' RAJA SAEED AKRAM KHAN, J. --- This appeal has been directed against the judgment of the Shariat Court dated 25.09.2013, whereby while setting aside the judgment of the Additional District Court of Criminal Jurisdiction, Hajira the judgment of the Trial Court has been restored.
2. The facts in brief are that Sardar Muhammad Zaman Khan the complainant, lodged an F.I.R. at police station, Abbaspur on 8.11.1996, alleging therein, that his brother Sardar Ghulam Hussain Khan purchased a piece of land from Muhammad Aslam, the brother of Muhammad Afsar Khan, accused, in lieu of Rs. 4,00,000/-. Muhammad Aslam has handed-over the possession of land alongwith the house and crops over the land. Thereafter, he insisted to return the land whereupon, a 'panchayat' was convened and the matter was settled between them. Later on, Muhammad Aslam committed the breach of the decision of "panchayat" and forcibly took the possession of the land etc., and also hewed maize crop. it is further alleged in the F.I.R. that on 8.11.1996, at 5:30 p.m., the complainant's wife alongwith the wives of Sardar Ghulam Hussain and Sardar Muhammad Sadiq Khan went to ask the health of Muhammad Siddique's mother, where the wife of Muhammad Afsar, accused, called them inside the house. Meanwhile, Muhammad Afsar armed with 12-bore rifle, Muhammad Riaz and Said Akbar, armed with pistols, came there. The accused started firing on the spot. In the meantime, the complainant went at the spot to know that why the firing is being made but all the three accused beat him severely. On hearing hue and cry, when his brother Sardar Ghulam Hussain arrived at the spot, the accused Muhammad Afsar Khan caused a blow with the butt of rifle on his head. Muhammad Riaz, accused, pelted a stone, which hit on the face of Ghulam Hussain and also caused blow of butt of the gun at his arm. Said Akbar, accused, with the intention to kill, fired a shot upon the complainant's wife, Mst. Musarrat Begum, which landed on the backside of her neck. Alongwith the accused, Muhammad Nazir, Gohar Nazir, Ghulam Haider, Latif, Rafique, Tahir, Nadeem, Saleem, Sherdil, Zaffar, Sagheer, Nisar, Afsar Jan and Muhammad Khaliq, armed with sticks were present at the spot. Muhammad Nazir caused blows, to the complainant and his wife with hockey, whereas, the other accused pelted stones and hurled abuses to the complainant party. The accused Ghulam Haider, Nadeem, Saleem and Khaliq also gave blows of fists and kicks to the complainant. Besides Khan Muhammad Khan and Muhammad Siddique, the occurrence was witnessed by many other people of the vicinity. On this report, a case under Sections 324, 337, 147, 148, 149 and 506, APC was registered against the convict-appellants and others. After usual investigation, the challan was presented in Tehsil Court of Criminal Jurisdiction, Abbaspur against Muhammad Afsar, Said Akber, Muhammad Riaz, Muhammad Nazir and Muhammad Khaliq, whereas, the other accused were given benefit under Section 169, Cr.P.C. After conclusion of trial, the Tehsil Court of Criminal Jurisdiction, Abbaspur convicted the appellants, whereas, the other accused were acquitted of the charge vide its judgment dated 5.4.2003. The convict-appellants filed an appeal against the aforesaid judgment of the Trial Court in the Court of Additional District Court of Criminal Jurisdiction, Hajira which was decided on 17.5.2005 and the case was remanded to the Trial Court for decision afresh after recording the statements of the accused under Section 342, Cr.P.C. On 30.5.2005, the aforesaid statements were recorded and the case was decided on 30.08.2005, through which the accused were again convicted. The convict- appellants challenged the aforesaid judgment in the Additional District Court of Criminal Jurisdiction, Hajira on 1.09.2005, which was decided on 8.11.2007 and the case once again was remanded on the ground that all incriminating material was not put to the accused. On remand, the Trial Court again recorded statements of the accused under Section 342, Cr.P.C., on 18.3.2008 and after hearing arguments decided the case on 7.5.2009, whereby Said Akbar, appellant, was convicted and sentenced under Section 337-F(i) to one year's simple imprisonment alongwith Rs.
10,000/- as daman, which was to be paid to Mst. Musarrat Begum injured and in default of payment thereof, it was, ordered to detain the convict in jail till realization of payment. Moreover, he was also sentenced under Section 13 of the Arms Act, 1965 for one year's simple imprisonment alongwith a fine of Rs. 2,000/- and in case of non-payment the convict has to undergo further imprisonment for 1/4th period of the total imprisonment. Muhammad Riaz, appellant, was convicted and sentenced under Section 337-A(i) for six months' simple imprisonment alongwith Rs.
