HIGH COURT OF SINDH AT KARACHI

Criminal Appeal No.202 of 2014

Present:

Mr. Justice Naimatullah Phulpoto, J.

Appellant Aadil son of Gul Zareen through Ms. Tabassum Hashmat, Advocate

Respondent Mr. Abrar Ali Khichi, A.P.G.

Date of hearing 20.08.2015

Date of announcement 07.09.2015

JUDGMENT

NAIMATULLAH PHULPOT, J---. Appellant Aadil along with acquitted accused was tried for launching a murderous assault on one Nawab Khan by learned IV Additional Sessions Judge Karachi East in Sessions Case No.686/2010. On conclusion of trial, accused Zeeshan and Ikram were acquitted by the trial court vide judgment dated 30.06.2014. However, appellant Aadil S/o. Gul Zareen was convicted under section 324 PPC and sentenced to 07 years R.I. and to pay fine of Rs.50,000/-. In case of default in payment of fine, he was ordered to suffer S.I. for 06 months more.

2. Brief facts of the prosecution case leading to filing of the appeal are that complainant Alam Khan lodged F.I.R. at P.S. Gulistan-e-Jauhar on 28.02.2010 alleging therein that PW Nawab Khan (injured) is his cousin. On 28.02.2010 at 4.45 P.M. Nawab Khan was sitting at medical store and there was exchange of harsh words between appellant Aadil S/o Gul Zareen and Nawab Khan. Thereafter, it is alleged that appellant Aadil drew pistol and fired upon Nawab Khan with intention to kill him. Fires hit him at his stomach and hands and he was seriously injured. He was taken to the hospital for immediate treatment. Complainant was standing at the shop of motor mechanic at that time and after receipt of information regarding the incident, he proceeded to the place of incident and took injured Nawab Khan to the Agha Khan Hospital. Complainant has stated that accused Aadil had fired upon Nawab Khan with intention to kill him. F.I.R. of the incident was recorded vide Crime No.135/2010 under section 324 PPC. After usual investigation, challan was submitted against accused Aadil, Zeeshan and Ikram under section 512 Cr.P.C. Thereafter above named accused persons surrendered and faced trial.

3. Charge was framed against appellants, Aadil, Zeeshan and Ikram under section 324/34 PPC at Ex-2. The accused did not plead guilty to charge and claimed to be tried. Prosecution examined P.W-1 Muhammad Nawab Exh. 3, P.W-2 Alam Khan as Exh. 4, P.W-4 Muhammad Ashiq Exh. 8, P.W-5 SIP Javed Ahmed Exh. 9, P.W-6 SIP Saleem Khan Exh.10, PW-7 Dr. Pervaiz Mehmood Hashmi, Ex-11. Thereafter, learned DPP closed prosecution side vide his statement dated 26.4.2014 Ex. 12.

4. Statements of accused Aadil, Zeeshan and Ikram were recorded under section 342 Cr.P.C. Exh. 13 to 15. Accused Aadil denied the prosecution allegations and claimed that he has been falsely implicated in this case. He further stated that complainant is his relative who intended to get the sister of accused Aadil for marriage with the brother of Nawab Khan. On his refusal, this case has been lodged against him. Political enmity has also been alleged by him. Accused Aadil did not lead evidence in defence and declined to give statement on oath. Remaining accused also claimed false implication in this case.

5. The trial court after hearing the counsel for the parties and assessment of evidence acquitted co-accused Zeeshan and Ikram vide judgment dated 30.06.2014 and convicted the appellant Aadil as stated above.

6. I have carefully heard Mst. Tabassum Hashmat, learned advocate for the appellant Aadil and Mr. Abrar Ali Khichi, A.P.G. for State and perused the evidence minutely.

7. Point for my determination in this case is as under:-

“Whether appellant Aadil had caused fire arm injuries to Nawab Khan with intention to kill him and he has committed the offence with which he is charged?”

8. As regards to the injuries sustained by PW Muhammad Nawab are concerned, Dr. Parvez Mehmood Hashmi has deposed that injured was brought in the Agha Khan Hospital on 28.02.2010 at 08:30 PM with the history of multiple fire arm injuries. He had found following injuries on Muhammad Nawab Khan:

(1) Un-displaced right pelvic wing fracture. The same was conservative and requires no operation.

(2) Multiple fragmented fracture at the ring finger proximal failings in right hand. The same was treated with an external fixator.

(3) Comminuted fracture at Distal humorous (left elbow). The patient was undergone an operation through which plate and screws were applied.

9. Doctor has stated that injured Muhammad Nawab Khan was discharged from the hospital on 11.03.2010. In the cross-examination, doctor has replied that he was unable to say exactly how many bullet injuries were found on the body of injured during first examination. In the cross-examination, age of injuries, number of injures, nature of injuries and weapon used have not been questioned/disputed. Integrity and inefficiency of the doctor have also not been challenged. I, therefore, hold that injured Muhammad Nawab Khan had sustained fire arm injuries as described by the Medical Officer.

