MAQBOOL HUSSAIN and others vs The STATE and others

' WAZIR SHAKEEL AHMED, J.---Through this judgment we intend to dispose of the appeals Nos. 3 of 2011, 4 of 2011 and 7 of 2011 of A.T.A. Court.

' Appellant Maqbool Hussain has called in question the judgment/conviction dated 10-1-2011 passed by the learned A.T.A. Court whereby the appellant was sentenced under section 337-D read with section 7(c) of A.T.A. For a period of 10 years and a fine of one hundred thousand rupees Arsh to be paid to the victim/complainant and also sentenced for 5 year under section 13-D of Arms Ordinance.

1, The brief facts gathered from the record of the case are that on the fateful day i,e, 18-1-2010 at about 2:30 hrs the complainant Ather Ahmad son of Naseem Ahmad of Sonikot Gilgit P. W.1 had gone to the nearby store along with Nisar Ahmad (P.W.3) and Muhammad Sharif (P.W.2) while returning from the General Store when they had just travelled a small distance, all of a sudden from a Carry Dabba (salety colored) in which three persons namely Maqbool son of Mehboob of Jutial, Hadi son of Ali Muhammad (Sonikot) and Maqbool son of unknown resident of Ramoshi Mohallah were boarded, started indiscriminate firing upon him, whereupon he was seriously injured, and the accused decamped from the seen of occurrence. According to the complainant he had no enmity with the above person, but he was hit as he is the real nephew of Qazi Nisar Ahmad Amir Ahl-e-Sunat due to religious extremism hatred and terrorism.

2. Police during investigation managed to arrest appellant and another accused namely Hadi son of Ali Muhammad while accused Maqbool son of Muhammad Anwer was declared absconder/proclaimed offender. Prosecution in support of the charges against the accused got examined P.W.1 complainant/injured Ather Ahmed, P.W.2 Sharif and P.W.3 Nisar Ahmed as eye- witnesses, while P.W.4 is the marginal witness of recovery memo Exh.P.W.4/A vide which a .30 bore Pistol was recovered on the pointation of the appellant, P.W.5 is the marginal witness of recovery memo Exh.P.W.5/A whereby the Carry Dabba was recovered from the street of Mohallah of the proclaimed offender Maqbool son of Anwer, P.W.6 is the Head Constable of Police Station Cantt.

Who could not execute the warrant under section 204, Cr.P.C. Against the absconded accused and got his statement recorded to that effect before the trial Court. P.W.7 is the marginal witness of recovery of empty shells of .30 bore Pistol with alive cartridge and a pellet vide Exh.P.W.7/A, P.W.8 is the Doctor who got exhibited injury sheet Exh.P.W.8/A and M.L.C. On the back of Exh.8 P/A thereafter the statements of 1Ps were recorded as P.Ws.9 and 10.

' The learned trial Court after completion of the proceeding convicted the present appellant as well as the proclaimed offender/absconder Maqbool son of Anwar as mentioned above which have been impugned this Court along with connected appeals, while adducing arguments the learned counsel of the appellant vehemently opposed the impugned judgment order stating that the whole investigation has been conducted without forming a Joint Investigation Team as required by provisions of Anti-Terrorist Act, he further agitates that there is a delay of four and a half hrs in lodging F.I.R. He was of the opinion that the statements of the eye-witnesses cannot be relied because these statements were recorded after two days of the occurrence. The live round and pellet were not produced before the trial Court. Furthermore it was vehemently argued that recovery of the .30 bore Pistol was not recovered from the exclusive possession of the appellant, but was effected from an open field and the conviction based on this recovery cannot be sustained, finally it was also stressed that the alleged recoveries cannot be relied upon as no independent mushirs have been associated in the proceedings rendering the same highly doubtful.

3. The State as well as the counsel for the complainant supported the conviction stating that the case in hand is of a promptly lodged F.I.R. Wherein the accused are directly charged and the eye witness have also been cited therein. The occurrence is that of broad-daylight murderous assault.

The recovery made and the medical reports are also inline with the ocular evidence.

4. We have given a patient hearing to the counsel of the parties and also perused carefully the record of the case and observed the following facts:--

(a) Admittedly the occurrence is that of broad-light, therefore the question of mis-identity of the accused etc does not arise at all. The alleged delay in F.I.R. Cannot be fatal in the present circumstances of the case because as soon after the incident the complainant was taken to the nearest hospital by the eyewitnesses others. The alleged delay is justify as the complainant has naturally took some time to regain his senses after getting fatal gunshot to his body.

(b) We have minutely gone through statements of the eyewitnesses who were subjected to lengthy cross-examination by the learned counsel of the accused, but nothing material were unearth to shatter the verity of their statements rather cross-examination of the counsel have not only established the presence of the complainant as well as the eyewitnesses of the . Incident, but also the presence of the accused.

' The relevant suggestions put forward are reproduced as under:-- "It is incorrect to suggest that I was alone at the time of occurrence." It is incorrect to. Suggest that the firing was opened by me. Suggested to complainant.

"It is incorrect to suggest that the firing was opened by us" suggested to the eye-witness P.W.2.

In the circumstances, narrated above, the scene of occurrence, the presence of the injured person along with the eye-witness and also accused are established beyond the shadow of any doubt:--

(d) It is well-settled proposition of the criminal trial that impeachable, un shattered and confidence-inspiring statement of a single witness is sufficient to bring home the guilt of the accused without any further collaborative evidence. In like cases B minor discrepancies should not come in the way of prosecution in aid of defence.

(c) The corroborative pieces of evidence in our opinion are also gone un-rebutted. The contention of the defence counsel 'regarding non-association of independent mushirs in connection of the recoveries is . Also of no help in the circumstances of the present case, because the provisions of section 103 of Cr.P.C. Does not necessarily be complied with strictly in cases where the same is effected on the pointation of accused, furthermore in the cases of sectarian C nature it is extremely hard to associate independent and impartial mushirs.

In the light of what has been discussed above, we do not find any infirmity in the judgment/order of the trial Court and maintain the same to the extent of Maqbool son of Mehboob Ali, which is maintained by dismissing his appeal (Appeal No, Criminal Appeal No,3 of 2011). The appeal of proclaimed offender Criminal Appeal No,7 of 2011 D Maqbool son of Muhammad Anwar is accepted by setting aside the judgment/order dated 10-1-2011 and that of 29-4-2011 whereby the application under section 19(12) of the A.T.A. Was dismissed through impugned judgment. The above accused Maqbool son of Muhammad Anwar has been arrested about 2 months and 5 days after pronouncement of impugned judgment and a fresh challan has been duly submitted before the trial Court. The trial Court is to proceed with the trial of Maqbool son of Muhammad Anwar at its earliest to meet the ends of justice. The Appeal No,4 of 2011 filed by the State to the extent of Hadi Hussain is also dismissed as there is no material in the case file to interfere with. File be consigned to record.