JUDGMENT .
ALI BAIG, J.---This criminal appeal has been preferred under section 410, Cr .P.C. against the impugned judgment dated 21.8.2017 passed by the learned Judge Anti-T errorism Court Gilgit-Baltistan. In terms of said impugned judgment, the appellant was convicted and sentenced as follows:--
(a) For an offence under section 324, P.P.C. read with sections 6/7 of the Anti-T errorism Act, 1997 R.I for 10 years' and fine of Rs,100,000/-. In default thereof to suf fer imprisonment for a terms of six months.
(b) For an offence under section 337-D, P.P.C. read with section 7(c), A.T.A., 1997 R.I for 10 years as Tazir with fine/Arsh Rs,500,000/- (Rupees five hundred thousand) to be paid to the victim namely Abdul Majeed.
(c) For an of fence under section 427, R.I for two years.
(d) For an of fence under section 13(d) of the Pakistan Arms Ordinance, 1965 imprisonment for seven years.
2. Briefly stated the case of the prosecuti on as unveiled by the complainant namely Israr-ud-Din son of Quwat Jan PW-2 in the FIR Exh. PW-5/A is that on 07-7-2015 at about 19:25 hours the comp lainant had gone to NLI Market Gilgit for shopping, where he saw the vehicle of Abdul Majeed son of Abdul Ahad at NLI Market Gilgit. In the meanwhile accused/appellant appeared there and started indiscriminate firing on the vehicle of victim with an intention to kill him which hit the victim namely Abdul Majeed as a result whereof the victim sustained bullet injuries.
Due to fear and terror the people started running and taking advantage of rush of people, the convict/appellant namely Arif Hussain Danish escaped/fled away from the place of occurrence along with weapon of offence. Eye- witness namely Javed Ahmed son of Nusrat chased the convict/appellant and he and other police officials/PWs apprehended him along with weapon of of fence and handed over the appellant/convict to local police.
3. On the written complaint of above named complainant Exh.PW -2/A, SHO Police Station City Gilgit has registered criminal case against the appellant/convict vide FIR Exh. PW-5/A under sections 324, 337-D and 427, P.P.C. read with sections 6/7 of the A.T.A., 1997.
4. After lodging formal FIR by Mr. Zahoo r Ahmed, SHO Police Station City Gilgit he started investigation. He had sent the injured person namely Abdul Majeed to Hospital vide injury sheet Exh.PW -4/A. He proceeded to the place of occurrence and he took into his posses sion (4) four empty shells of .30 bore pistol from the place of occurrence in presence of marginal witnesses and prepared recovery memo Exh.PW -5/B and site plan Exh.PW -5/C of the place of occurrence was also prepared by him.
5. He took into his possession the damaged vehicle bearing registration No,NCP GLT-2-0098 belonging to the victim and prepared recovery memo Exh.PW-5/D. The appellant/convict was produced before the SHO by F.C.
Zulfiqar Ali, UP/HC Hussain Shah, Momin-ur-Rehman and Javed Ahmed along with weapon of offence i,e, .30 bore pistol. He took into his possession the weapon of offence along with 4 live rounds. He also registered FIR Exh. PW- 5/E under section 13, A.O. of 1965 against the appellant/convict. After carrying out preliminary proceedings he handed over police file along with appellant/convict to Investigation Wing for further investigation, where the case was entrusted to Mr . Hafiz-ur-Rehman I.P who conducted further investigation in the case.
6. After completion of usual investigation, the challan was submitted in the Anti Terrorism Court Oilgit-Baltistan for trial of case of the present appellant/convict.
7. The learned Administrative Judge Anti-T errorism Court Gilgit-Baltistan after fulfilling legal formalities framed charge under sections 324, 337-D, 427, P.P.C. and 6/7, A.T.A., 1997 against the appellant/convict on 14-10-2015.
To which the appellant/convict pleaded not guilty and claimed trial. Accordingly , the learned trial court summoned the P . Ws.
8. In order to prove it's case the prosecution examined 15 witnesses. PW-1 Abdul Majeed was injured/victim of the occurrence. PW-2 Israr-ud-Din was complainant PW-3 HC Hussain Shah and his co-witnesses had caught hold the accused/convict and snatched the weapon of the offence i,e, 30 bore pistol, PW-4 Abidullah was the Doctor who has examined the injured/victim Abdul Majeed, PW-5 IP Zahoor Ahmed was SHO of Police Station City Gilgit who had lodged MR, Exh.P-5/A on the basis of written application submitted by the complainant Israr-ud-Din, PW-6 HC Momin-ur-Rehman who and other co-witnesses PW-7 namely F.C. Zulfiqar Ali. PW-3 UP/HC Hussain Shah and PW-9 Javed Ahmed had caught hold the appellant/convict at Itehad Chowk Gilgit, PW-8 SIP Alawat Khan had prepared injury sheet of injured Abdul Majid and had handed over the same to PW-4 Dr./M.O. PW-9 Javed Ahmed was an eye-witness of the occurrence.
