JUDGMENT IMAM BUX BALOCH, J. - Through this Criminal Appeal the appellants have assailed impugned judgment dated 12.02.2007 passed by learned Additional Sessions Judge/STA, Kandhkot STA Case No. 16/2001 (State v. Ismail & others) arising out of Crime No. 77/1991, under Sections 302, 148, 149, 323, P.P.C., PS Tangwani, Kandhkot, whereby the appellant No. 1 was convicted under Section 337-A(i), Qisas & Diyat Ordinance and sentenced to suffer R.I. For 2 years and to pay fine of Rs. 2,000/- within six months or in default to undergo one month's S.I. And appellant No. 6 was convicted under Section 302, Qisas & Diyat Ordinance and sentenced to suffer life imprisonment and to pay compensation of Rs. 100,000/- as Tazir to complainant within six months or in default to undergo six months' S.I. And further appellants Nos. 1 to 6 were convicted under Section 452, P.P.C, to undergo R.I. For 5 years and to pay fine of Rs. 2,000/- each within six months or in default to undergo 6 months' S.I., with direction that all the sentences to run concurrently. The appellants were also given benefit of Section 382-B, Cr.P.C.
2. Briefly the facts of the prosecution case are that complainant Ramazan lodged the F.I.R, at PS Tangwani alleging therein that on 06.06.1991 at 0515 a.m. He alongwith his sons PW Janib, Yaqoob and Sabzal were sleeping in their house and awakened on some commotion and there was morning light and they saw Esso son of Abdul Aziz armed with rifle, Sherjati and Hamal both sons of Gul Muhammad armed with guns and two unidentified culprits armed with Kalashnikov, standing in his house, on which complainant's son Sabzal asked the culprits as to why they had entered in their house on which accused Esso replied, they would have come to take the revenge of murder of his brother Walidad and saying so accused Esso fired two rifle shots at Sabzal who fell down while rasing cries. Complainant's other son Janib tried to grapple with an unknown person armed with Kalashnikov who gave him Kalashnikov buttonwoods on his head and he too fell down on the ground. On the cries all the culprits fled away, It is alleged that motive of the incident is that about 4/5 years back Walidad son of Aziz Jaffri was murdered and F.I.R, was registered against his relatives Tangio and others, whereas Abdul Aziz and his other relatives used to issue threats that they will avenge murder of Walidad. On such allegations, F.I.R, was registered.
3. After registration of F.I.R., the police started investigation during which police let of all three accused nominated by complainant in his F.I.R, and on the basis of investigation, above-named appellants were arrested and one Qasim was shown as absconder. On 02.11.1991 I.O. Recorded further statement of complainant wherein he stated that at the time of incident he was under shock and due to misunderstanding he had named accused Esso, Sheitan and Hamal as culprits whereas actual culprits are the above-named appellants and one Qasim. On same day i.e. 02.11.1991 statements under Section 164, Cr.P.C, of PWs Janib and Yaqoob were recorded before Mukhtiarkar and FCM, Kandhkot. On 14.04.1998 formal charge was framed by the Trial Court against the appellants to which they pleaded not guilty and claimed to be tried.
4. In support of its case, the prosecution examined PW-1 Ramazan (complainant) at Exh. 15 who produced F.I.R, at Exh.l=15/A and his further statement at Exh.l=15/B, PW-2 injured Janib at Exh. 16 who produced his 164 Cr.P.C, statement at Exh.l61/A, PW-3 Yaqoob at Exh.17 who produced his 164, Cr.P.C, statement at Exh.17/A, PW Dr. Rafiq Ahmed at Exh. 18 who produced post-mortem report at Exh.18/A, SHO Fida Hussain Lashari at Exh. 19 who produced Mashirnama of dead-body at Exh. 19/A, inquest report of deceased at Exh.19/B, Mashirnama of injuries of Janib at Exh.19/C, Mashirnama of securing two empties of 7 mm bullets and blood-stained earth at Exh.19/D, Jaggan at Exh.20 who produced Mashirnama of arrest and search of accused Ismail, Muhammad Hassan, Malook, Siddique, Mehardil, Kouro, at Exh.20/A, and Investigating Officer Shaft Muhammad at Exh.21 who produced Mashirnama regarding recovery of gun and rifle at Exh.21/A.
