Nisar Khan vs State

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

BANNU BENCH

(Judicial Department)

Cr.A. No.40-B/2014 Date of hearing: 04.12.2014.

Petitioner(s) : Nisar Khan by Mr. Muhammad Sadique Khan, Advocate.

Respondent(s) : Abid Ullah Khan by Mr. Umar Khan, Advocate and the State by Mr. Saif ur Rehman Khattak A.A.G.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This appeal is directed against the judgment dated 24.03.2014, passed by learned Additional Sessions Judge-I, Bannu, whereby he convicted and sentenced appellant Nisar Khan as under:-

Under Section 324 P.P.C. To undergo 03 years RI and to pay a fine of Rs.30,000/- or in default thereof to undergo 06 months SI further.

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Under section 337-F (ii) P.P.C. To undergo 02 years RI and to pay Rs.30,000/- as daman to injured complainant.

The sentences have been directed to run concurrently and benefit of section 382-B Cr.P.C. has been extended to the appellant.

2.According to report of Abid Ullah Khan Complainant on the fateful day at 1800 hours when he was on the way to his field for cutting grass, appellant-convict Nisar Khan duly armed with 12 bore Repeater present there opened fire at him with intention to commit his murder, resultantly, he was hit on his right palm. Motive behind the occurrence is stated to be that some two months prior to the incident, appellant tried to commit sodomy upon his nephew Muhammad Tahir aged 11/12 years, but in vain, on which their relations were strained. The *M.Siraj P.S. D

occurrence is stated to have been witnessed by Zahid Ullah, brother of injured complainant. Report of the complainant-injured was reduced into writing in the shape of murasila, on the basis of which F.I.R No.362 dated 10.07.2011 under section 324 P.P.C.

was registered at police Station Mandan, against the appellant.

3.On arrest of the appellant and completion of investigation, challan was submitted against him before the learned Trial Court, where he was formally charge sheeted to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as twelve witnesses.

After closure of the prosecution evidence, statement of appellant was recorded under section 342 Cr.P.C., wherein he denied the prosecution allegations and professed his innocence. He, however, declined to *M.Siraj P.S. D

be examined on oath or to produce evidence in defence. On conclusion of trial, learned Trial Court, after hearing both the sides, convicted and sentence the appellant, hence, this appeal.

4.Appellant after getting his release on bail under section 426 Cr.P.C. vide order dated 18.04.2014, remained absent. Repeated NBWAs were issued against him, but none returned executed or unexecuted. Today, learned counsel for the appellant-convict stated at the bar that appellant is behind the bar in another murder case, which statement was acknowledged by learned counsel for the complainant. In view of the above, learned counsel for the parties were asked to advance their arguments.

4.Learned counsel for the appellant argued that appellant is quite innocent and has been made *M.Siraj P.S. D

scapegoat on the basis of mere suspicions; that version of the complainant is neither corroborated by medical evidence nor other independent circumstances of the case; that neither any blood nor any crime empty has been recovered from the spot; that prosecution evidence is suffering from material contradictions and discrepancies which totally shatter the basic fabric of the prosecution story, therefore, the learned trial Court was not justified by holding the appellant guilty of the offence on the basis of such shaky and scanty evidence, therefore, the impugned judgment is liable to be set at naught.

5.Conversely, learned A.A.G. assisted by learned counsel for the complainant while supporting the impugned judgment contended that appellant is directly and singularly charged by *M.Siraj P.S. D

injured complainant; that testimony of injured and eyewitness Zahid Ullah, has not been shattered by the defence despite lengthy and comb searching cross-examination; that ocular account is corroborated by medical evidence, site plan and other circumstances of the case; that in presence of confidence inspiring and trustworthy direct ocular account, mere non-recovery of blood and empty would not be fatal to the prosecution; that learned Trial Court by properly appreciating the evidence on record, has reached to a just and proper conclusion to which no exception can be taken, hence, the instant appeal is liable to be dismissed.

6.Arguments heard and record perused.

7.In support of his version, Abidullah injured complainant appeared as PW.11. In his examination- in-chief he reiterated the same version set forth by *M.Siraj P.S. D

him in his initial report including the same motive.

He categorically mentioned Zahid Ullah to have witnessed the incident, who was present near the spot. In support of alleged motive, Muhammad Tahir Khan was examined. He while appearing as PW.13 fully supported the motive part of version of the complainant. Zahid Ullah eyewitness appeared as PW.12. He substantiated the version of complainant.

Both, the injured complainant and Zahid Ullah, have been subjected to taxing cross-examination by the defence but nothing favourable to defence could be extracted from them. They are consistent with each other on each and every material aspects of the incident. No doubt, PW Zahid Ullah is real brother of the complainant, but on the basis of such relationship, his straightforward and confidence inspiring testimony cannot be discarded.

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8.Medical evidence corroborates the ocular account. Dr. Muhammad Javed, who examined the injured complainant, appeared as PW.5. He deposed that he observed an entry wound on right hand lateral to wrist joint on ventral side of the injured.

Record divulges that complainant has received a solitary injury on wrist of his hand and the appellant is charged for single shot while the weapon of offence attributed to him is 12 bore Repeater, which does not eject empty automatically. As the appellant has not repeated firing, therefore, crime empty of his first shot remained inside the gun, therefore, non-recovery of empty from the spot would not advance the prosecution case. Evidence available on record squarely proves the guilt of the appellant up to the hilt but only to the extent of injury on the person of the complainant by not repeating the act *M.Siraj P.S. D

of firing. Had he any intention to do away with the injured complainant, he would have selected his vital part and would have repeated fire shots as he was totally at his mercy, but such is not the case herein, which clearly suggests that he had no intention to commit murder of the complainant, hence, the learned Trial Court has erred in law by holding him guilty of the offence under section 324 P.P.C., however, the findings of the learned Trial Court to the extent of convicting the appellant under section 337-F (ii) P.P.C. for the hurt caused to the injured is based on proper appreciation of evidence available on record to which no exception can be taken.

9.For the foregoing discussion, the

conviction and sentence of the appellant-convict under section 324 P.P.C. are set aside and he is acquitted of the charge under section 324 P.P.C., *M.Siraj P.S. D

however, his conviction and sentence under section 337-F (ii) P.P.C., are maintained. With these modifications, this appeal is disposed of accordingly.

Announced.

JUDGE

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