1. ' RAJA JALAL-UD-DIN CJ.---This criminal appeal is preferred under section 410, Cr.P.C. Against the Judgment/Order dated 8-7-2009 passed by the Judge Anti-Terrorism Court No, II Gilgit whereby the appellant was convicted under section 302(B), P.P.C. Read with section 6/7 ATA and sentenced to undergo rigorous imprisonment for life with a fine or Rs, 3, 00,000 (rupees three lac), to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The appellant was also convicted under section 13 A.O. And sentenced to 3 years R.I with a fine of Rs. 10, 000 (Ten thousand). Petitions for enhancement of sentence have been preferred by the State and the complainant.
2. ' The prosecution story as narrated in the F.I.R. Is that Mussa Khan real brother of the deceased Naib Khan submitted an application on 11-8-2006 wherein he stated that his brother (deceased) had gone to water his fields. At about 7 a.m, Sadaqat Jan, Farooq Ahmad and Zakirya opened fire shots on his brother at the instance of Abdul Wadood, Moulvi Ghulam Muhammad, Faqir, Alamgir, Shaukat, Rehmat Nabi, Faqir Khan, Abdul Haleem, Mussa, Nadeem, Abdullah, Yahya, Mir Tullah and Shafeeq.
3. ' The Police have registered case under section 302/34, P.P.C. Read with section 6/7 ATA vide F.I.R.
4. No,197 of 2006 Police Station City Gilgit. During investigation, the police have released/discharged all the accused nominated in the F.I.R. Under section 169, Cr.P.C. Except convict/appellant Sadaqat Jan and submitted challan against him.
5. ' The prosecution, to prove its case against the convict/appellant, produced 17 witnesses. On completion of trial, the trial Court convicted and sentenced the convict/appellant as discussed at Para-1 above.
6. ' Counsel for the convict/appellant stressed that three persons were charged for opening fatal shots on the deceased, but two of them were released under section 169, Cr.P.C. And the convict/appellant was sent for trial. That the complainant in collusion with one Ali Hussain, who is a sworn enemy of the appellant's family managed and fabricated evidence of Ali Hussain's Bhabi Mst. Haseena and himself and after his release from police custody, the said Ali Hussain also introduced one Amjad Ali after 23 days as eye-witness. That the said Ali Hussain was arrested in the murder case of real brother of the convict/appellant which took place on preceding night of the instant occurrence and remained in police custody about two weeks and also locked up in civil litigation with the deceased brother of the convict/appellant. That the said witness has denied to have witnessed the present occurrence in his statement recorded in F.I.R. No,197 of 2006. That there are material contradictions between the statements of the P.Ws. And the trial Court miserably failed to appreciate the evidence in its true perspective. That the recovery of weapon of offence was allegedly effected on 11-8-2006 but the F.I.R. Was lodged on 15-8-2006 and a vague explanation has been offered by the I.O. Which can not be accepted. That the crime empty and the Pistol were not sealed at the spot and further more a photo state copy of expert report was tendered by the Special Prosecutor, which was also not pertaining to the said F.I.R. No,197 of 2006 and the number of the weapon of offence was also different. That there are glaring contradictions in the statements of the P.Ws. And site plan, which has also gone un-noticed by the trial Court. That the statements of P.Ws. Were recorded after a long delay, without any plausible explanations, but no judicious thought has been given to this important aspect of the case. That the impugned judgment/order of the trial Court is not only against the law, but inconsistent with the evidence on record and all benefits of doubts have been extended in favour of prosecution instead of convict/appellant. That the impugned judgment/order of the trial Court runs counter to all probabilities and is the result of mis-reading and non-reading of evidence, causing grave miscarriage of justice, and liable to be set aside. In support of contentions, counsel for the convict/appellant referred 2009 SCM R 84, 1998 PCr.LJ 1486, 2001 PCr.LJ 754, 1983 SCM R 1292, PLD 1998 SC (AJ&K) 207, 1993 SCM R 550, 2007 SCM R 1825, 1996 M LD 1111, PLD 1964 SC 26 and PLD 1963 SC 17.
7. ' On the other hand Deputy Advocate-General for the State assisted by private counsel for complainant opposed the contentions raised by the counsel for the appellant with the submission that the appellant is directly charged in the F.I.R., and the occurrence took place at broad day light.
