'YAHYA AFRIDI J.---By this single judgment, we shall dispose Criminal Appeal No,379 of 2008 filed by Muhammad Raheem and two others seeking their acquittal and Criminal Revision No,171 of 2008 filed by Khawaja Ali Khan praying for the enhancement of the sentence awarded to the present appellants by the learned Additional Sessions Judge-V, Kohat vide judgment and order dated 6-9- 2008.
2. All three appellants namely, Muhammad Rahim son of Fazal Rahim, Nisar Ahmad son of Ghulam Muhammad and Muhammad Saqib son of Muhammad Rahim have been convicted by the trial Court as under:--
(i) For the murder of Gul Khan under section 302(b) Pakistan Penal Code 1908 ("P. P. C . " ) and sentenced them to life imprisonment and further to pay Rs,50,000 each as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. In default thereof they shall further suffer six months' simple imprisonment.
(ii) For the attempt on the life of injured Ilyas son of Zarmast Khan and Sher Ahmad convicted and sentenced under section 324 P.P.C. To seven years imprisonment each and further to pay compensation of Rs,30,000 each under section 544A, Cr.P.C. To each injured and in default thereof to further suffer three months simple imprisonment.
(ii) For the injuries sustained by Sher Ahmad son of Saifullah Khan which were declared to come within the definition of section 337-E (iv) P.P.C., convicted and sentenced to 5 years rigorous imprisonment and further to make payment of Rs,10,000 each to the injured Sher Ahmad as 'Daman'.
(iv) For the injuries sustained by Ilyas within the definition of 337-E (iv) P.P.C. Convicted and sentenced under section 337-F (iv) to five years rigorous imprisonment and further to pay Rs,10,000 each to the injured Ilyas Muhammad son of Zarmast Khan as 'Daman'.
(v) They were further held liable under section 148, P.P.C. And convicted and sentenced to two years rigorous imprisonment.
(vi) For the damage caused to the vehicle PRO-1066 they were convicted and sentenced under section 427, P.P.C. For two years imprisonment.
'The trial Court also held that all the punishments were to run concurrently and the benefit of section 382-B, Cr.P.C. Was extended to all the three appellants before us.
'The trial Court further declared the absconding accused Waqas and Niaz Muhammad as proclaimed offenders and issued perpetual warrants of arrest against them with directions to the District Police Officer, Kohat to take appropriate steps in pursuance of the said proclamation in accordance with law.
3. The case originates from the report of Khawaja Ali Khan ("the complainant"), who while in KDA Hospital, Kohat reports to Amal Khan. S.H.O. Saddar Police Station, Kohat (P.W.11), about the incidence which is recorded as a murasila; 'He alleged that at around 1630 hours on 30th, November, 2005, he along with Sher Ahmad (injured), Ilyas (injured), his brother Gul Khan (deceased), and his brother Liaqat Ali Khan were coming in a Suzuki bearing registration number PRO-1066 from Tor Chappari to their house. The Suzuki was being driven by Gul Khan, while Sher Ahmad and Ilyas were seated on the front seats, while he along with his brother Liaqat Ali Khan were seated in the rear portion. When they reached the thoroughfare of village Younas Khel they saw Muhammad Rahim, Niaz Muhammad sons of Fazal Rahim, Nasir Muhammad, Waqas sons of Ghulam Muhammad and Saqib son of Muhammad Rahim all residents of village Younas Khel duly armed when they reached near them, all the five above named started firing upon them, with an intention to kill. As a result of the said firing Gul Khan, Sher Ahmad and Ilyas were hit, while the complainant and his brother escaped unhurt. Gul Khan succumbed to his injuries and died on the way to the hospital, while Sher Ahmad and Ilyas were injured and they were treated in KDA Hospital, Kohat.
'The report which was incorporated as a murasila was reported at 1845 hours and the same was duly registered in the police station as F.I.R. No,1192 at 1945 hours on the same day. The F.I.R. States the distance between the place of occurrence and the police station to be 4 to 6 kilometers.
'The motive for the offence was stated to be a dispute between the parties over a passage.
4. After completing the investigation, the challan was put in Court. The present appellants on denying the charge pleaded innocence and demanded a trial, which thus followed.
5. The prosecution produced fifteen witnesses, while the present appellants after recording their statements under section 342, Cr.P.C. Produced one witness and thereafter the evidence of the parties was closed.
6. The prosecution produced Amal Khan (P.W.11), who was the scribe of the murasila Exh.P.W.8/1 recorded in KDA Hospital, Kohat and also prepared the injury sheets of the two injured, Sher Ahmad and Ilyas as Exh.P.W.11/1 and Exh.P.W.11/2 and the injury sheet and inquest report of the deceased Gul Khan Exh.P.W.11/3 and Exh.P.W.11/4 respectively.
