NOOR MUHAMMAD RIASAB KHAN vs THE STATE and another NOOR

' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of the above two appeals, as they arise out of a common judgment.

2. On 21-9-1995 at 10-15 p.m. The complainant Riasab Khan lodged F.I.R. No,187 at Police Station Rawat alleging therein that on the said date at 10-30 a.m. He along with deceased Fazal Elahi, who was husband of his sister, was sitting in the house in connection with marriage ceremony of his nephew. At the said time the appellant/accused Noor Muhammad armed with.7 mm rifle entered the house and after challenging the deceased fired at him which hit him on his abdomen. The bullet came out from right arm after crossing abdomen, therefore, the deceased fell down and the appellant ran away from the place of incident. The incident was witnessed by Muhammad Tariq and several other people present in the house. The motive of the incident was that on 20-9-1995 there was exchange of harsh words between the appellant and the deceased over a dispute on landed property. The deceased was taken to the hospital where he was engaged in making hectic arrangements for the deceased and in the night at 10-30 p.m. He went to the police station and lodged the F.I.R.

3. The police after usual investigation, recording of the statement of witnesses; collecting empty shell of rifle from the place of incident, and recovery of rifle from the possession of the appellant challaned him in the Court. The learned Additional Sessions Judge, Rawalpindi tried the appellant, where the prosecution produced the above pieces of evidence. The trial Court did not believe the ocular testimony; motive and recoveries therefore acquitted the appellant from the charge framed under section 302, P.P.C. By judgment, dated 11-5-1998. The complainant was dissatisfied with the said judgment, therefore, he filed an appeal in the Lahore High Court, Rawalpindi Bench, which was allowed and the appellant Noor Muhammad was convicted for offence punishable under section 302, P.P.C. And sentenced to suffer imprisonment for life and fine of Rs,5,000 which was directed to be paid to the legal heirs of the deceased or in default thereof to suffer rigorous imprisonment for one year under the impugned judgment.

4. The appellant and the complainant were dissatisfied with the said judgment, therefore, the complainant preferred the petition for leave to appeal for enhancement of sentence while the appellant filed the petition for setting aside the judgment. This Court granted leave in the above matters.

5. The learned counsel for the appellant has argued that there is inordinate delay in lodging the F.I.R. Without furnishing any plausible explanation therefor, the case was prepared after consultation; that the ocular testimony is unreliable as there are material contradictions in the evidence of the witnesses; that the motive has not been proved as the prosecution has examined only the complainant, whereas the other witness did not support the complainant and that the complainant is not the eye-witness of the incident of motive which took place on 20-9-1995. He has further argued that the recovery of crime-empty has been planted after the recovery of rifle from the house of the appellant on 22-9-1995 in his absence and the S.H.O. Conducted the investigation with mala fide intention and in connivance with the complianant. Conversely, the- learned counsel for the complainant and Deputy Prosecutor-General have supported the impugned judgment by arguing that there is no defect in the ocular testimony, recoveries, motive and that plausible explanation has been furnished for lodging F.I.R. After 12 hours of the incident and that there are no material contradictions in the evidence of witnesses.

6. We have given due consideration to the arguments and examined the evidence in the light of the submissions made by the counsel.

7. As regards motive, the case of prosecution is that on 20-9-1995 there was exchange of harsh words between the appellant and the deceased over a dispute on landed property. In order to prove the case, the prosecution relied upon the evidence of the complainant, who disclosed the above facts but in the cross-examination he deposed that on 20-9-1995, whole day he was present in C.D.A. Office, Islamabad, which was his place of work. Thus, it appears that the incident of exchange of harsh words between the appellant and the deceased did not take place in the presence of the witnesses. However, the evidence of Investigation Officer reveals that he recorded the statements of two P.Ws. Viz. Muhammad Tariq and Muhammad Noroze on the point of motive.

The prosecution also examined Muhammad Tariq but he did not state a single word to support the motive. The second witness Muhammad Noroze was not examined by the prosecution for the reasons best known to them. It appears that the prosecution has abandoned the motive. In these circumstances, solitary statement of the complainant without any supporting evidence and particularly when the incident occurred on 20-9-1995 did not take place in his presence is very unsafe to be relied upon. Thus, the prosecution has failed to prove the motive. It has been held in the case of Muhammad Sadiq v. Muhammad Sarwar 1979 SCM R 214 that when motive is alleged but not proved then the ocular evidence required to be scrutinized with great caution. In the case of Hakim Ali v. The State 1971 SCM R 432 it has been held that the prosecution though not called upon to establish motive in every case, yet c once it has set up a motive and failed to establish it, the prosecution must suffer consequence and not the defence. In the case of Ameenullah v. State PLD 1976 SC 629 it has been held that where motive is an important constituent and is found by the Court to be untrue, the Court should be on guard to accept proseoution story.

