Muhammad Hashim Khan kakar, J.--This appeal is directed against the judgment dated 15th January 2011, passed by the Sessions Judge. Usta Muhammad, whereby appellant Shabir Ahmed son of Muhammad Yousaf was convicted and sentenced under' Section 302(b) read with Sections 147, 148 and 149 of the PPC to suffer life imprisonment as ta'zir and to pay an amount of Rs,. 50,000/- (rupees fifty thousand only) as compensation to the legal heirs of deceased, in default whereof he was directed to be detained in custody as if sentenced to simple imprisonment till the payment thereof, with the benefit of Section 382-B of the Cr.P.C.
2. Complainant Gul Muhammad in his direct Complaint No, 35 of 2008, dated 6th September 2008, submitted before the Sessions Judge, Usta Muhammad, against the appellant and absconding accused persons, alleged that on 16th March 2008 at about 8:00 a.m., his relatives Saifal and Qamar-uz-Zaman alias Dildar came to him and during course of conversation, they told him that they have been sent by Khawand Bakhsh alias Tore Dil Khan to invite his son, namely. Allah Dina for a meal. The complainant alleged that on above date, his sons Abdul Jalil and Allah Dina were present in the house and, in the meantime, Tahir Khan also came to his house and according to the complainant, who was introduced by him to his relatives and he also told him about such invitation. The complainant further alleged that on the same day at about 10 or 11:00 a.m., he gave permission to his sons Abdul Jalil and Allah Dina to accompany Saifal and Qamar-uz-Zaman for the purpose. According to the complainant, his sons reached Usta Muhammad next day i,e, 17th March 2008 and he talked with them on mobile phone. On the same day, at about 5:00 p.m., he received information through mobile phone from his son Abdul Jalil that accused Khawand Bakhsh. Saifal, Qamar-uz-Zaman, Shabir Ahmed and Manzoor Ahmed committed the murder of his son Allah Dina on the allegation of siyahkari with the wife of accused Shabir Ahmed, namely, Mst.
Shabiran by means of TT pistols and shotguns, and that they also attempted to commit his murder, but he ran from the spot. The complainant also alleged in his complaint that on 18th March 2008, the police officials of Usta Muhammad police station brought the dead body of his son to his house situated at Mohallah Tando Mir Mehmood near old power house. Hyderabad, where he buried the dead body of his deceased son. According to the complaina at, when he obtained the copy of FIR. he observed that the names of original culprits have not been incorporated therein and that the contents of FIR No, 24 of 2008, under Sections 302 and 324 of the PPC were not correct, therefore, he tiled the aforesaid direct complaint as provided under Section 200 of the Cr.P.C.
3. The appellant was arrested, whereas the co-accused persons could not be arrested, therefore, after requisite-proceedings, they were declared absconders, whereas a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. To prove its case, complainant Gul Muhammad recorded his statement on oath and produced his direct complaint as Ex.P/1-A. He also produced PW-2 Abdul Jalil, who happens to be his son as well as brother of the deceased and claimed to be an eye-witness of the occurrence. CW-1 Dr. Sushel Kamal. Medical Officer, conducted the post-mortem examination of the deceased and issued post-mortem examination report as Ex.C/1- A. PW-3 Tahir Khan was, allegedly, present with the complainant at the time, when the accused persons Saifal and Qamar-uz-Zaman invited the son of complainant.
CW-2 Bashir Hussain, DSP, the then SHQ recorded FIR on the report of absconding accused Saifal and produced the copy thereof ,pn record as Ex.C/2-A. CW-3 Riaz Hussain, ASI, is witness to the recovery memo Ex.P/3-A regarding blood-stained clothes of deceased. CW-4 Deedar Hussain, constable, is witness to the disclosure memo Ex.C/4-A of the appellant, allegedly, made in his presence and in consequence thereof, recovery of a TT pistol was effected on the pointation of the appellant, which was taken into possession vide recovery memo Ex.C/4-B. CW-5 Riaz Hussain, SI, is investigating officer of case FIR No, 25 of 2008, under Section 302 read with Section 34 of the PPC, lodged in respect of the present incident by absconding accused Saifal. He placed on record incomplete challan Ex.C/5-A, report of ballistic expert Ex.C/5-A, site sketch Ex.C/5-B. recovery memos Ex.C/5- C and Ex.C/5-D regarding blood-stained earth and clothes of the deceased, incomplete challan Ex.C/5-E, FSL report Ex.C/5-F regarding blood-stained articles and recovery memo Ex.C/5-G in respect of crime empties.
