AALIA NEELUM, J.---This revision petition is directed against the judgment dated 17.03.2020 passed by the learned Additional Sessions Judge, Mianwali in Criminal Appeal No.03 of 2020, whereby, the learned Addl. Sessions Judge, Mianwali dismissed the appeal of the petitioner confirming the judgment of conviction and sentence passed by the trial Court dated 07.02.2020, whereby the learned Senior Civil Judge (Criminal Division)/Magistrate Section-30, Mianwali convicted the on petitioners under section 324, P.P.C. read with section 34, P.P.C. and sentenced them to undergo 04-years' R.I. each along with fine of Rs.10,000/- each and in case in default in payment thereof, each would further undergo 02 months' SI. The petitioners were also convicted under section 337- F(iii), P.P.C. read with section 34, P.P.C. and sentenced to undergo 02-years' R.I. each and also to pay "Daman" of Rs.40,000/-, to be paid to the victim Hashim Khan for causing injury No.1. The petitioners were further convicted under section 337-F(iii), P.P.C. read with section 34, P.P.C. and sentenced to undergo 02-years' R.I. each and also to pay "Daman" of Rs.40,000/- to be paid to the victim-Hashim Khan for causing. injury No.3. The petitioners were also convicted under section 337-F(iii), P.P.C. read with section 34, P.P.C. and sentenced to undergo 02-years' R.I. each and also to pay "Daman" of Rs.40,000/- to be paid to the victim-Hashim Khan for causing injury No.4. In case of non-payment of daman, the petitioners were directed to be kept in jail as simple imprisonment until the payment of Daman. All the sentences awarded to the petitioners would run concurrently. The benefit of section 382-B, Cr.P.C. was also extended in favour of the petitioners.
Wherefore, being aggrieved by the judgment dated 17.03.2020 of dismissal of the Criminal Appeal No.03/2020 passed by learned Additional Sessions Judge, Mianwali and judgment dated 07.02.2020 passed by the learned Senior Civil Judge (Criminal Division)/Magistrate Section 30, Mianwali in case FIR No.11/2016 dated 16.01.2016 registered under sections 324, 337-F(iii), 148 and 149, P.P.C. at Police Station Mochh, District Mianwali, the petitioners-Hayat Ullah Khan, Mehar Khan, Sher Zaman and Tanveer Khan have come up with this revision petition.
2. Briefly, the prosecution story as alleged in the FIR (Ex.PA) lodged on the statement' (Ex.PE) of Fateh Khan, (PW-4)-the complainant is that on 16.01.2016 at about 10:00 a.m., the complainant (PW-4) along with Hashim Khan-injured (PW-5) and Sana Ullah was irrigating his wheat crop near his house, when the petitioners/convicts along with others while armed with firearm weapons, came there from western side.
Mehar Khan (petitioner No.2) raised lalkara that he had come to take revenge of his son, whereupon, all the accused persons made straight firing upon the complainant party, as a result of which Hashim Khan (PW-5) sustained firearm injuries on the upper part of his right arm and chest.
The motive behind the occurrence was previous murderous enmity between the parties.
3. I have heard the arguments advanced by learned counsel for the petitioners as well as learned law officer and have minutely perused the record.
4. It is well settled that the revisional jurisdiction cannot re-embark upon re-appreciation of evidence unless the finding of fact on the face of it is illegal or perverse. A scrutiny of the evidence which this court has made, shows that there was mis-appreciation of evidence on the record by the lower courts which have resulted in gross failure of justice warranting interference by this Court.
