' The appellants were convicted and sentenced to undergo imprisonment for 7 years and pay fine of Rs,25,000 each, in default whereof they had to undergo further R.I. For 3 months. In case of the recovery of fine, it was to be given to injured Haji Jalil Khan under section 544, Cr.P.C. Benefit of section 382-B, Cr.P.C. Was also awarded to the appellants.
2. The appellants were charged for having formed unlawful assembly and committed the offence of Qatl-e-Amd by firing at and injuring P.Ws Haji Jalil Khan, Ahmed Khan, Muhammad Afzal, Bakhtamir, Jalal Khan and Azam Khan when the appellants were trying to take over forcible possession of shops of a mosque. The case was tried by 6th Additional Sessions Judge (South), Karachi, who passed the judgment on 25-9-1995.
3. The prosecution story in nutshell is to the effect that P.W. Bakhtamir was present in his shop, which is adjacent to Ibrahimi Mosque when accused Mir Shah Jahan, Mir Than, Ithursheed and Haji Gull, along with 3/4 other persons duly armed came and wanted to take over forcible possession of the shops of Ibrahimi Mosque. On resistance, they started firing from their weapons as a result of which Bakhtamir, Haji Jalil,Ahmed Khan, Muhammad Afzal and Azam Khan received fire-arm injuries. Bakhtamir received injury on his spinal cord, and has been rendered crippled for the rest of his life. Many persons of Mohalla had reached at the spot and the accused had to leave. The injured were brought to the hospital where the police reached and recorded the statement of Bakhtamir, which was transformed into F.I.R. After investigation, the present appellants were arrested. The case was challenged against the appellants as well as co-accused Haji Gull and Mir Nabi (Mir Than), who remained absconders and case against them has been kept on dormant file.
By this appeal the appellants have challenged the findings of the trial Judge and have prayed that conviction against them be set aside. Learned counsel for the appellants raised many points but important for the purpose of discussion were; (1) that out of six injured persons, only four have been examined while the evidence of the two injured witnesses has been omitted, and that they were not tendered for cross-examination; (2) that the evidence comprised of ocular evidence only. It should not have been believed, the witnesses were interested and hostile to the accused; and (3) that there were material contradictions in the evidence, which rendered the evidence of the witnesses totally unbelievable.
4. Coming to the first point, raised by the learned counsel for the appellants, it cannot be said that all the injured witnesses must be produced by the prosecution and non-production of the two of the injured persons rendered the evidence of the remaining four injured witnesses as unreliable.
Learned counsel could not carry out this point anymore and did not support it by any decided case. In all probability those two injured witnesses could not be made available for examination in the trial Court. The witnesses are all Nathans originally belonging to N.-W.F.P. Besides, there is no cogent reason to say that due to no-examination of the two injured witnesses the evidence of the remaining four injured witnesses becomes unreliable. The evidence of the four injured witnesses holds the field of its own, and the Court has to see if they are truthful witnesses. Analyzing their evidence under the principles of appreciation of evidence, the Court has to form its opinion in respect of the reliability or otherwise of these witnesses. I do not find any substance in this point raised by the learned counsel for the appellant. The evidence of the four injured witnesses is to be examined in the context of the facts and circumstances of this case and should be appreciated irrespective of the fact that two other injured witnesses were not produced. The trial Judge has not committed any mistake in considering the evidence of these four injured witnesses independently for the purpose of deciding this case. Besides, there is nothing on record to suggest that these four injured witnesses had any reason to falsely implicate the appellants. A They being injured, their presence on the spot is also proved.' Therefore, the trial Court has rightly believed these witnesses.
