' TARIQ PERVEZ, J.--- Appellants Javed Akhtar (21/22) and Pervez Akhtar (27/28) sons of Noor Muhammad, were charged ,vide case F.I.R. No,218, dated 26-3-1991 Police Station Haripur, for committing 'Qatl-i-Amd' of Gul Zeb son of Abdul Hakeem and for effectively attempting at the life of Jehanzab complainant (brother of deceased). A charge under section 302/324/34, P.P.C., was framed against them by the learned Sessions Judge, Haripur, who, on the conclusion of the trial, found both the accused-appellants guilty of ' Qatli-Amd' of Gulzeb deceased and convicted them under section 302/34, P.P.C., and were given life imprisonment each. They were also found guilty for causing fire-arm injuries to Jehanzeb complainant and consequently convicted under section 324/34, P.P.C., and have been sentenced to 2 years' R.I., each with a fine of Rs,5,000 each as 'Daman' payable to the complainant. The learned trial Judge, however, ordered that the two sentences shall run consecutively and that if 'Daman' money is not paid, the accused-appellants shall remain in Jail till the recovery of said amount. Benefit of section 382-B, Cr.P.C. Was, however, extended to both the appellants.
2. Brief facts as given by Jehanzeb complainant (P.W.11) are to the effect that on 26-3-1991 at 6-00 p.m. He was proceeding towards his house when he heard the report of fire-shot and some noises over which, he ran towards the spot and found that Parvez and Javed, the two appellants, were firing and were abusing the complainant party. Parvez was allegedly armed with 12 bore .DB shot- gun while Javed with a pistol. It was asserted that Gulzeb (deceased) asked the appellants not to make abuses on which both the appellants fired at Gulzeb, as a result of the firing he was hit and died on the spot. Complainant Jehanzeb, when rushed towards his brother was also fired at by the two appellants, resulting in injuries on different parts of his body. The occurrence was stated to have been witnessed by one Abdur Razaq (abandoned) and Noor Hussain (P.W.12).- ' Motive given was, that the complainant party has made a report under section 435, P.P.C., against the accused-appellants, further about 22 years prior to the occurrence Abdul Ghafoor paternal uncle of the complainant has committed the murder of maternal uncle of the accused-appellants.
' The report was recorded by Mehrban Shah A.S.-I. (P.W.14), he prepared by injury sheet of Jehanzeb which is Exh.P.W.2/2 and referred him for medical examination. As the dead body was lying on the spot as such the injury-sheet and the inquest report of deceased Gulzeb were later prepared by Mehrban Shah (P.W.14) when he went to the spot which are Exhs,P,W.2/4 and 2/5 respectively. The dead body was despatched to the mortuary for post-mortem examination.
3. Dr. Muhammad Idris, Medical Officer K.T.S. (Khalabat Township) (P.W.2) has examined Jehanzeb on 26-3-1991 at 8-00 p.m. And found the following injuries on his person:
(1) A small wound on the left side of chest 2" supero lateral to the left nipple, measuring 0.2 cm superficial with a pellet embodied in the skin the wound was superficial and skin deep. No active bleeding. No staining around wound.
(2) A small superficial wound on the right side of chest 2 1/2" inferolateral to right nipple 0.2 cm in diameter with no pellet. No active bleeding and no staining around the wound. Corresponding cuts in shirt for injuries Nos.1 and 2 present.
(3) A small entrance wound on the medial end of left eye measuring 0.2 cm in diameter. The pellet is visible. Subconjunctival haemorrhage and hyphaema present.
' (The patient was referred to Eye Specialist for removal of pellet, opinion regarding injury. The pellet so recovered was sealed and handed over to the police alongwith the shirt).
' Nature of injuries Nos.1 and 2 was opined to be simple caused with fire-arm within 2-3 hours duration.
' On 27-3-1991 at 7-00 a.m. The same doctor conducted the post-mortem examination of deceased Gulzeb who found the following: On external examination
(1) One entrance wound at the medial end of eye above its medial epicanthus, with edges inverted, No burning, tatooing or 'staining present. No exit wound. Wound measures I c.m. x 1 c.m. In diameter.
(2) Entrance wound measuring 1 c.m. x 1/2 c.m. On the anterolateral aspect of right forearm, with edges inverted, staining present. No burning or tatooing. A corresponding exit wound measuring 1 c.m. x 1 c.m. With edges everted on the posterolateral and proximal to entrance wound.
Corresponding cut on the shirt (right arm) present.
