Muhammad Hashim Khan Kakar, J.--Pauper appellant, Lal Muhammad son of Shah Muhammad, through instant appeal, sent through Superintendent, Central Jail, Mach, has challenged the validity of judgment dated 23rd April 2010, passed by the Additional Sessions Judge, Harnai, whereby he was convicted and sentenced under Section 302(b) of the PPC to suffer life imprisonment and to pay a fine of Rs, 150,000/- (rupees one lac and fifty thousand only), in default whereof to further undergo RI for three (03) years, with the benefit of Section 382-B of the, Cr.P.C.
2. The relevant facts, arising out of the instant appeal, are that on 12th July 2009, a case Crime No, 02 of 2009, under Section 302 of the PPC was registered at Police Station, Shahrag, on the report of complainant Syed Abbas son of Syed Khuda-e-Dad. It was alleged by the complainant that on 10th July 2009, he, along with his companion Muhammad Rasool, was sitting in Mirza Hotel, Shahrag, when, suddenly, accused Lal Muhammad, while armed with a knife, appeared and caused severe injuries to Muhammad Rasool and, thereafter, escaped from the venue. According to the complainant, the injured was, immediately, shifted to Quetta, who, subsequently, succumbed to the injuries in Bolan Medical Complex Hospital on 12th July 2009. Consequently, the aforesaid FIR was registered.
3. After registration of the case, investigation of the case was carried out by PW-7 Muhammad Zaman, SI, who, after visiting the place of occurrence in presence of PW-1, prepared site inspection memo. Ex.P/1-A and site sketch Ex.P/7-B. He handed over the dead body of deceased Muhammad Rasool to the complainant against receipts Ex.P/7- C and Ex.P/7-D, took into possession blood- stained __clothes of the deceased through recovery memo. Ex.P/4-A and prepared sealed parcel, recorded the statements of eye-witnesses under Section 161 of the, P.C., arrested the appellant on 13th July 2009 from PMDC cross, Shahrag, and during his personal search, the crime weapon' Le. knife was recovered, lying in his front pocket of waistcoat, which was taken into possession through recovery memo. Ex.P/4-A. During course of the investigation, the recovered articles were sent to FSL and after receiving FSL report, he completed the investigation and submitted challan Ex.P/7-J before the trial Court.
4. The appellant did not plead guilty to the charge and claimed trial. The prosecution examined, in all, nine witnesses. The material evidence is that of Dr. Baqir Shah, who examined the deceased, eye-witnesses i,e, Syed Abbas, Mirza Hussain, Muhammad Hashim and Investigating Officer Muhammad Zaman, SI. PW-6 Dr. Baqir Shah, initially, examined injured Muhammad Rasool on 11th July 2009 at about 6:00 p.m., who, subsequently, succumbed to the injuries on 12th July 2009. He found a stitch wound 2cm in length with two stitches on the left iliac region, which were fresh and anti-mortem.
5. PW-2 Syed Abbas, an eye-witness of the occurrence, in his examination-in-chief has deposed in the following manner: "On 10th July 2009 at 9:00 a.m, it was Friday and I was present in Mirza Hotel Shahrag. At that time, Mirza, Hashim and other people were also present there including Muhammad Rasool, who was paying the wages to the labours, when in the meanwhile, Lal Muhammad came there started abusing and inflicted him knife-blow, at which Hashim and Mirza took the accused towards a side, while I took the injured Muhammad Rasool and proceeded to Quetta, where the injured was got admitted in BMC Hospital, but after his operation, he succumbed to the injuries. I brought the dead body back to Shahrag on 12th July 2009, where the same was released to me. On 12th July 2009, I submitted an application for registration of FIR. I produce my Fard-e-Bayan as Ex-P/2-A and identify my signature on it correctly. I identify accused present before the Court correctly who made attack".