5. The statements of accused under Section 342, Cr.P.C, were recorded at Exh.24 to 29 wherein they denied the allegations levelled by prosecution.
6. After hearing learned counsel for the parties, the Trial Court recorded the above judgment whereby the appellants were convicted and sentenced as mentioned above.
7. We have heard learned counsel for the parties and perused the material brought on record.
8. Learned counsel for the appellants contended that the names of the appellants do not appear in F.I.R. The supplementary statement of the complainant was recorded with a delay of about 5 months without any plausible explanation from the prosecution. The accused named in the F.I.R, were let of by the complainant. Subsequently he got recorded the supplementary statement after 5 months of the incident wherein he stated that due to shock and misunderstanding he has nominated the accused Esso, Sher Jan and Hamal but actually the appellants and one Qasim were actual culprits of the incident. Learned counsel further contended that statements of PWs Janib and Yaqoob were recorded on 02.11.1991 before the Mukhtiarkar and FCM Kandhkot in absence of the appellants in violation of the mandatory provisions of Sections 164 and 265-F, Cr.P.C. He further contended that according to PW Yaqoob, the appellants had been arrested 15/20 days after die incident, much before his statement under Section 164 Cr.P.C, was recorded. Learned counsel further contended that the recovery of rifle and shotgun from the appellants Hassan and Mahardil, have no evidentiary value as no mashir has been examined to prove the recovery of crime weapons and the crime weapons have not been produced in the Court during trial. This piece of evidence could not be used against the appellants in such circumstances. Learned counsel further argued that the evidence brought on record is discrepant, contradictory and full of exaggerations and improvements and creates doubt in the prosecution case. Further statement of complainant also creates doubt in the prosecution evidence which was recorded after 5 months of the incident.
He further argued that the complainant had denied recording of his further statement by Investigating Officer Muhammad Ayub Junejo. Learned counsel further argued that statement of the witnesses had been recorded after a delay of more than 5 months which rendered the prosecution case as doubtful. Learned counsel has relied upon the following case-law:-
(1) Falak Sher v. The State (1995 SGMR 1350).
(2) Khalid Javed and another v. The State (2003 SCM R 1419).
(3) Ghulam Akbar and another v. The State (2008 SCM R 1064).
(4) Syed Saeed Muhammad Shah & another v. The State (1993 SCM R 550).
(5) Muhammad Fazil and another v. The State (2006 SCM R 1432)
(6) Muhammad Khan v. The State (1999 SCM R 1220).
(7) Muhammad Akram v.. The State (2009 SCM R 230).
(8) Tariq Pervez v. The State (1995 SCM R 1345).
(9) Muhammad Rafique and others v. The State (2010 SCM R 385).
Learned counsel summed up his arguments that the prosecution has failed to prove its case against the appellant beyond shadow of any reasonable doubt. The defence was succeeded to create many doubts in the prosecution case and the benefit of doubt may be extended in favour of the appellants.
9. On the other hand, learned A.P.G, contended that the complainant was under shock hence he has not nominated the appellants and mentioned the names of other persons and after becoming fit. He had got recorded his further statement in which he has-given the names of the appellants.
The appellants were arrested and crime weapons were recovered from their possession. The appellants having motive for commission of the offence and the prosecution has proved the motive. The eye-witnesses are inmates of the house and in such circumstances their-evidence could not be lightly, brushed aside.
10. We have considered the above submissions advanced at Bar with the assistance of the learned counsel. We have also scanned the entire evidence available on record.
