' SHAHZAD AKBAR KHAN, J.--- On the charge under section 324, P.P.C. Read with 3/4 Explosive Substances Act, 1908 and sections 6/7 the Anti-Terrorism Act, 1997 the respondent Ahmed Zaman Khan was tried by the Judge Anti-Terrorism Court, Hazara Division at Abbottabad and was acquitted vide judgment, dated 30-5-2002. The State being aggrieved of the acquittal of respondent has filed instant appeal under section 25 of the Anti-Terrorism Act, 1997 questioning the correctness and legality of the impugned judgment.
2. The short facts of the case are that on the night of 21-4-2002 at 3-15 hours Tayab Ali Khan complainant recorded his report in the form of Muraisla with police of Police Station City Haripur wherein he stated that on the said night he alongwith his father Fakhar Zaman, his mother and sister, namely, Mst. Samia Fakhar was asleep in his house. At about 2-45 a.m. His real uncle Ahmed Zaman Khan (respondent) was giving kick blows to the main gate of their house and was abusing them. He was trying to break open the gate to enter the house who was prevented by him and his father Fakhar Zaman. Mst. Saima hue and cry for getting help of the people. In the meanwhile Ahmed Zaman Khan threw two hand-grenades in their house, out of which one exploded on the shed of the house while the second explored in the courtyard which caused injuries to his father .Fakhar Zaman and sister Mst. Saima besides damaging the shed of the house.
3. As gathered from the impugned judgment and the facts furnished by the learned Deputy Advocate-General, Mehboob I.H.C. Alongwith police party left for the spot and when reached there the respondent threw another grenade on the police party from the roof of the house of complainant which injured the police personnel. About the subsequent incident, i,e,, throwing of grenade on the police party another Murasila was drafted and sent by I.H.C. Mehboob for the registration of the case. Resultantly the report of Tayab Ali Khan culminated into the registration of case F.I.R. No,313 while the report of Mehboob Khan was incorporated as F.I.R. No,314 both, dated 21- 4-2002. Investigation in both the cases was conducted and challan against the respondent was put in the Anti-Terrorism Court Hazara Division, Abbottabad. Both the cases were tried. However, the learned Judge Anti-Terrorism Court on 30-5-2002 convicted the respondent in case F.I.R. No,314 ana sentenced him to life imprisonments plus fine and compensation in terms of section 544-A, Cr.P.C. Whereas in the instant case, i,e,, case F.I.R. No,313, the respondent was acquitted of the charge.
4. After the registration of the instant case investigation was carried out by Abdul Saboor Khan who was examined as P.W.3 and stated that he prepared the site plan Exh.P.B. At the instance of the complainant. He secured blood through cotton from the place of Fakhar Zaman injured which was sealed in parcel and incorporated in the recovery memo. Exh.P.C. In presence of the witnesses. He also recovered from the shed of the house a clip, a fuse and 17 pieces of metal of different sizes which were also sealed into parcel. Similarly, from the courtyard of the house of the complainant one fuse'and 4 pieces of metal of different sizes were also recovered and were sent to the Bomb Disposal Expert vide his application Exh.P.K. Through another application Exh.P.Z the blood secured from the venue of occurrence was sent to the Chemical Examiner for examination and opinion. The report of the Bomb Disposal Expert was recovered as Exh.P.K/1. He recorded the statements of the P.
Ws. And photographed the damaged portion of the house as Exh.P.N.
5. Injured Fakhar Zaman was examined by Dr. Ejaz Mehmood who appeared as P.W.1 and endorsed the medical report MLC No,480. He found small multiple injuries all over the body of Fakhar Zaman.
Haemotoma was due to the splinter injuries on the left eye and observed that hypotension was probably due to medical cause and the patient was advised E.C.G. His report was exhibited as Exh.P.K.
6. Tayab Ali Khan and Mst. Saima P.Ws.7 and 8 respectively were examined by the prosecution as eye-witnesses to the occurrence.