PW-10 Muhammad Arif is marginal witne sses of recovery memo Exh-PW -5/B vide which I.P Zahoor Ahmed had taken (4) four empty shells of .30 bore pistol from the place of occurrence. He is also marginal witness to the recovery memo Exh-PW -5/D vide which vehicle of the injured Abdul Majid was taken into possession by the police.
PW-11 Syed Ghaib Ali Shah is a Magistrate 2nd Class, in his presence and on the pointation of the appellant/convict, site plan of the place of occurrence Exh-PW -11/A was prepared. PW-12 is FC Syed Ahmed who is a marginal witness of site plan Exh-PW -11/A and identification memo Exh-PW -11/B. PW Arifullah is a marginal witness of recovery memo Exh-PW -8/A vide which the shirt of injured Abdul Majid containing entry and exit holes of fire arms bullets was taken into possession by Alawat Khan SIP .
9. PW-14 is Mr. Ali Muhammad I.P who had conducted partial investigation of this case. He prepared incomplete challan Exh-PW -14/C and complete challan Exh-PW -14/I) in case registered under section 13, A.O. of 1965 and submitted in the court of competent jurisdiction through D.P.P Gilgit. PW-15 SSP Tanvir-ul-Hassan who has recorded confessional statement of the appellant vide Exh-PW -15/A under section 21(H) of A.T.A., 1997.
10. After examination of above named 15 witnesses the learned Special Prosecutor closed his side. Thereafter , on 03-7.2017 the learned trial court recorded statement of the appellant under section 342, Cr.P.C. and in his statement recorded under section 342, Cr.P.C. the accused pleaded not guilty rather pleaded innocence. However , the appellant/convict neither wished to produce evidence in his defence nor got recorded his statement on oath under section 340(2), Cr.P.C. After conclu sion of the trial, the learned trial court after hearing arguments of counsel for the parties convicted the appellant and sentenced him as mentioned above.
11. Feeling aggrieved by the judgment passed by the trial court, the appellant has impugned the same by filing instant criminal appeal before this court.
12. The learned counsel appearing on behalf of the convict/appellant contended that the impugned judgment passed by the trial court is against the law, facts and evidence available on record. The learned counsel for the convict/appellant further argued that the learned trial court has convicted the convict/appellant on flimsy and capricious grounds by mis-reading and non- reading of evidence on record. Concluding his arguments the learned counsel for the convict/ appellant argued that since the prosecution has failed to prove its case against the convict/appellant by producing reliable evidence in the trial court, therefore, by allowing this appeal, the convict/appellant may be acquitted from the charges leveled against him in the interest of justice.
13. Conversely , the learned Dy. Advocate General and Mr. Bashrat Ali learned counsel appearing on behalf of complainant controverted the arguments advanced by the learned counsel for the appellant by contending that the appellant is directly charged in the FIR for effective firing at the victim/injured person. The learned counsel for the complainant and the learned Dy. Advocate General further argued that eye-witnesses have witnessed the occurrence as it was day light occurrence. The learned Dy. Advocate General, and counsel for the complainant further argued that the appellant was caught hold red handed while escaping from the place of occurrence and weapon of offence has been recovered from the possession of the convict/appellant. The learned Dy. Advocate General, and counsel for the complainant further argued that ocular account furnished by the PWs is straight forward and confidence inspiring which is also corroborated by medical evidence , site plan, recoveries of bullet riddled shirt and empties from the spot. Concluding their arguments the learned Dy. Advocate General and counsel for the complainant argued that the prosecution has successfully proved the guilt of the appellant through overwhelming evidence available on record, therefore, appeal of the appellant/convict may be dismissed and conviction of the appellant may be maintained.
14. We have carefully heard and considered the arguments advanced by the learned counsel for the parties and perused the record with their able assistance.
15. The perusal of record reveals that the appellant/convict was directly charged in the promptly lodged FIR Exh- PW-5/A with specific role of effective firing on the victim/injured person namely Abdul Majeed. Complainant namely Israr-ud-Din and PW Javed Ahmed have witnessed the occurrence as eye-witnesses and their names are also disclosed in the FIR. The appellant was caught hold red handed by PW-3 H.C. Hussain Shah, PW-6 FC Momin-ur Rehman and PW -7 F.C. Zulfiqar Ali along with weapon of of fence while escaping from place of occurrence.
16. In the instant case most important piece of evidence is ocular evidence of eye-witnesses namely Israr-ud-Din complainant and Javed Ahmed son of Nusrat Wali. The complainant Israr-ud-Din appeared before the learned trial court as PW-2 and deposed that on 7th July, 2015 it was the month of Ramazan he went for shopping in NLI market when he reached at the Western gate of NLI market situated near Gari Bagh at that time he saw vehicle of injured Abdul Majid turning towards NLI market, suddenly two fires were opened on the vehicle of Abdul Majeed by accused/appellant Arif Hussain Danesh and two other fires were also opened by the accused Arif Hussain Danesh on the other side of the vehicle and he ran away from the spot. At that time PW Javed Ahmed shouted that Abdul Majeed brother has been hit and PW Javed Ahmed chased the accused/appellant Arif Hussain Danesh who was running towards Ithad Chowk. Injured Abdul Majeed was taken to Hospital and he reached at lthad Chowk where PW Javed Ahmed and other police officials had caught hold the accused Arif Hussain Danesh with weapon of offence i,e, .30 bore pistol. Thereafter , he went to Police Station City, Gilgit and submitted an application Exh. PW- 2/A regarding the occurrence.