11. PW-1 Muhammad Ramazan stated in his evidence that PWs Yaqoob and Janib are also his sons.
About 11 years back at 0515 hours he were up alongwith his sons on the rattle sound and saw accused Qasim with Kalashnikov, Muhammad Hassan with rifle, Ismail with gun, Malook with gun, Siddique with gun, Kouro with gun and Mehardil with gun. His son Sabzal gave hakal to the accused as to why they have entered into their house, on which the accused Muhammad Hassan directly fired upon his son Sabzal which hit him. All other accused firing in the air alongwith Muhammad Hassan, decamped from the scene of offence. During the incident his son Janib grappled with the accused Ismail who gave butt blows of gun to Janib who received injuries and fell down. He found that his son Sabzal succumbed to die injuries. He after leaving Janib at the dead-body of Sabzal and brought a pick up and took the dead-body of Sabzal and injured Janib and went to police station where he' lodged the F.I.R. He has shown place of incident to the police. Police secured 2 empties and blood- stained earth from the place of incident. He further stated that on 02.11.1991 his further statement was recorded by police as police has recorded his F.I.R, wrongly. He stated that the further statement did not bear his signature nor it is correct. In cross-examination he stated that he had mentioned the names of accused Ismail, Mehardil, Kouro, Qasim, Siddique, Malook and Muhammad Hassan. He further stated that he has mentioned in his F.I.R, that his son Sabzal grappled with accused Ismail who caused gun butt blows to his son. He admitted that SHO Fida Hussain Lashari registered his case at Police Station Tangwani. He admitted that police officials told him that his case registered against Esso, Sher Jan and Hamal and two unknown persons. He further stated that 161, Cr.P.C, statements of his sons PW Janib and Yaqoob were recorded by SHO Fida Hussain, He denied that he stated in his F.I.R, that he has identified accused Esso, Sher Jan and Hamal carrying rifle and guns respectively alongwith unidentified two persons.
12. PW-2 Janib stated that Muhammad Ramazan is his father while deceased Sabzal and PW Yaqoob are his brothers. About 11 years back he alongwith his father and brother were sleeping in their house where, they were up on a rattle sound and saw identified 7 persons as Mehardil Sabzoi with gun, Kouro Sabzoi with gun, Muhammad Hassan Nidwani with rifle, Ismail Nindwani with gun, Siddique Nidwani with gun, Qasim Jageerani with Kalashnikov and Malook with gun standing near their buffalos. His brother Sabzal challenged them whereupon accused Muhammad Hassan fired at him from rifle twice who after receiving injuries fell down. He grappled with accused Ismail who caused him gun butt blows on his head and after receiving injuries he fell down on the ground. All the accused decamped while firing in the air. He saw that his brother Sabzal was injured. He and his brother Yaqoob remained near the dead-body while his father went for the report. His statement under Section 161, Cr.P.C, so also 164, Cr.P.C, were recorded. In cross- examination this witness stated that on their cries people from the neighbourhood came. He stated that investigation officer had not recorded his statement and so also that of PW Yaqoob. He and PW Yaqoob had gone inside the police station alongwith their father, with the dead-body. When his 164, Cr.P.C, statement was recorded before the Magistrate, accused were under-arrest with the police but they were not produced before the Magistrate at that time. On the contrary accused Esso, Sher Jan and Hamal were produced by police before the Magistrate at the time of recording his 164, Cr.P.C, statement.
13. PW Yaqoob also stated the same facts as stated by PW Janib. In cross-examination this witness stated that he does not know as to whether Esso, Sher Jan and Hamal were present before Mukhtiarkar and FCM Kandhkot when his 164, Cr.P.C, statement was recorded. He admitted that accused present in Court were arrested by the police within 15/20 days of incident and also mu6h before his statement recorded under Section 164, Cr.P.C.
14. PW-4 is Dr. Rafiq Ahmed who conducted autopsy, of the dead- body of Sabzal and confirmed his unnatural death which is not disputed by the defence. PW-5 Inspector Fida Hussain stated that on 06.06.1991 he was posted as SHO at PS Tangwani. On that day complainant Muhammad Ramazan appeared at police station to lodge report of murder of his son Sabzal and injuries sustained by his another son Janib against Muhammad Esso and others. He registered his F.I.R. He inspected the place of incident which was shown to him by complainant Muhammad Ramazan and noted the injuries of injured Janib. He recorded 161, Cr.P.C, statement of PWs Janib and Muhammad Yaqoob and referred PW Janib for medical examination. He secured empties of 7 mm rifle and blood-stained earth from the place of incident. In cross-examination the witness admitted that complainant has nominated accused Esso son of Abdul Aziz, Sher Jan and Hamal, both sons of Gul Muhammad Jafferi as accused for commission of murder of deceased Sabzal and causing injuries to his son Janib. He further admitted that complainant has stated in his F.I.R, that accused Esso fired twice from rifle at deceased Sabzal and unidentified person gave butt blows at the head of PW Janib and Yaqoob. He further admitted that both PWs Janib and Yaqoob in their 161, Cr.P.C, statements had nominated Esso, Sher Jan and Hamal as accused. He further admitted that the complainant Muhammad Ramazan and PW Janib and Muhammad Yaqoob had not disclosed the names of the accused/appellants. Last witness Inspector Shaft Muhammad stated that on 20.11.1991, he was SIP at PS Tangwani. The investigation of crime No. 77/1991 was entrusted to him. On 27.11.1991 he arrested accused Ismail, Mehardil, Kouro, Siddique, Malook and Muhammad Hassan from the Otaq of Muhammad Ismail.
