LAL JAN KHATTAK, J.---My this judgment shall also dispose of Criminal Appeal No. 202-M of 2013 and. Criminal Revision No.41-M of 2013, as all the matters sprout from the judgment dated 29-7- 2013 of the learned Additional Sessions Judge/Izafi Zilla Qazi, Swat at Kabal, delivered in case FIR No.5 dated 5-1-2012 under sections 324/337-F(ii)/34, P.P.C. Of police station Kabal, District Swat.
2. Brief facts of the case are that complainant Fazal Ghaffar (P.W.9) in an injured condition reported to Amir Bahadar, ASI (P.W.5) in casualty ward of civil hospital Saidu Sharif to the effect that on 5-1- 2012 at about 09:00 hours he was on his way to the attached bathroom of his house in order to ease himself while his wife Mst. Bakht Baha Bibi was picking up fire woods and his sons were removing snow from the rooftop of his house when in the meanwhile accused Jehangir (absconding) and accused Alamgir (the appellant) came out of their house duly armed with Kalashnikovs and started firing at them. It was alleged in the FIR that with the fire shot of Jehangir he was hit on his left leg while with the fire shot of Alamgir his wife Mst. Bakht Baha Bibi was hit on her abdomen. It was further reported by him that after the occurrence both the accused decamped from the scene. Motive was alleged as dispute over property and criminal litigation.
3. After completion of the case investigation, complete challan was put in Court which indicted the appellant for commission of the offence to which he pleaded not guilty and claimed trial.
Prosecution, in order to substantiate its case, produced and examined as many as 17 witnesses, whereafter, statement of the appellant under, section 342, Cr.P.C. Was recorded wherein he professed innocence but neither he examined himself on oath nor produced any witness in his defence. The learned trial Court, after conclusion of the trial vide judgment dated 29-7-2013 found the appellant guilty of the offence and on conviction sentenced him as under:-
(i) Imprisonment under section 324, P.P.C., for a term of three years for an attempt at the life of Mst.
Bakht Baha Bibi and payment of fine of Rs.30,000 or in default thereof to further undergo simple imprisonment for three months.
(ii) He was further convicted under section 337-F(ii), P.P.C. For causing injury to Mst. Bakht Baha Bibi and was sentenced to pay Daman in lump sum of Rs.50,000.
Benefit under section 382-B, Cr.P.C. Was extended to the appellant and both the sentences were ordered to run concurrently. It is worth to mention that the appellant was acquitted so far as charge of attempt at the life of complainant Fazal Ghaffar was concerned.
4. Appellant has impugned his conviction and sentence while complainant Fazal Ghaffar has assailed acquittal of the appellant qua attempt and sharing common intention with the absconding accused at his life. He has also sought enhancement of the sentence awarded to the appellant through his criminal revision petition. As all the three matters emanate from one single judgment and therefore, are being disposed of through this single judgment.
5. Arguments heard and case record gone through.
6. Perusal of the case record would show that no doubt complainant Fazal Ghaffar and Mst. Bakht Baha Bibi have suffered fire arm injuries on their persons and in the FIR appellant has been charged for causing effective shot to Mst. Bakht Baha Bibi and ordinarily, testimony of persons who sustain bodily injuries is believed by the Courts but on the other hand equally umpteenth times it has been held by the superior Courts that mere stamp of injuries on the body of a witness would not be a gospel truth that whatever he or she says would be nothing but a truth. Testimony of an injured witness per se has never been considered in isolation from rest of a case material. Uncorroborated solitary statement of an injured cannot be given the status of a sacrosanctity. For the safe administration of criminal justice, evidence of injured witnesses must get independent and worth reliable corroboration from other circumstantial evidence particularly when enmity between parties to the case has been an admitted fact.
7. In the instant case it has been admitted by the complainant that the appellant once had charged him for firing at him and he was acquitted in the case. Apart from the above, in the murasila Exh.PA/1, motive for the offence has been mentioned as a dispute over property and criminal litigation between the parties. In view of such background of the case, testimony of both the eye-witnesses, albeit injured, needs corroboration. In the site plan Exh.P.W.10/1, the appellant has been shown at point No.4 wherefrom no empty shell has been recovered by the investigating agency rather one crime empty has been taken into possession from point 'A' which is right side of the absconding accused. So there is lack of circumstantial corroboration to the ocular evidence furnished by prosecution through Fazal Ghaffar (P.W.9), Khursheed (P.W.13), Mst. Bakht Baha Bibi (P.W.15) and Hameed Gul (P.W.16).
8. Further more physical condition of the appellant has also negated the ocular account of the prosecution case which has raised an eye-brow over it. According to the card of arrest Exh.P.W.7/1, the appellant is lame by his right leg. P.W.7 Ali Badshah appeared before the Court who has admitted that the appellant was handicapped being a lame person. In his statement recorded under section 342, Cr.P.C., the appellant vehemently has stated about his lameness to the effect that he was permanently lamed by one leg. In view of the aforesaid physical condition of the appellant, if we have a look on the site plan Exh.P.W.10/1, where in the appellant has been shown present at point 4 which is a slope and was covered with five inch snow thereon. Question would arise whether a lamed person can fire and can run from a sloping c and snow covered area.
Answer to the above question would be in negative. Though while raising a plea of any disability, legal burden is always on an accused to satisfy the Court about his such disability. However, the standard of discharging such proof is less than that which is always needed from a prosecution to prove its case against an accused. Regarding his disability and lameness, the accused has affirmatively discharged the burden which was on him. Therefore, apart from non-recovery of any crime empty from the place where the appellant was allegedly present at the time of firing, physical condition of the appellant too is a factor which negates the prosecution case against the appellant. So, no independent corroboration to the ocular account furnished by the eye-witnesses has come on record which is must keeping in view the pendency of civil and criminal litigations between the parties.
9. In addition to above, site plan has also contrasted the ocular testimony of the complainant who has deposed in his Court statement that the appellant had fired from his house while in the site plan the appellant has been shown at point No.4 which is an open place away from his house. This aspect of the case has further weakened the prosecution case.
10. It is a cardinal principle of criminal justice that in order to bring home guilt and saddle an accused person with a criminal liability, the prosecution must prove its case beyond any shadow of doubt. Discharging of such burden means that from appreciation of case evidence, there should be left no other room for drawing a conclusion other than the one to hold the accused guilty of the charge. And if there arises any slight doubt in the prosecution case benefit of that will go to the accused. In the instant case, story of the prosecution is not free from doubt keeping in view the civil and criminal litigation pending between the parties and disability of the appellant, non-recovery of crime empty from his place and post-occurrence conduct of the appellant when he "'as arrested by the local police from his house and he did not offer an j resistance coupled with the un- ignorable contradiction in the prosecution evidence as highlighted above. Therefore, I accept the appeal of the appellant Alamgir. His conviction and sentence is set aside and he is acquitted of the charges levelled against him. He be released forthwith if not required to be detained in any other case. So far as Criminal Appeal No. 202-M of 2013 and Criminal Revision No. 41-M of 2013 are concerned, as appeal of the convict has been accepted, therefore, aforesaid appeal against acquittal and criminal revision both have become infructuous and are dismissed as such.
11. Above are the reasons of my short order of the even date.