' Appellants Awais Khan (19/20) and Muhammad Zubair (38/39) were tried jointly by Sardar Muhammad Irshad Khan, Additional Sesions Judge, Peshawar, on the allegation of having on 20-11- 2002 at 9-15 hours near 'Al-Mahmar Plaza', 'Dalazak Road, Peshawar, in furtherance of their common' intention, attempted to commit 'Qatl-e-Amd' of Mst. Shamim Begum (25/26) by firing at her effectively. At the conclusion of the trial, vide judgment, dated 25-7-2003 the appellants, having been found guilty, were convicted under section 324, P.P.C. And sentenced to suffer five years' R.I.
Each with fine of Rs,20;000 each or in default of payment of fine to undergo one year's S.I. Each. In addition to the above punishment, the appellants were also convicted under second part of section 324 read with section 337-A(1), P.P.C. And sentenced to one year's R.I. Each as Tazeer. They were further held liable to Daman amounting to Rs,10,000 each. On realization of amount of fine, half of it was directed to be paid to complainant. The appellants were also directed to be kept in jail till payment of Daman to the extent of liability of each accused. Benefit of section 382-B, Cr.P.C.
Was also extended to the appellants. Both the sentences were directed to run concurrently.
2. The appellants have preferred instant Ciiminal Appeals Nos.469 of 2003 and 550 of 2003 to challenge their conviction and sentence. Mst. Shamim Begum complainant has also filed Criminal Revision No,97 of 2003 for enhancement of sentence of the appellants as also the amount of Daman. All the three matters are being disposed of by this single judgment.
3. Briefly stated the facts of the case are that on the day of occurrence i,e, 20-11-2000 at 9-15 hours Mst. Shamim Begum wife of Abdul Malik, a Telephone Operator in Pak Corporation Sarhad Mansion, Peshawar was going to attend her duty and when she reached the venue of occurrence, both the appellants started firing at her with which she was hit and sustained head injuries. Motive for the incident was stated to be that Muhammad Zubair, appellant, brother of the complainant wanted that complainant should marry his friend Awais Khan appellant to which the complainant was not willing and Muhammad Zubair appellant was annoyed over it. A large number of people present at the spot were stated to have witnessed the incident.
4. Immediately after the occurrence Mst. Shamim Begum complainant was removed to Lady Reading Hospital, Peshawar, A.S.I. Nasrullah Shah (P.W.4) recorded the report of the complainant and prepared injury sheet Exh.P.W.4/1 of the victim. S.I. Muhammad Anwar Khan (P.W.3) on receipt of 'Murasila' incorporated the same into F.I.R. He/proceeded to the hospital and took into possession shirt and a Chaddar stained with blood vide recovery memo. Exh.P.W.3/1 and sealed the same into a parcel. He sent the same to the Laboratory and received the result Exh.P.W.3/2. He prepared the site-plan Exh.P.B. At the instance of the complainant. He arrested Awais Khan appellant on 10-1-2003 and Muhammad Zubair appellant on 16-1-2003 after their pre-arrest bail applications were rejected. On completion of investigation he handed over the case file to the S.H.O. Concerned for submission of challan against the accused in Court.
5. At the trial, the prosecution examined five witnesses in all. Mst. Shamim Begum (P.W.1) reiterated the prosecution version and charged her brother Muhammad Zubair and his friend Awais Khan appellants for commission of crime. F.C. Farman Khan (P.W.2) is marginal witness to recovery memo. Exh.P.W.3/1 vide which the Investigating Officer took into possession shirt and Chaddar, stained with blood produced by the complainant. S.-I. Muhammad Anwar Khan (P.W.3) carried out the investigation, prepared site-plan, recorded statements of prosecution witnesses, despatched blood-stained shirt and Chaddar of the complainant to Serologist for opinion and report, placed on record report of the expert, arrested the appellants and handed over the case file to S.H.O. For further proceedings. A.S.I. Nasrullah Shah (P.W.4) was present in the Casualty Ward of Lady Reading Hospital, Peshawar on the day of occurrence i,e, 20-11-2002 at 1000 hours when the complainant was brought to the hospital in injured condition. He recorded the report and prepared injury sheet of the victim.
6. Dr. Asghar Khan (P.W.5) Medical Officer, Lady Reading Hospital, Peshawar on 20-11-2002 at 9.60 a.m. Examined the complainant and noted the following:---
1. Fire-arm entry wound left side posterior skull.
2. Fire-arm entry wound right tempro prital region.
3. The patient was advised skull X-Ray and referred to Neurosurgery Ward.
7. Muhammad Zubair appellant in his statement recorded under section 342, Cr.P.C. Admitted his relationship with the complainant but denied the allegations levelled against him. Awais Khan appellant in his statement under section 342, Cr.P.C. Also repudiated the prosecution allegations, denied his friendship with Muhammad Zubair appellant and claimed to have been charged falsely on mere suspicion. They led no, evidence in defence.