5. The next point raised by the learned counsel for the appellants is to the effect that the evidence in this case comprised of only ocular evidence, thereby meaning that it required corroboration from circumstantial evidence or some other independent source. I do not agree with the learned counsel on this point as well. The 4 injured persons, who were present at the scene of offence, had received injuries at the hands of the appellants and two absconding accused. The reasons for this dispute have been spelt out from the evidence that there was an attempt on part of accused for taking over the possession of shops of the mosque. These P.Ws. Have not been shown by way of any evidence before the trial Judge to be so interested to implicate the appellants falsely. The four witnesses, who have been believed by the trial Judge are all injured, one of them Haji Jalil critically wounded, by a bullet at his spinal cord resulting in his perpetual invalidity. He was brought on stretcher at the time of his examination before the trial Judge. All the four witnesses implicitly had implicated the present appellants to be those who had fired at them with fire-arms. Nothing has been brought on record to show as to why these injured witnesses shall implicate these appellants falsely, thereby exonerating their real enemies, who had tried to kill them. The learned counsel tried to develop this point by arguing that the appellants belonged to one ethnic group while the complainant party belonged to another, and that there was fight on account of ethnic dispute. It is surprising that this contention is not borne out from any evidence on the record. No suggestion in cross-examination is put to the complainant Bakhtamir or any of the other P.Ws. On the contrary, it was suggested in cross-examination of P.W. Ahmed, that the disputed shop was in possession of the appellant Mir Shah Jahan prior to the construction of .Madarsa and that P.W. Ahmed, P.W.
Bakhtamir wanted to take forcible possession of the shop from appellant Mir Shah Jahan. Thus, the dispute in respect of the possession of the shop has been admitted in a way, by the appellants at the time of trial. Now in order to wriggle, out of the earlier stand, the contention of ethnic dispute has been raised. Even otherwise, there being no evidence on this point, a lame attempt has been made to establish this point. Therefore, evidence of the four injured P.Ws. Requires no C further corroboration, as each witness has corroborated the other.
6. As regards the third point, I do not find any material contradictions in the evidence of the witnesses, who are victims of firing at the hands of the appellants and the narration of the incident given by each of them is in their own words and each one of then on the material aspect of the case has implicated the appellants to have fired at them at the time of incident and there can be no reason to suspect the words of the injured witnesses whose injuries have been certified to be the result of the fire-arm injuries by the Medical Officer. Lastly, the learned counsel for the appellant insisted that time of occurrence has been given by some of the witnesses to be 3-30 p.m. While the others have given as 5-30 p.m. For this minor discrepancy, I do not consider the evidence of the injured eye-witnesses, who are otherwise disinterested and not inimical to the appellants to be unreliable. The witnesses may not have comprehension of telling the exact time of the incident as they appear to be not highly literate.
7. The learned counsel for the State Mr. Habibur Rasheed has supported the judgment of the trial Judge but has suggested that the appellants are father and son and they have already undergone the sentence of 4 years and according to the learned counsel appearing for the State, the sentence undergone will be sufficient punishment for them in this case and will serve the interests of justice.
8. After considering carefully the arguments advanced by the two counsel, and having gone through the record of the case, I find that the appellants have failed to advance any cogent reason for setting aside their conviction and sentence. Therefore, the appeal merits no consideration and the same is, therefore, dismissed. However, coming to the point of sentence, I agree with the contention of the learned counsel for the State and fell that sentence already undergone which is about 4 years, is sufficient punishment for the appellants, who have also suffered the privation from their family, being father and son together in jail for about 4 years. Nonetheless, I would like to enhance the amount of fine awarded to the appellants by the trial Court to meet the ends of justice. It is, therefore, ordered that the sentence already undergone by the appellants be treated as sufficient imprisonment, in place of the 7 years' sentence awarded by the trial Court, and in addition to that each appellant is ordered to pay a sum of Rs,50,000 (Rupees fifty thousand) as fine. In case of default in payment of fine, each appellant to further undergo imprisonment for 6 months. In case the fine is realized the entire amount of fine be paid to P.W. Haji Jalil Khan by way of compensation under section 544, Cr.P.C. With this alteration in the sentence, the appeal is dismissed.
Sentence reduced.