ASHIQ HUSSAIN Versus ARSHAD MEHMOOD

SADIQ MAHMUD KHURRAM, J.--- Through this petition filed under sections 435 and 439, Code of Criminal Procedure, 1898 the petitioner namely Ashiq Hussain son of Muhammad Daud has assailed the order dated 09.10.2019 passed by the learned Magistrate with enhanced powers under Section 30 of the Code of Criminal Procedure, 1898, Taxila through which he convicted the petitioner in case FIR No.449 of 2012 dated 04.06.2012 registered at Police Station Saddar Wah District Rawalpindi in respect of offences under sections 324 and 337-F(v), P.P.C. and sentenced him as under:-

Ashiq Hussain son of Muhammad Daud

1. Simple imprisonment for four years under section 324, P.P.C. and directed to pay fine of Rs. 30,000/- and in default of payment of fine to further undergo Simple Imprisonment for three months.

2. To pay Daman of Rs.50,000/- under section 337-F(v), P.P.C. in five monthly installments.

The petitioner was however, extended the benefit available under section 382-B of Code of Criminal Procedure, 1898. The sentences of the petitioner were ordered to run concurrently.

The petitioner lodged an appeal before the learned appellate court assailing his conviction and sentence, however, the learned Additional Sessions Judge, Taxila vide judgment dated 08.01.2020 dismissed the appeal as filed by the petitioner. The petitioner has also assailed the judgment passed by the learned Additional Sessions Judge, Taxila dated 08.01.2020 through the instant revision petition.

2. Precisely, the prosecution case against the petitioner is that on 04.06.2012 at about 8.45 a.m. the petitioner while armed with a Carbine fired at Arshad Mehmood (PW-2), the complainant of the case, which fire hit on the back of Arshad Mehmood (PW-2) and subsequently on the report of Arshad Mehmood (PW-2), the FIR No.449 of 2012 (Exh. PF) dated 04.06.2012 was registered at Police Station Saddar Wah District Rawalpindi in respect of offences under sections 324 and 337-F(v), P.P.C. After completion of investigation, the report under section 173, Code of Criminal Procedure, 1898 was submitted against the petitioner whereupon charge was framed by the learned trial court on 28.09.2012 and the petitioner claimed the trial. The prosecution in order to prove the charge against the petitioner got examined as many as eight witnesses. During trial to prove the ocular account the injured witness and the complainant of the case namely Arshad Mehmood (PW-2) appeared and made his detailed statement before the learned trial Court. Asad Mehmood (PW-8) also appeared before the learned trial court and supported the ocular account of the occurrence as furnished by Arshad Mehmood (PW-2). Liaquat Ali 566/C stated that on 05.07.2012 the petitioner led to the recovery of the Carbine (P-1). Muhammad Sharif 8562/C (PW-4) stated that he got conducted the medical examination of Arshad Mehmood (PW-2). Dr. Ijaz Hussain (PW-5) stated that on 04.06.2012 he exposed the radiograph relating to the injury suffered by Arshad Mehmood (PW-2) and according to his opinion, based on the exposed radiograph, fracture of the fourth rib of Arshad Mehmood (PW-2) was observed and foreign metallic bodies were also noted in the soft tissues of the left chest of Arshad Mehmood (PW-2). Tariq Masood S.I. (PW-6) recorded the formal FIR (Exh. PF). Dr. Qaisar Aziz, (PW-7) stated that on 04.06.2012 he was posted as Medical Officer at THQ hospital, Taxila and on the same day at 9.30 a.m. he examined Arshad Mehmood (PW-2) and on his examination observed a lacerated wound measuring 5.5 cm x 4 cm just posterior to the left posterior axillary line, the lacerated ends of muscles were visible inside the wound and the wound was surrounded by 10 punctured wounds. Dr. Qaisar Aziz, (PW-7) also observed responding holes on the clothes of Arhad Mehmood (PW-2) and opined that the injury has been caused by firearm weapon within two hours of the examination. Dr. Qaisar Aziz, (PW-7) also prepared and issued the Medico Legal Examination Certificate (Exh. PH). Abdul Samad A.S.I. investigated the case from 04.06.2012 till 06.07.2012, arrested the petitioner on 27.06.2012 and made a detailed statement before the learned trial court regarding the facts of the investigation as conducted by him. After closing of prosecution evidence, the statement of the petitioner was recorded under section 342 of Code of Criminal Procedure, 1898 and the petitioner pleaded his innocence and in reply to as to why the PWs had deposed against him, he stated that the witnesses had deposed falsely against him due to enmity. The petitioner opted not to appear in terms of section 340(2) of the Code of Criminal Procedure, 1898, however, produced copies various applications and suits (Mark-A and Mark-B) as evidence in his defence. After conclusion of trial the learned trial court convicted and sentenced the petitioner as mentioned and detailed above and the appeal lodged by the petitioner was also dismissed, hence this petition.