'Shah Duram Khan (P.W.1) is the scribe of the F.I.R., Exh.P.A. Wherein the contents of the murasila were incorporated.
'Muhammad Raees Khan (P.W.5) is the recovery witness to the blood-stained clothes of the deceased Gul Khan (Exh. P. W. 5/2), injured Sher Ahmad (Exh.P-5) and Ilyas (Exh.P-8 to 10) the Sikka Goli extracted from injured Sher Ahmad (Exh.P-7) and Suzuki. Pickup bearing Registration No,BU 1298 from the Hujra of convict appellant Muhammad Raheem.
Wali Sher (P.W.6) who recovered in total 32 empties Exh.P.11 of 7.62 bore vide recovery memo (Exh. P.
W.6/1), bloodstained piece of seat cover, pieces of glass of the Suzuki Pickup from all three front scats (Ex.P.12-15).
'Nizam Khan, the Investigating Officer ("I.0") (P. W.12), narrated the steps taken by him in collecting the incriminating evidence and sending the same for chemical examination to the Forensic Science Laboratory (FSL). The important aspect of this is that the bloodstained seat covers, clothes and glass were sent to the FSL, and a positive report of the same being human blood was received back and duly recorded in evidence. However, he admitted that the 32 empties though sent for FSL, examination, the report was not produced in evidence and no plausible justification for not producing the same was rendered by the said witness.
'Dr. Niamatullah (P.W.7) conducted the autopsy on the dead body of deceased Gul Khan, he describes the injuries as:-- "EXTERNAL EXAMINATION.
(1) Two exit wounds on the posterior back, one wound on the right side just 4 inches below to the lower angle of scapula. The other exit wound opposite the first. The distance in between these two wounds 8 inches approximately. Shape oblong. The wound size approximately 1-1/2 inches.
(2) Entry wound at the left nipple in size 1 inch round shape.
(3) Cut wound on the right side of deltoid muscle in size of 4 inches 4-1/2 inches long, 1 inch wide.
(4) Wound cut on the lower right leg interior aspect in size 2 inch 2-1/2 inches approximately long.
' THORAX: 4th fracture noted on the left side chest. Pleurae, left lung, pericardium and heart injured.
' MUSCLES: Thorax muscle injured in 4-5 intercostals space.
' OPINION: in my opinion the patient died instantaneously due to cardiac injury.
' Probable time between injury and death: 2-3 minutes approximately.
' Probable duration between death and P.M. 1 to 3 hours."
' Dr. Attaur Rehman (P.W.13) produced the Medico-legal Reports of Ilyas (injured) and Sher Ahmad (injured) as Exhs.P.W. 13/1 and Exh.P.W. 13/2, respectively. He stated that he was familiar with the signature and handwriting of Dr. Jamil who was his colleague at DHQ Hospital, Kohat and confirmed that the two exhibits were in his writing and duly signed by him. The Injuries of Ilyas, as stated in Exh.PW. 13/1 are:~ "(1) A FAI entry wound on the right side in mid calvicular line just below the clavicle with massive haematoma beneath it the wound is bleeding continuously measuring 1/2 x 1/2 c.m.
(2) Three FAI exit wounds in a cluster on the right scapular region on the back side 1-1/2 c.m. Apart from each other. Each wound measuring 1/2 c.m. x 1/2 c.m."
While the injuries of Sher Ahmad as stated in Exh.P.W. 13/2 are:- "(1) FAI entry and exit wound on the flexor aspect of the right fora mid region 1" apart from each other entry wound is 1/2 cm x 1/2 cm and exit wound is 3/4 c.m. x: 3/4 c.m.
(2) A FAI Entry wound 1 c.m. Below the right nipple 1/2 x 1/2 in diameter.
(3) A FAI exit wound on right side below lower chest oblong in shape measuring 7 c.m. x c.m.
(4) A FAI entry wound on the mid region on the left shoulder line mid calavicular point 1/2 c.m. x 1/2 c.m."
'The said reports have the time of preparation of the same recorded as "6- 35 P.M." and "6-36 P.M." respectively.
'The defence produced Aziz Ahmad No,977 LHC of Rescue 15 Kohat (D.W.l). The said witness produces the extract of the register dated 30-11-2008 (Exh. D.W. 1/1). At serial No,7 of the said extract at 1819 hours a telephone call was received by Rescue 15 Kohat from Telephone No,517576 regarding the injured being taken to the KDA Hospital, Kohat.
4. The learned counsel for the appellants vehemently argued that the present appellants have been wrongly convicted by the trial Court.
'He contended that there was an unexplained delay of over two hours in filing the F.I.R, by the complainant. 'This delay, he argued, totally shattered the veracity of the testimony of the complainant and the version of the prosecution.
