Abdus Sattar Asghar, J.--This Criminal Appeal under Section 417(2-A), Cr.P.C. is directed against the judgment dated 25.10.1995 passed by the learned Additional Sessions Judge, Faisalabad, whereby Khalid Pervaiz and Nisar Ahmad accused in case FIR No, 541/1994, dated 28.12.1994, in the offences under Sections 302/34, PPC, Police Station Nishatabad, Faisalabad have been acquitted of the charges given benefit of doubt.
2. Precisely prosecution case as unfolded in the FIR (Exh.PE/1) lodged by Niaz Ahmed Khan (PW-5) through his statement (Exh.PE), is that he and his brother-in-law Azkar Khan (deceased) run separate shops adjacent to each other; that on 28.12.1994 at 9:30 p.m. the complainant and Azkar Khan were present on their respective shops; that there was sufficient light of electric bulbs in the chowk; that Khalid Pervaiz (Respondent No, 1) armed with .12 bore gun and Nisar Ahmad (Respondent No, 2) reached there on a motorcycle; that Nisar Ahmad raised Lalkara that Azkar Khan (deceased) should be taught a lesson for pursuing the case of the murder of Niaz Khan; that Khalid Pervaiz fired a shot with his gun which hit Azkar Khan on the right side of chest; that Khalid Pervaiz fired a second shot which hit on the outer glass of the shop which was broken; that he witnessed the occurrence along with Aamir Khan (son) and Mst. Shehnaz Begum (wife);. that they tried to apprehend the accused but they ran away on motorcycle; that Azkar Khan was taken to Allied Hospital in injured condition where he succumbed to the injuries. Motive is that in the year 1993, Munir Khan the younger brother of the complainant was murdered; that complainant Niaz Khan and his two sons were challaned in the said case; that the said case was still pending in the Court. Khalid Pervaiz and Nisar Ahmad accused are brothers-in-law of said Munir Ahmad. The deceased Azkar Khan is brother-in-law of the complainant and used to help the complainant in the said murder case. It was further stated that due to the same grudge both the accused in furtherance of their common intention have murdered Azkar Khan.
3. During investigation both the respondents namely Khalid Pervaiz and Nisar Ahmad were declared innocent and placed in Column No, 2 of the report under Section 173, Cr.P.C. The other two accused namely Nasir Mahmood Khan and Alam Khan, not nominated in the FIR, were found guilty and placed in Column No, 3 of the challan submitted in the Court. All the four accused were charge sheeted by the learned trial Court but they pleaded not guilty and claimed to be tried.
4. Prosecution examined as many as six witnesses: Dr. Khalid Mehmood Fakhar (PW-2) who conducted the post-mortem examination on the dead-body of Azkar Khan, Aurangzeb Draftsman (PW-3) who prepared the site-plan Exh.PC and Exh.PC/1 of the place of occurrence, Mst. Shehnaz Begum (PW-4) and Niaz Ahmad Khan complainant (PW5) the alleged eye-witnesses, and Fakhar-ul-Abbas, HC (PW-6), who being subordinate to and familiar with the hand-writing of Anwar Khan Investigating Officer of the case (since died) verified the proceedings of investigtion conducted by him, are material witnesses.
5. At the conclusion of the prosecution evidence, both the accused/respondents were examined under Section 342, Cr.P.C., wherein they discarded each and every piece of prosecution evidence.
Each of the respondents/accused namely Khalid Pervaiz and Nisar Ahmad replying the question "Why the PWs have deposed against you and have you anything else to say" stated as under:-- "The PWs have deposed against me due to previous enmity. I am innocent. The police found me innocent and placed in Column No, 2 of the challan."
The accused/respondents neither appeared in their defence under Section 340(2), Cr.P.C. nor produced any defence evidence.
6. It is argued by the learned counsel for the appellant that the two eye-witnesses namely Mst.
Shehnaz Begum (PW-4) and Niaz Ahmad Khan complainant (PW-5) fully corroborated by the medical evidence advanced by Dr, Khalid Mehmood Fakhar (PW-2), have been illegally discarded by the learned trial Court; that the prosecution has brought on record sufficient incriminating material to establish culpability of the respondents with regard to murder of Azkar Khan beyond any shadow of doubt; that the impugned order of acquittal in favour of the respondents is perverse, arbitrary, without application of judicious mind, based on mis-appraisal and non- appraisal of evidence, untenable in law and liable to set aside.