5. On perusal of evidence, it reveals that the incident took place on 16.01.2016 at 10:00 a.m. As per prosecution case narrated in FIR (Exh.PA) incident took place on 16.01.2016 at 10:00 a.m. The incident was reported to the police by Fateh Khan (PW-4), paternal uncle of the injured prosecution witness-Hashim Khan (PW-5), through his oral statement (Exh.PE) and according to the police karwai endorsed at the A end of the oral. complaint (Exh.PE/1) was recorded by Sher Ali, S.I. (PW-8) at the place of the occurrence at 11:00 a.m., who referred the oral complaint .(Exh.PE) to police station through Muhammad Nawaz 269/Constable (PW''-3), on the basis whereof, formal FIR (Exh.PA) was chalked out on the same day at 11:30 a.m. Fateh Khan (PW-4)-the complainant deposed during examination-in-chief, "Immediately after the occurrence police came at the spot and recorded my statement which is Ex.PE which was read over to me and I put my signature as Ex.PE/1 as correct upon which FIR Ex.PA was registered and after that police inspected the site on our pointation and prepared site plan and I.O. recorded statements of Sana Ullah, Zia Ullah and said Hameed Khan under section 161, Cr.P.C. " Sher Ali S.I. (PW-8) deposed during cross- examination, "When I received the information the time was 10:05 a.m. The inter se distance between Tari Khel Adda and alleged place of occurrence is 3/4 KM. We reached at the place of occurrence at about 10:15 a.m. Firstly I got recorded the statement of complainant and then I made injury statement of injured." Contrary to the above, Fateh Khan (PW-4) the complainant deposed during cross-examination, "After the occurrence we visited the local police station. I visited the police station on the fateful day about 10:45 a.m. I visited the police station for the purpose of registration of FIR because the local police asked me that they shall registered the same in police station and they asked me also to accompany them to the police station." This fact suggests that FIR is ante-timed.
6. On perusal of medico-legal certificate (Exh.PJ) it reveals that Hashim Khan (PW-5)-injured witness was medically examined on 16.01.2016 at 12:40 p.m. by Dr. Junaid Akhtar Khan at RHC, Mochh. Hashim Khan (PW-5)-injured witness received four injuries on his body. According to medico-legal certificate (Ex-the injury No.2 was exit of injury No.1 on the upper part of the right arm.
Injury No.3 was an entry wound on the upper part of right arm, whereas injury No.4 was entry wound on the right side of chest. So, Hashim Khan (PW-5)-injured witness received three entry wounds. Whereas twelve (12) persons were nominated as accused by Fateh Khan (PW-4)-the complainant and Hashim Khan (PW-5) injured witness. Trial was faced by the petitioners and Adam Khan (since acquitted). Fateh Khan (PW-4)-the complainant deposed during cross- examination that, "It is correct that out of 12 accused only 05 accused are present before this Hon'ble Court; volunteered stated that two of them are absconder. It is correct that I had not submitted any application before this Hon'ble Court for the summoning of remaining 07 accused persons." Hashim Khan (PW-5)- injured witness deposed during cross-examination, "It is correct that in my statement before this Hon'ble Court I had not ascribed any injury to any accused 12 in numbers." From Medico legal certificate (Exh.PJ), it reveals that injured was brought to the RHC Mochh at 12:35 (not mentioned a.m. or p.m.) on 06-01-2016 and Hashim Khan (PW-5)- B injured witness was medically examined at 12:40 (not mentioned a.m. or p.m.). Whereas, Hashim Khan (PW-5)-injured witness deposed during cross examination that, "When the local police visited the place of occurrence, I was present there but I was unconscious. Police reached at the spot at about 10:15 a.m. Police remained at the spot at about 45 minutes. I do not remember that local police which kind of proceedings done at the spot because I was unconscious and I shifted to DHQ Hospital in unconscious condition. I accompanied with my father Sanaullah Khan, Fateh Khan complainant firstly went to RHC Mochh and from where we referred to DHQ Hospital Mianwali. When I gain conscious the time was about 11:00/11:30 am. I do not remember whether I was medically examined in RHC Mochh or not." Whereas, Dr. Mushtaq Hussain (PW-7) deposed during cross-examination that, "It is correct that the column "probable duration of injuries" is blank. It is correct that as per MLC was written by Dr. Junaid Akhtar Khan that at the time of examination of injured he was vitally stable." This court has further noticed that Sher Ali, S.I. (PW- 8) deposed during cross-examination that, "At about 10:30 a.m. I sent the injured for his medical treatment from the alleged place of occurrence. It is correct that firstly I prepared the injury statement of injured in the name of medical officer DHQ Hospital Mianwali and then I made a cutting over the same and write down the word RHC Mochh over the above said line." On perusal of the injury statement (Ex.PH) prepared by Sher Ali S.I./SHO (PW-8), it reveals that particulars of FIR were mentioned thereon whereas FIR was registered at 11:00 a.m. on 16-06-2016, which creates doubt about the time of reporting the occurrence and time of occurrence.