'The learned counsel also contended that the evidence of Sher Ahmed, the injured witness, should not be considered blindly as he was of tender age and his testimony was contradictory to the version placed forth by the complainant and his brother Liaqat Air.
'He further argued that the ocular evidence was in stark contradiction to the medical evidence and was not supported by , circumstantial evidence.
'The learned counsel vehemently contended that the only independent injured witness namely Ilyas was not produced by the prosecution. This he contended should cast an adverse inference upon the prosecution's case, as the "best evidence" having not been brought forth. Moreover, convicting and passing a sentence against the present appellants for the injury caused to Ilyas under section 337-E (iv) of P.P.C, without producing him was unwarranted in law.
' Finally, the learned counsel contended that once motive was introduced the same had to be proved. Failure to do so would have an adverse inference on the prosecution's case. Thus pleaded the acquittal of the present appellants.
5. The learned counsel for the complainant, rebutting the arguments of the learned counsel of the appellants contended that conviction and sentence awarded to the appellants by the trial Court requires to be enhanced and they be awarded the capital punishment of death as the prosecution has proved the case beyond any' doubt.
'As for the delay in reporting the incident, he argued that the same was but natural as the injured and the deceased had to be taken to the hospital. The said delay was not fatal to the version of the prosecution as there was direct nomination of the appellants in the F.I.R.
' In regard to the testimony of Sher Ahmad, the learned counsel contended that his evidence was confidence inspiring and the mere fact that he was related to the complainant party did not put him at a disadvantage. In fact the fire-arm injuries on his person proved his presence on the spot and thus his evidence had to be relied upon.
' In regard to the ocular evidence and medical evidence, the learned counsel contended that they were in consonance and there was no material contradiction between the two.
'As far as not producing Ilyas, the learned counsel contended that as he was won over by the other side, the pr'osecution was not inclined to produce him as a witness.
' In regard to the motive, the learned counsel contended that there was no need to prove the same in cases where witnesses were truthful and confidence-inspiring.
' However, the learned counsel frankly conceded that the conviction and sentence passed for the injury of Ilyas, without producing him in evidence, was illegal and be set aside.
7. 'The learned State Counsel adopted the arguments of the learned counsel for the complainant.
8. The valuable arguments of the learned counsel of the parties have been heard and noted, while the record of the case thoroughly perused.
9. The most striking and intriguing aspect of the case is the delay in reporting the incident. The complainant reports that he was seated in the Suzuki Pickup along with four others when the firing commenced. The time of occurrence, as he reports is 1630 hours, whereas his report is recorded in KDA Hospital. Kohat at 1845 hours. There is a delay of 2 hours and 15 minutes, which has not been reasonably explained in the prosecution evidence.
' The F.I.R. States that the distance between the place of occurrence and the Police Station is 5 to 6 kilometers. Amal Khan (P.W.11) has also deposed that the time of their travel from the spot to the police station was 15 minutes and the same was for travelling from the police station to the hospital. The fact still remains that it took the complainant more than two hours without any reasonable justification for lodging a complaint of the incident.
' The issue relating to the delay in reporting the incident gains further significance, as the defence witness Aziz Ahmad (D.W.I) who deposes and produces the extract of the register dated 30-11-2008 (Exh.D. W. I/1). The said extract shows at Serial No,7 that a telephone call was received at 1819 hours by Rescue 15 Kohat from Telephone No,517576 regarding the injured being taken to the KDA Hospital, Kohat. This telephone number has been confirmed by the complainant himself (P.W.8) in his cross-examination of being his telephone number.
' Keeping the time factor into account, the police is informed about the incident at 1819 hours on Rescue 15 number and thereafter the police proceeds to KDA Hospital, where the complainant reports the offence. It is highly improbable for a reasonable person to be in a hospital for over two hours when his brother had died on the way to the hospital without lodging an F.I.R. Or taking any steps to report the said offence.
' What is also interesting to note is that the two injured Ilyas and Sher Khan made no report about the incident; furthermore medical examination of the said persons at the hospital has been recorded at 6-35 P.M. And 6-36 P.M., respectively. The version of the prosecution that they could not report the incident as they were unconscious at the time when they were brought to the hospital is contradicted by the testimony of the prosecution witness Abdul Wahab (P. W.14). He in his cross- examination states that Amal Khan (P.W.11), inquired about the occurrence from both the injured at the time of preparation of their injury sheets. This statement further creates doubts in the version of the prosecution about the consciousness of the injured.
Dr. Niamatullah (P.W.7) who conducted the autopsy of the deceased Gul Muhammad, during his cross-examination states that the dead body of the deceased was brought to him by the police.
This statement by the doctor further cast serious doubts about the prosecution version of the complainant being at the spot and taking his dead brother to the hospital.
