' FAZAL-I-HAQ ABBASI, J.---Abdul Majeed, Rehmat Amin and Habib ur Rehman convicts/appellants were charged vide F.I.R. No, 492 dated 3-9-2007 under sections 302/34, P.P.C. Registered at Police Station Kabal, District Swat. They were tried by learned Additional Sessions Judge/Izafi Zila Qazi, II, Swat. Learned trial court found them guilty of committing the Qatl-e-Amd of Muhammad Sadiq, deceased, in furtherance of their common intention and they were convicted and sentenced through judgment dated 7-4-2010 to imprisonment for life. They were directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased or in default to suffer three months simple imprisonment. Benefit of section 382-B, Cr.P.C. Was extended to them. The convict's/appellants have filed Criminal Appeal No,342 of 2010 against their conviction and sentence, while Muhammad Zahid, complainant, has filed Criminal Revision No,112 of year 2010 for enhancement of the sentence awarded to Abdul Majeed etc.
2. We intend to dispose of Criminal Appeal No,342 of 2010 and Criminal Revision No,112 of 2010 through this single judgment as both arise out of the judgment dated 7-4-2010 passed by learned Additional Sessions Judge-II, Swat.
3. Sher Zada, Incharge Police Post, Kanju, P.W.10, received an information that near Bara Banda an occurrence of murder took place and the dead body has been taken to Saidu Sharif Hospital, he proceeded to the hospital, where he found dead body of Muhammad Sadiq in the Surgical ward.
Muhammad Zahid, complainant, on 3-9-2007 at 10-30 a.m. Lodged a report that his deceased father was employed in Wild Life department and he used to go daily to his office, situated at Saidu Sharif. On the said day the complainant, Muhammad Tariq and Shahid, his brothers, along with their father were going to Mingora, when at 9-15 a.m. Reached the place of occurrence, their father was ahead of them a few paces, Abdul Majeed, Rehmat Amin and Habib-ur-Rehman sons of Reheem Ullah were lying in ambush, who started firing at his father with the firing of Rehmat Amin, his father was hit on the different parts of the body and died at the spot. Motive for the occurrence was previous enmity. The occurrence was witnessed by Muhammad Tariq, Shahid besides him and many others. Report was recorded in shape of Murasila Exh.PA, which was signed by the complainant in token of correctness and verified by Riaz Ahmad, P.W.7. Sher Zada, S.-I., P.W.10, thereafter, prepared the inquest report Exh.P.W.10/1 and injury sheet Exh.P.W.10/2 of the deceased and handed over the dead body to Doctor for post mortem examination and sent Murasila to Police Station where case was registered at 13-5 hours on 3-9-2007.
4. Investigation was carried out by Abdul Wakeel A.S.-I., P.W.6, who proceeded to the crime spot and during spot inspection he took into possession blood stained sand and stones Exh.P-1, 16 empty shells of 7.62 bore, Exh.P-2, and one empty shell of .30 bore, Exh.P-3, through recovery memo Exh.P.W.6/1 and sealed the same in different parcels in presence of the witnesses. He prepared site plan, Exh.PB, at the pointation of the complainant and the eye-witnesses. Through memo., Exh.P.W.6/2, he took into possession garments, Exh.P-4, belonging to deceased, which were having bullet marks and sealed the same into a parcel, in presence of the witnesses. Abdul Majeed accused was arrested by levy officials on the day of occurrence at Dargai, so he was transferred on 4-9-2007 to Swat. Habib-ur-Rehman and Rehmat Amin were arrested on 5-9-2007 and Kalashnikov, Exh.P-6, along with charger containing four cartridges was recovered from the possession of Rehmat Amin and a 30 bore pistol, Exh.P-7, along with magazine containing three cartridges was recovered from Habib-ur-Rehman. As they could not produce any lieence, therefore, a case vide F.I.R. No, 496 dated 5-9-2007 under section 13 A.O. Was registered at Police Station Kabal. The blood stained articles were sent to Serologist and the report is Exh.P.W.6/14. The weapons and the empty shells recovered from the spot were sent to FSL and report is Exh.P.W.6/15.
After completion of the investigation, case file was handed over to Sanobar Khan, S.H.O., P.W.1, who submitted complete challan in the court for trial of the accused.