7. The learned Deputy Advocate-General has vehemently assailed the judgment of the learned trial Court and argued that the learned trial Judge has landed in serious error by allowing himself to be influenced by the two chief considerations, firstly, that the injuries statedly sustained by Mst. Saima were not established through documentary evidence and secondly, that P.W. Tayab Ali Khan has made improvements in his statement before the Court. Addedly the question of identity of the accused was also taken as a factor undermining the evidentiary value of the testimony of the eye- witnesses. The learned Deputy Advocate-General argued that the prosecution produced tremendous evidence of a very high order and quality to which the learned trial Judge has erroneously attached no weight. He urged that the statements of Tayab Ali Khan P.W.7, Mst. Saima P.W.8 and of Jamshaid Khan P.W.9, who is an independent person having neither relations with the complainant party nor animous towards the respondents, have given a consistent account about the occurrence and their testimony remained unshattered notwithstanding a very searching cross-examination. Jamshaid Khan. P.W.9 had received in injuries in the occurrence. The recovery of a large number of metallic pieces, a fuse and a vashal with a positive report from the Bomb Disposal Expert is the strong corroborative circumstances. This significant evidence was for no plausible reason rejected by the learned trial Court.
8. On the other side the learned counsel for the respondent has raised a preliminary objection that the instant appeal is time-barred by one day as it was filed on 15-6-2002 which means that it was filed on the 16th day. The learned Dy. A.-G. While answering objection has submitted that the learned trial Court had not provided copy of the impugned judgment to the Public Prosecutor on the day when it was announced. The copy was obtained by filing a application which was filed on 6-6-2002 which was delivered on 7-6-2002 and as such one day was consumed in obtaining copy of the judgment. We have examined the judgment was provided to the Public Prosecutor on the day it was pronounced. Even the short order of the learned trial Court is silent about the delivery of the copy of the judgment to the Public Prosecutor, Conversely, in the judgment given in case F.I.R.
No,314 by the same learned Judge and on the same date it has been mentioned that a copy of the said judgment be given to the accused free of costs. This apparent omission indicates that no copy of the judgment was provided to the Public Prosecutor because had it been done so this factum would have been mentioned in the, judgment as in the judgment pertaining to case F.I.R.
No,314.
9. Section 12(2) of the Limitation Act provides that in computing the period of limitation prescribed in law for an appeal the day on which the judgment complained of was pronounced and the time requisite for obtaining the copy of the decree, sentence or order appealed from shall be excluded.
As per section 29(2)(a) the provisions contained in section 4, sections 9 to 18 and section 22 of Limitation Act shall apply if not expressly excluded by a special or local law. Undoubtedly the Anti- Terrorism Act, 1997 is a special law but the learned counsel for the respondent has not pointed out any provisions therein which excluded the provision of section 12 of the Limitation Act. Thus we hold that by pressing into service section 12 of the Limitation Act one day which was genuinely spent in obtaining the copy of the impugned judgment has to be excluded from limitation period of 15 days.
Thus on the above statement of law and facts we feel that the instant appeal is within time and the objection of the learned counsel for the respondent is not sustainable.
10. The learned counsel for the respondent further submitted that about one occurrence two F.I.Rs, i,e,, 313 and 314 have been registered. In case F.I.R. No,314 the respondent was convicted and sentenced. The conviction was maintained by this Court with a modification in the sentence. Thus legally the respondent could not be tried for the case registered under F.I.R. No,313. We cannot subscribe to the contention of the learned counsel for the respondent. In fact there were two occurrences. In the earlier occurrence the grenades were thrown on the complainant party at about 2-30 in the night while in the second occurrence the grenade was thrown on the police party by the respondent at 3-30 and there is a considerable gap of time between the two incidents which by no standard of reasoning can be said to be one occurrence. The learned counsel for the respondent further argued that the learned trial Court had rightly taken into consideration the question of identification as the occurrence took place at night time. He also contended that the factum of telephone call by the respondent to the house of the complainant is not established.
11. We have considered the rival arguments from both sides and have also examined the impugned judgment in the light of evidence produced by the prosecution. It is admitted position that respondent Ahmed Zaman Khan is the real uncle of P. Ws. Tayab Ali Khan and Mst. Saima while injured Fakhar Zaman, i,e,, father of the complainant was real brother of the respondent. The making of a telephone call has been admitted by the respondent in his statement under section 342, Cr.P.C. Therefore, the argument of the learned counsel for the respondent that the telephone call was not established is destitute of force. The telephone call was received by the real niece of the respondent to whom he was not a stranger and there was insipid and abusive talk by the respondent.. The voice of the respondent was not strange to his real niece and he could be identified even by his voice which is not the only source of identification but there is evidence that the respondent was identified even otherwise and in the light of an electric tube lit in the house of the complainant. On the question of identification through voice in the judgment in case of Muhammad Riaz v. The State reported as 1997 PCr.LJ page 1846 it was observed thus:--- "It is established law that persons related inter se can be recognized even during dark night by hearing their whispering and dialogue. This view is fortified by the dictum laid down in `Muhammad Arshad v. The State PLD 1995 SC 475 referred to in para. 10 above."
