing the investigation, submitted the charge sheet against the accused.
21. In the cross-examination admitted as correct that he did not collect any empty from the place of incident during the course of investigation. He also admitted that recovered weapons were not stained with blood at the time of recovery.
22. Prosecution closed its side vide Exh.16. During the trial, co-accused Adam Khan son of Muhammad Hayat Bhangwar had expired and the proceedings against him were abated by trial Court vide order dated 9-12-2010 after due proceedings.
23. Statement of accused Muhammad Ismail Bhangwar was recorded vide Exh.17. He denied the allegations of prosecution and further submitted that he has been involved in this case falsely, the witnesses are setup, interested and hostile against him. He pleaded his innocence and prayed for justice. He neither examined himself on Oath nor examined any defence.
24. Learned counsel for the appellant/accused raised following contentions to prove that the accused has been falsely implicated in this case. I. That trial Court has convicted the appellant/accused on erroneous and un-logic reasons. II. Delay of 22 hours in lodging the F.I.R. Is not considered. III. The conviction under sections 324, 337-F(iii) and 337-F(vi), P.P.C. And sentence are void ab initio and unjustified, without jurisdiction and coram non judice. IV. No charge for alleged injuries caused to the injured was framed against the accused. V. The accused, prima facie, had no intention to kill the deceased as is evident from Medical Certificate as they selected non-vital parts of the body. VI. The conviction awarded under sections 337-F(vi) and 337-F(iii), P.P.C. Are against, the provisions of section 337-N(2), P.P.C. Are not sustainable under the law. VII.
The convict being liable to pay Daman for both the above offences is not liable to pay compensation of Rs.100,000 (Rupees One Lac only) under section 544-A, Cr.P.C., which is beyond the jurisdiction. VIII. No empty case or bloodstained earth was recovered from place of vardat. IX.
The prosecution has failed to prove its case. Motive is not proved. The Court has not considered the defence of the appellant/accused.
25. On the other hand, learned State Counsel has controverted the above contentions and submitted that the case is fully proved against the appellant/accused.
26. Arguments heard and record perused with the valuable assistance of learned counsel for the respective Parties.
27. The prosecution mainly hinges on the ocular testimony furnished by Complainant Allah Dina and P.W. Muhammad Essa, corroborated by medical evidence.
28. The foremost duty of this Court would be to thoroughly probe the testimony to find out the truth of the above two witnesses whether it rings true. Admittedly, in the broad-daylight incident the alleged accused persons duly armed waylaid the injured Shah Ali, Complainant Allah Dino and P.W.
Muhammad Essa where they were on their way to village after finishing their personal work at Nawabshah. Both the above witnesses have categorically stated that all the accused persons named above attacked Shah Ali with their respective weapons. The Appellant/Accused, who was armed with Pistol fired Pistol shots at injured, who receiving the injuries fell down. Co-accused Adam Khan (since deceased) also caused him hatchet injuries. Accused Ismail also fired towards the P.Ws. Just to scare them, not to go near them. As soon as the accused fled away, P.Ws. Went to provide necessary attention to. The injured, who had multiple injuries on his person and appeared to be serious. Complainant went to Police Station obtained the necessary request letter to MLO for treatment and certificate brought Rikshaw and removed .The injured to Hospital. Subsequently, F.I.R.
Of the incident was lodged and Police took up the investigation.
29. Prosecution examined two doctors to corroborate the testimony of eye-witnesses. According to the Provisional Medical Certificate, the MLO found in all eight injuries out of which five injuries were caused by fire-arm and these injuries are attributed to the appellant/accused since no recovery is made, which does not mean that incident has not occurred, recovery is merely a corroboration to the actual incident this could not be ruled out that the spent bullet case may have fallen in the hands of some unscrupulous persons, who gathered after the incident, as Police consumed sufficient time to reach place of vardat.
30. Assistant Professor Dr. Shamsuddin Brohi, who is also Neurosurgeon has categorically deposed that injured Shah Ali was referred to him in a critical condition and was immediately provided necessary treatment. As the injured was feeling difficulty in breathing as such he was provided Tracheostomy to relieve his difficulty. According to the P.W., the injured remained in unconscious condition for three months and further stated that the present condition of the injured can be called vegetative state and not responding to any command. The dire intentions of accused were quite visible from his acts of repeatedly firing at victim/injured.
31. Now any person having any amount of human consciousness and humanity can leave, actual accused and substitute an innocent person in his place is unimaginable. The injured is almost clinically dead.
32. The motive of the incident is surrounded in mystery. The witnesses have not highlighted the issue of motive, rather suppressed the same. Mere enmity in my opinion not motive, unless it is fully elaborated through evidence and its degree whether it was so grave that in retaliation persons take the extreme step of eliminating a person.
