ASSADULLAH KHAN CHAMMKANI, J.- Through the instant Jail Criminal Appeal, appellant Zarif Khan, has questioned the judgment dated 06.08.2011, passed by learned Additional Sessions Judge, Hangu, whereby the appellant has been convicted and sentenced as under:- Under Sections 394 r/w 397 PPC: To undergo life imprisonment and to pay a fine of Rs.50,000/- or in default thereof to undergo one year R.I. further.
Under Section 324 PPC: To undergo 10 years R.I. and to pay a fine of Rs.20,000/- or in default thereof to undergo 04 months R.I. further.
Under Section 336 PPC: To pay Arsh amounting to Rs.6,50,000/- equal to one half of Diyat to the victim with five years R.I.
Under Section 337-D PPC: To pay Arsh Rs.4,35,000/- equal to one third of Diyat to victim with five years R.I.
Under Section 13 Arms Ordinance, 1965:- To undergo 05 years R.I. and to pay a fine of Rs.20,000/- or in default thereof to undergo 04 months R.I. further.
The payment of Arsh has been directed in lump sum within three months from the date of judgment and the sentences to run concurrently. Benefit of S.382-B Cr.P.C. has been extended to the appellant.
2. The prosecution case as unfolded in First Information Report is that on 02.02.2010 at 1400 hours, Ahmad Sohail alias Mahel (PW.9), reported to Islam ud Din SHO (PW.5), in injured conditional in Abdul Rauf hospital Hangu, to the effect that he and Zarif Khan (appellant convict herein) being friends, had visiting terms with each others; that on the fateful day he while returning from Thall bazaar on a motorbike met his friend Zarif Khan, who also accompanied him to his house, where they spent a night together in baithak; that on morning they both again proceeded to Thall bazaar via his motorbikeKG-375; that on their arrival in Thall Bazaar, Zarif Khan left and returned after some time along with charas and a pistol; that they both started for their home on motorcycle and when reached "Khari Makh mountain Darga", Zarif Khan asked him to stop the motorcycle so as to smoke a cigarette of chars, who he stopped where at about 8.00 a.m, Zarif Khan took out his pistol and opened fire upon him with which he got hit and seriously injured, while accused took away his motorcycle. He was shifted to hospital where he lodged report. Report of the complainant was reduced into writing in the shape of murasila, on the basis of which FIR No.31 dated 02.02.2010, under section 324 PPC read with S.17 (3) Offences Against Property (Enforcement of Hudood)
Ordinance, was registered at Police Station Thall. Islam ud Din SHO (PW.5), prepared injury sheet of injured complainant Exh.PW.5/2 and referred him for medical treatment. He also arrested accused Zarif Khan vide arrest Card Exh.PW.5/1 and recovered motorcycle bearing registration No.8149 LEP Delux Honda 125 Exh.P.3 from possession of the accused vide recovery memo Exh.PC.
3. Dr. Aurangzeb Khan (PW.7) examined injured complainant and found serious firearm injuries on his person. He was referred to Surgeon for Expert Surgical management and on 08.02.2009, as per surgeon note, multiple firearm injuries to abdomen and different internal vital organs like liver, spleen, kidney, pleura and urinary bladder of the injured were found.
4. Rais Khan S.I. (PW.1) conducted investigation in the case. He arrested accused Zarif Khan on the same day of occurrence, who led the police party to crime spot and on his pointation site plan was prepared. During spot inspection 3 crime empty of 30 bore pistol were recovered and taken into possession vide recovery memo Exh.PC/2. He also secured blood stained pebbles from the from the place of injured and a 30 bore pistol bearing No.KG 375-Q 1954 with fixed charged from near the place of incident vide memo Exh.PC/3. He took into possession the bloodstained garments of the injured vide memo Exh.PC, sent the bloodstained articles and empties along pistol to the FSL, reports whereof were received in positive. He also took into possession registration documents of the motorcycle vide recovery memo Exh.PC/3, recorded statements of the PWs under section 161 Cr.P.C. and placed on file the medical treatment record of the injured.
5. After completion of investigation, challan was submitted against the appellant/accused before the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statement of the appellant was recorded under section 342 Cr.P.C. wherein he denied the prosecution allegations and professed his innocence. He, however, declined to be examined on oath or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentenced the appellant as mentioned above, hence, this appeal.