8. The learned counsel for the appellant has pointed out the contradictions in complainant's statement and the statement made by him in the F.I.R. Which have been admitted by him in the cross-examination about the reloading of the rifle by the appellant after causing fatal injury; and the bullet that passed from the right side of back of the deceased. He has also pointed out the contradictions between the witnesses on the point of presence of number of people at the place of incident, direction of the sitting of the deceased, presence of another cot lying in front of the deceased, sitting of the P.Ws. On one or different cots, after the incident the time of deceased lying on the cot, applying cotton cloth on the wound of the deceased, time of the removal of the deceased to the hospital, vehicle in which the deceased was taken to the hospital, accompanying the P.Ws. With the deceased to the hospital. All these contradictions have been mentioned by the learned trial Judge in his judgment, therefore, there is no need for reproducing the same. Normally, these contradictions would not have materially affected the' prosecution case but in the background and surrounding circumstances of the present case particularly inordinate delay in lodging the F.I.R. And the presence of complainant's son in the hospital immediately after the incident become very significant and important to, throw light upon the veracity of the witnesses for the simple reason that the complainant is the person who not only has made himself complainant, but also eye-witness of Mashir of recovery of the crime-empty from the place of incident, Mashir of recovery of rifle from the possession of the accused and witness of motive. This shows the intense interest of the complainant in the prosecution case therefore, the Court must be on guard before accepting such type of evidence. Particularly, when other witnesses and people , were present at the respective places but the prosecution did not care to examine them. The interest of the prosecution is further clear from the fact that though second marginal witness of the memos. Of recovery of crime-empty and recovery of rifle were available but they were not examined and simply relied upon the statement of complainant coupled with the statement of S.H.O., who also appears to be in league with the complainant in preparing the case and had conducted mala fide investigation. Such facts can be proved from the fact that immediately after the incident the son of the deceased brought the deceased in the hospital at 11-30 a.m. The Medical Officer examined the injuries at about 1-15 p.m. And handed over the medical certificate to deceased's son.

9. The evidence of the Medical Officer reveals that the deceased was in his senses. A possibility cannot be ruled out from consideration that the deceased might have disclosed the real facts to his son about the manner in which he had received the injuries. It is also possible that even after reaching the hospital the deceased might have disclosed the real facts about the incident to his son. It appears that said facts were not such where the police should have been involved in the matter, therefore, the son of the deceased did not go to the police station to lodge the report. It is also clear from the evidence of Medical Officer that he immediately informed the police about the arrival of the deceased in injured condition. In the cross-examination he further affirmed that the police had arrived in the hospital. But it is astonishing to note that the S.H.O. Rawat Police Station though in the beginning had, admitted that he had received the information from the Medical Officer about the presence of the deceased in injured condition but subsequently denied the same.

It will be advantageous to reproduce the relevant portion of the evidence of S.H.O. To clarify the above point. The said portion reads as under:--- "It is correct, at this stage, learned counsel for the defence states that the question to which the witness has answered to be correct may be recorded.

' The witness has stated only the following words: "It is correct". If the learned counsel desired that the question be recorded then he may get the same be recorded as was stated by the witness shall be mention.

' It is correct that on 21-9-1995, at about 11-30 a.m. You were informed by the doctor on the telephone and upon that information you reached the hospital?

Ans. Yes. Again said, it is not correct."

10. From the above statement, it is clear that in the beginning the S.H.O. Not only admitted the fact that he had received the information from the Medical Officer but also went to the hospital but then changed his statement by denying the said facts. It appears that the S.H.O. Has no sanctity of oath as he was changing his statement again and again to strengthen the prosecution case So as to fit in the circumstances. This F shows the undue intense interest of the S.H.O. In the investigation and motive disowning such statement which is fully supported and corroborated by the independent witness i,e, Medical Officer.