Similarly, the statement of eye-witness Mirza Hussain (PW-3) is reproduced here under: "On 10th July 2009 at 9'O Clock, I was doing my job in my hotel, whereas Hashim was sitting in front of me, while Syed Abbas was sitting in a room. Since there was a Friday, therefore, there were many people in the hotel. In the meanwhile, Lal Muhammad came there, who abused Muhammad Rasool and inflicted a knife-blow to him. The people intervened and took Lal Muhammad away from the site. "
The statement of PW-5 Muhammad Hashim, an eye-witness, is also reproduced hereunder: "On 10th July 2009 at 9'O clock, I was sitting in Mirza Hotel. Accused Lal Muhammad present in the Court came there with a knife in his hand. Lal Muhammad inflicted knife-blow on the bally of Ghulam Rasool. I intervened."
6. The appellant, in his examination under Section 342 of the, Cr.P.C., denied the allegations levelled against him by the prosecution and canvassed innocence and claimed that on the account of monetary dispute, he has been roped in a false case by the complainant. He also recorded his statement on oath as envisaged under Section 340(2) of the, Cr.P.C. and produced one Jalal Shah in his defence. The Additional Sessions Judge, Harnai, vide judgment dated 23rd April 2010, found the appellant guilty of the offence and convicted and sentenced him under Section 302(b) of the PPC, as mentioned and detailed above.
7. We have heard Mr. Ikhtiar Khan Marghazani, learned counsel for the appellant at length. Learned counsel took us through relevant portions: (i) the statements of three eye-witnesses, Syed Abbas, Mirza Hussain and Muhammad Hashim; (ii) statement of medical officer Dr. Baqir Shah: (iii) statements of Investigating Officer Muhammad Zaman, SI, and PW-9 Ali Jan, ASI, and (iv) the judgement of Additional Sessions Judge, Harnai. Learned counsel, then, formulated his contentions as under:
(i) There is inordinate delay in lodging of the FIR. After due deliberations, consultations and receiving the medical report, FIR has been lodged. Eyewitnesses are setup and false case has been cooked up against the appellant. If the witnesses would have been there, they could have easily saved the life of the deceased or caught hold of the appellant;
(ii) Prosecution has miserably failed to prove the place, where the murder had taken place. From the alleged place of occurrence, no blood of the deceased was secured; (iii)Complainant Syed Abbas is friend of the deceased. He had enmity with the appellant. He is friend-cum-inimical witness. PWs Hashim and Mirza Hussain were friends of the deceased. They are interested in prosecution. Their evidence requires strong corroboration, which lacks. No conviction can be based on their interested evidence; (iv)There is direct clash between the medical evidence and ocular account. In the FIR, complainant has alleged that the deceased was, immediately, shifted to Bolan Medical Complex Hospital, Quetta, while PW Dr. Baqir Shah has deposed that the injured was brought to the hospital on 11th July 2009 at 6:00 p.m.
(v) Motive is shrouded in mystery, which shatters the entire prosecution case; and (vi)The Court below has not properly assessed the evidence and, thus, drawn improper conclusions.
8. Admittedly, the appellant is nominated in the FIR. The occurrence took place inside Mirza Hotel at 9:00 a.m. on 10th July 2009, which was reported to the police at about 10:40 p.m. on 12th July 2009, whereas the distance between the Police Station and the place of occurrence is only about one furlong. It was obligatory upon the complainant to have- registered the FIR, immediately, after the occurrence, but in the instant case, the FIR has been registered after considerable delay of about two days without any plausible explanation, which adversely affects the prosecution case. It is a settled principle of law that undue, unreasonable and unexplained delay in lodging of FIR leads to suspicion and reflects on the truth of the prosecution case and earlier information of crime is required to be supplied without any loss of time in order to avoid criticism or falsehood of the report as being manipulated and result of deliberation and consultation, but, in the present case, we found that the delay has not been explained satisfactorily.