'The delay in filing the F.I.R. Creates very serious doubt about the presence of the complainant and his brother at the place of occurrence, as stated by the prosecution evidence. Natural behavior would have resulted in reporting the offence much earlier than as it was done by the complainant.
9. There are two injured witnesses as reported in the F.I.R., only Sher Ahmad son of Saifullah Khan (P.W.9) aged about 14-15 years is produced by the prosecution. He is the grandson of the deceased. In his statement he places himself in the car and after being shot, he remains in the car in an injured condition and states that his mother came to the spot and on her pointationpeople picked him up and was taken to the hospital by his father. There at the hospital, he is given treatment and thereafter he is referred to Lady Reading Hospital, Peshawar. He further explains that he become unconscious when an injection was administered to him.
'It is highly improbable that none is reporting the incidence while the father of Sher Ahmad was present with him in injured condition in the hospital. Their conduct of taking no steps to report the incident is not a natural one.
There is no cavil to the consistent view in criminal jurisprudence that the testimony of an injured witness is to be considered reliable. However, the same cannot be accepted with shut eyes. The testimony of an injured witness, as in the present case, if it is blatantly contradicting and inconsistent with other evidences, then the same has to be viewed with great caution.
No doubt convictions can be recorded based on the testimony of a child witness, however, the same has to be consistently credible, confidence-inspiring and straight forward. It should also be duly corroborated by other circumstantial and medical evidence. The evidence of a child witness would thus require corroboration and cannot in isolation be basis for any conviction.
'When we observe the conduct of Sher Ahmad being silent for over a week after the incident and thereafter coming up with a statement, which does not corroborate with the testimony of other eyewitnesses, surely raises suspicion and creates grave doubts in the veracity of his testimony.
10. The other eye-witness produced by the prosecution Liaqat (P.W.10) is not a confidence-inspiring truthful witness. He swa ys from his stance in his statement and follows his brother, the complainant even to the extent of improvements that he made.
11. The medical evidence also does corroborate the ocular evidence given the eye-witnesses.
' We note that Dr. Niamatullah (P.W.7) in regard to the injuries of Gul Muhammad (deceased) clarifies that there is only one fire-arm entry wound with two exit wounds and the other two injuries are not caused due to fire-arm. He explains that the said injuries could have been caused because of glass cuts. While there is one entry wound injury on Ilyas and three on Sher Ahmad.
' He also clarifies that the time between injury and the death according to him was 2 to 3 minutes.
The complainant in the F.I.R. Was injured and succumbed to the injuries on his way to the hospital.
Later he improves his statement by stating that he died instantaneously.
' Such improvements are also made regarding the weapon used by the appellants. The F.I.R. Does not specify the calibre or type of the weapon used, while in examination-in-chief of the complainant, he states the accused having kalashnikovs. But these improvements are but natural and not very material to throw away their entire evidence on this score alone.
12. Coming to the preparation of the site plan, the prosecution evidence is not natural. The occurrence took place on 30-11-2005 and the site plan was prepared the next day on 1-12-2005, while the I.O. Admits to have visited the spot on the night of 30-11-2005. This inaction on his part is without any reasonable justification.
13. The recoveries made from the spot and in particular the 32 empties though sent to the Forensic Science Laboratory ("FSL") but the report thereof has not been produced in evidence. There being no FS!, report regarding the empties, casts further doubt on the version of the prosecution, as to whether the same were fired from one weapon or from more than one.
14. The motive for the offence as stated by the complainant in the F.I.R, was a dispute regarding the passage but not substantiated by any evidence.
We are aware of the settled law that absence of motive or failure of prosecution to prove the motive when the offence has been witnessed by reliable trustworthy and confidence inspiring witnesses does not adversely affect the prosecution case.
'In the present case, when motive has been introduced, there should have been evidence produced in support thereof. Failure on the part of the prosecution would not have adversely affected its case, had the prosecution witnesses been consistent and confidence-inspiring.
15. In the above perspective, we believe that prosecution has not been able to prove the case against the appellants beyond reasonable doubt.
'Accordingly, we, therefore, accept Criminal Appeal No, 379 of 2008. The conviction and sentence awarded to the appellants Muhammad Rahim son of Fazal Rahim, Nisar Ahmad son of Ghulam Muhammad and Muhammad Saqib son of Muhammad Rahim by the Additional Sessions Judge-V, Kohat, dated 6-9-2008 are set aside. The appellants are acquitted of the charges and shall be released forthwith if not required in any other case.
'Accordingly, we, therefore, dismiss Criminal Revision No, 171 of 2008 filed by Khawaja Ali Khan for the enhancement of the sentence awarded to the present appellants by the learned Additional Sessions Judge-V, Kohat vide judgment and order, dated 6-9-2008.