SYED SAJJAD HASSAN SHAH, J.---Through the instant appeal under section 417 (2-A), Cr.P.C, Fateh Khan the appellant has called in question the judgment dated 3-4-2006 passed by learned Sessions Judge, D.I. Khan whereby the respondents-accused were acquitted of the charges in case F.I.R. No.5 dated 17-1-2003 registered under sections 302/109/34, P.P.C. At Police Station Kirri Khaisor, District D.I. Khan.
2. The prosecution story, in brief, is that Fateh Khan appellant reported the matter to P.W. Fazil Khan A.S.-I. On the spot to the effect that preceding night, he was told by his son Gul Zaman that two goats were missing. In the morning, he along with his son Muhammad Khan alias Mandda and nephew Sultan Jan went to Togga top in search of goats. In the way, Ghulam Subhani alias Bala and Ghulam Jillani armed with Kalashnikovs were sitting Muhammad Khan was going ahead of them followed by him and Sultan Jan. No sooner the accused saw Muhammad Khan, they fired at him with their Kalashnikovs, as a result of which he fell down and died on the spot. After the occurrence, the accused decamped from the spot. The motive for the offence was stated to be illicit relations of Mst. Nusri Bibi, sister of accused Ghulam Jillani with deceased Muhammad Khan which was privately settled.
3. On completion of investigation, complete challan against the respondents-accused was submitted. The prosecution, in order to prove the guilt of the respondents-accused, examined eleven P.Ws. Thereafter, the respondent-accused were examined under section 342, Cr.P.C. They professed innocence and false implication. However, they neither appeared as their own witnesses on Oath nor produced any evidence in their defence. After hearing the arguments, the learned trial Court acquitted the respondents-accused as mentioned above.
3. The learned counsel for the appellant contended that the appellant reported the occurrence promptly wherein the respondents-accused were directly charged for commission of offence. The prosecution proved its case by leading all the available evidence i.e. Recovery of Kalashnikov, ocular and medical evidence and reports of F.S.L. He further contended that one of the respondents accused made confessional statement before the Judicial Magistrate but the learned trial Court has failed to consider these pieces of evidence and erred in acquitting the respondent-accused.
4. As against that, the learned counsel for the respondents-accused contended that the appellant failed to prove its case by leading ocular evidence. The recovery of crime weapon shown in the recovery memo and the F.S.L reports do not pertain to the instant case. He further argued that the confessional statement is defective piece of evidence which is not recorded by observing the legal formalities, therefore, it cannot be made the basis of conviction of the respondents-accused. He further voiced his grievance that there is unexplained delay in lodging the F.I.R. For which no plausible explanation has been given by the prosecution.
5. We have considered the above arguments and carefully perused the record.
6. As per F.I.R., the occurrence took place at sunrise time on 17-1-2003 whereas the report was lodged on the same day at 1330 hours. It means that the occurrence took place in between 7-30 to 8 a.m., meaning thereby that there is delay of about five hours in reporting the matter. In order to explain the delay caused in lodging the report, the complainant in the F.I.R. As well as in his statement took contradictory pleas. In the F.I.R., the complainant stated that the delay occurred because of fear of the respondents-accused whereas in his statement, the complainant stated that the delay was caused as the occurrence took place in his village situated amid hilly area from where the deadbody was brought down on shoulders as it was not accessible by any other means.
This explanation given by the complainant cannot be taken as reasonable explanation, rather it can be gathered that the time was consumed by the complainant party in consultations and deliberations. It creates first dent in the prosecution case.