6. Before dilating upon the merits of the case in light of the arguments advanced from either side, we would like to meet first the preliminary objection, raised by learned AAG questioning the jurisdiction of this Court to entertain the instant appeal. Learned AAG contended that as the appellant has been tried for charged under section 324 PPC read with S.17 (3) Offences Against Property (Enforcement of Hudood), Ordinance, 1979, therefore, appeal would lie before the Federal Shariat Court while this court lacks the jurisdiction to entertain the same, therefore sought return of the appeal to the appellant for its presentation before the proper forum.
7. Conversely, learned counsel for the appellant contended that since no punishment, having been awarded to the appellant under the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, rather he has been convicted under the general law i.e. Pakistan Penal Code, therefore, the appeal has rightly been filed before this Court against the judgment of the learned Trial Court.
8. In light of ratio of judgment of the Hon'ble Supreme Court in case titled, "Attaullah Versus Abdur Razaq and another" (PLD 2002 Supreme Court 534), we are in agreement with contention of learned counsel for the appellant as in the judgment (supra) the question of jurisdiction in identical situation has been resolved by the apex court after exhaustive discussion on S.24 and Subsection 5 of Section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 as well as S.410 Cr.P.C.. In the above cited case, accused was charged under S.17 (4) Offences Against Property (Enforcement of Hudood Ordinance, 1979 read with Sections 302/34 PPC. On conclusion of trial, charge against the accused was proved only to the extent of Sections 302/34 PPC, therefore, he was acquitted under section 17 (4) of the Ordinance, however, convicted under sections 302/34 PPC. While resolving the question of jurisdiction in such circumstance, the apex court held as under:- "As stated above, the petitioner has been sentenced to death under sections 302/34 PPC, therefore, the Sessions Court was bound under the law to send the reference for confirmation of death sentence to the High Court and in such circumstances, the petitioner rightly filed an appeal under section 410 PPC to the High Court against his conviction and sentence".
Taking guidance from the judgment of the Hon'ble Supreme Court (supra), the appeal has rightly been filed before this court, and this court has the jurisdiction to try the same.
9. On merits, learned counsel for the appellant argued that appellant is innocent and has been implicated falsely; that testimony of injured complainant is suffering from material contradictions and discrepancies creating serious doubts about his credibility and reliability, therefore, the learned Trial Court has wrongly believed and relied upon his statement as mere stamp of injuries on the person of a witness cannot be a certificate that whatever he is deposing would truth; that testimony of the complainant does not find corroboration from other strong circumstances of the case; that no charge under section 13 of the Arms Ordinance, 1965 has been framed against the appellant, therefore, conviction under the said section of law is unwarranted, and the positive FSL report qua the pistol and empties would thus not advance the prosecution case; that prosecution has miserably failed to prove the guilt of the appellant beyond shadow of doubt through cogent and confidence inspiring evidence, therefore, the impugned judgment is liable to be set aside.
10. Conversely, learned AAG contended that appellant is directly and singularly charged by complainant having stamp of injuries on his person, whose presence on the spot cannot be disputed at all; that recovery of blood from the spot, bloodstained clothes of the injured and positive Serologist report corroborate the version of the complainant; similarly, recovery of crime empties and pistol from the spot coupled with positive report of the FSL further supplement the version of prosecution; that though charge u/s 13 A.O. has not been framed but this piece of evidence has been put to the appellant in his statement under section 342 Cr.P.C., therefore, the same has rightly been considered by the learned Trial Court; that nothing is available on file to show mala fide or previous ill will of the complainant to falsely charge the appellant, who was his close friend; that the motorcycle snatched by the appellant from complainant has been recovered from possession of the appellant and taken into possession by the I.O. vide recovery memo Exh.PC/1; that prosecution has successfully proved the guilt of the appellant through cogent and confidence inspiring evidence and the defence has failed to shatter the prosecution evidence. He while supporting the impugned judgment sought dismissal of the appeal.
11. We have heard the exhaustive arguments of learned counsel for the appellant and learned AAG for the State. Record perused with their valuable assistance.