9. A careful reappraisal of the evidence shows that the ocular account, furnished by the alleged eye-witnesses, is neither confidence inspiring, nor straightforward. The PWs are not only friends of the deceased, but are also inimical towards the appellant on account of monetary dispute between the parties and chance witnesses. Undisputedly, mere relationship or friendship with the deceased is not sufficient to discard their evidence, but for the safe administration of justice, Courts always emphasize for independent corroboration of the ocular account by corroboratory pieces of evidence which is lacking in the present case. Although the Investigating Officer PW-7 Muhammad Zaman, after registration of the FIR, visited the scene of crime, yet he did not secure blood-stained earth from the place of occurrence, which reflects that the occurrence had not taken place in the manner as prescribed by the prosecution witnesses. The statements of alleged eyewitnesses under Section 161 of the, Cr.P.C. have been recorded with unexplained delay of two days. The Hon'ble Supreme Court of Pakistan examined the question of delay in recording the statements under. Section 161 of the, Cr.P.C. in the authorities referred to by learned counsel for the appellant. In a case of "Syed Saeed Muhammad Shah v The State" reported in 1993 SCM R 550, the Hon'ble apex Court, while dealing with the point, has observed as under: --S.161--Statements i ecorded by police after delay and without explanation are to be ruled out of consideration."
From the perusal of above case law, it is clear that if the police did not record the statement of a witness within time and delay is caused in recording such statement, then a reasonable explanation is required to be furnished by the prosecution for such delay. If such reasonable delay is furnished, then the evidence of a witness can be relied upon, if not, then such delay affects the veracity of a witness and the evidence is to be disbelieved and discarded.
10.Apart from delay in recording of statements under Section 161 of the, Cr.P.C., the witnesses have made dishonest improvements in their Court-statements in order to strengthen the case of prosecution, as such, no reliance can be placed on their testimonies.
11.According to the version of complainant, the injured was, immediately, shifted to Bolan Medical Complex Hospital, Quetta, but, quite surprisingly, PW-6 Dr. Baqir Shah has deposed that the injured was brought to hospital at 6:00 p.m. on 11th July 2009 for examination. The wound was already stitched and according to him, the injuries were fresh. The prosecution record is completely silent regarding the fact that the occurrence took place on 10th July 2009 at 9:00 a.m., but the injured was brought to the hospital after unexplained delay of about 36 hours and it is not known where the injured was lying in helpless condition during such period of time and as to whether 'he was given any sort of first aid, if so, by whom?
12.Even otherwise, we find that the conduct of the witnesses at the time of incident was not normal, as they did not try to save the life of the deceased or to catch the convict in spite of the fact that he is an aged person of 70/75 years. Although hard and fast rules about the human conduct and behaviour are not available, yet in the light of accepted standards of human behaviour, it can be safely said that in the normal course of events, the PWs ought to have caught hold of the culprit and reported the matter to police without any loss of time. The conduct exhibited by the said witnesses is offensive to normal human behaviour.
13. Much stress has been laid on the report of FSL Ex.P/9-A, whereby the knife, recovered from possession of the appellant, was found to be stained with human blood. This piece of evidence, apparently, appeals to reasons, however, when examined minutely, it also losses it intrinsic value.
According to the prosecution version, the appellant was arrested on 13th July 2009 and during his personal search, the knife in question was recovered from front pocket of his waistcoat. Admittedly, the recovery of crime weapon had been effected after three days of the occurrence, therefore, we are not ready to believe that the appellant would be so fool/naive as to keep the crime weapon for so long as to facilitate its recovery from him for subsequent use as a piece of evidence against him.
14. It is a known and a settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence, enabling the Court to draw conclusion whether the prosecution had succeeded in establishing accusation against the accused or otherwise? and if it comes to the conclusion that the charges so imputed against the accused had not been proved beyond the reasonable doubt, then the accused becomes entitled for his release on getting the benefit of doubt in the prosecution case.
For the aforesaid reasons, the prosecution has failed to prove its case against the appellant beyond the shadow of doubt, as such, impugned judgment passed by the trial Court is set aside and the appellant is acquitted of the charge. He be released forthwith, if not required in any other case.