7. Hashim Khan (PW-5)-injured witness made dishonest improvements by giving specific role to the petitioner No.1-Hayat which creates reasonable doubt about the deposition of injured witness (PW-5). Hashim Khan (PW-5)-injured witness deposed during cross-examination, "I nominated 12 accused persons in my statement who were making indiscriminate firing upon and I in my statement specifically attributed injury to me to the accused namely Hayat Ullah confronted with Ex.DA where it is not so recorded." The Hon'ble Supreme Court of Pakistan in case titled "Amin Ali and another v. The State" (2011 SCMR 323) held that:- "------the presence of the injured witness cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses."
It is prosecution case that after recording statement of the complainant (Exh.PE) at 11:00 a.m. at place of occurrence, Sher Ali S.I./SHO (PW-8) prepared injury statement (Ex.PH) of the injured witness, if it is so, then recording of complaint (Ex.PE) becomes highly doubtful as name of the accused was not mentioned against Banam and space for said purpose was left blank " " in injury statement (Ex.PH). Aman Ullah (Retired) (PW-9)-investigating officer deposed during cross- examination that, "It is correct that every Karam is consisted upon 5-1/2 foot. The inter-se distance between point No.1 and point No.2 is 46 Karams as per the site plan. It is correct that in between 08 feet height Sarkandas and a reasonable height of wheat crop is present in the site plan which is prepared by me. The possibility cannot be ruled out that due to Sarkandas and wheat crop both the parties were not clearly visible to each other at the time of alleged place of occurrence. It is correct that as per site plan the inter-se distance between point No.2 where accused persons were present and the presence of complainant is about 71 Karams. It is correct that in between the present point of complainant and the present point of accused persons there were 08 feet height Sarkandas and reasonable height of wheat crop was present there. It is further correct that both above said things Sarkandas and wheat crop were also present between the point of accused person No.2 and the points of presence of PWs Nos.3 and 4." It was not possible for the witnesses PW-4 and PW-5 to identify the accused persons from a distance of 71 Karams and in presence of 08 feet height Sarkandas and reasonable height of wheat crop. This also creates doubt about the genuineness of the version given by the complainant (PW-4) and the injured prosecution witness (PW-5). Besides, Hashim Khan (PW-5)-injured witness also deposed during cross-examination, "My statement was recorded by the police in the DHQ hospital Mianwali but I cannot tell the date of the same." Whereas, Aman Ullah Si. (Retired) (PW-9)- investigating officer deposed during cross-examination that, "It is correct that I got recorded the statement of injured Hashim Khan on 28.01.2016 at his home situated at Kacha Tani Khel. It is correct that from 16.01.2016 to 28.01.2016 I had not visited the hospital and had not tried to record the statement of injured Hashim Khan and in between even complainant had not produced injured before me for the recording of his statement." Thus, in view of above said circumstances the question of their being truthful witnesses becomes highly doubtful. The prosecution witnesses i.e. Fateh Khan (PW-4)- the complainant, Hashim Khan (PW-5)-injured witness, Sher Ali S.I. (PW-8) and Aman Ullah S.I. (Retired) (PW-9)-investigating officer who have been proved to be not truthful, could not have been relied upon. It is the legal principle that a witness who testifies falsely about one matter is not credible to testify about any matter. On careful consideration of prosecution witnesses this court found considerable doubt as to their credibility as truthful witnesses. So, no reliance could be placed on the testimony of the prosecution witnesses for conviction of the petitioners.
8. Thus, in the opinion of this Court, both the courts below i.e. the trial court as well as appellate court have committed grave illegality, while convicting the petitioners for the offence. In these circumstances this Court is of the opinion that interference of this Court with the conviction of the accused/petitioners for the offences under sections 324 and 337-F(iii) is called for. This Court finds that there is no evidence at all to prove the charges against the accused/petitioners. I accordingly allow Criminal Revision No.23807 of 2020, set aside the conviction and sentence awarded to the accused-petitioners and acquit them of those charges. The petitioners are directed to be released forthwith, it not required in any other case.