SADAQAT ALI KHAN, J.----The instant Crl. Appeal No.1059-2011 has been filed by Habib Khyzer present appellant/ convict against judgment dated 21.07,2008 passed by learned trial court according to which present appellant was convicted and sentenced as under:-- Habib Khyzer was convicted IA under section 324, P.P.C. Andsentenced to 08 years' R.I.
' He was also convicted under section 7 (c) of ATA 1997 and sentenced to 14 years' R.I. For causing grievous harm to the injured Atif Zaman along with fine Rs.50,000/ - and in default thereof further undergo 03 months R.I.
' He was also convicted under section 7 (h) of ATA 1997 and sentenced to 10 years' R.I. For committing an act of Terrorism along with fine Rs.50,000/ - and in default thereof further undergo 03 months' R.I. ' whereas he was acquitted of the charge under sections 148, 149, P.P.C. All the sentences were ordered to be run concurrently with benefit wider section 382-B, Cr.P.C. In case FIR No.1091 dated 29.11.2007 under sections 324, 148 and 149, P.P.C. And under section 7 of ATA 1997 Police Station Saddar, Okara, District Okara whereas his co- accused Haji Muhammad Younis, Waheed Sadiq, Muhammad Arshad, Abdul Hameed, Abdul Rashid, Abdul Raheem and Haji Muhammad Hussain have been acquitted by the trial court.
2 The facts of the case have beenstated by Tariq Zaman complainant PW-1 real brother of Atif Zaman injured/PW-4 in his statement before the learned trial court and same statement is hereby reproduced for narration of the facts:-- ' On 29.11.2007, I along with Atif Zaman, Sajid Khan, Muhammad Ashraf, Fahad Zaman, after leaving court of Returning Officer of area PP-186 were present in thecourt premises of District Courts Okara, in front of the Chamber of Shujaht Nasir Advocate. In the meanwhile at about 11:40 AM, accused Habib Khyzer armed with 30 bore pistol, Abdur Rahim armed with rifle, Muhammad Arshad armed with pistol, Waheed Sadiq armed with firearm weapon, Abdul Hameed armed with firearm weapon, Abdul Rashid armed with firearm weapon, Muhammad Younas armed with pistol and Muhammad Hussain armed with firearm weapon while raising lalkaras and creating terror came at the side place. In the meanwhile accused Abdur Rahim raised lalkara to murder Atif Zaman. Upon the lalkara Habib Khyzer fired a shot with 30 bore pistol upon Atif Zaman which hit Atif Zaman on his back. Habib Khyzer fired second shot which hit Atif Zaman upon his body just below ( ) Habib Khyzer fired third shot at Fahad Zaman which did not hit" Fahad Zaman. Accused Abdur Rahim, Arshad, Waheed Sadiq, Abdur Rashid, Abdul Hameed, Younas and Muhammad Hussain present in the court fired shots in air with their weapons which created terror among the public and while firing in the air they ran away from the spot. Injured Atif Zaman was taken to District Headquarter Hospital, Okara for treatment. From where he was referred to Jinnah Hospital Lahore. The cause of occurrence is that Shamala sister of accused Habib Khyzar present in court was married with injured Atif Zaman.
' Atif Zaman divorced Shamala and contracted second marriage. In addition to that Habib Khyzer accused wanted to get out Atif Zaman from the joint property. This was the cause of occurrence. I went to Police Station Saddar Okara and presented complaint Exh.PA for registration of FIR Exh.PA is of my hand writing and bears my signature."
3. After registration of the case, investigation started and on completion of the same report under section 173 Cr.P.C. Was submitted in the trial court.
4. Learned trial court after observing legal formalities provided under the Criminal Procedure Code framed the charge on 02.04.2008 against the present appellant/ convict Habib Khyzer and his co- accused Haji Muhammad Younis, Waheed Sadiq, Muhammad Arshad, Abdul Hameed, Abdul Rashid, Abdul Raheem and Haji Muhammad Hussain (acquitted accused) under sections 324, 148, 149, P.P.C. And under sections 7(c) and 7(h) of ATA 1997 to which they pleaded not guilty and prosecution evidence was summoned.