On Internal examination
(1) An entrance wound, above the medial end of right eye in the eye ball, the bullet passed above the optic chiasma after entering the skull and lodged in to the medulla. The Spinal cord/vertebra intact and healthy .
The doctor opined that the deceased received firearm injury on the right half of the scalp. The bullet pierced the frontal bone, passed above the optic criasma after entering the skull and lodged in the brainstem. According to the doctor the deceased died due to the injury to medulla (brain stem) where the vital centres exist. The probable time between injury and death was within one half to one hour and between death end post-mortem 12 to 24 hours.
4. On 26-3-1991 at 11-25 hours the same doctor also examined Javed Akhtar who allegedly sustained stab as well as fire-arm injuries and found the following injuries on his person:
(1) A stab wound at right lumber region measuring 1-1/4" in depth x 1/2" in length. Corresponding cut in shirt was present.
(2) Two small wounds on the calf muscels of left leg each measuring 0.2 cm.
(3) Two small metallic pieces recovered were sealed and handed over to police alongwith the shirt and Shalwar.
5. The Investigating Officer (P.W.14) having reached the spot had prepared the site plan Exh.P.W.14/1.
During spot inspection he has recovered blood-stained earth, three empties of .12 bore, one empty of .32 bore pistol, one missed and one live cartridge of .32 bore were also recovered from the spot through memo. Exh. P .W.4/1.
6. The investigation was thereafter, taken over by Muhammad Ilyas Khan Inspector (P.W.13). He has taken into possession one blood stained shirt with corresponding cut marks and a bottle containing pellet extracted from the person of Jehanzeb injured and prepared memo. Exh.P.W. 6/1.
Through recovery memo. Exh.6/2 the same witness has taken into possession garments (bloodstained with corresponding cut marks) belonging to Gulzeb deceased alongwith a phial containing a spent bullet recovered from the dead body of the deceased.
' Accused Javed Akhtar while in custody, is alleged to have led the police party to his cattle shed and on his pointation pistol was recovered, concealed in the ceiling of the cattle-shed. The Investigating Officer prepared the pointation memo. Exh.P.W.16/1 and the site plan of such pointation is Exh. P.W.13/1.
' All the aforesaid memos. Correctly were got signed by the attesting witnesses.
' The blood-stained clothes of the injured and the deceased as well as blood-stained earth recovered from the spot were sent to the Chemical Examiner whose report is Exh.PIW.13/D-3.
7. The crime empties recovered from the spot, and the pistol produced by Javed Akhtar appellant were sent to the fire-arm expert vide application Exh.P.W.13/4, dated 2-4-1991 and the report of the Expert which is in positive is Exh.P.W.13/5.
8. At the trial the prosecution produced 14 witnesses out of which Jehanzeb (P.W.11) and Noor Hussain (P.W.12) are the eye-witnesses. Both the eye-witnesses named above have supported the case of the prosecution by reiterating what they have stated in the report and also in the statement made to the police.
9. The appellants have challenged their conviction and sentences through this appeal, and their learned counsel has assailed the impugned judgment and had advanced arguments in support and acceptance of the appeal.
10. Learned counsel argued-that there is delay in making the report, because occurrence took place at 6-00 p.m. And the report was made at 7 p.m. But this timing of occurrence, according to the learned counsel for the appellants, was incorrect because the doctor who examined Jehanzeb injured at 8-00 p.m. On 26-3-1991 has given the duration of injuries to be 2 to 3 hours. Similarly, it was argued that the post-mortem was conducted on 27-3-1991 at 7-00 a.m. And the doctor has given the time between death and post-mortem to be 12 to 24 hours meaning thereby that the deceased was done. To death somewhere between 7-00 a.m. To 7-00 p.m. On 26-3-1991. Next it was argued that no blood has been recovered from the alleged place where Jehanzeb complainant has sustained injuries. It was argued that the timing as given by doctor in respect of injury of the deceased not only destroys the case of the prosecution' as to the time of occurrence, but also, shows that the injured Jehanzeb had sustained injuries at a different place and time than that of the deceased.
11. It was also argued that according to the report made by Jehanzeb the deceased was fired at by both the appellants and so was he. But, according'to the medical report, only bullet had been recovered from the dead body of deceased Gulzeb while a pellet from the complainant. Meaning thereby that each of them was fired at by one weapon and not by two.
12. Learned counsel for the appellants has also taken exception to, not sending of three empties of .12 bore recovered from the spot of the Expert so as to determine if they were fired from one weapon or more. Similarly, the learned counsel has raised objection to the non-sending of spent bullet recovered from the dead body of deceased and also of missed-cartridge to fix the venue of the crime through weapon of offence allegedly recovered at the pointation of Javed Akhtar appellant. In this respect the learned counsel referred to 1997 SCMR page 438 (441), PLD 1986 Pesh.