12. In support of his version, injured-complainant Ahmad Sohail appeared as PW.9, wherein he reiterated the same episode set forth by him in his initial report. He charged the appellant for commission of the offence. He has been subjected to cross-examination but nothing beneficial to defence could be extracted from him. Nothing has been brought from him during cross- examination to prove his previous ill will or enmity with the appellant to prompt him to falsely charge him. Rather he reiterated his friendship with the appellant and their visiting terms to the house of each other. The incident is that of a broad daylight and appellant and complainant being friends inter-se question of mistaken identity or substitution does not arise in absence of any previous ill will between the parties. Rather, it is established on the record that both complainant and appellant had close friendship and it does not appeal to a prudent mind that complainant will charge his close friend by letting off the real culprit.
13. Bloodstained pebbles recovered during spot inspection from the place of the injured complainant and his bloodstained clothes have been sent to the FSL and positive report of the Serologist corroborates and confirms the crime venue as alleged by the complainant. The learned Trial Court, has also relied upon the positive FSL report qua the crime empties and 30 bore pistol recovered on the pointation of the appellant from the spot, but record divulges that no charge has been framed against the appellant under section 13 of the Arms Ordinance 1965. The learned Trial Court in support of its finding held that since the appellant was confronted with the recovery of pistol and positive FSL report in his statement under section 342 Cr.P.C., therefore, this piece of evidence could be taken against him. We do not agree with the findings of the learned Trial Court on this point, as such exercise is unwarranted under the law, rather the appellant should have been confronted with the charge under section 13 A.O. by giving him an opportunity to answer the charge, therefore, this piece of the prosecution evidence is excluded from consideration. Even if, the recovery of pistol and positive FSL report qua the same is excluded from consideration, we have trustworthy and confidence inspiring direct evidence of injured complainant supported by recovery of blood from the spot, his bloodstained garments coupled with medical evidence and where the direct evidence is believed, then such like pieces of corroborative evidence therefore, in such circumstances, there would hardly be signification of corroboration, as per the dictum laid down by the apex court in case titled, " Muhammad Ehsan Vs the State" (2006 SCM R 1857), "that if the court is satisfied about the truthfulness of direct evidence available on record, requirement of corroboration is not of much significance". The motorcycle bearing registration No.8149/LEP Deluxe Honda-125 Exh.P.3, snatched from the complainant has also been recovered and taken into possession vide recovery memo Exh.PC/3 from the appellant, which also substantiate the version of complainant.
14. Dr. Aruangzed Khan who examined injured complainant appeared as PW.7. He deposed that on his examination, he found the injuries of the complainant serious, therefore, referred him to Surgeon for surgical management; that according to surgeon note in light of lapratomy, abdomen, all vital organs like liver, spleen, kidney, plurea, urinary bladder were found injured along with fracture of MIP hip bone. Dr. Abdul Rauf appeared as PW.8. He deposed that after resuscitation with 6 units of blood and other supportive measuring, emergency lapratomy done with following injuries:-
1. Two perforation in stomach.
2. Transverse mesocoln perforation.
3. 1/2 circumference shattered wall of sigmoid colon.
4. Shattered spleen.
5. Almost transverse full circumference cut in distal 1/3 of pancreas with spleen vein damage.
6. Shattered Lt. Kidney with main vascular damage.
7. Two perforation in urinary bladder.
8. Big perforation in curare of Lt. diaphragm.
9. Reflection of Lt. perital pleura in 11th enter costal space.
15. Thus, medical evidence discussed above, further supports the injured-complainant's version and indicates the intention of the appellant to do the complainant away but it was the Almighty Allah Who saved his life. The prosecution has successfully proved the guilt of the appellant through cogent and confidence inspiring evidence beyond shadow of doubt and the learned Trial Court while appreciating the evidence in its true perspective and taking into consideration the injuries of the complainant in light of medical evidence available on file, reached to a right conclusion by holding the appellant guilty of the offences except the offence under section 13 of the Arms Ordinance, to which no exception can be taken. While the appellant stands acquitted of the charged under section 13 of the Arms Ordinance, in light of our discussion mentioned above.
16. Resultantly, this appeal being without any substance, stands dismissed. Conviction and sentences of the appellant recorded and awarded by the learned Trial Court vide impugned judgment dated 06.08.2011 except Section 13 of the Arms Ordinance, are maintained.