3. Learned counsel for the petitioner states that the medical evidence in this case is contradictory to the ocular account and the prosecution has miserably failed to prove the case against the petitioner beyond any reasonable doubt. On the other hand learned Deputy Prosecutor General along with learned counsel for the complainant have argued that the prosecution has proved the guilt of the petitioner to the hilt by producing the injured witness who have received the injury at the hands of the petitioner on his person, hence the impugned judgments do not warrant any interference by this Court.

4. After hearing the learned counsel for the parties and going through the documents appended with this revision petition as well as after visiting the impugned judgment passed by the learned Judicial Magistrate Taxila dated 09.10.2019 and the judgment dated 08.01.2020 passed by learned Additional Sessions Judge, Taxila it has been observed that to substantiate the allegations levelled against the petitioner, the injured witness and the complainant of the case namely Arshad Mehmood (PW-2) appeared and made his detailed statement before the learned trial court. Asad Mehmood (PW-8) also appeared before the learned trial court and supported the ocular account of the occurrence as furnished by Arshad Mehmood (PW-2). The presence of injuries on the person of Arshad Mehmood (PW-2) unambiguously proves his presence at the spot. Arshad Mehmood (PW-2) is proved to be a natural witnesses and truthful witness and implicit reliance can be placed on his statement. Arshad Mehmood (PW-2) had been cross-examined by the defence at great length but he remained unswerving on all material points. The occurrence in question had admittedly taken place in broad daylight and the same, therefore, could not have gone un-witnessed nor could have the culprit escaped unnoticed. The occurrence took place at 8.45 a.m. and the petitioner was previously known to Arshad Mehmood (PW-2) and in these circumstances the mistaken identity of the petitioner is not even a question to be considered. As it was a broad daylight occurrence and because of previous acquaintance of the parties, question of misidentification does not arise. Furthermore, in the incident in issue, the weapon had been used from a short distance and, thus, it would not have been difficult for the complainant party to identify the present petitioner. Furthermore, the incident was reported to the police with promptitude and the oral statement (Exh. PB) of Arshad Mehmood (PW-2) was recorded by Abdul Samad A.S.I. (PW-3) the Investigating Officer of the case, at 9.20 a.m. Tariq Masood S.I. (PW-6) recorded the formal FIR (Exh.PF) at 9.50 a.m. on the same day when the distance between the place of occurrence and the police station was two kilometers. Thus, it is apparent that the FIR (Exh.PF) was got lodged within a short duration and the complainant not only named the petitioner , but also mentioned each and every minor as well as material fact of the incident therein, which of course excludes the possibility of pondering or planning regarding false implication of the petitioner in the instant case. Arshad Mehmood (PW-2) during cross-examination also explained that though he had fainted at the place of occurrence but regained his consciousness at the hospital and then got recorded his oral statement (Exh. PB). The details of the occurrence have been elaborately explained in the FIR (Exh.PF). The promptitude in reporting the matter to the police also establishes that Arshad Mehmood (PW-2) could not have developed a false narrative regarding the occurrence in which he had suffered a serious injury, in such a short time. In this regard, reference is made to the judgment in the case titled as "Muhammad Waris v. The State" (2008 SCMR 784) wherein the August Supreme Court of Pakistan was pleased to observe as under:--

"The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged FIR if they had not been with the deceased persons at the time of their death."

In this manner, there is not even a remote chance of false implication or mistaken identity of the petitioner. The petitioner has not been able to establish any animosity of the complainant or the police for his false involvement in the case. The prosecution also got recorded the statements of Dr. Ijaz Hussain (PW-5) and Dr. Qaisar Aziz, (PW-7). Dr. Ijaz Hussain (PW-5) stated that on 04.06.2012 he exposed the radiograph relating to the injury suffered by Arshad Mehmood (PW-2) and according to his opinion, based on the exposed radiograph, fracture of the fourth rib of Arshad Mehmood (PW-2) was observed and foreign metallic bodies were also noted in the soft tissue of the left chest of Arshad Mehmood (PW-2). Dr. Qaisar Aziz, (PW-7) stated that on 04.06.2012 he was posted as Medical Officer at THQ hospital, Taxila and on the same day at 9.30 a.m. he examined Arshad Mehmood (PW-2) and on his examination observed a lacerated wound measuring 5.5 cm x 4 cm just posterior to the left posterior axillary line, the lacerated ends of muscles were visible inside the wound and the wound was surrounded by 10 punctured wounds. Dr. Qaisar Aziz, (PW-7) also observed responding holes on the clothes of Arshad Mehmood (PW-2) and opined that the injury has been caused by firearm weapon within two hours of the examination. Dr. Qaisar Aziz, (PW-7) also prepared and issued the Medico Legal Examination Certificate (Exh. PH). Dr. Qaisar Aziz, (PW-7) during cross-examination further stated as under:-