8. That independent eye witnesses namely Mst. Husina and Ali Hussain are supporting the prosecution story and seen the accused while opening fire on the deceased. That presence of the eyewitnesses at the place of occurrence is quite natural and remained unshattered and there is no contradiction between the three eye-witnesses, which also corroborates with the medical report.
9. That the weapon of offence i,e, .30 bore pistol recovered immediately after the occurrence from the possession of accused and Arm Expert's report is also in positive which supports the prosecution case. That in the presence of motive, ocular evidence, recovery of weapon of offence and other evidence available on record, the prosecution has proved its case beyond any reasonable doubt, as such the convict/appellant is liable to be awarded capital punishment. To substantiate their arguments, counsel for the complainant referred 2001 PCr.LJ 453 (Quetta), 2000 PCr.LJ 1799 (Lahore), 1990 PCr.LJ 707 (Lahore), 1985 PCr.LJ 451 (Peshawar); 1990 PCr.LJ 1765 (Karachi), PLD 1964 SC 26; PLD 2003 SC 350; 2002 SCM R 1842; 1997 SCM R 89 and 2000 M LD 605 (Quetta).
10. ' We have carefully examined the respective contentions as agitated on behalf of counsel for the parties in, the light of relevant provisions of law and record of the case. We have minutely perused the impugned judgment dated 8-7-2009 of the trial Court.
11. ' In the light of the above submissions made by the Counsel for the parties and perusal of record of the case, the crux of the matter as relied upon by us are based on the following observations, as evident from the record:-- ' The F.I.R. Has been recorded on the written report of the complainant Musa Khan the real brother of deceased at 10-30 a.m. Whereas the occurrence took place at 7 a.m. On the same day. He directly charged three persons including the appellant for opening fire shots at the deceased and 15 persons for conspiracy to do the same. His statement was recorded in Court wherein he says that the information regarding the occurrence was gathered from one Azur Khan. The said Azur Khan is not witness of the occurrence.
12. In the instant case the convict/appellant has been implicated for commission of offence along with two other persons who have been assigned equal roles without any difference between them as evident from the F.I.R.
13. ' Now we have to see the veracity of the witnesses cited and are discussed as under:-- ' P.W. Mst. Husina in her statement states that she saw the convict/appellant opening fire shots at the deceased, but she has not charged any other accused. She stated that injured Naib Khan also implicated the appellant for opening fire shots at him. She in her cross examination has stated that her statement under section 161, Cr.P.C. Was recorded 20 days after the occurrence, but on the Police file it is noticed that her statement was recorded on 11-8-2006. She also states that the statement of P.W. Ali Hussain and Mst. Mueena were also recorded along with her statement. She also disclosed that the Police had reached at the place of occurrence within 20 minutes of the occurrence.
14. ' She in her statement recorded under section 161, Cr.P.C. Has stated that injured Naib Khan had named the convict/appellant as an assailant. P.W. Ali Hussain in his statement also implicates the appellant for opening fire shots at the deceased and also discloses that the then injured also named the convict/appellant for opening fire shots at him. The said information regarding the injured identifying the appellant as assailant is confronted with his statement recorded under section 161, Cr.P.C. And not so recorded. The said Ali Hussain was in custody at P.S. Cantt. Where he was detained in murder case of Liaqat Jan and denies his statement under section 161, Cr.P.C. In case No,196 of 2006 as a witness in case of Liaqat Jan. He has also improved in his statement under section 161, Cr.P.C. Regarding the dying declaration of the deceased wherein the appellant has been nominated as assailant. He also agrees that he was present when the Police reached the place of occurrence after half an hour of the occurrence from where the Police took the injured to Gilgit Hospital, but it is strange to note that his statement under section 161, Cr.P.C. Has not be recorded. His statement should also have been recorded at that time or that he should have informed the Police personnel about the assailants which he has not done so and his statement was recorded on the following day while he was detained in Police Station. The presumption of his statement being recorded much later on as is evident from the statement in cross examination which is reproduced as under:-- ' After release from the police station once again the Police have called me for confirmation of my earlier statement At the second time when I was called by Police I do not raised any objection regarding my statement under section 161, Cr.P.C.
15. ' The above disclosure supplements the statement of Mst. Husina wherein she says that her statement under section 161, Cr.P.C. Was recorded after 20 days of the occurrence along with the statement of P.W. Ali Hussain. The above reproduced portion of his statement is very illogical because it is not in the procedure that statement once recorded under section 161, Cr.P.C. Are again scrutinized for confirmation or objection as stated. The statement under section 161, Cr.P.C. Of P.W.