8. The learned trial Judge, acting on the material. On record proceeded to hold that complainant in view of Article 17(2) (b) of Qanune-Shahadat Order, 1984 has been able to prove the case against the appellants beyond any reasonable doubt. He convicted and sentenced the, appellants as mentioned and noted above.
9. I have heard at length Mr. Hazrat Said Advocate for Muhammad Zubair appellant and Mr. Afridi Khan, Advocate for Awais Khan appellant. I have also heard Ms. Musarrat Hilali, Additional Advocate-General for the State assisted by Mr. Muhammad Ashraf Khan, Advocate for Mst.
Shamim Begum complainant.
10. The learned counsel for the appellants mainly contended that the prosecution evidence is full of contradictions and improvements; that there is no independent eye-witness to prove the guilt of the appellants though the occurrence is alleged to have taken place at broad-daylight at a thickly populated place and large number of inhabitants of the locality are claimed to have witnessed the incident; that the motive put forward in the F.I.R. Has been changed during the trial; that no blood- stained earth has been recovered from the spot, and also no empty or shell has been secured from the place of occurrence and that the medical evidence is in conflict with the ocular account of the incident. Additionally it was urged that charge was framed under section 324, P.P.C. And learned trial Judge had no legal justification to convict and sentence the appellants under the second part of section 324, P.P.C. Read with section 337-A(1), P.P.C. Concluding the arguments the learned counsel submitted that learned trial Judge misdirected himself to place implicit reliance on the solitary statement of the complainant and make the same basis of conviction of the appellants.
11. As against this learned counsel for the State supported the impugned judgment and maintained that the appellants are directly nominated in the promptly lodged report for the commission of crime and the solitary statement of the complainant is sufficient to form basis of conviction of the appellants. Learned counsel for the complainant, adopted the arguments of learned State counsel qua the conviction of the appellants and maintained that the sentence awarded to the appellants is not appropriate in the circumstances of the case and warrants interference.
12 It may be observed that prosecution case mainly hinges on the solitary statement of Mst. Shmim Begum complainant. The victim has fully supported the prosecution version and charged her brother Muhammad Zubair and his friend Awais Khan appellants for causing her fire-arm injuries.
The complainant was subjected to lengthy and searching cross-examination but nothing could be elicited to shatter her testimony. No doubt there are some discrepancies in her statement but those are inconsequential and not fatal to the case. Admittedly, it was a broad-daylight occurrence on a working day and in a busy street of the city. The F.I.R. Was lodged without much delay and both the appellants were specifically named. These factors by itself would rule out the possibility of false implication. "The rule of corroboration is applied as an abundant caution and is not a mandatory rule to be always and necessarily insisted in each case. The true test is that if the direct evidence furnished by the witnesses contains exaggerations and is of doubtful veracity, the independent corroboration should be insisted. The rule of corroboration is also attracted in a case in which the evidence is credit worthy but not of such a degree as to result in conviction of the accused. However, the requirement of corroboration depends upon the facts and circumstances of each case and in the nature of evidence in the said case. If the evidence does not suffer from any major or significant contradiction, the corroboration is not insisted but in a case of interested evidence, the corroboration either from direct or circumstantial source is sought and in such case, corroboration by medical evidence, motive and recovery of weapon of offence is enough to maintain the conviction." Muhammad Afzal and 2 others v. State 2003 SCM R 1678.
13. It is no doubt true that the prosecution case largely depends on the solitary statement of the complainant but it is equally true that the conviction can be awarded on the basis of solitary statement of the victim provided it rings true and inspires confidence. It is the quality of evidence and not quantity which is to be considered. Mali v. State 1969 SCM R 76, Muhammad Siddique alias Ashraf alias Achhi and 3 others v. State 1971 SCM R 659, Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Riaz Hussain v. State 2001 SCM R 177.