7. Learned Law Officer supported the contentions raised on behalf of the appellant/complainant
8. On the other hand, learned counsel appearing on behalf of the respondents/accused contends that both the eye-witnesses namely Mst. Shehnaz Begum (PW-4) and Niaz Ahmad Khan complainant (PW5) are interested witnesses; that motive in this case is double-edge weapon; that Shahnaz Begum (PW-4) while making statement under Section 161, Cr.P.C. (Exh.DA) before the Investigating Officer had exonerated both the respondents as accused rather had nominated the other two accused namely Nasir Mehmood and Alam Khan as actual assailants responsible for murder of Azkar Khan (deceased); that the prosecution evidence brought on record cannot be safely relied upon rather it makes the prosecution version doubtful; that according to the report submitted by'the police under Section 173, Cr.P.C. actual accused in this case were Nasir Mehmood and Alam Khan; that the complainant did not opt to file any private complaint to controvert the findings of the Investigating Officer in this case; that no weapon of offence was recovered from the respondents; that owing to the material inconsistencies in the prosecution evidence the learned trial Court has rightly granted acquittal in favour of the respondents given benefit of doubt; that double presumption of innocence exists in favour of the respondents; that the impugned order of acquittal does not call for any interference by this Court and that the appeal is liable to be dismissed.
Arguments heard. Record perused.
9. Careful perusal of the record transpires that respondents namely Khalid Pervaiz and Nisar Ahmad along with Nasir Mehmood Khan and Alam Khan were charge sheeted:by the trial Court, however at the conclusion of the trial all the four accused were acquitted of the charges given benefit of doubt. The complainant has challenged the acquittal of Khalid Pervaiz and Nisar Ahmad only.
10.First of all we take up the case of Khalid Pervaiz Accused/Respondent No,
1. He allegedly was armed, with .12-bore gun. Attribution against him is that he fired a shot with .12-bore gun at Azkar Khan (deceased) which hit him on the right side of the chest. Niaz Ahmad Khan complainant (PW- 5) in his examination-in-chief has categorically reiterated the above quoted prosecution version with regard to culpability of Khalid Pervaiz Respondent No,
1. Simultaneously Mst. Shehnaz Begum (PW-4) the other eye-witness in her examination-inchief also categorically stated that Khalid Pervaiz armed with gun fired a shot which hit Azkar Khan on right side of his chest. Testimonies of both the above noted PWs therefore are consistent and in line to each other with regard to attribution against Khalid Pervaiz for causing the fire injury on the right side of the chest of Azkar Khan deceased. The ocular account is also corroborated by the medical evidence produced by the prosecution. Dr. Khalid Mehmood Fakhar (PW-2) who conducted the post-mortem examination on the dead-body of Azkar Khan found following injury on the person of the deceased:--
1. A firearm wound of injury 1 x 1/2 cm, edges were inverted on outer part of right of chest, 5 cm below from right armpit and 8 1/2 cm right to the right nipple.
In the opinion of the doctor the death was result of haemorrhage and shock caused by the Injury No, 1 which was ante-mortem and sufficient to cause death in ordinary course of nature.
12.On the other hand, learned counsel for the respondents has laid much emphasis on his argument that Mst. Shehnaz Begum (PW-4) while making statement under Section 161, Cr.P.C.
(Exh.DA) before the Investigating Officer had exonerated both the respondents as accused rather had nominated the other two accused namely Nasir Mehmood and. Alam Khan as actual assailants responsible for murder of Azkar Khan (deceased). Perusal of the record transpires that Mst. Shehnaz Begum (PW-4) while facing cross-examination has categorically denied the statement under Section 161, Cr.P.C. dated 28.12.1996 (Exh.DA) allegedly made by her before the Investigating Officer. Besides during cross-examination she categorically stated that the same story she had mentioned before the police official which she had made before the Court in her examination-in-chief.
13.There is no cavil to the proposition that in terms of Article 140 of the Qanun-e-Shahadat Order, 1984 a witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relevant to matters in question without such writing being shown to him, or being proved but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for contradicting him.
14.In the instant case fact remains that Mst. Shahnaz Begum (PVC-4) when confronted with her statement Exh.DA made before the Investigating Officer has categorically denied the same.