8000/- as Daman which was to be paid to Ghulam Hussain, injured and in default of payment it was ordered to detain the convict in jail till realization of payment. The aforesaid judgment was challenged by the convict-appellants, herein, in Additional District Court of Criminal Jurisdiction, Hajira on 8.5.2009, by way of appeal which was decided on 28.10.2009 and the convict-appellants were acquitted of the charge Feeling dissatisfied, injured Ghulam Hussain challenged the judgment of the Additional District Court of Criminal Jurisdiction, Hajira before the Shariat Court.
The Shariat Court set aside the judgment passed by the Additional District Court of Criminal Jurisdiction, Hajira, dated 28.10.2009 and while upholding the judgment of Tehsil Court of Criminal Jurisdiction, Abbaspur maintained the sentence awarded to the convict-appellants by the Trial Court. Hence, this appeal.
3. Sardar Karam Dad Khan, Advocate, the learned counsel for the convict-appellants argued that the learned Shariat Court while maintaining the conviction recorded by the Trial Court failed to appreciate the evidence in a legal manner. He submitted that well-reasoned judgment was passed by the Additional District Court of Criminal Jurisdiction, Hajira which has been disturbed by the Shariat Court without assigning any reasons. He contended that the learned Shariat Court also failed to take into account that the medical evidence does not corroborate the ocular account which creates a serious doubt, whereas, it is settled principle of law that the benefit of the slightest doubt must go to the accused being a favourite child of law. While referring to the medical report, he submitted that the nature and size of the injuries shown by the doctor cannot be caused as stated by the prosecution. He added that the doctor while recording his statement as a witness, has also made the statement on different lines. He further added that according to the doctor's statement, the exit wound was found, whereas, the complainant stated in his statement that the bullet was recovered from the body in the hospital. He strongly argued that two injuries of the same nature/size cannot be caused by a single bullet, whereas, in the medical report entry and exit wound both have been shown as of the size of 2x2cm which creates a serious doubt. Admittedly, all the prosecution witnesses (PWs) are closely related to the complainant's party and their testimony cannot be relied upon without strong corroboration, whereas, no such corroboration is available on record. He further added that report of Forensic Science Laboratory has not been brought on record, moreover, no empties/cartridges have been recovered which makes the case further doubtful. He added that the stone through which the alleged injury was caused to one Ghulam Hussain has also not been taken into custody. He added that recovery of 32-bore revolver was made 5 days after the arrest of the accused which appears to be unnatural. He submitted that nothing is on record that whether at the time of recovery of revolver, the bullets/empties were found lying in it or not. He further added that 18 PWs were cited in the calendar of witnesses but only 11 were examined and 7 have been given up without assigning any reason. While referring to the statements of different witnesses, he stated that there are glaring contradictions in their statements which cannot be ignored lightly. He lastly submitted that there is a number of doubts in the instant case, whereas, it is recognized phenomenon of law that a single doubt is sufficient to acquit an accused. He has relied upon the case reported as Muhammad Aslam v. State [1999 SCM R 172], Jan Alam v. The State & others [2004 P.Cr.LJ 68], Muhammad Riaz & others v. The State [2008 P.Cr.LJ. 318] and Nazir Ahmed v. The State and others [2002 P.Cr.LJ. 149].
4. On the other hand, Barrister Hamayun Nawaz Khan, Advocate, the learned counsel for the complainant strongly opposed the arguments advanced by the learned counsel for the convict- appellants. He submitted that the impugned judgment is perfect and legal which .does not warrant any interference by this Court. He submitted that the impugned judgment has been passed by the learned Shariat Court after duly appreciating the evidence brought on record. He added that it is a case of direct evidence and the prosecution has succeeded to prove the case against the convict- appellants beyond any reasonable doubt. In this state of affairs, the other corroborative pieces of evidence have no value in the eye of law. He added that the place, manner, date and time of the occurrence are admitted as defence failed to cross-examine the prosecution witnesses on the material points. He submitted that all the PWs made the statements in line with each other and mere relationship cannot be made a ground for discarding their testimony when no enmity of the witnesses against the convict-appellants came on the record. The occurrence took place in a house and the presence of the PWs is natural one. While referring to the different portions of the statements of eyewitnesses, he submitted that they fully implicated the convict-appellants in the occurrence. The F.I.R. was promptly lodged and all the accused were nominated in the F.I.R..with their specific roles. He added that during the course of cross-examination, a suggestion was put by the defence that the complainant was aggressor, whereas, the defence failed to substantiate the same through any evidence. However, on Court's query, the learned counsel for the complainant failed to satisfy the Court regarding the delay in recovery of revolver and non-recovery of cartridges. He has relied upon the cases reported as lshtiaq Ahmed & others v. The State and others [PLJ 2013 S.C. (AJ&K) 231] and Muhammad Tahir Aziz v. The State & another [2009 SCR 71].
