' SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Riasat Ali son of Sultan, caste Muslim Sheikh, resident of Macho Nikka, Police Station Pindi Bhattian, District Hafizabad, appellant along with Sultan, Waris Ali and minor Naseer' (since acquitted) was involved in case F.I.R. No,728, dated 23-9-2004, offence under sections 302, 452, 109, 34, P.P.C., registered at Police Station Pindi Bhattian and was tried by Mr. Khalid Arshad, learned Additional Sessions Judge, Pindi Bhattian. The learned trial Court seized with the matter in terms of judgment dated 30-6-2009 convicted the appellant under section 302(b), P.P.C., and sentenced him to imprisonment for life with direction to pay Rs,60,000 as compensation to the legal heirs of Qasim Ali deceased and in case of default in payment thereof, to further undergo S.I. For six months. Benefit of section 382-B,. Cr.P.C. Was also extended in favour of the appellant. Riasat Ali/appellant through the instant appeal has assailed his conviction and sentence recorded by the learned trial Court.
2. The prosecution story as narrated in the. F.I.R. (Exh.PA/1) lodged on the complaint (Exh.PA) of Mohra (P.W.1)/ complainant is, that on the night between 17 and 18 of September, 2004 he along with his family members was sleeping in his house. At about 11-45 p.m. (night) Riasat son of Sultan (appellant) and Nasir Ali alias Gogi son of Ahmed Ali, both Muslim Sheikh by caste by scaling over the wall of the house went to the roof. The complainant woke, up, however, the accused persons, who were armed with firearm weapons extended threats of dire consequences. 'The third unknown person, who was standing on the wall raised alarm and made aerial firing due to which the complainant and other inhabitants became nervous. In the meantime Nasir Ali accused caught Qasim from his legs and asked Riasat Ali to finish him/commit his murder upon which Riasat Ali made two fire shots, which landed on the person of Qasim Ali due to which he sustained serious injuries and fell down from the cot. Thereafter the accused persons fled away from the scene of occurrence. The incident was witnessed by Nasrullah son of Sultan and Azhar Iqbal son of Dost Muhammad.
' The complainant alleged that one day prior to the incident Sultan father of Riasat Ali accused abetted and instigated his son to murder. Qasim Ali, which was overheard by Ghulam son of Muhammad Khan. The motive behind the occurrence as alleged in the crime report was that Sultan had suspicion that Qasim Ali had teased his grand-daughter, however, the matter was patched up due to intervention of respectables of the locality.
3. The complainant 'along with Azhar Iqbal shifted Qasim to Civil Hospital in an injured condition wherefrom the injured was referred to Allied Hospital, Faisalabad. On 23-9-2004 the complainant reached at Police Post Tibba Shahbelol and presented his application (Exh.PA) on which Atm Muhammad, S.-I. (P.W.8) after endorsing police karvai sent the same to the Police Station for registration of formal F.I.R. (Exh.PA/1). It is pertinent to mention here that primarily the case was registered under sections 324, 452, 34, P.P.C., however, after the death of Qasim, offence under, section 324, P.P.C., was deleted and offence under sections 302, 109, P.P.C., were added. After registration of the case, the investigation was entrusted to Muhammad Yagoob, S.-I. (P.W.14), who visited Civil Hospital Pindi Bhattian and examined the dead body, prepared inquest report (Exh.PL), injury statement (Exh.P1) and drafted application for postmortem examination (Exhl PK). The Investigating Officer handed over dead body to Muhammad Mansha 102/C. (P.W.11) for escorting the same to mortuary. Thereafter, the Investigating Officer visited the place of occurrence and prepared visual site plan (Exh.PN). He also secured blood-stained earth vide recovery memo Exh.PB, which was attested by the P. Ws. After the postmortem examination, Mehdi Khan 20/C (P.W.7) produced before the Investigating Officer last worn clothes of the deceased, chadar (P-1), which he took into possession vide recovery memo Exh.PC. The Investigating Officer handed over parcel of blood-stained earth and chadar (P-1) to the Moharrar for its safe custody and onward transmission to the quarter concerned. On 25-9-2004 on the direction of the Investigating Officer and pointing out of the prosecution witnesses, Maqsood Ahmed Bhatti draftsman (P.W.13) took rough notes of the place of occurrence and thereafter prepared scaled site plan, which the Investigating Officer took into possession vide recovery memo Exh.PM and Exh.PM/1. On 29-11-2004, Riasat Ali and Nasir All were arrested and the Investigating Officer obtained their physical remand.
During the course of investigation on 12-12-2004, Riasat Ali after making disclosure led to the recovery of pistol .30-bore (P-2) from his residential house, which the Investigating Officer took into possession vide recovery memo Exh . PD .
4. During the course of investigation, the Investigating Officer found the appellant and Nasir Ali co- accused guilty and submitted report under section 173, Cr.P.C. On 15-4-2002 while placing their name in Column No,3 of the same, whereas, Waris and Sultan co-accused having been found innocent were placed in Column No,2. The report under section 173, Cr.P.C. Was sent to the court of competent jurisdiction, which was enrouted through Illaqa Magistrate as provided under section 190(2), Cr.P.C. It is pertinent to mention here that firstly charge was framed on 6-2-2006 and thereafter Nasir co accused (since acquitted) was found minor and his case was separated and thereafter on 16-11-2006 fresh charge was framed against the appellant and other co-accused to which the appellant pleaded not guilty and claimed trial. In order to substantiate his case, prosecution produced as many as fourteen prosecution. Witnesses. Mohra (P.W.1) is the complainant of the case and prosecution version on occular account was supplemented by Azhar Iqbal (P.W.2).
