Rozi Khan etc vs Waqas Bacha

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

PESHAWAR

(Judicial Department)

Cr.A. No.583-P/2014

Date of hearing: 30.03.2015

Appellant (s) : Rozi Khan and Rashid by Mr. Sahibzada Asadullah, Advocate.

Respondent (s) : Waqas Bacha complainant by Mr. Muhammad Sajid, Advocate and the State by Mian Arshad Jan, AAG.

JUDGMENT

ASSADULLAH KHAN CHAMMKANI, J.- This appeal is directed against the judgment dated 21.10.2014, rendered by learned Additional Sessions Judge Lahore, District Swabi, whereby appellants (1) Rozi Khan and (2) Rashid have been convicted and sentenced as under:-

1.Appellant Rozi Khan Under Section 324/34 PPC:- To undergo 5 years R.I. and to pay a fine of Rs.20,000/- or in default thereof to undergo 05 months S.I. further.

Under Section 337-F (iv) PPC:- To undergo 2 years R.I. and to pay Rs.50,000/- to complainant-injured as Daman and in case of non-payment thereof he shall be kept in *M.Siraj Afridi P.S. D

jail and shall be dealt with in the manner as if he is sentenced to simple imprisonment.

2.Appellant Rashid

Under Section 324 /34 PPC :- To undergo

5 years R.I. only.

The sentences have been directed to run

concurrently. Benefit of Section 382-B Cr.P.C.

has been extended to the

appellants/convicts.

2.The prosecution case as unfolded in First Information Report is that on 29.12.2012 at 10.00 hours, complainant Waqas Bacha, in injured condition reported to local police in casualty of Yar Hussain hospital that on the fateful day he was on the way to Swabion his motorbike and when reached near the crime venue, Rozi Khan and Rashid (appellants-convict herein), duly armed with firearms, riding on a motorcycle being driven by appellant Rashid arrived there, out of whom, appellant Rozi Khan opened a fire at him with intention to commit his murder, resultantly, he was hit on wrist of his left hand. After the incident, the accused decamped from the spot. In addition to him, the incident is stated to have been witnessed by his uncle PW Saeed Bacha.

Previous blood feud enmity has been alleged as motive behind the incident. Report of the complainant Waqas Bacha (PW.6) was reduced into writing in the shape of murasila Exh.PA/1 by *M.Siraj Afridi P.S. D

Safdar Khan ASI (PW.5), on the basis of which FIR Exh.PA bearing No.896 dated 29.12.2012, under sections 324/34 PPC was registered at Police Station Yar Hussain, against the appellants. PW.5 prepared injury sheet of the injured Exh.PW.2/1 and referred him to medical Officer for treatment.

3.Dr. Akhtar Ali Shah MO RHC Yar Hussain examined the injured on 29.12.2012 and found the following injury on his person:-

1.A firearm entry wound on left forearm inner side 1⁄2 x 1⁄2 cm. Charring present with corresponding exit on outer side of same forearm 1⁄2 x 1 cm . First aid given and patient referred to DHQ Mardan for further treatment. In light of X- Ray fracture of radius was observed.

4.Bahar Ali Khan SI (PW.9) conducted investigation in the case. He proceeded to the spot and prepared site plan Exh.PB at the pointation of eyewitnesses. During spot inspection he secured blood with cotton from the place of injured vide recovery memo Exh.PW.8/1. He also took into possession an empty of 30 bore pistol Exh.P.1 vide recovery memo Exh.PW.8/2. Vide memo Exh.PW.8/3 he took into possession the bloodstained shirt of injured, sent by doctor.

The motorcycle of the complainant was also taken into possession along with its registration vide recovery memo Exh.PW.3/1, sent the bloodstained articles to the FSL and receipt report Exh.PK. On rejection of BBA , he arrested the *M.Siraj Afridi P.S. D

accused and interrogated them. After completion of investigation he handed over the case file to SHO, who submitted challan against the appellants before the learned Trial Court, where the appellants were charge sheeted to which they pleaded not guilty and claimed trial. Prosecution examined as many as nine witnesses. After closure of the prosecution evidence, statements of the appellants were recorded under section 342 Cr.P.C., wherein they denied the prosecution allegations and professed their innocence. They, however, declined to be examined on oath under section 340

(2)Cr.P.C. or to produce evidence in defence. On conclusion of trial, learned Trial Court, convicted and sentenced both the appellants as mentioned above, hence, this appeal.