4. Thereafter, the appellant was examined under Section 342 of the Cr.P.C., wherein he denied the prosecution accusation and claimed to be innocent. He did not opt to record his statement on oath as provided under Section 340(2) of the Cr.P.C., nor produced any witness in defence. The trial Court, after close of the parties', evidence, vide impugned judgment, convicted and sentenced the appellant, as mentioned hereinabove, hence, this appeal.
5. We have heard learned counsel for the appellant as well as learned counsel for the State and have also gone through the available record with their valuable assistance. It has been submitted by learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellants. On the contrary, learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of appellant to the hilt and, therefore, the present appeal deserves dismissal.
6. As far as the unnatural death of deceased Allah Dina son of Gul Muhammad is concerned, the same has not been seriously disputed by the defence. Dr. Sushel Kemal. Medical Officer, Civil Hospital, Usta Muhammad, who had conducted the external examination of the deceased, has came forward as CW-1 and furnished the detail of injuries, observed by him on the corpse of deceased. According to his opinion, the death of deceased Allah Dina resulted from fire-arm injury to the major organs i,e, lungs, heart, kidney, major vessels and excessive bleeding. All the injuries were ante-mortem in nature and homicidal in character. In this regard, he produced his medico legal certificate as Ex.C/1-A.
7. However, the question arises as to who has caused these injuries and was responsible for the homicidal death of the deceased? In this regard, the prosecution has relied upon the statement of PW-2 Abdul Jalil, who claimed to have seen the occurrence. In his deposition before the trial Court, he had stated that absconding accused Qamar-uzZaman alias Dildar and Saifal extended invitation to late Allah Dina on 16th March 2008 at his house, in Hyderabad, at the instance of absconding accused Khawand Bakhsh alias Tor Dil and took him along with his brother deceased Allah Dina to Usta Muhammad in Balochistan. He accompanied late Allah Dina at the instance of his father. He further stated that on the evening of 17th day of March 2008, appellant Shabbir Ahmed, along with his brother Manzoor Ahmed and absconding accused Saifal. Qamar-uz-Zaman and Khawand Bakhsh, armed with shotguns and TT pistols, shot dead late Allah Dina on suspicion of existence of illegitimate relations with Mst. Shabiran wife of appellant Shabbir Ahmed. He further stated that the absconding co-accused also pointed guns at him for taking his life, however, he escaped from the spot and reached from Usta Muhammad Shandad Kot in Sindh Province. PW-2 Abdul Jalil, who is the sole eye-witness of the unfortunate incident, in addition to above, deposed that absconding accused Saifal and Qamar-uz-Zaman alias Dildar took him and late Allah Dina into a room of a house in Usta Muhammad, where appellant Shabbir Ahmed, absconding accused Manzoor Ahmed and Khawand Bakhsh alias Tor Dil were already present and appellant Shabbir Ahmed and his brother Manzoor Ahmed shot dead the late Allah Dina by firing at him with pistols at the instance of absconding accused Khawand Bakhsh alias Tor Dil, on suspicion of siyahkari.