' In 1994 PCr.LJ 788(2) in Qadeer Hussain's case it was held that accused can be identified from his voice even in dark and the argument on the question of identification was repelled having no substance in the circumstances of the case. The intimacy of the accused-persons with the witnesses is a relevant factor to determine the quality of evidence on the point of identification. In NLR 1993 page 203 in the case of Ghulam Hussain and another v. The State it was observed thus:--- "It is true that the occurrence in question had taken place in the darkness of the night but on account of the extremely close relationship of the eye-witnesses of the occurrence in question with the appellants the claim of the eye-witnesses regarding the identification of the appellants by the said P.Ws. Would be a claim open to no serious exception."
12. The statement of Tayab Ali Khan complainant was disbelieved on the ground that he made improvement in his statement. The improvement highlighted by the learned lower Court is that in the F.I.R. The factum of telephone call is not mentioned but in Court statement the witness has mentioned the making of telephone call. This is neither any significant improvement nor the complainant is required to give a detailed narration of the incident in the F.I.R. Such fact cannot undermine the evidentiary value of the statement of witness. The statement of Jamshaid an independent person is of great significance. He was injured in the incident and categorically stated that he noticed that Ahmad Zaman accused threw the grenade from the roof of the house as a result of which he alongwith police officials sustained injuries. In the light of his statement the question of identification stands settled and no doubt could be entertained about the identification of the respondent. To a suggestion Jamshaid Khan answered, "It is correct that the hand-grenade was thrown by the accused from the roof of Fakhar Zaman". No question was put to him that he did not receive any injury in the occurrence, which means that the factum of injury received by Jamshaid stood admitted. Thus in view of the injuries that he sustained in the incident, his presence at the spot stands established and he has also categorically deposed about the identification of the respondent. P.W. Fakhar Zaman though an injured witness could not be examined by the prosecution owing to his extremely serious illness. He did appear before the Court on 23-5-2002 but his statement could not be recorded by the trial Court due to paucity of time. He was admitted in the hospital with inability to appear in Court for statement and was uncontrovertibly stated to be died by the time when the judgment was announced. His non- production by the prosecution cannot be a damaging factor to its case.
13. In the above circumstances we have no reason to dismiss the ocular testimony of P.Ws. Tayab Ali Khan, Mst. Saima and Jamshaid. The ocular account is duly supported by the recovery of metallic pieces of the hand-grenade, a fuse and vashal from the scene of occurrence and the blood secured from the house of the complainant with a positive result from the Bomb Disposal Expert and the Forensic Science Laboratory. No motive for false. Involvement has been pleaded.
The admitted telephonic call was a forerunner to the occurrence followed by a quick arrival of respondent at the house-gate of complainant and hurling of abuses coupled with his demand to send out Fakhar Zaman and Qamar Zaman father and brother of complainant respectively osciliated his familiar voice to the ears of his real nephew and niece. The immediate explosion and his appearance on the roof top of the Baithak' of complainant are the chained circumstances which further brought the appellant closer to the point of unmistaken identity and as such his identification could not be doubted at all. We, therefore, hold that the prosecution has succeeded in proving its case against the respondent and the judgment of the learned trial Court is not based on sound reasoning. The same is, therefore, set aside. The appeal to the extent of section 3 of the Explosive Substances Act was not pressed by the learned Deputy Advocate-General for want of the requisite sanction from the Government. We, therefore, hold that the respondent has committed an offence under section 7 of the Anti-Terrorism Act. He is accordingly convicted and sentenced to undergo 8 years' rigorous imprisonment under clause (b) of section 7 of the Anti-Terrorism Act, 1997. He shall also pay a fine of Rs,50,000 or in default to undergo 6 months' R.I., further. He is also directed to pay a sum of Rs,10,000 as compensation under secti n 544-A, Cr.P.C. To the injured P.W.
In default of payment of compensation he shall undergo 2 months' S.I. The instant punishment of imprisonment shall run concurrently with his other sentence awarded to him in the other case.
These are the reasons for our short order recorded in this case on 5-7-2002.