17. Another material witness is PW-9 namely Javed Ahmed. He has deposed that on 07-7-2015 he was present in Gari Bagh area for some domestic affairs. After completion of the same, he was going back to his home and when he reached at the western gate of NLI Market Gilgit, the accused present in the court opened fire on the vehicle of Manager Abdul Majeed who was in the vehicle which was turning towards NLI Market. The accused/appellant again opened fires on the other side of vehicle. The present accused ran away towards Ithad Chowk waving the weapon of offence/30 bore Pistol in his hand. He chased the accused/appellant when he reached at Ithad Chowk P.Ws namely FC Zulfiqar Ali, HC Hussain Shah and FC Momin-ur-Rehman who was in. civil dress caught hold the accused/appellant. The weapon of offence was also snatched from the accus ed/appellant and the accused escaped towards the street situated adjacent to Madina Market. He, FC Zulfiqar Ali, HC Hussain Shah and FC Momin-ur-Rehman caught hold the present accused. The accused was searched bodily and found one Magazine and four live rounds of .30 bore Pistol. He and the above named police officials put the accused/appellant in the vehicle and proceeded to the Police Station City Gilgit. On the way to police station the accused/ appellant disclosed his name as Arif Hussain Danesh and stated that he has taken revenge of his uncle deceased Ramzan Ali Danesh. The accused was produced in the Police Station City Gilgit. The SHO Police Station City Gilgit took into his possession weapon of of fence/30 bore Pistol and prepared recovery memo Exh. PW -3/A.
18. We have also gone through the statements of co-witnesses of above named eye witnesses namely FC Zulfiqar Ali, HC Hussain Shah and FC Momin-ur-Rehman recorded in the trial court. The statements of above named three P.Ws are also in line to the statement of PW Javed Ahmed as they have also narrated the same story in their statements recorded in the trial court, and corroborated each other on almost all material particulars of the occurrence.
19. We have minutely analyzed the statements of PW-2 and P.W-9 being eye-witnesses of the occurrence and have no hesitation to hold that their testimonies are confidence inspiring and remained unshaken with regard to their presence at the place of occurrence. The statements of both the witnesses were tested through lengthy cross- examination but they remained firm on all accounts and the defence has failed to give any Jolt or shaken their testimonies. Both the above named witnesses correctly narrated the date; time the place of occurrence and the manner in which the accused/appellant arrived at the place of occurrence and opened fire shots on the injured person/victim. Moreover , the ocular testimony has fully been corroborated by medical evidence wherein it has been opined that the patient/victim has got gunshot wound on the right arm and fore arm.
20. Furthermore, the appellant/convict has been caught hold red handed by P.Ws namely FC Zulfiqar Ali, HC Hussain Shah and FC Momin-ur-Rehman and eye-witness namely Javed Ahmed while escaping from the place of occurrence and have recovered the weapon of offence i,e, .30 bore Pistol from his possession. The above named P.Ws are impartial and independent witnesses. It is hard to believe that they would substitute the appellant/convict for the real culprits, who had committed the alleged offence. Needless to observe that substitution is a rare phenomenon as admittedly prosecutio n witnesses have no enmity of whatsoever nature against the appellant/convict and they have also no reason to falsely involve him in the commission of alleged crime.
21. Furthermore, on the pointation of the accused/appellant the concerned I.O. has prepared site plan Exh.PW - 11/A in presence of PW-11 Syed Ghaib Ali Shah Magistrate and the appellant has also confessed his guilt before the above named Magistrate as evident from the statement of PW-11 Syed Ghaib Ali Shah recorded in the trial court. Four empty shells of .30 bore Pistol have also been taken into his possession by the I.O. in presence of marginal witness namely FC Muhammad Arif. The S.S.P . Gilgit Tanvir-ul-Hassan has also recorded confessional statement of the appellant under section 21(H), A.T.A., 1997 wherein the appellant/convict has voluntarily confessed his guilt.
22. The appraisal of direct and circumstantial evidence couple with medical evidence, and after minute consideration of all the circumstances as well as recoveries of crime empties and weapon of offence, we are of the considered view that the appellant/convict is responsible for opening effective fires on the victim/injured person namely Abdul Majeed and has rightly been convicted by the learned trial court.
23.The learned defence counsel has failed to point out any material irregularity and illegality or infirmity in the case of prosecution warranting interference by this court.
24. For the foregoing reasons, this appeal being devoid of merits is hereby dismissed and the impugned judgment dated 21-8-2017 passed by the learned trial court is maintained. However , the all punishments awarded to the convict/appellant by the learned trial court shall run concurrently . Criminal Appeal No,35/2017 is disposed of in the above terms File after its due compliance be consigned to record. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.