Farman Ali and another vs The State and another

SARDAR TARIQ MASOOD, J.---Through these petitions, the petitioners Farman Ali and Amjad Ali impugn the common judgment. dated 23.02.2012, passed by the learned Division Bench of the Peshawar High Court, Mingora Bench (Dar-ul-Qaza), Swat, whereby Criminal Appeal No.603/2009, filed by the petitioners, was dismissed and their conviction and sentence, awarded by the learned trial Court, was maintained.

2. The petitioners along with their co-accused were indicted in case FIR No.316/2007, registered under section 302/34, P.P.C. After a full fledged trial, learned Additional Sessions Judge, Azafi Zilla Qazi Matta, Swat, vide judgment dated 03.12.2009, convicted the petitioners under section 302(b), P.P.C. and sentenced them to imprisonment for life, each. They were also directed to pay Rs.50,000/- each, as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. recoverable as arrears of land revenue. Benefit of section 382-B, Cr.P.C. was also extended to them. Their joint Criminal Appeal before the learned Peshawar High Court was also dismissed. Hence, these separate petitions for leave to appeal.

3. Learned counsel for the petitioner (Farman Ali) contended that there was a glaring contradiction in medical evidence, and the ocular account that one of the eye-witnesses was given up by the prosecution; hence, there is presumption against prosecution in terms of section 129(g) of the Qanun-e-Shahadat Order , 1984 and conviction cannot be sustained on the statement of a solitary eye-witness i.e. Khurshid Iqbal (PW-2). He lastly contended that the empties were not sent to the Forensic Science Laboratory for expert opinion as' to whether these have been fired from one weapon or more.

4. We have heard the learned counsel for the petitioner Farman Ali in Criminal Petition No.29-P/2012, and also perused the whole record in Jail Petition No.76/2012, preferred by Amjad Ali co-convict of Farman Ali and observed that in this case the occurrence took place at about 5.15 p.m. The Police after coming to know about the occurrence arrived in the Emergency Department of the Hospital where Muhammad Askar Khan, Compalinant/PW - 1, reported the matter . The postmortem was conducted on the same day after about one hour of the occurrence. In the FIR, it is specifically mentioned that the petitioners Farman Ali and Amjad Ali along with Malik Alam (P.O.) fired at the deceased Muhammad Ajmal Khan. Due to their firing, the deceased received fire shots and succumbed to the injures. The names of the eye-witnesses, have specifically been mentioned in the FIR. In this case, the matter was promptly reported to the police and the postmortem was also conducted promptly , which exclude the possibility of consultation or deliberation on the part of the prosecution.

During trial the prosecution produced Muhammad Askar Khan (PW-1) and Khurshid Iqbal (PW-2) as eye-witnesses of the occurrence. Although they both were related to the deceased but they have no ill will or motive to falsely implicate the petitioners. They remained consistent on each and every materi al point despite lengthy cross- examination and both the Courts below , after appraisal and re-appraisal of the evidence, found them truthful and reliable witnesses. Learned counsel for the petitioners could not point out any material discrepancy or improvement in their statements. According to both the witnesses, the petitioners along with their absconding accused fired at the deceased hitting on different parts of his body . The Doctor observed entry and exit wounds on the body of the deceased. The argument of the learned counsel for the petitioners that specific injuries have not been attributed to the petitioners, has no force because when three persons started firing upon one person then it is not possible for eye-witnesses to specify the injuries caused by each of them. Even otherwise, the benefit of this aspect has already been extended to the petitioners by the Courts below by not awarding them the capital punishment. The ocular account which otherwise was trustworthy is fully supported by the medical evidence so far injuries received by the deceased and time of occurrence etc, are concerned. There was no contradiction between the ocular account and the medical evidence as claimed by the learned counsel for the petitioners. The ocular account is further corroborated by the abscondence of petitioner Amjad Ali, as he remained fugitive from law. He was declared proclaimed offender and his warrants and proclamation were brought on record through Syed Rehman (SW-1).

Likewise, co-accused Farman Ali could not be arrested for about 25/26 days and was arrested thereafter . Non dispatching of the empties to the firearm expert is not fatal to the prosecution case as no weapon was recovered during investigation of the case. Non-ex amining of Jamshed PW is not fatal to the prosecution because it is prerogative of prosecution to produce the witnesses of its own choice. In this case prosecution had produced two witnesses of ocular account, who had been found reliable by the Courts below . Even otherwise, the requirement for proving the case is quality and not quantity .

5. We are satisfied that the trial Court had properly appraised the evidence and the High Court had also rightly re- appraised the evidence in view of the settled principles of law. Consequently , we are not inclined to interfere in the judgment of the learned Peshawar High Court which is passed squarely in accordance with law. Resultantly , both petitions are dismissed and leave to appeal is declined.