5. Ch. Shaukat Aziz, the learned Additional Advocate-General, also adopted the arguments advanced by the learned counsel for the complainant. While making addition, he added that no illegality has been committed by the Shariat Court while restoring the judgment of the Trial Court as the convict-appellants actively participated in the occurrence and caused injuries to the complainant party. The statements of the injured witnesses are much reliable which cannot be ignored lightly.
6. We have heard the learned counsel for the parties and gone through the record alongwith the impugned judgment with utmost care a caution. It is spelt out from the record that occurrence took place on 08.11.1996, at about 5:30 p.m. and the F.I.R. was lodged after one hour of the occurrence i.e., 6:30 p.m. The role assigned to the convict-appellants is that at the time of occurrence they were armed with pistols. The convict-appellant, Said Akbar fired a shot which hit the neck of the complainant's wife, whereas, convict-appellant, Muhammad Riaz inflicted injury with a stone to the brother of the complainant, Ghulam Hussain due to which his teeth and lips were injured. Moreover, they also beat the complainant party. The learned counsel for the convict- appellants submitted that the medical report does not corroborate the ocular account which creates a serious doubt. To appreciate the argument, we have examined the medical report.
According to the medical report a fire-arm injury was found at the neck of the complainant's wife, moreover, the medical report also corroborates the other injuries inflicted to the complainant party as narrated in the FIR. in the occurrence, three persons were stated to be injured. The injured persons also appeared before the Court and recorded their statements as witnesses. We have examined their statements. It would be advantageous to reproduce here the relevant portions of their statements which read as under:-- ' The complainant, Muhammad Zaman, stated in his statement that:-- {{URDU TEXT}} ' The other injured witness, namely, Ghulam Hussain stated that:--- {{URDU TEXT}} ' The injured witness,.. 'Musarrat Begum, wife of the Complainant stated in her statement that:-- {{URDU TEXT}} ' The juxtapose perusal of FIR, medical reports and the statements of injured witnesses, we do not find any substance in the argument of the learned counsel for the convict-appellants that the medical report does not corroborate the ocular account. The argument of the learned counsel for the convict-appellants that two wounds of the same size cannot be caused by a single fire, whereas, in the medical report the entry and exit wound both are shown. as 2x2 cm which makes the case doubtful, is also not convincing in nature. It may be observed here that it depends upon the angle of fire or movement of the body and there is no hard and fast rule that entry wound must be small as compared to the exit wound.
7. We have also scanned the evidence of the eye-witnesses but failed to find out any major contradiction in the statement of the witnesses. It may be observed here that the evidence of the eye-witnesses cannot be brushed aside until some gross-contradictions come on the record. In the instant case, the discrepancies pointed out by the learned counsel for the convict-appellants are minor in nature which can be ignored. The argument which has strongly been argued by the learned counsel for the convict-appellants before this Court, is regarding the non-production of some witnesses cited in the calendar of witnesses. It may be stated here that it is settled principle of law that the discretion lies with the prosecution to examine the witnesses of its own choice and the prosecution cannot be compelled to examine each and every witness cited in the calendar of witnesses. Even otherwise, the witnesses who have been forgiven or not examined are not the material witnesses. In a recent judgment titled Karamat Hussain v. The State (Criminal Appeal No. 10 of 2012, decided on 16.05.2015) this Court while dealing with the proposition observed as under:-- "Although, 14 witnesses were cited in the calendar of witnesses, however 12 were examined and one could not be examined due to his death and the remaining other one was abandoned. There is plethora of judgments of this Court that it is not necessary for the prosecution to examine each and every witness cited in the calendar of witnesses. It is sweet-will of the prosecution to examine the witnesses of its own choice."
