QUAIDEAZAM vs THE STATE

' TARIQ PARVEZ, J.--- Criminal Appeal No, 381 of 1997 has been filed by accused Quaid-e-Azam against his conviction and sentence awarded to him by learned Judge, Special Court, Karak vide judgment, dated 2-12-1997. On conviction, the appellant has been sentenced to three years' R.I. And to pay Rs,20,000 as compensation under section 544-A, Cr.P.C. In default of payment he is to suffer one year's S.I. Benefit of section 382-B, Cr.P.C. Has also been extended.

' Guldar Khan, complainant of the case has filed Criminal Revision No,15 of 1998 and has prayed for the enhancement of the sentence awarded to the convict-appellant.

' Criminal Appeal No,92 of 1998 was also filed by Guldar Khan complainant against Nawab Khan, acquitted co-accused but as no appeal could be filed against acquittal by the complainant, the same was converted to revision and has been given Criminal Revision No,33 of 1998 vide order, dated 20-5-1998 of this Court.

2. As all the three matters pertain to single judgment of Judge, Special Court, Karak, we intend to dispose them of together through this consolidated judgment.

3. Guldar Khan (P.W.6), while injured, made the report which was recorded by Faizullah M.H.C. It was stated in his report that he, Gul Saleem and Ghani-ur-Rehman P.Ws. Were proceeding towards their houses when accused-appellant, Quaid-e-Azam, the acquitted accused Nawab and Baitullah (acquitted in earlier trial) who were duly armed with Topaks, appeared and started firing at the complainant party. With the fire shots of the appellant Quaid-e-Azam and Nawab, Guldar was hit while the firing made by Baitullah proved too he ineffective.

4. The investigation was entrusted to Amir Nawab (P.W.9) who proceeded to the spot and prepared site plane (Exh.P.S.). He took into possession blood-stained earth from the place of injured complainant. He recovered 28 empties of 7.62 bore P.2, 3 empties of .303 bore P.3 through memo.

Exh.P.B. Blood-stained garments, consisting of Shalwar P.4 with having corresponding cut marks sent by the doctor belonging to the victim, was taken into possession vide memo. Exh.P.B./1. As the accused were absconding, therefore, warrants and proclamation notices were obtained against them whereafter challan under section 512, Cr.P.C. Was filed against the appellant and the acquitted accused.

' The injured was sent for medical examination and treatment who was attended by Fida Muhammad, Medical Officer (P.W.10) and who vide his report Exh.P.M. Found the following external injuries on the person of Guldar Khan complainant.

(1) Fire-arm entry wound left side thigh laterally with obvious fracture of the left thigh, size 1/4" x 1/4".

(2) Fire-arm exit wound left side thigh medially, size 1-1/2" x 1-1/2".

(3) Fire-arm entry wound left side thigh antero-laterally, size 1/4" x 1/4".

(4) Fire-arm exit wound left side thigh postero-laterally, six 1/2" x 1/2".

' Advised X-Ray left thigh (A.P. And lateral view) and the patient was referred to surgeon D.H.Q.

Hospital, Karak for further management.

' Nature of injuries grievous.

' Duration of injuries 3 to 5 hours.

' After the close of the prosecution's case during which Guldar Khan complainant and Gul Saleem (P.W.7) furnished ocular account, the learned trial Judge, thereafter examined the accused and recorded their statements under section 342, Cr.P.C. After hearing the arguments of the sides, the trial Court came to the conclusion that the prosecution has successfully proved the charge against Quaid-e-Azam and accordingly convicted him whereas Nawab Khan respondent in Revision No,33 of 1998 was acquitted of the charge.

5. Learned counsel for the appellant Quaid-e-Azam, submitted that evidence furnished by Guldar Khan Complainant and Gul Saleem is not trustworthy, not only that they are inimical towards the accused-appellant but that their testimony is inconsistent with the site plane and also with the medical evidence. It was argued that according to the site plane bulk of injuries have been received by the victim on his left side whereas according to the narration as given in the F.I.R. The injuries should have been on the front. It was argued that the occurrence took place in the Abadi of the village but none from the surrounding houses was examined by the prosecution, if not to depose and give ocular account, at least someone should have come forward to have accepted the presence of Gul Saleem eye-witness who, if present with the complainant could not have been spared and should have received some fire-arm injuries keeping in view the number of empties recovered from the spot. It was also argued that the same evidence has been disbelieved earlier in case of Baitullah acquitted accused and this time by acquitting Nawab Khan, hence, the propriety demands that the benefit of doubt, on the same ground, should have also been extended to Quaid-e-Azam. It was also contended that according to P.W.6 Guldar, the firing continued for half an hour which does not commensurate with the number of injuries and empties recovered from the spot.

6. Learned counsel appearing for the complainant and the learned counsel for the State argued that the accused stands charged in a promptly made F.I.R. That, he has been attributed specific role of effective firing on the complainant and so was reiterated by the two eye-witnesses at the trial. It was argued that the accused remained fugitive from law for about two years and has not tendered any plausible explanation which go a long way to prove his guilt. It was submitted that as far acquittal of Baitullah is concerned, he was not attributed the role of effective firing and was, therefore, given the benefit of doubt. For acquittal of Nawab Khan respondent in Criminal Revision No,33 of 1998, it was argued that Nawab Khan has wrongly been acquitted by the learned trial Court by misreading the direct evidence.

7. We would first take up the merits of the case with regard to appeal of Quaid-e-Azam. The appellant stands charged in the report made within 30 minutes of the occurrence. He was taken as injured to the police station and the presence of Gul Saleem his father (P.W.7) has been recorded in the first line of the F.I.R. Which would lend support to the presence of Gul Saleem in the company of Guldar, complainant, even at the time of occurrence. Otherwise, within 30 minutes it would be but difficult to assume that Gul Saleem P.W. Was procured from elsewhere.