5.Learned counsel for the appellants argued that appellants are innocent and have been falsely implicated on the basis of ulterior motive; that medical evidence belies the version of complainant, therefore, he being untrustworthy cannot be relied upon; that mere stamp of injury which otherwise is self inflicted, cannot be a certificate of truthfulness of the complainant; that alleged eyewitness Saeed Bacha is procured being uncle of the complainant; that ocular account does not find corroboration from the site plan, medical evidence and other circumstances of the incident; that mere recovery of blood and empty from the spot as well as medico legal report of the complainant in absence of direct *M.Siraj Afridi P.S. D

evidence would not be sufficient to prove the guilt of the appellants; that no role of firing has been attributed to appellant Rashid nor the motorcycle allegedly riding by him at the time of incident has been recovered either from his direct or indirect possession; that prosecution has miserably failed to bring home the guilt of the appellants through cogent and confidence inspiring evidence, therefore, the impugned judgment being based on surmises and conjectures, is liable to be reversed.

6.Conversely, learned AAG assisted by learned counsel for the complainant while supporting the impugned judgment sought dismissal of the appeal.

7.I have heard the arguments and perused the record carefully.

8.The two appellants have been charged by the complainant for attempting at his life and causing him firearm injury on his person by sharing common intention. As manifest from his initial report, complainant has specifically charged appellant Rozi Khan for effective fire shot on his person while appellant Rashid has been attributed the role of facilitating appellant Rozi Khan in the commission of offence. In support of his version complainant Waqas Bacha appeared in the witness box as PW.6. In his examination-in-chief he reiterated the same story as set forth by him in his initial report. To substantiate the version of injured complainant Saeed Bacha *M.Siraj Afridi P.S. D

recorded his statement as PW.7. He too, specifically charged appellant Rozi Khan for effective fire shot on the person of complainant. Both these witnesses have been subjected to cross-examination but nothing beneficial could be extracted from them. They remained stuck on their stance and corroborated each other on all material aspect of the incident.

Admittedly, it is a hurt case and in such like cases the solitary statement of injured is considered sufficient for recording conviction provided the same rings true and is supported by medical evidence. As stated earlier, complainant has specifically charged appellant Rozi Khan for single shot in his initial report as well as in his court statement and according to medico legal report of the injured he has sustained single firearm injury on left forearm.

9.During spot inspection, the I.O. secured blood from the place of the injured complainant and also took into possession his bloodstained shirt, which were sent to the FSL for Serologist opinion, report whereof Exh.PK is in positive that it was human blood and of the same group, which proves the place of incident to be the same as alleged by the complainant. Similarly, recovery of single empty of 30 bore Pistol from the spot further substantiates the version of the complainant.

10.In view of the above discussed evidence,

prosecution has proved the guilt of the appellant up to the hilt *M.Siraj Afridi P.S. D

and the learned Trial Court was justified by holding him guilty of the offence.

11.As regard appellant Rashid, he has not been attributed the role of firing despite that he has been shown armed with firearm. Had he any prior planning with his co-accused/appellant Rozi Khan, he would have also fired at the complainant, but he did not, which shows that he was totally unaware of the act of co-accused Rozi Khan. Not an iota of evidence has been brought on record to prove sharing common intention of the appellant Rashid with co-appellant Rozi Khan or his intention to facilitate him in the commission of the crime, therefore, the prosecution has not been able to prove his guilt through cogent and confidence inspiring evidence. The learned Trial Court has not appreciated the evidence in its true perspective to the extent of role of appellant Rashid and thus reached to erroneous conclusion by holding him guilty of the offence.

11.For what has been discussed above, this appeal is partially allowed. Conviction and sentence of the appellant Rashid recorded by the learned Trial Court are set aside and he is acquitted of the charge leveled against him. He be set at liberty forthwith, if not required in any other case.

12.Whereas, conviction of the appellant Rozi Khan recorded by the learned trial Court under sections 324 and 337-F (iv) PPC are maintained. However, keeping in view the *M.Siraj Afridi P.S. D

single shot of the appellant and single injury on non-vital part of the complainant, the punishment of 05 years R.I. under section 342 PPC as awarded by the learned Trial Court seems to be a bit harsh, therefore, the same is reduced from 05 years R.I. to 02 years R.I. The sentence of fine under section 324 PPC and sentence under section 337-F (iv) PPC, as recorded by the learned Trial Court, are maintained. The sentences shall run concurrently and benefit of S.382-B Cr.P.C. extended to him by the learned Trial Court shall remain intact.

13.With the above modification in the sentence of appellant Rozi Khan, this appeal to his extent stands dismissed.

Announced.

JUDGE

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