5. Prosecution produced Tariq Zaman complainant PW-1, Fahad Zaman PW-2, Dr. Arshad Iqbal PW- 3, Atif Zaman PW-4, Waris AU SI PW-5, Sajid Khan PW-6, Dr. Mazhar Abbas PW-7, Muhammad Ahmad HC PW-8 and Ijaz Ahmad Khan SI PW-9 and PWs Ghulam Farid constable and Muhammad Ashraf were given up by the prosecution being unnecessary and after tendering documentary evidence i.e. Complaint Exh.PA, FIR Exh.PA/ 1, application for recording statement of the injured Atif Zaman Exh.PC, injury statement of Atif Zaman injured Exh.PD,recovery memo of two crime empties and one crime empty Exh.PE, recovery memo of weapon of offence pistol 30 bore Exh.PF, rough site plan of place of recovery of pistol 30 bore Exh.PF/ 1, rough site plan of place of occurrence Exh.PG and application for obtaining injury statement of injured Atif Zaman Exh.PH and closed the prosecution evidence.
6. Medical evidence was furnished by Dr. Arshad lqbal PW-3, who stated that on 29.11.2007 he medichlly examined injured Atif Zaman PW-4 and observed as under:-- "There was history of firearm injury half an hour before examination. On examination, I found the following injuries on his person.
1-A A lacerated wound 1x1 cm with enverted margins deep going on right renal area.
1-B A lacerated/ oblique wounds 11/2 x 1 cm with everted margins on front right and middle abdomen (wound of exit).
2. A lacerated wound half x half cm with enverted margins deep going front and lower part of abdomen below umblice (wound of entry).
' Corresponding holes were present on clothes. His blood pressure was 120/80 mmhg and pulse was 75 .PM. All injuries were kept under observation. The weapon used was firearm and the probable duration of the injuries within half an hour. The patient was being referred to Jinnah Hospital, Lahore, at 12:30 PM.
7. Dr. Mazhar Abbas PW-7, statedthat on 29.11.2007 injured Atif Zaman was admitted through Surgical Emergency and he was operated in the Emergency theatre under general anaesthesia. His findings are as below:-- "1-A 3x4 cm perforation in extra peritoneal part of bladder anteriorly.
2-A 2x2 cm perforation closed toneck of bladder posteriorly.
3-A Approximately 1 x I cm rectal injury/ extra peritoneal.
4. Second bullet track was extra peritoneal in right lumber region.
' PROCEDURE: After A. S. M. Abdomen through midline. Above findings noted. Perforation of bladder repaired with vieryal 2/0 hartmans colostomy done. Second bullet track explode necrotic tissue removed. The wound washed and closed. Abdominal wound closed in layers. A.S.D. Done. Three drains i.e. One in pelvis second in retropubic space, third section brain. Operational notes & Exh.PF are of my hand writings and bears my signature. 1 handed over these operational notes to Mehmood Ahmad constable No.364/C, Police Station Saddar, Okara.
8. On the other hand, statement of present appellant Habib Khyzer was recorded under section 342, Cr.P.C. Who refuted the allegations so leveled against him and has not opted to appear under section 340(2) Cr.P.C. And he also did not produce any oral defence evidence but he has produced statement of Sajid Khan Exh.DA, attested copy of family suit titled "Shamala Khan v. Atif Zaman"
Exh.DB, attested copy of "Benama Sakni (Abdul Hameed) Exh.DC, attested copy of "Benama (Abdul Rahim)
Exh.DD, attested copy of Benama (Waheed Tariq) Exh.DE and attested copy of Benama (Arshad)
Exh.DF in documentary defence evidence and in reply to question "why this case against you and why the PWs deposed against you?" the appellant Habib Khyzer replied as under:-- "I was of the age of about 8/9 years when my father and mother died. After that my paternal cousin/ complainant Tariq Zaman illegally, unlawfully and forcibly occupied our property and also forcibly got married my sister Mst. Shamila with his brother Atif Zaman injured. My sister Shamila later on got divorced through court, photocopy of which I submit Mark-A, 'comprising of four pages. They also prepared forged documents in respect of my property and property of my sister Shamila which was challenged by my sister Shamila in Civil Court through civil suit. Certified copy of plaint I submit Ex.DB comprising of four pages. The complainant party has involved me falsely in this case to usurp my valuable property."
9. After conclusion of the trial, learned trial court convicted the present appellant Habib Khyzer with above stated sentences through judgment dated 21.07.2008. Hence this appeal.
10. Learned counsel for the appellant contended that:--
(i) the judgment of the trial court dated 21.07.2008 is against lawand facts on the file and is liable to be set-aside.
(ii) that the prosecution has failed to prove its case against the present appellant as there are many major discrepancies in the statements of the PWs and the learned trial court has convicted the appellant on the basis of surmises and conjectures;
(iii) it is contended that the impugned judgment of the trial court is not maintainable in the eyes of law;
(iv) lastly submitted that appeal may be accepted and the judgment of the trial court dated 21.07.2008 may kindly be set aside and appellant may be acquitted.