"It is correct that the location of wound is over the ribs of left side and as mentioned by the radiologist it is on the fourth rib of left side and the fourth rib of left side was also fractured as mentioned by radiologist report."

In this manner, the medical evidence brought on record fully established the role of the petitioner during the occurrence. The defence remained unable to shatter the credibility of the prosecution witnesses in any manner. The Investigating Officer of the case also recovered the Carbine (P-4) from the possession of the petitioner which also substantiated the role of the petitioner in the occurrence. Learned counsel for the petitioner though pointed out some minor contradictions in evidence of prosecution witnesses but in this respect, it must not be forgotten that the witnesses are not supposed to make photographic narrations of the occurrence. The minor discrepancies in the statements of the witnesses referred by the learned counsel for the petitioner were irrelevant with regard to the proving of the facts of the occurrence and were logical, considering the time which had passed between the occurrence and the date when the witness testified in the court. In the instant case, nothing was brought on record which could have resulted in impeaching the credibility of Arshad Mehmood (PW-2) or the other witnesses.

5. In view of the above discussion, this Court is convinced that the prosecution has successfully proved its case against the petitioner and there is not even a hint of doubt with regard to the guilt of the petitioner. When the petitioner, in order to manifest his intention, fired at Arshad Mehmood (PW-2), hitting him on his back resulting in a fracture of his rib, it was established that he had the intention of committing the Qatl-i-Amd of Arshad Mehmood (PW-2), hence he committed an offence made punishable under section 324 P.P.C. Section 324, P.P.C. draws no anatomical distinction between vital or non-vital parts of human body. Once the trigger is pressed and the victim is effectively targeted, "intention or knowledge" as contemplated by the section 324, P.P.C. is manifested. The learned trial court had already shown leniency while sentencing the petitioner under section 324, P.P.C.. I am of the considered view that both the learned courts below have committed no illegality, irregularity, misreading, non-reading and mis-appreciation of evidence while convicting the petitioner by way of impugned judgments. This Court is also conscious of the fact that this is a revision petition and the Court has to confine itself to determine the correctness, legality, regularity or propriety of the proceedings of the courts below rather than embarking upon a full-fledged reappraisal of the evidence, an exercise fit for appellate jurisdiction. In absence of any illegality, irregularity or impropriety committed by the courts below in the trial or hearing of the appeal this Court finds no reason in interfering with the concurrent findings regarding facts as recorded by the courts below. In this regard reliance is placed on the case of "Khadija Siddiqui and another v. Shah Hussain and another" (PLD 2019 Supreme Court 261) wherein it has been observed as under:-

"Apart from that the High Court ought to have appreciated that it was only seized of revision petitions and not an appeal and in exercise of its revisional jurisdiction the High Court ought to have confined itself to correctness, legality, regularity or propriety of the proceedings of the courts below rather than embarking upon a full-fledged reappraisal of the evidence, an exercise fit for appellate jurisdiction. In the case in hand the trial and appellate courts had undertaken an exhaustive analysis of the evidence available on the record and had then concurred in their conclusion regarding guilt of respondent No.1 having been proved beyond reasonable doubt. In the absence of any error of law committed by the courts below and in the absence of any illegality, irregularity or impropriety committed by the courts below in the trial or hearing of the appeal the High Court ought to have been slow in interfering with the concurrent findings of fact recorded by the courts below."

The learned counsel for the petitioner has failed to point out any illegality or material irregularity, requiring interference by this Court in exercise of revisional jurisdiction. Resultantly, this petition being devoid of any merit, stands dismissed. The sentence of the petitioner was suspended by this Court vide order dated 03.02.2020 and he is present before the Court on bail. The petitioner is directed to be taken into custody and sent to the judicial lock up to set out the remaining portion of his sentence. The surety of the petitioner is discharged from his liability and the bail bonds submitted by the petitioner are cancelled.

JK/A-86/L Revision dismissed.