150 = PLD 1986 AJ&K 210 and 1993 SCMR pages 1966 and 1970.
13. It was also argued that the medical evidence is in conflict with the ocular evidence and rebut the case of the prosecution as to the manner of occurrence. Reliance was placed on PLD 1988 Kar.
350 (359).
Motive was challenged and reference was made to the motive given in the F.I.R., and later given at the trial and it was submitted that it was for the complainant party to have taken the revenge and have initiated the act of aggression.
' The last argument of the learned counsel for the defence was tharJaved Akhtar appellant has sustained injuries which had not been accepted by the prosecution for which the case of the prosecution shall suffer, and that when there is case of two versions one favourable to the defence be accepted in preference to the prosecution. In this respect our attention was drawn to the report made by Javed Akhtar, also, his statement made under section 342, Cr.P.C., and statement under section 340(2), Cr.P.C. Alongwith his medico-legal report.
15. The learned counsel for the appellants also argued that the learned Trial Court while convicting the accused-appellant has ordered that the sentences of imprisonment shall run consecutively which is violation of section 35 of the Cr.P.C.
16. The learned counsel for the complainant argued that report was promptly made; that there is an injured witness namely Jehanzeb whose presence cannot be doubted; that the dimension of injuries caused to the deceased and the injured are different so much so that the deceased who has received two fire arm injuries are not of the same dimention, which suggests that the deceased has firearm injuries of different weapon. Next it was submitted that the empties of different bores have been recovered and as the case set up in the promptly lodged report, two different fire-arms were specifically mentioned which were later corroborated when the Investigating Officer went to the spot and has recovered empties, which support the weapons as specified in the report. It was also argued that the duration of injuries or the time of death given the doctor are always probable and it cannot overrule the direct evidence furnished by an injured witness who is further supported/corroborated by Noor Hussain (P.W.12) who is closely related to the accused-appellants. Further; it was submitted that the fire-arm expert report also corroborates the case of the prosecution as against Javed Akhtar appellant and the Parvez Akhtar appellant remained fugitive from law for over a period of 6 months.
17. Referring to the cross/counter-version or the two versions the learned counsel for the complainant submitted that the duration of the injuries of Javed Akhtar appellant does not fit in to the case of prosecution although he has made report belatedly. Hence, it was submitted that notwithstanding the fact that not only the police has doubted the injuries on the person of Javed Akhtar appellant but doctor has also opined the same to be self-inflicted and it was, therefore, that the case registered vide F.I.R., No,220 was cancelled. Therefore, it was submitted that there is no counter version now available to the defence.
18. The learned Assistant Advocate-General adopted the arguments of the learned counsel for the complainant but added that the two appellants, though found guilty under section 324/34, P.P.C., (as amended by Qisas and Diyat Ordinance) have been sentenced to 2 years R.I., each with Rs,5,000 as 'Daman' is legally wrong. Learned Assistant Advocate-General referred to section 337-R and submitted that Jehanzeb complainant has lost his one eye as such the appellants in case of conviction should have been sentenced to Arsh' which is one-half of Diyat amount. He further submitted that punishment of imprisonment in case of grievous injury due to which the complainant has lost his one eye is very short and should be enhanced, in terms of prayer made by the complainant in his revision.
19. The occurrence took place at 6-00 p.m. Report whereof was made at 7-00 p.m. By Jehanzeb (P.W.11) who himself was injured. It is well-settled proposition that the statement of an injured witness carries more weight because his presence on the spot is established by virtue of stamp of injuries on his person. However, the rule of prudence requires that the Court should look for independent corroboration of the testimony of an injured witness, more particularly, when there is enmity of some kind. In this case the statement of Jehanzeb (P.W.11) is fully supported by Noor Hussain (P.W.12) who is very, -r closely related to the appellants. Where a witness is closely related to the 8 accused and has got no personal objective or motive to bring a false charge, it is the duty of the defence to bring on record reason which might have prompted such a witness to give evidence against the appellant. There is no suggestion to P.W.12 (Noor Hussain) that he has his own personal enmity with the appellants.
20. The arguments of the learned counsel as to the delay in making the report is beyond comprehension. The duration of injuries of P.W.11 Jehanzeb given as 2 to 3 hours when he was examined at 8-00 p.m. Is well within the scope of approximate timing. Similarly, the opinion of the doctor about the probable duration of time between death and post-mortem examination of the deceased is always an opinion and opinion cannot be substituted as against substantive/direct evidence, unshaken and unchallenged, which is coming through the mouth of P.W.11 (Jehanzeb complainant) and Noor Hussain. (P.W.12) in their statement in respect of time of occurrence.