11. On the other hand, learned DPG has vehemently opposed the appeal and submitted that:--
(i) prosecution has proved its case beyond any shadow of doubt against the appellant with solid evidence and prayed for the dismissal of the present appeal.
12. We have heard the learned counsel for the parties and perused the record.
13. The detail of prosecution case as given by Tariq Zaman complainant PW-1 real brother of Atif Zaman (injured) PW4 has already been given in paragraph No. 2 of this judgment, therefore, there is no need to repeat the same to avoid the duplication and repetition.
14. Firstly we would like to see the applicability of offences under sections 7(c) and (h) ATA 1997 in this case. Complainant Tariq Zaman PW-1 stated in his written application Exh.PA that occurrence took place in the premises of District Courts Okara in front of the chamber of Shujaht Nasir Advocate. Fahad Zaman PW2 stated in his statement before the learned trial court that after completing the process of the scrutiny in the office of the Returning Officer they were present in front of office of Shujaht Nasir Advocate about 11:30 a.m. When this occurrence took place. He has not stated that occurrence took place in the premises of District Courts Okara. He further stated in cross-examination that in between courts and chambers of Advocates there is a road for public.
Atif Zaman injured PW-4 stated in cross-examination that the place where he was hit by fire shots was not road or thoroughfare but that place was inside the chambers of Advocates. Admittedly no blood stained earth was taken from the place pointed out by Atif Zaman PW-4 to establish that occurrence took place in the premises of District Courts Okara. Ljaz Ahmad Khan SI PW-9 I.O. Of this case stated that he inspected the place of occurrence and prepared rough site plan Exh.PG. We have perused rough site plan of place of occurrence and found that point 'A' is a place of occurrence and point 'B' is the place from where two crime empties were collected at the time of the inspection of the place of occurrence. Both these points 'A' and 'B' are situated at road shown in the rough site plan Exh.PG. Further it is revealed that on the southern' side of the place of occurrence/ road there is a boundary wall of District courts whereas on the North of the place of the occurrence/road there is another road and on one side of that road there is chamber of Shujaht Nasir Advocate and on western side chamber of Muhammad Afzal and Muhammad Akram Advocates. Considering above stated facts we are of the view that occurrence took place on the road shown inthe rough site plan Exh.PG and had not taken place in the premises of District Courts Okara. Further, complainant Tariq Zaman PW-1 himself stated regarding motive of the occurrence as under:- {{URDU TEXT}}
15. In In view of the above there was previous enmity between the, parties and instant occurrence took place on the road out of the premises of District Courts Okara due to previous enmity. In view of the above discussion it is our confirmed view that offences under sections 7(c) and 7(h) of ATA 1997 are not attracted. Appellant could not have been convicted in these offences. Consequently convictions and sentences recorded by the learned trial court under sections 7(c) and 7(h) of ATA 1997 against present appellant are hereby set aside.
16. So far as conviction of the appellant under section 324, P.P.C. Is concerned, it is observed that it is a daylight occurrence and time of the occurrence is 11:40 p.m. On 29.11.2007. Tariq Zaman PW-1, Fahad Zaman PW-2, Sajid Khan PW-6 claim themselves to be the eye-witnesses of the occurrence and stated that Habib Khyzer present appellant fired a shot with pistol which hit Atif Zaman injured PW-4 on his back. The second fire shot made by present appellant was hit Atif Zaman injured PW-4 on his belly. Atif Zaman injured PW-4 himself stated before the learned trial court that Habib Khyzer present appellant fired two pistol shots at him, one fire shot hit him on front at his abdomen and the second fire shot hit him on his right flank. Although learned trial court has acquitted Haji Muhammad Younis, Waheed Sadiq, Muhammad Arshad, Abdul Hameed, Abdul Rashid, Abdul Raheem and Haji Muhammad Hussain through the impugned judgment by disbelieving the evidence of above stated eye-witnesses to their extent but effective firing was not attributed to acquitted accused mentioned above. Even otherwise it is settled by now that maxim "falsus in uno falsus in omnibus" has no universal application. It is bounden duty of the Court to sift the grain from the chaff. In such eventuality the credibility of eyewitnesses Tariq Zaman PW-1, Fahad Zaman PW-2, Sajid Khan PW-6 and Atif Zaman injured PW-4 could not be said to have been Ahattered due to the said acquittal. Reliance is placed on case "Elahi Bakhsh v. Rab Nawaz and another" (2002 SCM R 1842) in which august Supreme Court of Pakistan has observed at page 1847 as under:- "We have also adverted to the contention of Sardar Muhammad Latif Khan Khosa, learned Senior Advocate Supreme Court that on the basis of same evidence Rabnawaz (petitidner) could not have been convicted but it has been ignored while raising the said contention that the case of acquitted accused is absolutely on a different and distinct footing as no specific role whatsoever was assigned to them which has been attributed to Rabnawaz (petitioner) in a categoric manner.