The statement of Guldar who has received fire-arm injuries is consistent and has not been shaken in the lengthy cross-examination. He has elaborately given the sequence of firing and their effectiveness. He has also highlighted the motive for commission of the crime. In the cross- examination he has confirmed the facts as are appearing in the site plane, with regard to the place wherefrom he was fired at and the distance between the complainant and the assailants. He has categorically denied if his injuries were examined by the police before recording his report. In his cross-examination there is marked absence by making even a remote suggestion to him about the absence of Gul Saleem (P.W.7).

Gul Saleem though father of the complainant has on every aspect of the case corroborated the statement of P.W. Guldar Khan. In the cross-examination he has explained the so-called inconsistency of the ocular testimony with the medical evidence by stating that on the receipt of first shot, fired by Nawab acquitted accused the complainant did not fall but bent down when in the meantime the second shot was fired. He has not been even suggested that at the time of occurrence he was not present in the company of his son. It is well-established through dictum of the superior Courts, that where a witness deposes about a particular fact and the same goes unchallenged, the Courts are to presume that what has been stated by him was true and correct.

In a case where the defence fails to shake the direct testimony of the witness and equally fails by suggesting to him that he was not present on the spot, would mean that the presence of such witness stood admitted.

As the report has been made within 30 minutes and injured was accompanied by Gul Saleem P.W.

While taken to the police station, we entertain no doubt as to his presence on the scene of the crime. Therefore, we are of the firm view that the presence of the two witnesses stands established on the scene. What is next to be seen is, if their testimony is corroborated by independent evidence.

The number of injuries received and the manner of occurrence given at the trial being fully in consonance with the site plan coupled with the prolong abscondence of Quaid-e-Azam who was arrested on 25-9-1995 is sufficient corroboration as required on any standard to make the testimony of the interested witnesses trustworthy. We, for the above given reason, find that there are no merits in this appeal and the same is dismissed.

8. Now taking up Criminal Revision No,15 of 1998, we cannot exercise revisional jurisdiction in view of PLD 1996 SC 168. At page 171 the august Supreme Court of Pakistan while quoting the case of Abdul Khaliq v. State PLD 1990 Kar. 448 has reproduced a para. From the said judgment where it was observed that the Division Bench of the High Court hears the appeal under the Act but cannot pass order under revisional jurisdiction. This view of the Karachi High Court was upheld by the august Supreme Court. Similarly, this view was taken by a Division Bench judgment from Quetta jurisdiction in case reported as Abdul Qadir and another v. The State 1998 PCr.LJ 126.

In view of case-law cited above, we have got no jurisdiction to entertain a revision either against acquittal or for enhancement of the sentence.

9. Having come to the conclusion that Special Court exercising jurisdiction under the Suppression of Terrorist Activities (Special Courts) Act is not amenable to revisional jurisdiction of this Court, but in the interest of justice this Court can, while relying on Rashid Ahmad v. State PLD 1996 SC 168 has got the power to make an order in terms of section 561-A, Cr.P.C. Which is applicable to prevent the abuse of the process of any Court and also for otherwise to secure the ends of justice.

' As Court of appeal under section 7 of the Suppression of Terrorists Activities (Special Courts) Act, 1975, this Court is not exercising powers under the Criminal Procedure Code but under the special law.

10. We are not satisfied with the sentence awarded to the appellant in this case. He was charged for effectively firing at the victim who has received more than one fire-arm injuries on different parts of his body, hence, the conviction should have been firstly under section 324, P.P.C., Part I and secondly for the nature of injuries caused to the victim.

' As no separate charge has been framed for nature of injuries, we would not, at this stage, convict him for such injuries but in order to meet the ends of justice, are inclined to enhance the sentence.

Therefore, while invoking the provision of section 561-A, Cr.P.C. We will convert Criminal Revision No,15 of 1998 to a petition under section 561-A, Cr.P.C. The sentence of three years' imprisonment is enhanced to seven years under section 324/34, P.P.C. The compensation amount and the period in default thereof as well as benefit of section 382-B, Cr.P.C. Are left intact.

11. As for revision against acquittal of Nawab Khan filed by Guldar Khan complainant, the right of appeal challenging acquittal order passed by Judge, Special Court, came under consideration before a Division Bench of this Court in case of Faiz Muhammad and others v. Mehrab Shah and others PLD 1997 Pesh.

166. In a very elaborately delivered judgment it was held, that the Legislature by amending section

417. Cr.P.C. Where subsection (2-A) was added has given right of appeal to the aggrieved person against the order of acquittal but such right cannot be extended to private persons in case where trial was held by the Judge, Special Court of a schedule offence. On the same analogy no revision can be entertained against acquittal because this Court under section 439, Cr.P.C. Would exercise jurisdiction in respect of orders/judgments delivered by a Court subordinate to it whereas a Judge, Special Court, as discussed earlier, is not a Court subordinate to the High Court under the Suppression of Terrorists Activities (Special Courts) Act, 1975. This revision is, therefore, dismissed for lack of jurisdiction.

' In view of dismissal of Criminal Appeal No,381 of 1997, dismissal of Criminal Revision No,33 of 1998 and as we have converted Criminal Revision No,15 of 1998 to a petition under section 561-A, Cr.P.C.

The conviction and sentence of appellant, Quaid-e-Azam, is enhanced to seven years imprisonment under section 324/34, P.P.C. The compensation amount and the period in default thereof as well as benefit of section 382-B, Cr.P.C. Shall remain intact.