11. Thus, in these circumstances, the delay in lodging the F.I.R. Plays a very important role. The possibility of preparing and manipulating the case cannot be ruled out particularly from the fact that the complainant was very specific in mentioning the injury caused to the deceased by disclosing that the bullet after entering the abdomen came out from the back and then went through and through from the arm of the deceased. The position of the arm was at the back. From the seat of the injuries it would have not been possible for a person present at the position at which the complainant was sitting to have seen the movement of the bullet from its entry up to last of its exit. This could have only possible, if the witness was aware of the medical evidence. The Medical Officer admitted that he issued the certificate at about 1-15 p.m. And was given to the son of the deceased. The complainant might have taken the medical certificate and would have come to know the exact location of injuries and direction of the bullet therefore, he was very specific in giving all the exact details of the injuries and the direction of the bullets which went through the body of the deceased.

12. We are aware of the fact that mere delay in lodging the F.I.R. Would not, affect the prosecution case unless it is not explained by the prosecution through a plausible explanation. The explanation furnished by the complainant is that after admitting the deceased in the hospital he was engaged in making arrangements for the deceased, therefore, he could not go to the police station. This explanation appears to be highly improbable and doubtful for the simple reason that all formalities at the hospital were completed before 1-15 p.m. And the deceased was shifted to Medical Ward after conducting medical examination. There was nothing left to be done by the relatives of the deceased in the hospital. Even otherwise, the son of the complainant was present and was looking after the deceased. According to the complainant, 3/4 other persons who are closely related to the deceased were also present. Out of them two were allegedly eye-witnesses therefore, anyone of them could have gone to the Police Station Rawat for lodging the report but they did not care to do so probably for the reason that son of the complainant was not ready to lodge the report. He might have thought that the incident was not such which should be reported to the police. There was no impediment or any hurdle in the way of the complainant or any other witness to have gone to the police station for lodging the report. It appears that when the deceased was removed from the place of incident to the hospital they must had passed from Rawat Police Station and could have easily stop therefore, for a little while for lodging the report and at that time the deceased was also in his senses he could have given the true facts about the incident to the police but the complainant and P.Ws. Did not choose to do so. Even one of the P.Ws. Could have been dropped at the Rawat for lodging the report but this had also not happened. This gives support to the arguments of the learned counsel for the appellant that at the initial stage the complainant and P.Ws. Were not with the deceased except his son while taking him to the hospital. Thus, the prosecution has failed to furnish any plausible explanation for delay in lodging the F.I.R. Under these circumstances, it appears that the time was spent in consultation and preparing the case, hence the delay of 12 hours in lodging the F.I.R. Is very fatal to the prosecution case.

13. As regards the recoveries, the prosecution alleged that crime-empty was secured from the place of incident in presence of the complainant and another co-Masheer. The rifle was also secured in presence of the complainant and another Masheer. The prosecution examined the complainant and S.H.O. In the case who supported the prosecution case. The case of the appellant is that on 22-9-1995 his licensed rifle was secured from his house in his absence and the police manipulated the empty bullet, which was sent to Forensic Laboratory for examination. In this background and particularly when the complainant is all-rounder witness of all the aspects of the case, as discussed above, his evidence is required to be scrutinized very carefully. The prosecution was required to produce articles before the Court but the crime-empty was never produced before the Court for examination or identification through the complainant or investigation Officer. This is a fatal blow to the prosecution case in the light of the surrounding circumstances of the case as discussed above. Even otherwise the recovery of crime empty or rifle with matching report of F.S.L.

Is a corroborated piece of evidence, which by itself is not sufficient to convict the accused in the absence of substantive evidence. Reference is invited to Ijaz Ahmed v. Slate 1997 SCM R 1279. It was held in the case of Asadullah Muhammad Ali PLD 1971 SC 541, that corroborative evidence is meant to test the veracity of j ocular evidence. Both corroborative and ocular testimony is to be read together and not in isolation. In the case of Saifullah v. The State 1985 IJ SCMR 410, it was held that when there is no eye-witness to be relied upon, then there is nothing which can be corroborated by the recovery. In the present case, we have already discarded the ocular testimony as such there is no substantive piece of evidence which requires to be L corroborated through the recoveries. Thus, the recoveries in the present circumstances of the case have no weight.

14. After considering the material available on record, we are of the considered view that the case of the prosecution is highly doubtful, therefore, the appellant Noor Muhammad is entitled for the benefit of doubt which is accordingly given to him. Consequently, the appellant is acquitted of the charge and his conviction and sentence awarded by the learned High Court are set aside. The Criminal Appeal No,139 of 2003 filed by the appellant is allowed whereas Criminal Petition No,134 of 2003 filed by the complainant for enhancement of sentence is dismissed.