5. Learned trial court after receipt of the complete challan, complied with the legal formalities, framed the formal charge against the accused, who did not plead guilty and claimed trial.
Prosecution in order to prove its case produced twelve witnesses; out of them two are numbered as P.W.10 and P.W.10-A. Thereafter, statement of the accused were recorded under section 342, Cr.P.C. Rahmat Amin accused appeared as DW-1, in terms of section 340(2), Cr.P.C. And advanced the plea of alibi. In support of his plea Jehanzeb was examined as DW-2. After close of the evidence and hearing the arguments of the parties learned trial court convicted and sentenced the accused as stated above.
6. Learned counsel for the appellants argued that the report was lodged with delay after due deliberations, consultations and preliminary investigation. Learned counsel further argued that the very presence of the complainant and the alleged eye-witnesses at the time of occurrence is doubtful. He contended that being inimical and interested witnesses they are not reliable. He argued that conduct of the witnesses does not appeal to common sense. He contended that name of Ali-ur-Rehman, P.W.5, does not find mention in the F.I.R., therefore, no reliance can be placed on his statement. Learned counsel further argued that the recoveries were planted and the same were sent to the expert after an unexplained delay, therefore, no reliance can be placed on the arms expert report. He contended that motive was a double edged weapon and if it was a reason for the commission of murder, similarly, it could be a reason for false implication in a blind murder.
He placed reliance on 2002 SCM R 1986, 2008 SCM R 707.
7. On the other hand learned counsel for the complainant argued that the occurrence took place in broad daylight and the accused were charged in a promptly lodged F.I.R., which is supported by the eyewitnesses, medical evidence, recoveries, positive reports of the experts and motive. He argued that the prosecution proved its cast against the accused beyond any shadow of doubt and that accused Rehmat Amin failed to substantiate his plea of alibi. He supported the conviction and sentence awarded to the accused, however, argued that learned trial court failed to give any cogent reason for withholding the normal penalty of death. He prayed for dismissal of the appeal and requested for enhancement of the sentence of life imprisonment to death. He placed reliance on 2005 PCr.LJ 1384 and 2007 PCr.LJ 1891.
8. Learned counsel appearing on behalf of the State adopted the arguments advanced by learned counsel for the complainant,
9. We have heard learned counsel of the parties and gone through the record with their valuable assistance.
10. Muhammad Zahid, complainant, was examined as P. W:2, who supported the version given in the F.I.R., charged all the three accused for firing, however, Rehmat Amin was specifically charged for firing at the deceased. In his cross-examination he stated that sixteen empty shells of 7.62 bore were recovered from the spot. He further stated that at the time of firing, no other person excepting the accused was present. He stated that after five minutes of the firing Suzuki =was brought by Minhajud-Din, wherein dead body was taken to the hospital by him, Riaz, Minhaj and Ahmad but did not stop at Kanju Post. He explained the motive that father of the accused was murdered for which the deceased. Was charged and later on acquitted. However, he denied the suggestion of his non-presence at the spot at the time of occurrence and false charge due to previous enmity.
Shahid, P.W.3, charged all the three accused for firing at the deceased, however, stated that with the firing of Rehmat Amin, the deceased was hit and died at the spot. In cross-examination he stated that the accused were armed with Kalashnikovs and at the time of occurrence there was none except him, complainant, Muhammad Tariq, deceased and the accused.. He further stated that he had not gone to the hospital with deceased who was taken to the hospital by Riaz and Minhaj. He also stated that he has not seen any other person accompanying the deceased to hospital "because after the occurrence we came to our house from the spot". He further stated that "after firing, we three brothers went back to house. "Muhammad Tariq P.W.4 in his examination in chief charged all the three accused for firing at his father, however, stated that with the firing of Rehmat Amin the deceased was hit and died at the spot. In the cross-examination P.W.4 stated that the accused were armed with Kalashnikovs. He further stated that excepting himself, his brothers; deceased and the accused no one else was present at the time of occurrence and after fifteen minutes of the firing" we returned to home and thereafter I went nowhere". He stated that he is not in the knowledge that who took the dead body to the hospital. Ali Rehman, P.W.5, stated that he was going to his house, when reached near Karapa, he saw Habib-ur-Rehman, Abdul Majeed and Rehmat Amin sitting duly armed with fire arms, when he went 20/22 yards ahead firing took place on which he turned and saw Rehmat Amin firing at the deceased. He has not shown the presence of Zahid, P.W.2, Shahid, P.W.3, and Muhammad Tariq, P.W.4, at the time of occurrence.