10. In order to prove its’ case, prosecution has examined injured Muhammad Nawab Khan at Exh. 3. He has categorically stated that on 28.02.2010 he was present at his house along with his cousin Wali Muhammad at 4.30 P.M. Younger brother of Aadil namely Muzammil came to Nawab Khan and asked him that his mother was calling him at house. He went to her house where accused Aadil said to him that he has committed sodomy with his younger brother Jamal. Thereafter, he has deposed that accused Aadil started firing upon Nawab Khan with intention to kill him and he received injuries. One bullet hit him at back side near heart, one bullet injury at lungs and fire arm injuries were hit to his fingers. Nawab Khan has stated that at that time accused Zeeshan and Ikram were also standing beside Aadil. After receipt of fire arm injuries Nawab Khan fell down. It is stated that persons of the Mohallah namely Muhammad Sultan, Qari Mushtaq and Altaf arrived there and took injured to the Agha Khan Hospital and his statement was recorded by the police on 03.3.2010. P.W Nawab Khan identified the accused persons in Court. In the cross-examination to advocate for accused Aadil, he has denied the suggestion that false case was lodged against him. Complainant Alam Khan has deposed that on 28.02.2010 at 4.30 P.M. he was sitting at the shop of motor mechanic situated at Pehalwan Village, he heard news from mohallah people that Aadil has fired upon Nawab Khan. He came to know that there was quarrel between Aadil and Nawab and injured was shifted to Dar-ul-Sihat hospital and he lodged the F.I.R.

11. SIP Javed Ahmed has partly investigated the case and inspected the place of wardat in presence of mashirs and recorded 161 Cr.PC statement of injured Nawaz Khan.

12. ASIP Saleem Khan has also investigated the case and stated that he recorded 161 Cr.PC statements of PWs and collected medical record of the injured from Agha Khan Hospital but he could not arrest accused during investigation and submitted challan against accused under section 512 Cr.PC.

13. It is evident from record that PW Nawab Khan has deposed that on 28.02.2010 he was present at his house along with his cousin Wali Muhammad, it was 04:30 p.m. Younger brother of appellant Aadil went to Nawab Khan and told him that his mother was calling him at her house. He went to the house of Aadil where Aadil said to PW Nawab Khan that he has attempted to commit sodomy with his younger brother namely Jamal. It is stated that PW Nawab was leaving the house of accused Aadil but accused Aadil fired upon him with intention to kill and fires hit him and he became seriously injured. Evidence of PW Nawab Khan, who is injured, is quite reliable for the reasons that evidence of PW Nawab Khan is fully corroborated by the medical evidence, so also, motive for commission of offence. Despite lengthy cross-examination, nothing favourable to accused Aadil came on record. PW Nawab has denied the suggestion that he has given false evidence against accused due to enmity. Complainant Alam Khan, lodged F.I.R. of the incident he has stated that on 28.02.2010 at 04:40 p.m. he was present at the motorcycle mechanic shop in Pehlwan Goth. He came to know that accused Aadil has fired upon PW Nawab Khan. In the meanwhile, Nawab Khan was shifted by the persons of mohallah to Darul Sihat hospital in a Taxi. Thereafter, the injured was referred to the Agha Khan Hospital.

14. In my considered view, evidence of injured Nawab Khan is quite reliable for the reasons that PW Nawab Khan had no motive to falsely implicate appellant Aadil in the case. Evidence of injured Muhammad Nawab Khan is fully corroborated by motive and medical evidence. Not a single circumstance has been pointed out to create doubt in the prosecution case. Defence theory was afterthought and same was not substantiated by accused at trial. The contention of learned advocate for appellant AAadil that on same evidence co-accused Zeeshan and Ikram have been acquitted by trial Court and case of appellant was at par with that of co-accused Zeeshan and Ikram. Evidence shows that case of co-accused Zeeshan and Ikram was quite distinguishable from the case of appellant Aadil, no role was assigned to them and for want of evidence they were acquitted by the trial Court. So far as the case of accused Aadil is concerned, there is huge evidence against him to connect him in the commission of offence. He is sole perpetrator of the offence with which he is charged. Rightly reliance has been placed on the case of ABDUL KHALIQ and another versus STATE (PLJ 2002 SC 1126), Honourable Supreme Court of Pakistan has been observed under:-

“11. It is intrinsic worth and value of evidence, which is always relevant for determining the reliability of a witness in a case rather than quantity of witnesses. Prosecution having proved the guilt of the accused by strong motive, ocular reliable testimony coupled with corroborative medico legal opinion and recovery of crime weapons, we are unable to subscribe to the view of the learned defence counsel that there is a conflict between the ocular and medical evidence.

12. Learned counsel submitted that on identical evidence accused Jameel had been acquitted by the High Court, therefore, the benefit of doubt should also have been extended to the appellants. We have considered this argument with utmost care and found from the record that firearm injury attributed to this accused was not established on record from the medical evidence, therefore, learned Members of the Division Bench neither acted illegally nor arbitrarily in extending the benefit of doubt to the said accused. At any event, case of the appellants is distinguishable and not at par with that of co-accused Jameel, since acquitted.”

15. Appellant has been specifically nominated in the F.I.R. According to prosecution appellant had caused fire arm injuries to the injured Muhammad Nawab Khan. Injured appeared before the trial Court and implicated the appellant AAadil and his evidence is supported by the medical evidence. Prosecution has succeeded in establishing appellant’s guilt beyond any reasonable doubt. Apart from that no infirmity, illegality or irregularity on the part of learned trial Court has been pointed out by learned counsel for the appellant, warranting any interference by this Court.

16. For the aforesaid reasons, no occasion has been found by me to interfere in the impugned judgment. Consequently, there is no merit in the appeal filed by appellant Aadil. Therefore, the appeal is dismissed.

JUDGE

Gulsher/PA