7. The ocular account in the instant case has been furnished by Fateh Khan complainant (P.W.7) and Sultan Jan (P.W.8). It is to be noted that complainant is the father of the deceased whereas P.W.8 is the nephew of complainant. Therefore, their testimony is to be scrutinized with due care and caution. The complainant stated that he took the deadbody of the deceased to the Police Station on shoulders where he made the report but according to Fazil Khan A.S.-I. (P.W.9) stated that he on his own made inquiry and came to know about the occurrence and went to Wanda Malakhel, where he heard the weeping of womenfolk from the house of complainant. On this he returned to the Police Station and took nafri' to visit the spot. This fact is sufficient to hold that the complainant knew about the occurrence and informatior was also conveyed to the village, however, the complainant party made no efforts to lodge the report in the Police Station. It was the LO. Who himself proceeded to spot where the occurrence was reported to him.
Notwithstanding that the explanation of the complainant about the delay in lodging the F.I.R. Is not trustworthy but amounts to intentional delay hinting towards deliberations and consultations on the part of complainant. In this scenario, the presence of the alleged eye-witness and the complainant on the spot seems to be doubtful more particularly in the circumstances when both the allegedly eye-witnesses stated in their cross-examination that the respondents-accused made no firing at them. It is beyond the comprehension of judicial mind that the accused would spare the P.Ws. To depose against them.
8. The next piece of evidence is the recovery of Kalashnikov which was not taken from the possession of respondent-accused. Ghulam Subhani. According to statement of Kalimullah (P.W.10), on 16-2-2003 B he took into possession a Kalashnikov which was already lying in the Malkhana vide F.I.R. No.4 registered against Ghulam Subhani under section 13, Arms Ordinance and also made the same as case property in the present case and took into possession vide memo Exh.P.W.2/1.
9. The reports of F.S.L are not believable because those do not pertain to the instant case. The report dated 17-6-2003 pertains to F.I.R. No:109 of 8-12-2002 registered under section 377, P.P.C. The other report is dated 9-6-2003. Though it relates to this case but of no consequence it pertains to blood-stained clothes. The other report is concerning F.I.R. Nos. 14 and 15 registered on 16-2-2003 under section 5Q6, P.P.C. The F.I.R. Of this case is No.5 dated 16-2-2003 registered under sections 302/109/34, P.P.C. All these reports are not supporting at all the case of prosecution, hence, not believable.
10. Adverting to the confessional statement of respondent-accused Ghulam Subhani Exh.P.W.11/3, the first defect pointed out is that it was not recorded, within 24 hours. The second material aspect of the above statement is that the Magistrate who recorded the confessional statement on 17-2- 2003 was examined as P.W.11 who admitted in his cross-examination that after recording confessional statement, the accused-respondent was handed over to the same Investigating Officer who produced him for recording confessional statement. The relevant portion of his statement is reproduced as below:- "It is correct that after recording confessional statement, accused was handed over to the same I.O. Who had brought him to the Court, for taking him to the Judicial Lock up. It is correct that the I.O.
Remained present outside the Court Room during recording of confessional statement."
The above confessional statement has not been corroborated by any other piece of evidence. In such circumstances, reliance is placed on the case of Wazir and others v. The State (PLD 1960 W.P Karachi 674) wherein it has been observed that:- "In our view, this circumstances seriously vitiates the voluntary nature of the confession, and it is indeed a salutary practice that after the recording of confessions, the accused person should be sent to judicial custody and they should in fact be informed before hand that whether they make a confession or not, they shall not be given back to police custody. In the present case, the reverse has happened."
Keeping in view the above two points, we hold that the confessional statement is suffering from legal infirmities and is ruled out of consideration.
11. In his ,statement as P.W.7, the complainant stated that motive behind the occurrence was dispute over womenfolk. The sister of accused Ghulam Jillani namely Mst. Nusrat Bibi was alleged to have illicit relations but this motive has not been established through any cogent and convincing evidence. Even otherwise, motive is a double edged weapon and cuts both sides, therefore, false implication of the respondents-accused on account of alleged motive cannot be ruled out.
12. For the reasons discussed above, we are firm in our view that the prosecution has not been able to prove its charge against the respondent-accused beyond shadow of reasonable doubt and they were rightly acquitted by the learned trial Court. There is no force in the instant appeal which is hereby dismissed.