Qamar Abbas, petitioner in the recession petitioner mentioned above has called in question judgment dated 23.12.2015 passed by the learned Magistrate Section-30, Malakwal whereby he was tried in a private complaint along with his co-accused Zafar Iqbal, Shaukat Hayat, Amir and Mubashir under Sections 324/337-D/337-F( iii), PPC emanated from a case registered vide FIR No. 215 dated 29.05.2010 under Sect ions 324, 3;7 I) 109/ 34, PPC and convicted and punished as follows: Convicted under Section 324, PPC and sentenced to rigorous imprisonment for six years.
Convicted under Section 337-F(iii) read with Section 71, PPC and sentenced to undergo simple imprisonment for three years along with payment of Daman to the tune of Rs. 1,00,000/- to the complainant.
Both the sentences were ordered to run concurrently while extending the benefit of Section 382-B, Cr.P.C.
2. The petitioner challenged the impugned convicting judgment of learned trial Court in appeal whereas the complainant assailed the remedy by filing recession petition before the subordinate learned appellate Court but the appeal filed by the appellant was decided with the observations that the sentence awarded by the learned trial Court under Section 324 to undergo six years rigorous imprisonment was reduced to three years rigorous imprisonment while maintaining the remaining sentences whereas the recession petition filed by the complainant was dismissed.
3. On the other hand, the complainant has also instituted a criminal revision Bearing No. 764 of 2016 against the impugned judgments with the following prayer: "In the light of grounds/submissions made above, it is respectfully prayed that this Hon'ble Court may very kindly accept present revision petition, set aside impugned judgment dated 19.05.2016 passed by the learned Additional Sessions Judge, Malakwal, District Mandi Bahauddin, restoring the judgment dated 23.12.2015 passed by the learned trial Court."
4. In short the prosecution case as alleged by the complainant in private complaint (Exh.PA) is that on 29.05.2010 at about 11:00 a.m he was sitting on the motorcycle shop of one Muhammad Iqbal situated in market of the village. Meantime, the accused persons mentioned above came there.
The petitioner was armed with Kalashnikov whereas other co-accused persons were armed with firearm weapons. Thenceforth the petitioner made a burst fire shot with his Kalashnikov which hit on both legs and different parts of the body of the complainant who received injuries and fell down.
Motive behind the occurrence was that few days back hot words were exchanged between the complainant and one Shaukat brother of petitioner. The occurrence was witnessed by Abid Hussain and Shaukat Hayat, PWs. The alleged incident was committed on the instigation and abetment of Shaukat and Zafar Iqbal. The complainant got registered the case against the accused persons but the police did not conduct the investigation properly leading to the filing of private complaint.
5. After recording preliminary/cursory evidence of the complainant party and perusing the report u 'S. 202, Cr.P.C. submitted by the learned Illaqa Magistrate. the petitioner and his co-accused were summoned by the learned trial Court to face trial.
6. Learned trial Court after observing all the pre-trial codal formalities, indicted the petitioner and his co-accused to which they pleaded non-culpabilis and claimed trial. Thereafter the pro secution was asked to lead its evidence in order to prove its case. The prosecution produced two prosecution witnesses and 07 Court witnesses.
7. The medical evidence was adduced through the statement of Dr, Hafiz Iftikhar Ahmad, DDO (CWO1) who on 29.05.2010 at 11:45 a.m. medically examined Khurram Shahzad and observed infra:-- INJURIES
1. A lacerated wound rounded in shape Q.5 x 0.5 cm located'anteromedial part of right leg at upper 1/3. Margins were inverted. Wound was going deep. Fresh blood oozing. Collar of abrasion was present. It was entry wound. X-Ray was advised.
2. Lacerated wound, round shape size 1.5 cm x 1.5 cmlocated at posteromedial part of leg with everted margins. Wound was coming out. It was exit wound. X-Ray was advised.
3. Lacerated wound. Rounded in shape size 1 x 1 cmlocated at outer part of right thigh with inverted margins. Collar of abrasion was present and fresh blood was present. It was entry wound. X-Ray wow advised.
4. Lacerated wound 5x6 cm located medical part of rightthigh with everted margins at upper 1/3 along with another wound present of same features: It was exit wound. X-Ray was advised.
5. Lacerated wound 8x5 cm located at outer part of right buttock. The upper part of wound penetrating deep into muscular making tunnel with inverted margins. Collar of abrasion present. It was entry wound. X-Ray was advised.
6. Lacerated wound rounded in shape size lx1 cm at posteromedial part of left thigh with inverted margins. It was entry wound. X-Ray was advised.
7. Lacerated wound size 9x5 cm at inner part of left knee. Wound going through and through. It was entry/ exit wound. X-Ray was advised.
8. Lacerated wound 1/2 x 1/3 cm at lower and right side of scrotum. It was entry wound. X-Ray was advised.
9. Lacerated wound. Rounded in shape, 1 x 1 cm. It was entry wound. X-Ray was advised.
OPINION The duration between the time of causing of injuries and its examination was three hours. The injuries were caused through fire arm weapon.