14. The crime in question is alleged to have taken place on 20-11-2002 at 9-15 hours at a busy place and the matter was reported to the police the same day within 30 minutes of the incident. No doubt it is true that large number of people from the locality are stated to have seen the occurrence but no independent and disinterested witness from the locality has been produced at the trial to lend support to the prosecution version but it is equally true that in view of the social condition prevalent in our society strangers avoid to poke their nose in the bloody affairs of other people as held in Yaqoob Shah v. State PLD 1976 SC 53 wherein it was observed:--- "About the main argument of learned counsel, that the petitioner's conviction rests entirely on the evidence of police officials and no "independent" witness has been produced in the case, although the incident has taken place during busy hours in the main bazaar, all that we need to say is that this brings to a focus the tragedy of the general apathy in our society and absence of sense of civic duty to the fellow beings. It is a frequent experience of Criminal Courts that many a gruesome tragedy is enacted, with scores of on-lookers around, yet the assassin is allowed to operate without and let or hindrance and is allowed to escape from the scene, with impunity. Not only that. These "independent" on-lookers are not even prepared to say in Court what they have seen and thereby risk animosity of the assassin or his partisans. It is a pity that it is not realized that this callousness is not only cowardly but is also in violation of the Islamic Injunctions, Islam imposes a solemn duty upon its followers in unqualified terms to speak the truth, even if that were in conflict with their personal interest or the interest or their kith and kin. This indeed is one of the principal causes of delay in decision of criminal cases. In this case, the conduct of Pordil Khan is in keeping with the general pattern of behaviour in the society. But that should scarcely be a reason to doubt the veracity of the three police officials who appeared as the main witnesses to the incident, or the capture of the petitioner as he was trying to flee from the spot. Rather their grit and the sense of duty, is praiseworthy."
' Again in Muhammad Iqbal v. State PLD 1976 SC 291 it was held:- "It is of interest to mention here that having regard to the facts and circumstances of the case there is no doubt about the fact that the incident which took place at day time in a bus filled with passengers could not have gone unnoticed and the assailant unrecognized. The deceased and the appellant as well as the prosecution witnesses all came from Urmar Miana and the recognition of the appellant was, therefore, very likely and natural. This view finds support from the fact that upon the firing of the fatal shot the passengers immediately cried out that Iqbal had shot at/killed the deceased. Nevertheless none of the passengers came forward to say that he actually saw the appellant fire at the deceased. This is unfortunate and can only be understood in the context of the conditions obtaining in that part of the country where the occurrence took place, namely, the reluctance of witnesses or lack of courage on their part to depose against the assailant for fear of reprisal. This discloses a lamentable lack of civic sense and responsibility on the part of a citizen to tell the truth and to act for the benefit of the society and in aid of the authorities charged with the duty of maintaining law and order. The only witness, namely, P.W. Mst. Roshana, who claimed to be an eye-witness, has unfortunately not been relied on by either Court. Perhaps with a little more efforts on the part of the prosecution agency some other eyewitnesses might have been produced."
15. Learned counsel for the appellants contended with force that no blood has been secured from the scene of occurrence and no recovery has been effected from the spot which tends to suggest that the occurrence has not taken place in the manner as alleged. The submission carries no weight.. Non-collection of blood or recovery of empties from the spot is not fatal to the prosecution case. A perusal of the record would indicate that the Investigating Officer after, much delay visited the spot and on 13th/14th day of the occurrence prepared the site-plan. The possibility of the blood/empties having vanished/destroyed, cannot be excluded in the circumstances of the case.
16. An objection has also been raised on behalf of the appellants that ocular account of the incident is in conflict with the medical evidence. The submission is equally without substance. The complainant received fire-arm injuries on her head. She was immediately rushed to the hospital for treatment. At the time of making report -the victim was in full senses. A bullet, was found struck in the skull of the victim. During the medical examination the victim was found to have received two fire-arm entry wounds on her head. She was referred to Neurosurgery Ward for treatment.
17. Additionally, it was urged that the complainant was not on good terms with her husband Abdul Malik and possibility of the' said Abdul Malik having a hand in the affair cannot be ruled out in the circumstances of the case. The submission has not impressed me. There is nothing on the file giving the slightest indication to this effect.
18. In addition to conviction under section 324, P.P.C. The appellants have also been convicted under second part of section 324 read with section 337-A, P.P.C. It is submitted by learned counsel for the appellants that conviction under second part of section 324, P.P.C. Is illegal and not sustainable. The submision is devoid of merit. The sentence is proper and legal and no illegality or irregularity appears to have been committed.
19. A strong motive has been set up in the F.I.R. Leading the appellants to commit the crime in question. The motive has been successfully proved.
20. The overall assessm ent of the evidence made by the learned trial Judge and the finding arrived at by him apparently do not call for an interference by this Court and as such it cannot be said that a grave miscarriage of justice has accrued and/or that the trial Court has exercised jurisdiction illegally or with material irregularity. The sole testimony of the complainant has rightly been relied and made basis of conviction of the appellants. The learned counsel for the appellants has failed to point out any illegality by way of misreading or non-reading of the evidence by the learned trial Court warranting interference by this Court in its appellate jurisdiction. The authorities cited by learned counsel for the appellants are distinguishable and speak of the different situations. The appeals are without merit. The same are hereby dismissed. The impugned judgment is maintained.
The connected criminal revision fails which also stands dismissed.