16. Amjad Ali has been recorded on 3-9-2006 while the occurrence is of 11-8-2006 after delay of 23 days. In his statement he has stated that he saw the accused Sadaqat Jan running away from the place of occurrence after hearing the fire shots. He states that he recognized the accused Sadaqat Jan, reproduced as under:-- ' I saw the back side of the running person, who was Sadaqat Jan present in the Court.
17. ' This P.W is of the Sunni sect whereas the deceased is of the Shia sect and convict/ appellant is of the Sunni sect. The prosecution put much reliance on his statement, but we feel that his statement is not much confidence inspiring in the light of his delayed statement under section 161, Cr.P.C. He is not an eye-witness of the occurrence but he has seen one person lying in the channel after fire shots. The said P.W. Has not mentioned the presence of P.W. Mst. Husina and Ali Hussain as being present at the spot of occurrence or they reaching the site of occurrence after the fire shots. P.W.
18. Musa Khan (FIR lodger) discloses in his cross examination has stated as under:-- ' After hearing the incident I was such in a condition that from whom I got written the application for lodging the F.I.R., I cannot recall the name of writer I was not in senses when I got said application written. I had got written the application at Hospital and handed over to a Police Constable, I cannot tell name of Police Constable to whom I handed over the application I have not told to the writer of the application that I derived the information about the incident from my deceased brother.
19. ' Presence of the same discloses that the injured had given him information regarding role of the convict/appellant. Such vital piece of information has not been incorporated in his written report which raises doubts about the veracity of the same and can be termed as a fatal improvement in his statement, we do not place much reliance on the same, but the F.I.R. Can be only termed as an information regarding the murder attempt. In the F.I.R. The P.W. Musa Khan has implicated three persons Sadaqat Jan, Farooq and Zakriya opened fire shots at the deceased whereas in his examination-in-chief the P.W. Has improved that the accused Sadaqat Jan opened fire shots who were accompanied by Farooq and Zakriya. He has with-held the information regarding opening of fire shots by Farooq and Zakriya.
20. ' Musa Khan the real brother of the deceased is serving in the Police Department for the last 15 years who has some knowledge of the procedure but in spite of the fact that his injured brother was in stable condition at the Hospital who gave him information about the occurrence should have taken steps to record the statement of his injured brother as dying declaration by the I.O. Who was present at the Hospital and who had brought the injured from Sharote in the Police vehicle. It would have been a very solid piece of evidence against the appellant, because the Doctors were available at the spot who could have given a certificate regarding his fitness and could also have been a very good witness. We feel that there are two probabilities regarding the non recording of dying declaration when all facilities of good witnesses etc. Were available at Hospital. That (a) either the injured may not have seen any assailant at the time of opening fire shots and being on his death bed did not want to implicate unnecessary and innocent persons, (b) that being away of the said fact the complainant did not want to get a dying declaration recorded, so that after inquiry or information in this behalf the case could be made later on against the desired persons.
21. ' A very important statement of P.W Muhammad Alam HC is perused wherein he states as under:- ' After few days of the occurrence one Ali Hussain P.W. Told me that P.W. Amjad knows about the occurrence. I enquired from the P.W. Amjad about the occurrence and he told me that on the day of occurrence he was going to bring sugar and heard a fire shot where he saw the injured lying on the ground and accused was going in his field. His statement is recorded on 8-9-2006.
22. ' The said P.W. Is the Head Constable and was serving as Muherrer at Sharote Police Chowki. He has neither has been declared as a hostile witness and his statement has not been contested by the prosecution. The cross examination the witness states as under:-- ' None of the inmates of the house helped us in taking the injured from the place of occurrence to the road. When the injured was brought to the road he was conscious and was speaking. It is correct that when the injured was asked by Inspector Doulat Karim and by other Police official and myself about the assailant he stated that he has not seen any body opening fire shot on him.
23. Throughout the journey till reaching operation theater he never told the name of any body as deceased stating that (tumhay kia hay, kia pardi hay) it is correct that the name of assailants was enquired by his relatives present in the vehicle he also did not name any body as assailant till his remained to operation theater. The injured was kept in operation theater for about 2 hours. I remained present out side the operation theater with complainant party till the dead body was handed over to us.