The attested photocopy of MLC No. 136/2010 was signed by him and bore his signatures.
8. Thereafter learned counsel for the complainant closed the prosecution evidence.
9. Afterwards the statement of the petitioner under Section 342, Cr.P.C. was recorded, in which he denied and controverted all the allegations levelled against him by the prosecution and professed his innocence. He opted to adduce evidence in his defence but not to appear as his own witness under Section 340 (2), Cr.P.C. The petitioner later on did not adduce any evidence in his defence.
10. Qamar Abbas, petitioner in reply to a question "why this private complaint was lodged against you answered as follows:-- "The complainant is also a resident of Bar Mua. He is criminal litigation with different person in both capacities of being complainant and accused. There are two major political groups in Bar Musa.
One is Rajaka group and other is Lalaka group. I belong to Lalaka Family. The complainant is associated with our rival family i.e. Rajaka group. One of my brothers is Inspector in Punjab Police and the other is politician. The complainant has got registered false FIR against me and my brothers. Subsequently he filed this false private complaint against me and my brother on the instigation of our rival Rajaka family." 11.Upon conclusion of the trial, the petitioner was convicted and sentenced as mentioned op-city by the learned trial Court whereas his co-accused were acquitted. Learned District appellate Court dismissed the appeal of the petitioner. Hence, the instant revision petitions.
12.Twin judgments i.e. passed by the learned trial Court on 23.12.2015 and that of learned District Appellate Court dated 19.05.2016 have been assailed by the instant recension petition arguing that both the learned Courts below have not adverted to the prosecution evidence; infact neither the motive has been proved nor the alleged weapon of offence commensurated to the medical evidence and similarly the ocular account is also somewhat incoherent with the medical evidence while five persons were tried namely petitioner Qamar Abbas alognwith Aamir, Mubashar, Shaukat and Zafar Abbas, except the petitioner all were acquitted, this fact again causes dent to the prosecution's case and that independent evidence does not exist to uphold the sentencing judgments, therefore, instant revision petition is liable to be accepted by countermanding both decisions r 13.Learned DPG has opposed the submissions by asserting that Qamar Abbas petitioner was the lone perpetrator of causing injuries to Khurram Shahzad, injured whose statement has beendered by the learned Courts below and the petitioner may be acquitted. en corroborated by the medical evidence; the FIR was lodged by promptitude whereas the co-accused did not cause any injury to the victim while motive is not always considered to be fact in issue and both the Courts below have soundly considered the matter while rendering the punishing judgments whereas the impugned judgments do not demonstrate any perversity/ illegality and incorrectness, therefore, instant recession petition may be dismissed.
14.Learned counsel for the respondents endorsing the arguments of learned DPG has submitted that in revisional jurisdiction appreciation of evidence may not be made as in case of appeal; the only object of instant jurisdiction is to visualize illegality, impropriety and incorrectness in the judgments, if any, therefore, the Court may not go in profundity to the merits of the case while the evidence has already been assessed. As ace it has been argued that acquitted co-accused did not cause any injury whereas the petitioner caused burst fire shot hitting on both legs and other parts of body of Khurram Shahzad and it has also been highlighted that the incident to 16.The incident took place on 29.05.2010 under the sunliok place in the daylight while the parties were known to each other, therefore, question of mistaken identity does not arise, therefore, instant petition has no force, thus, the same may be dismissed by endorsing the judgments under assail. 15.Tripartite arguments heard. Record perused ght at 11:00 a.m. and the matter was reported within 45 minutes to the police implying leaving all hypothesis of deliberations and consultations and assuredly inferring from the record that the parties were known to each other pariorly, therefore, question of substitution or mistaken identity of the culprit i.e. Qamar Abbas petitioner is ridiculous and arrant liar cannot be believed.
17.Khurram Shahzad, injured examined as (PW01) is the complainant. As to the incident he mentioned two unacquainted persons to be participated in the incident. Subsequently through a supplementary statement dated 14.07.2010, he involved Aamir son of Akbar and Mubashar son of Saif but they were never apprehended partway investigation. Two accused persons had hatched conspiracy with Qamar Abbas, petitioner namely Shaukat and Zafar Iqbal were also found innocent. Being dissatisfied the complainant instituted a private criminal complaint on 28.01.2011 in which five persons were tried. Except petitioner all were acquitted. Consistent and persistent version of Khurram Shahzad, injured remained the same as in the FIR, in private complaint and also before the learned trial Court that Qamar Abbas petitioner made a burst fire shot which hit on his legs and other parts of the body while Shaukat and Zafar Iqbal were not reported to be present at the place of occurrence being the participant in conspiratorial role whereas Aamir and Mubashar who were asserted to be unknown as per the first version involved subsequently by supplementary but police did not opine them involved. Consequently a private complaint was filed. In this way, legitimately distinction can be made amongst the case of acquitted co-accused and the petitioner as none of them caused any injury to the victim whereas the petitioner was the sole perpetrator for the same. In these circumstances, acquittal of the co-accused cannot mar the prosecutorial adjudication to the conviction of the petitioner, therefore, the arguments of the learned counsel for the petitioner qua the acquittal of the co-accused vis-e-vis benefitive to the petitioner are misconceived having no legs to stand as none of equilateral role ascribed as the petitioner was given benefit of doubt.