8. We have also considered the argument of the learned counsel for the complainant that on the material points the eye-witnesses were not cross-examined. For our satisfaction, we have examined the statements of the eye-witnesses from this angle. It transpires from the perusal of the statements of the eye-witnesses that the argument of the learned counsel has substance. It appears from the perusal of the statements that on the material points, the witnesses have not been cross-examined by the defence side even no question regarding the place, manner and time of occurrence has been put to the witnesses, It is settled law that if a portion of the statement is not challenged in cross-examination, the same is deemed to be admitted. In this state of affairs, it can safely be held that the manner, place and time of occurrence are not denied. The learned counsel for the complainant has rightly relied upon the case reported as Muhammad Tahir Aziz v. The State [2009 SCR 71], wherein, this Court has observed as under:--- "18 His presence at the place of occurrence alongwith other witnesses was not disputed during the cross-examination. When there is no cross-examination on the aforesaid points, then the same will be deemed to be admitted because it is well-settled principle of law that failure to cross-examine on a particular point shall be deemed to be admitted."
9. The argument of the learned counsel for the convict-appellants that the witnesses are related to each other, therefore, their evidence cannot be believed, is also not convincing in nature as there is plethora of judgments that mere relationship cannot be made a ground to discard the testimony of the witness until someor animosity of the witness against the accused comes on the record. In a recent judgment titled Ghazanfar Ali v. The State and others (Criminal Appeal No. 31 of 2011, decided on 13.04.2015) this Court has observed as under:--- "The argument of the learned counsel for the convict-appellant that all the witnesses are closely related to each other, therefore, their statements cannot be believed, has also no substance. It is settled principle of law that mere relationship is no ground for discarding the evidence of a witness.
Reliance can be placed on a case reported as Irfan Hussain v. Allah Din and others [2014 P.Cr.LJ.
312], wherein it has been held that:--- "From the Survey of case-law, it appears that "mere relationship is no ground for discarding the evidence of witnesses. It may be observed that a party may rope innocent persons in a crime alongwith a real culprit but it is not natural that a party would leave the real culprit and instead falsely implicate innocent person'."
' It is also spelt out from the record that occurrence took place in a house, therefore, the presence of the witnesses seems to be natural. Even otherwise, defence failed to bring an, piece of evidence that the presence of the eye-witnesses at the time of occurrence is doubtful. The learned counsel referred to the statement of one Muhammad Yaseen while submitting that the said witness is shown in the calendar of witnesses as eye-witness but he stated in his statement that he has not seen the occurrence. We have also examined the statement of said witness. He stated in his statement that:--- {{URDU TEXT}} ' After going through the above-referred statement, we are of the view that the witness has got recorded his statement in a natural manner. Although, he has not seen the occurrence however, he supported the prosecution version regarding the place, time, manner of occurrence and presence of the parties at the relevant time.
10.While appreciating the recovery part, it may be stated that we are in agreement with the argument of the learned counsel for the convict-appellants that recovery of pistol appears to be doubtful as the same has been made five days after the arrest of the accused. No explanation has been offered regardingthe non-recovery of empties/cartridges, moreover, the report of Forensic Science Laboratory is also not available on the record. In such situation, much reliance cannot be placed on the recovery. As we have observed in the earlier paragraph that ocular account furnished by the prosecution is reliable and no material contradictions came on the record, thus, in this scenario, the recovery which is one of the corroborative pieces of evidence, has become immaterial, as laid down by this Court in a case titled Muhammad Shabir v. Ch. Muhammad Rashid & others (Criminal Appeal No. 14 of 2013, decided on 20.02.2014) that:--- "3.The argument of the learned counsel regarding recovery of weapon of offence is also immaterial as the recovery evidence also is of corroborative nature, therefore, much importance cannot be given to the recovery in presence of the other overwhelming evidence."
11.The argument of the learned counsel for the convict-appellants that according to the prosecution story the convict-appellant, Muhammad Riaz, inflicted stone blow to one Ghulam Hussain but no stone has been recovered which makes the case further doubtful, is also not convincing in nature. It may be observed here that the stone can easily be managed and non- recovery of stone shows that no improvement or padding has been made by the prosecution.
12.After taking into account the arguments of the counsel for the parties and evaluating the evidence brought on record, we are of the view that the learned Shariat Court has not committed any illegality while appreciating the evidence. As we have observed earlier that the prosecution has proved the case beyond reasonable doubt, therefore, the learned Shariat Court was fully justified to set aside the acquittal order passed by the first Appellate Court and maintained the conviction recorded by the Trial Court.
' In the light of above discussion, having no substance this appeal is hereby dismissed.
Consequently, the order dated 05.11.2013, through which the operation of the impugned conviction order was suspended and the cor appellants were enlarged on bail, is recalled. The convict- appellants shall be taken into custody and remanded to Jail for serving remaining portion of the sentences. The benefit of Section 382-B, Cr.P.C., shall remain available to the convict-appellants.