21. The nature of injuries sustained by the deceased, the injuries caused on the person of complainant are of different dimention. Two persons are charged and the Investigating Officer has recovered empties of two different bores namely three empties of .12 bore (shot gun) and one empty of .32 bore pistol, besides a missed cartridge and one live. The doctor has recovered bullet from the dead body of the deceased and had extracted pellet from the person of P.W.11 Jehanzeb.
This strong piece of corroboration is sufficient to establish the participation of the two persons in the crime.
' It is important to note that in 'the F.I.R., which in our opinion was made with utmost promptitude by an injured person, specific Weapons of offence carried by each accused-appellant have been given therein.
22. The learned counsel has not very seriously challenged the report of Fire-arm Expert Exh.P.W.13/5 out has submitted that the empty was sent to the Expert after the recovery of pistol and that they were together received by the Expert on 13-4-1991. He has objected the recovery of crime pistol made at the pointation of Javed Akhtar appellant, though lightly.
' The empty and the pistol were sent through one application, dated 2-4-1991 as per Exh.P.W.13/4.
Exh.P.W.10/l which is the pointation memo. Of the recovery of pistol is, dated 2-4-1991 therefore, it appears that no delay was caused in despatching the crime articles to Forensic Science Laboratory. There is no evidence nor any suggestion that between 2-4-1991 and 13-4-1991 someone has tampered with the crime weapon and the empty. In absence of such evidence the report of the fire-arm expert supports the case of the prosecution.
23. The factum of injuries having been received by Javed Akhtar appellant is of no avail to him and he cannot take any advantage of it. For his injuries a case was registered but was cancelled by the police on the basis of opinion of the doctor and of the Investigating Officer. The timing given about the duration of injuries viz. Javed Akhtar appellant does not commensurate with the time of injuries sustained by Jehanzeb P.W.11 and the deceased. To the contrary Javed Akhtar appellant has admitted the presence of Jehanzeb P.W.11 even in his statement under sections 342 as well as 340(2), Cr.P.C.
24. Parvez Akhtar is brother of Javed Akhtar. He has also been attributed specific role of being armed with a shotgun. He remained fugitive from law for a Period of more than 6 months which can be taken as corroborative evidence against him. On the same score one can explain the non- recovery of the shot-gun from him, as immediately after the occurrence he disappeared from the village.
' As stated earlier the two appellants are brothers inter se. They had common motive and as such have acted in furtherance of their common intention and have caused the death of Gulzeb as well as fire-arm injuries on the person of Jehanzeb.
25. In our view the prosecution evidence is free of doubts and dents. We will, therefore, dismiss this appeal. The conviction and sentence recordedunder -1 section 302/34, P.P.C., is maintained.
26. Criminal Revision No,36 of 1993 has been filed by the complainant for the enhancement of the sentence under section 302/34 as well under section 324/34, P.P.C. The revision to the extent of conviction and sentence under section 302/34, P.P.C., is dismissed as there exist previous enmity between the parties and further because Noor Hussain P.W.12 has accepted that even one day before the occurrence there had been some quarrel nature of which has not been disclosed which will mitigate is awarding capital sentence.
' As for conviction and sentence recorded against both the appellants under section 324/34, P.P.C., is concerned, the revision petition against both the appellants is accepted. They were given two years R.I., each which imprisonment is enhanced to 5 years R.I., each. The learned Trial Court has ordered payment of Rs,5,000 each as 'Daman', which in our view was wrong application of section of law because under section 337-Q, P.P.C. 'Arsh' for causing Itlaf of an organ which found singly in a human body shall be equivalent to the value of Diyat whereas under section 337-R ' Arsh' for causing itlaf of organs found in a human body in Pairs shall be equivalent to the value of Diyat, and if itlaf is caused to one of such organs the amount of Arsh shall be one-half of Diyat.
' As in the instant case Jehanzeb (P.W.11) has lost his one eye as such the appellants are liable under section 337-R of the P.P.C., and they are io pay one-half of the Diyat amount each to the complainant instead of Rs,5,000 each as 'Daman'.
' They will remain in Jail till the payment of Diyat amount as aforesaid.
' The learned trial Judge has ordered the terms of imprisonment to run consecutively which in terms of section 35, Cr.P.C. We would convert and direct to run concurrently. With this modification this revision is allowed.