15. With the assistance of the learned counsel for the parties we have minutely examined the prosecution evidence. Admittedly the complainant had named in his F.I.R., the accused Esso, Sher Jan, Hamal and 2 unknown persons as accused for the commission of the offence. Police had arrested the above accused during investigation but subsequently after 5 'months of the incident, further statement of the complainant was recorded though the complainant denied his recording of further statement in which the complainant had mentioned the names of appellants as culprits.
The complainant admitted that in his further statement he has named the appellants. Even the complainant disowned his further statement during recording of his evidence.
16. In the case of (supra) it was observed by the improves his statement on matel not worthy of reliance and evidence Saeed Muhammad Shah & another v. The State Honourable Supreme Court that if a witness aspect of the case then such improvement is of such witness requires corroboration. In the case of Khalid Javed & another v. The State (2003 SCM R 1419) while reiterating the above, it was further observed by the Honourable Supreme Court that such witness is to be considered to be wholly unreliable and it is not advisable to place explicit reliance upon his evidence. In the case of Fedak Sher v. The State (supra) it was observed by the Honourable Supreme Court that any statement or further statement of the first informant recorded during the investigation by the police, would neither be equated with the First Information Report nor read as part of it and the subsequent statement of the complainant involving the accused in the case was false improvement which made the basis for other eye-witnesses as well for his false implication.
The statement of PWs Janib and Muhammad Yaqoob who are sons of the complainant are also unreliable as at the first instance when their 161, Cr.P.C. Statements were recorded by SHO Fida Hussain they have named accused Esso, Sher Jan and Hamal and 2 unknown persons as accused but subsequently when their 164, Cr.P.C, statements were recorded after a delay of more than 5 months, they have given the names of appellants as accused.
17. We have minutely appreciated prosecution evidence. We find that the witnesses have made improvements and exaggerations in their evidence in order to strengthen the prosecution case.
Moreover, further statement of the complainant and 164, Cr.P.C, statements of PWs Janib and Muhammad Yaqoob were recorded with a delay of 5 months. This aspect of the case engaged our attention for quite sometime during hearing because delay in recording supplementary statement would be an important factor which is likely to give rise to inference that second version contained in it, was introduced by the prosecution after deliberation and if it is so, it will adversely affect the prosecution case.
18. Complainant Muhammad Ramazan denied the fact that his further statement was recorded.
We have enquired from the learned A.A.G, about the delay in recording further/supplementary statement of the complainant and 164, Cr.P.C, statements of the PWs Janib and Muhammad Yaqoob, but we failed to find any satisfactory answer to our query from the learned A.G.P, or from the record. We had noted that regarding the recovery of gun and rifle no mashir had been examined to corroborate the version of SHO Muhammad Ayub Junejo. This fact also creates doubt on the prosecution case. Moreover, during trial the alleged crime weapons had not been produced.
All above factors are creating doubt in the prosecution case. It is settled law that if only one circumstance is creating doubt in a prudent mind then the benefit of doubt is to be extended in favour of the accused, nor as a grace but as a right, as observed by Honourable Supreme Court in case of Tariq Parvez v. The State (1995 SCM R 1345).
19. For the foregoing reasons, we are persuaded to form opinion that prosecution has failed to prove its version, hence we accept the instant Appeal, as a result whereof the impugned Judgment dated 12.02.2007 passed by learned Trial Court is set aside. The appellants are acquitted of the charge.
20. These are the reasons of our short Order dated 01.02.2011 by which we had allowed this Appeal and set aside the impugned Judgment and directed that the appellants shall be released forthwith if-not' required in any other case.