Therefore, it was incumbent upon the defence side to prove the statement Exh.DA by producing the scribe i,e, the Investigating Officer who unfortunately could not appear in the witness-box (since died) during the course of trial. The only way to prove the statement Exh.DA was by asking the police officer in the witness-box whether the witness made such statement to him and whether the statement was scribed by him. In absence of any such statement, Exh.DA therefore is of no avail to the prosecution case. Besides it is pertinent to mention that the statement Exh.DA manifests a version contrary to the one advanced by the complainant in the FIR. Therefore if the Investigating Officer was convinced of the second version the proper course with him was to reduce a separate FIR which he did not opt. Reliance is made upon Rain Bali and others vs. State (AIR (38) 1952 Allahabad 289). On account of denial of Mst. Shahnaz Begum (PW-4) that she has never made the statement (Exh.DA) before the Investigating Officer and cite same not duly proved by producing the I.O. (since died) it therefore has no worth at all to be considered in favour of the accused/respondents as compared to the promptly lodged FIR (Exh.PE/1) by Niaz Ahmad Khan complainant (PW-5) fully supported by other eye-witness Mst. Shehnaz Begum (PW-4) in her examination-in-chief. Needless to say that promptitude in lodging of the FIR is always considered to be having guarantee of truth to a great extent. Reliance be made upon Mushtaq Hussain and another vs. The State (2011 SCM R 45).
15.In the circumstances of this case, motive is not denied. Ocular account produced by Niaz Ahmad Khan complainant (PW-5) and Mst. Shahnaz Begum (PW-4) fully corroborated by medical evidence therefore does not leave any space to doubt the alleged culpability of Khalid Pervaiz accused with regard to causing murder of Azkar Khan by inflicting firearm injury on the right side of his chest. Mere factum that the police failed to recover any offence weapon from Khalid Pervaiz is no reason to disbelieve the consistent reliable and trustworthy ocular account produced by the eye-witnesses fully corroborated' by medical evidence. Reliance is made upon Farman Ali and 2 others vs. The State' (1992 SCM R 2055).
16.As a sequel to the above, we are of the considered view that the impugned judgment dated 25.10.1995 passed by the learned Additional Sessions Judge, Faisalabad with regard to acquittal-of Khalid Parvaiz is perverse, based on non-reading and misreading of evidence, arbitrary, not sustainable in the eye of law and thus suffers from factual and legal infirmity and is liable to set aside.
17.As regards arraignment of Nisar Ahmad (Respondent No, 2), suffice to say that attribution against him is that he facilitated the actual assailant Khalid Pervaiz to reach the place of occurrence while riding the motorcycle. The Investigating Officer has not been able to recover the alleged motorcycle. No overt act except proverbial Lalkara is attributed to Nisar Ahmad respondent. There is nothing on record to establish that actual assailant acted under the influence of Nisar Ahmad for commission of the murder of Azkar Khan (deceased). In the FIR Exh.PE/1 Nisar Ahmad is not shown armed with any weapon. Following the golden principle of 'separating the grain from chaff' it can be safely concluded that his arraignment being real brother of actual assailant namely Khalid Pervaiz by throwing a wider net to involve maximum number of members of the same family in the background of previous animosity cannot be ruled out in the facts and circumstances of this case. It is cardinal principle of criminal law that prosecution remains under heavy burden to prove the charge against the accused beyond any shadow of doubt, whereas in the instant case it has failed to do so. further, this Court has never desired to interfere in the order of acquittal having double presumption of innocence but for extraordinary strong reasons which do not exist in this case. Reliance be made upon Iftikhar Hussain and others Vs. The State (2004 SCM R 1185). The impugned order of the learned trial Court granting acquittal to Respondent Nisar Ahmad is neither arbitrary nor based on any misappreciation of evidence available on the record.
Therefore this appeal to the extent of Nisar Ahmad (Respondent No, 2) is dismissed. His 'surety shall stand discharged.
18. For the above discussion and reasons, this appeal to the extent of Khalid Pervaiz (Respondent No, 1) is allowed and the impugned order of acquittal dated 25.10.1995 to his extent is set aside. He is, convicted under Section 302(b), PPC for causing Qatl-e-Amd of Azkar Khan. Keeping in view the extenuating circumstances of the case he is sentenced to imprisonment for life as Tazir. He is also directed to pay compensation amounting to Rs,50,000/- to the legal heirs of Azhar Khan (deceased) in terms of Section 544-A, Cr.P.C. In default of payment of the said amount he shall further undergo 6-months S.I. He will be also entitled to the benefit of Section 382-B, Cr.P.C. He be taken into custody and sent to jail to serve out his remaining period of sentence in accordance with law.