18.As to igniting cause, the statements have been weighed. Enmity priorly was noticed in existence and few days earlier a rumpus, bickering, ensued between the victim and Shaukat Ali, real brother of the petitioner which caused impetuous to the petitioner to launch the murderous attack as earlierly enmity existed. The motive always noticed as a relevant fact to the fact in issue under Article 21 of the Qanoon-e-Shahadat Order, 1984 and even its proof and non-proof or its disproof does not absolutely absolve the culprit, however, this part of the prosecution case if after introduced is not proved then pay cause effect to the quantum of sentence particularly for mitigation. The file does not convey any other motive and so for the defence plea as to substitution is concerned it is ridiculous because the injured himself became the complainant and recognized the petitioner being perpetrated under the sunlight as incident befell at 11:00 am. Had the victim Khurram Shahzad not been the complainant of the case, then these arguments of the learned counsel for the petitioner may have some force but here the situation is otherwise. Shaukat Hayat appeared as (PW02) who remained tenacious to Khurram Shahzad despite searching cross- examination. (PW01) and (PW02) are consistent to persistent to tenacity to the proof of the case leaving no contradictions or confrontations in their testimonies.
19.So far as shopkeeper in front of whose shop the incident was caused was not a witness in this case, does not make any adverse effect to the prosecution case as the Hon'ble Supreme Court of Pakistan since two decades earlier had postulated in many cases that unrelated persons though saw the incident but did not become witnesses to avoid incoming enmity and also out of rigors of criminal adjudication.
20.Khurram Shahzad injured reportedly transcendentalist, was brought to the hospital in a posthaste way after being hit and was medically examined by the doctor on 11:45 a.m and the duration was mentioned by the doctor in between the injures and medical as three hours.
Muhammad Jamil constable was accompanying the injured to the hospital. The doctor observed as many as nine injuries on the body of injured. All were located on his legs and buttocks and were reported to have been caused with fire arm sans possibility of fabrication. All injuries were kept under observation by the examining doctor. Medico-Legal Report was (Exh.CW/1) and diagrammatic presentation of injuries was (Exh.Cw/1). The examining doctor of Rural Health Centre, Miana Gondal, District Mandi Baha-ud-Din observed precarious condition of the injured and referred him to DHQ, Hospital, Mandi Baha-ud-Din where he was operated upon. He remained admitted there w.e.f. 29.05.2010 to 11.06.2010 and was also subjected to exploratory laparotomy. He was X-Rayed. Injury No. 5 was declared Jurh Jaifa i.e. 337-D, PPC while all others were reported Jurh Ghair Jaira Mutalahima. During the cross-examination, the doctor replied that Injury No. 5 proceeded vital organ of the victim and might dangerous to life whereas other injuries were not hazardous to the life of the victim. During cross-examination it was attempted to make some contradictions as to the weapon used that it might be a cartridged weapon but at the same time it is observed that the doctor was not the eyewitness and being non-firearm expert cannot have opinionated as to the weapon of offence but remained persistent as to the weapon used was firearm. Even by minute cross-examination over the doctor nothing could be brought favourable to the defence. Medical jurisprudically it has been observed by the experts that if a led or head of a bullet strikes against the hard part of the body may be fragmented and to take any passage may provide a look otherwise to the weapon used but its prima identity remains the firearm. Here injured himself supported by another independent PW namely Shaukat Ali has testified that injured was burst fired, therefore, no reason exists to discard their testimonies. Even medical contradictions brought through cross-examination may not spoil the ocular testimony. Even otherwise in this particular case, the same are abridgeable. With this data, the Court has no reason in holding that the ocular evidence do not adhered with the medical evidence.
21.Spot Inspection ally blood imbrued cotton swabs were taken into possession vide recovery memo. (Exh.C-6) establishing the place of occurrence, even otherwise the same has not been denied.
22.(sic) projectiles on 17.07.2010 vide recovery memo. (Exh.C7). All these recovery memos. i.e. blood swa b as well as Kalashnikov have also supported the prosecution evidence. The recovery is a corroborative piece of evidence.
23.Presidential law cited from both the sides has also been minutely gone through. Though the same does not coincide to the facts and circumstances of the case but the Court has been illumed to strengthen its view to hold that the prosecution has ably proved its case against the petitioner without any benefit of doubt. The impugned judgments have also been gone through; the same have also not been found unpalatable and invidious. The Court has also not regarded the impugned judgments being epistemic ally hermetical unjust.
24.After the detailed discussion, the Court has fizzled out to explore any exceptions to the impugned judgments by implication, therefore, dissertation of it is that the instant recession petition fails and is accordingly dismissed. The judgments rendered by the learned trial Court as well as by the learned District Appellate Court are upheld.
25.For the reasons mentioned op-city, Crime Revision No. 764 of 2016 being bereft of reasons is also dismissed.