Name of this witness is not mentioned in the F.I.R. As eye-witness of the occurrence. Riaz Ahmad P.W.7 in his cross-examination, stated that he learnt about the occurrence at morning tea time and came to the spot. The dead body was lying there and they took the same to hospital.
11. According to the complainant P.W.2 deceased died at the spot but the dead body was taken to the hospital instead of lodging the report at police post Kanju falling on the way. Report was lodged after one hour and fifteen minutes of the occurrence while Suzuki was available after five minutes of the occurrence as stated by P.W.2. The case was registered at 13.05 hours after a delay of three hours and fifty minutes of the occurrence, while the distance between the place of occurrence and the Police Station as mentioned in the F.I.R. Is 9/10 kilo meters. The occurrence took place near a main road as is apparent from the site plan Exh.PB. Such unexplained delay in lodging the F.I.R., has led to a suspicion and reflected adversely on the prosecution story and also assumed great significance so far as the presence of the so called eye- A witnesses is concerned. According to Shahid P.W.3 they all the three brothers went to their house after the occurrence. Conduct of the witnesses who, are the sons of the deceased was highly strange. This also casts serious doubts on the prosecution case. Again P.W.3 and P.W.4 stated that the accused were armed with Kalashnikovs, but an empty shell of .30 bore pistol was also recovered from the spot which is wedded with the pistol allegedly recovered from the possession of Habibur-Rehman 'accused as per report Exh.P.W.6/15. This factor also creates doubt regarding the= presence of complainant P.W.3 and P.W.4 at the time of occurrence. Ali Rehman P.W.5 has also not shown the presence of the aforesaid P.Ws. At the time of occurrence. Evidence of the witnesses is in conflict with each other and mutually destructive.
12. Entry wounds of different dimensions such as 1-1/2" x 1/2", 12 x 5 inches and 2 x 2 inches were found by the doctor during post mortem examination on the dead body of the deceased. In this way the medical evidence is in conflict with the ocular account furnished by the C alleged eye- witnesses. Medical evidence would only disclose the cause of death but could never fix the identity of the accused, who caused fatal injuries to the deceased.
13. Crime empties recovered from the spot and the weapons allegedly recovered from the possession of Habib-ur-Rehman and Rehniat Amin accused were sent to the arms expert with an unexplained delay of sixteen days. Bullet recovered from the dead body of the deceased during post mortem examination was not sent to the Fire Arm expert to ascertain its caliber and whether the same was fired from the Kalashnikov allegedly recovered from the possession of the accused Rehmat Amin. There is no explanation where the crime articles remained lying for sixteen days. In such a situation, positive report of the arms expert lost its evidentiary value and the alleged recovery of weapons from Habib-ur-Rehman and Rehmat Amin also becomes doubtful.
14. Motive is a double edged weapon which cuts both ways. If it can be a reason for aggression, equally it can be a reason for false implication of an accused in an unseen occurrence. Now coming to plea of alibi raised by Rehmat Amin, "sufficient to say that accused may or may not take a defence plea or may take a false plea the burden of proof remain on the prosecution to prove its case beyond reasonable doubt.
15. From the above discussion, we are of the firm view that the prosecution has failed to prove its case against the appellants beyond any shadow of doubts. It is well settled now that many reasons are not required but single circumstance creating reasonable doubt in a prudent mind about the guilt of the accused, the accused would be entitled to the benefit of doubt not as a matter of grace but as a matter of right.
16. In the light of the above discussion, we allow this Criminal Appeal No, 342 of 2010, set aside the conviction and sentence dated 7-4-2010, passed by Additional Sessions Judge/Izafi Zilla Qazi-II, Swat. Consequently, the appellants Abdul Majeed, Habib-ur-Rehman and Rehmat Amin sons of Raheem Ullah, involved in case F.I.R. No, 492 dated 3-9-2007 under section 302/34, P.P.C., registered at Police station Kubal, are acquitted of the charge levelled against them. They be set free forthwith, if not required in any other cases. As we have allowed Criminal Appeal No, 342 of 2010, therefore, Criminal Revision No, 112 of 2010 for the enhancement of sentence is dismissed.
' These are the reasons of our short order of even date.