In such an eventuality the credibility of EllahiBukhsh (PW-7) and Abdur Razzaq (PW-10) could not be said to have been shattered due to the said acquittal. It is well-settled by now that the maxim 'falsus in uno falsus in omnibus" has no universal application and it is bounden duty of the Court to sift the grain from the chaff In this regard reference can be made to Khairu v. State (1981 SCMR 1136). A thorough scrutiny of the entire evidence would reveal that the statements of prosecution witnesses areconsistent, confidence-inspiringand in consonance with the probability in the case and fitted in with other evidence and circumstances of the case and being worthy of credence could not have been brushed aside. The prosecution, in our considered opinion has substantiated the allegation beyond shadow of doubt and accordingly Criminal Petition for Leave to Appeal (108/2001) being devoid of merit is dismissed."
' All these eye-witnesses were cross examined at length but their evidence could not be shaken during the process of cross examination. They corroborated each other on all material aspects of this case to the extent of present appellant Habib Khyzer. Their evidence to the extent of present appellant is straightforward, trustworthy and confidence inspiring.
17. Medical evidence was furnished by Dr. Arshad Iqbal PW-3 who stated that on 29.11.2007 he medically examined Atif Zaman injured PW-4 at about 12:00 p.m. (mid-day) and observed following injuries on his person:- 1-A A lacerated wound lx1 cm withenverted margins deep going on right renal area.
1-B A lacerated/ oblique wounds 11/2 x 1 cm with everted margins on front right and middle abdomen (wound of exit).
2. A lacerated wound half x half cm with enverted margins deep going front and lower part of abdomen below umblice (wound of entry).
' He further stated that above injuries were caused by firearm weapon and probable duration of the injuries was within half an hour which is in line with the time of the occurrence mentioned in the FIR Exh.PA/1. It is concluded that medical evidence has fully, supported the ocular account furnished by above stated eyewitnesses including Atif Zaman injured PW-4.
18. Alleged recovery of 30 bore pistol P1 from the possession of the present appellant in absence of positive report of FSL is inconsequential. If recovery of 30 bore pistol P1 is excluded from consideration even then prosecution has proved its case against the present appellant beyond shadow of doubt through ocular account furnished by eye-witnesses stated above supported, by medical evidence as discussed earlier.
19. Adverting to the defence plea of the present appellant Habib Khyzer he stated in answer to question "Why this case against you and why the PWs deposed against you?" as under:-- I was of the age of about 8/9 years when my father and mother died. After that my paternal cousin/complainant Tariq Zaman illegally, unlawfully and forcibly occupied our property and also forcibly got married my sister Mst. Shamila with his brother Atif Zaman injured. My sister Shamila later on got divorced through court, photocopy of which I submit Mark-A, comprising of four pages. They also prepared forged documents in respect of my property and property of my sister Shamila which was challenged by my sister Shamila in Civil Court through civil suit. Certified copy of plaint I submit Ex.DB comprising of four pages. The complainant party has involved me falsely in this case to usurp my valuable property."
' He did not appear as a witness under section 340(2) of Cr.P.C. And also did not produce any oral defence evidence but he produced statement of Sajid Khan Exh.DA, attested copy of family suit titled "Shamala Khan v. Atif Z,aman" Exh.DB, attested copy of "Benama Sakni (Abdul Hameed)
Exh.DC, attested copy of "Benama (AbdulRahim) Exh.DD, attested copy of Benama (Waheed Tariq)
Exh.DE and attested copy of Benama (Arshad) Exh.DF in documentary defence evidence.
Considering above it is concluded that appellant has failed to prove his defence plea and learned trial court has rightly discarded his defence plea with sufficient reasons.
20. In view of the above discussion Habib Khyzer present appellant has rightly been convicted by the learned trial court under section 324, P.P.C. Hence, we maintain conviction and sentence under section 324, P.P.C. Awarded by the learned trial court to the appellant. Benefit of section 382-B, Cr.P.C. Is given to the appellant Habib Khyzer. This appeal has no merits and the same is hereby dismissed.