8. After having gone through the ocular account, furnished by PW-2 Abdul Jalil, who is allegedly, the sole eye-witness of the occurrence, we have no hesitation to hold that the said witness has failed to inspire our confidence. He claimed to be present at the time of occurrence, but his conduct and presence at the time of occurrence is highly doubtful. From perusal of his statement, it transpires that he has not been able to establish how he was present and what steps, in order to save the life of his beloved brother, were taken by him, either at the time of occurrence, or thereafter? 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 safely be said that in the normal course of events, PW Abdul Jalil, after escape of the culprits, should have shifted the injured Allah Dina to the hospital or reported the matter to the police for lodging of an. FIR. In the normal course of events, he would not have left his beloved brother in a helpless and injured condition. It is very strange and surprising to note that he left his brother in a helpless injured condition and left for Shandad Kot Sindh. The conduct exhibited by the said witness is offensive to the normal human behaviour. It does not appeal to reason that the deceased, who was real brother of the complainant, was being put to death, but he did not challenge the accused and simply as stated in his deposition remained calm. It is also not believable that by killing a person in the presence of his real brother, accused would not attempt to cause any injury to the PW, leaving for them evidence to be hanged.
It appears that the PW did not witness the incident and after the deceased was shot dead and his dead body was brought to Shandad Kot Sindh from Usta Muhammad by the police officials he due to his enmity with the accused persons, have nominated them in order to settle the scores of enmity. The very factum of company of PW Abdul Jalil with the deceased to Usta Muhammad is highly doubtful, thus, we are of the view that the ocular account is not trustworthy.
9. We have also noticed that the occurrence allegedly took place on 17th March 2008 at Usta Muhammad, while the instant complaint has been lodged on 6th September 2008, after an unexplained delay of about 5/6 months, which adversely affects the prosecution ease. It is not denied that undue, unreasonable and unexplained delay in tiling of FIR/complaint leads to suspicion and reflects on the truth of prosecution case and earlier information of crime is required to be supplied in order to avoid criticism of the report as being manipulated and result of deliberation and consultation, but in the instant case, we find that the private complaint has been filed after unexplained delay of about 5/6 months, which creates serious doubts in the prosecution version.
10.We are conscious of the fact that, in order to corroborate the ocular account, furnished by PW- 2 Abdul Jalil, the prosecution produced the positive t allistic report Ex.C/5-A, but the same is also of no avail to the prosecution firstly, for the reason that it has not been tendered before the Court through supplementary challan, and secondly, for the reason that the alleged crime weapon was recovered from the appellant on 15th April 2010, while it was received by the office of the Assistant Inspection General of Police. Forensic Division Sindh. Karachi on 7 June 2010 after an unexplained delay of about one and half month. This piece of evidence, apparently, appeals to reason, however, when examined minutely, it looses its intrinsic value. According to the prosecution version, empties were recovered on 17th March 2008, however, the pistol was recovered on 15 April 2010. It is also a fact that pistol and empties were sent to the office of the Assistant Inspector General, Forensic Division Sindh. Karachi on 7th June 2010, as is evident from the report Ex.C/5-A. There is no explanation as to why the empties secured on 17th March 2008 were not sent to FSL till the recovery of pistol was effected on 15th April 2010. The possibility of wedding the empties with the pistol recovered on 15th April 2010 cannot be ruled out. Had the empties been dispatched to the FSL prior to recovery of pistol, the position would have been otherwise. Even otherwise, the evidence of recovery of crime weapon by itself being evidence of purely of corroboratory nature in the absence of any direct or substantive evidence, alone, is not sufficient to bring home charge against the appellant, particularly when the ocular account is not found trustworthy and confidence inspiring.
11.It is also to be seen that the prosecution alleged that after commission of the murder of deceased Allah Dina, the accused also attempted to murder Bibi Bashiran, who sustained fire-arm injuries, yet the record reveals that she has not been produced and examined in order to substantiate the accusation, as such, adverse inference can safely be drawn as envisaged under Article 129 (g) of Qanun-e-Shahadat Order, 1984.
12.It is also a-well settled principle of criminal jurisprudence that any number of accused may escape unpunished, for lack of sufficient evidence, but no innocent person should be convicted or punished for what he has not done. It is described as golden rule of prudence, which is based on the maxim: "It is better that ten guilty persons be acquitted rather than one innocent person be convicted."
The cumulative effect of all above factors resulted into recording the acquittal of the appellant, which we had done by setting aside the impugned judgment and the conviction vide our short order dated 17th November 2011 and these are the reasons thereof.