33. Delay in lodging the F.I.R. Is fully explained under the circumstances as discussed hereinabove.
After going through the cross-examination of the eye-witnesses or Medical Officers, I am fully satisfied that their testimonies are unshaken and has given straight forward evidence in a very natural way completely unperturbed. Why such evidence be brushed aside only on the ground that they are related inter se. It is also an admitted law that, even an interested witness can be a truthful witness, depending on the circumstances of the case. My above view is fortified by case law published in 1991 PCr.LJ at Page 83, which relates of relative witnesses, their lordship held as under:- - "Relative witness is as much credible as altogether disinterested person if it is established that the story narrated by him is not doubtful and that his deposition is truthful and worth reliance."
34. The Honourable Supreme Court of Pakistan has taken above view in more effective manner. The dictum laid down in PLD 1969 SC Page 278. It reads as under:- "If witnesses are not related it does not mean that they are witnesses of truth.
35. Learned counsel has greatly attacked that two sentences of qatle-amd (attempt to commit murder) and in consequence thereof the injuries received by the victim punishments of which cannot be awarded separately as barred by section 337-N, P.P.C. I reproduce section 337-N, P.P.C.
For the benefit of accused's counsel:-- "337-N. Cases in which qisas for hurt shall not be enforced.---(1) The qisas for a hurt shall not be enforced in the following cases, namely:
(a) when the offender dies before execution of qisas;
(b) when the Organ of the offender liable to qisas is lost before the execution of qisas: ' Provided that the offender shall be liabl. To arsh, and may also be liable to ta'zir provided for the kind of hurt caused by him;
(c) when the victim waives the qisas or compounds the offence with Badal-i-Sulh; or
(d) when the right of qisas devolves on the person who cannot claim qisas against the offender under this Chapter: ' Provided that the offender shall be liable to arsh, if there is any wall other than the offender and if there is no wali other than the offender he shall be liable to ta'zir provided for the kind of hurt caused by him.
(2) Notwithstanding anything contained in this Chapter in all cases of hurt, the Court may, having regard to the kind of hurt caused by him in addition to payment of arsh, award tazir 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].
[Provided that the ta'zir shall not be less than one third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour]."
36. Bare reading of this Section shall clarify that it is on the different angle of law and nothing to do with the grounds raised by him.
37. Admittedly, the appellant/accused has committed two different offences and thus he was duly awarded the sentences separately as per the evidence. Now comes the question of the compensation of Rs.1,00,000 (Rupees One Lac only) to be given to the injured as per the ingredients of section 544-A, Cr.P.C., I.Reproduce the said section for the benefit of learned Defence Counsel:-- "[544-A. Compensation to the heirs of the person killed, etc. [(1) Whenever a person is convicted of an offence in the commission whereof the death of or hurt, injury, or mental anguish or psychological damage to any person is caused or damage to or loss or destruction of any property is caused, the Court shall when convicting such person, unless for reasons to be recorded in writing it otherwise directs, order the person convicted to pay to the heirs of the person whose death has been caused, or to the person hurt or injured, or to the person to whom mental anguish or psychological damage has been caused, or to the owner of the property damaged, lost or destroyed, as the case may be, such compensation as the Court may determine having regard to the circumstances of the case.] and
(2) The compensation payable under subsection (1) shall be recoverable as [an arrear of land revenue] and the Court may further order that, in default of payment or of recovery as aforesaid the person ordered to pay such compensation shall suffer imprisonment for a period not exceeding six months, or if it be a Court of the Magistrate of the third class, for a period not exceeding thirty days.
(3) The compensation payable under subsection (1) shall be in addition to any sentence which the Court may impose for the offence of which the person directed to pay compensation has been convicted.
(4) The provisions of subsections (2B), (2C), (3) and (4) of section 250, shall, as far as may be, apply to payment of compensation under this section.
(5) Any order under this section may also be made by an appellate Court or by a Court when exercising its powers of revision. "
38. Learned Defence Counsel once again has overlooked the text of section 324, P.P.C., which reads as under, particularly the last Paragraph, which reads as under:- "In addition to the imprisonment and fine as aforesaid be liable to the punishment provided for the hurt caused."
39. Learned Defence Counsel also contended that charge was not properly framed as it did not mention the nature of injuries sustained by injured.
40. In my humble opinion that the accused had received the relevant documents in which the injuries and nature of injuries were clearly mentioned, hence, accused was not taken by surprise or misled. I follow another dictum of honourable Supreme Court of Pakistan. There lordships decided this issue in the case reported in 1992 SCMR Page 1583, as under:- "Errors committed in stating either offence or particulars of charge or omissions in such behalf are not material, unless accused is misled by such errors or omissions and failure of justice is occasioned."
41. The upshot of above discussion and reasons lead me to conclusion that there are no merits in this appeal and same is dismissed.