24. ' The non implication of any assailant is very clear from the statement of witness in spite of the stable condition of the injured. P. W.12 Doulat Karim in his statement, states that he was present at Police Chowki Sharote and the early hours, he received a written application Exh. P.W.4/A from complainant Musa Khan who is the real brother of the deceased and the same was sent to Police Station City Gilgit for registration of case. This statement is completely contradictory to the statement of Musa Khan wherein he stated that he was present in Gilgit when he was received information of the occurrence and he has handed over the written application to a Police Constable at DHQ Hospital Gilgit. Inspector Doulat Karim also does not enclose any information regarding the involvement of convict in the ease. The accused were arrested by SIP Muhammad Izzat who also recovered a .30 Bore Pistol from the same, but the F.I.R. Was lodged on 15-8-2006, whereas on the perusal of remand forms dated 12-8-2006 and 20-8-2006, it is found that the accused (Appellant) was required for the recovery of the weapon of offence whereas the recovery had already taken place on 11-8-2006. Such glaring and bold omissions cannot be covered up by flimsy explanations.
25. ' SIP Nawab Khan stated that the complainant Musa Khan handed over the written application in the Police Station City Gilgit for registration of case whereas Inspector Doulat Karim stated that he has sent the same from Police Chowki Sharote to P.S City Gilgit, while Musa Khan stated that he has handed over the written application to a police personnel at Hospital who brought it to the P.S for registration of the case. We have given thorough consideration to the events as stated in the investigation and the major and vital source of information regarding the commission of offence would have been the injured himself who was in the best position to give first information regarding the commission of offence when immediately after the occurrence the Police personnel reached the scene of occurrence where the injured was in stable condition of talking and who did not implicate any body, as alleged, on the way to the Hospital and at the Hospital where relevant' police officials were accompanying him, the injured Naib Khan did not name any body and at the Hospital also where all facilities were available and there also the injured was in stable condition according to his brother Musa Khan and there was also no restriction to nominate the killers but it was not done so.
26. Leaving aside the statements of P.Ws which should have been recorded on the day of occurrence when the Police personnel were already present and it would have taken just a few minutes to record the same, but it is strange to note that the relevant statements were recorded as per statement of IP Abdul Saeed on 12-8-2006, 15-8-2006, 28-8-2006 and onwards. This delayed recording of statements raises the presumption of truth of the evidence and the other material placed on record and non recording of dying- declaration, we feel that a good prima facie case does not exist against the appellant for his conviction. Site plan Exh.P.W.17/A perused and it is found that it has been drawn on the pointation of P.W. Amjad Ali on 11-8-2006, but is it strange to note that in his statement under section 161, Cr.P.C. Has been recorded on 3-9-2006. The proper course should have been that the statements should have been recorded on the same day as the site plan was drawn. No plausible explanation to cover up the same can be given except that the presumption of concealing of facts or over the statements can be presumed. That in site plan Exh.
27. P.W.17/A also shows that at point No,3, 3 crime empties were taken into possession by the I.O., likewise from point No,4, one crime empty was also taken into possession, but very strangely only one crime empty was sent for expert opinion and prosecution failed to explain the whereabouts of the other crime empties. This aspect of the case cannot be highly ignored and it reacts on whole of the prosecution case.
28. There is no original report of the Fire Arms Experts, but a photo copy of the same is placed on file wherein number of the alleged recovery of Pistol is shown as 3828 whereas the number of Pistol is different as shown in the recovery memo. The said Arms Expert Report has been put to the accused in question No,3 in his statement recorded under section 342, Cr.P.C. On 6-2-2009 who replied that the report is not pertaining to the Pistol alleged to have been recovered from him and it pertains to different one. After examination of accused under section 342, Cr.P.C. On 6-2-2009, the Special Public Prosecutor through an application submitted a duplicate report which is without signature of the Fire Arms Expert on 11-5-2009 after three months of the recording of statement of accused under section 342, Cr.P.C.
29. The upshot of the above discussion is that in our view the trial Court failed to appreciate the above mentioned facts in a judicial manner. The prosecution has failed to prove its case beyond any reasonable doubt and statements of P.Ws. Were not worth relying, therefore, while giving benefit of doubt to the accused, appeal is accepted. The conviction and sentence is set aside and appellant may be released forthwith if not required in any other case.
30. ' Criminal Revision No,11 of 2009 filed by the complainant and Cr.Rev. No,12 of 2009 filed by the State for enhancement of sentence fails, which are hereby dismissed.