' Maqsood Ahmed Bhatti draftsma n (P.W.13) had prepared scaled site plan of the place of occurrence. Muhammad Yaqoob, S.-I.(P.W.14)/Investigating Officer had investigated the case and found the appellant guilty. Dr. Muhammad Zahid Imtiaz Dogar (P.W.10) had operated upon Qasim.
Ali in an injured condition, whereas, Dr. Asghar Ali Ilanjra (P.W.6) had conducted postmortem examination upon the dead body of deceased and found following injuries on his person:- "(1) Fire-arm wound of entry 1 cm x 1 cm x going into on the front of right thigh, margins were burnt, edges were inverted and tattooing was present and corresponding hole to the qameez.
(2) Fire-arm wound of entry 1 cm,x 1 cm x going into on the parallel to the injury. No,1 on the front of middle of right thigh, margins were burnt, edges were inverted and tattooing was present.
(3) Fire-arm wound of exit 2-3/4 cm x 1-3/4 cm x coming out on the inner side of the upper 1/3rd of right thigh, edges were everted and continuous with injury No, 1.
(4) Fire-arm wound of exit 3. Cm x 2 cm x coming out on the inner side of the right thigh close to right side of anus, edges were everted and continuous with injury No,2.
(5) Stitched infected wound 13 cm long on the front of right thigh.
(6) Stitched infected incised wound 9 cm long on the right side of groin region.
(7) Stitched incised infected wound 10 cm long on the left side of groin region.
(8) Stitched incised wound 11 cm long on the left thigh upper part.
(9) Stitched incised wound 76 cm long from the outer side of right thigh upto right ankle joint.
(10) Incised infected wound 56 cm long x 10 cm wide on the inner side middle of right thigh upto inner side of right ankle joint.
(11) Incised wound 15 cm x 9 cm x 8 cm deep on the right peri anal region area."
' After conducting the postmortem examination, the doctor rendered the following opinion:- ' In my opinion the death was due to septicemia as a resulting of firearm injuries Nos.1 and 2 which were sufficient to cause of death. In ordinary course of nature. All these injuries were ante-mortem in nature.
' Probable time that elapsed between injury and death was 6 to 7 days and the time was between the death and postmortem was 10 to 11 hours."
' Statements of rest of the prosecution witnesses are formal in nature.
5. Vide his statement recorded on 24-7-2007, the learned ADPP gave up Nasrullah P.W. Being unnecessary. On 28-5-2008, learned ADPP further gave up Ahmed Ali, Muhammad Abdullah, Nassir Ali and Muhammad Ashraf, P.Ws., again being unnecessary. Vide statement dated 14-1-2009, learned ADPP also gave up Dr.Sana Ullah and Dr. Majeed Kamal P.Ws. And on 25-2-2011 after tendering in evidence the report of Serologist (Exh.PQ), report of Chemical Examiner (Exh.PR) and report of Forensic Science Laboratory (Exh.PS), he closed the prosecution evidence.
6. The appellant was also examined under section 342, Cr.P.C; wherein he opted neither to lead defence evidence nor opted to appear as his own witness as provided under section 340(2), Cr.P.C.
To disprove, the allegations levelled against him. In response to the question why this case against him and why the P.Ws. Deposed against him, the appellant made following deposition:- "All the private P.Ws. Are inter se related and they have deposed falsely against me. In fact neither complainant nor P.Ws. Were present at the spot at the time of occurrence nor they witnessed the occurrence. Qasim Ali deceased was murdered by unknown culprit in dead hours of night that is why complainant did not report the matter to the police on the night of occurrence. The complainant in consultation with the P.Ws. Concocted a false motive and in connivance with the police registered a false case against me after a lapse of seven days due to enmity and suspicion.
I have no motive to commit the murder of Qasim Ali. I was not instigated by my father Sultan Ahmed. I am innocent."
7. After hearing the arguments advanced by the prosecution as well as defence while evaluating the evidence available on record, the learned trial Court found the version of the prosecution proved beyond any shadow of doubt against the appellant, resulting into his conviction in the above stated terms.
8. Learned counsel for the appellant while opening his arguments submitted that the impugned judgment is based upon Surmises and conjectures and the learned trial Court while recording conviction against the appellant has committed grave misreading and non-reading of the evidence available on the record. Learned counsel next argued that as per prosecution version the occurrence had taken place on the night between 17 and 18 of September, 2004 at 11-45 p.m.
(night), however, the complainant, who is real father of Qasim Ali (deceased) reported the same with a delay of five days and such an inordinate delay goes without any plausible explanation. If the prosecution version is presumed to be true that the complainant remained busy in attending his son, learned counsel urges, the other prosecution witnesses, who are closely related to the complainant, as well as, the deceased should have reported the matter to the police. Learned counsel further contended that even otherwise as per prosecution own version the occurrence had taken place in the odd hours of night at 11-45 p.m., however, there is not an iota of evidence available on the record to suggest that what was the source of light at that time enabling the complainant and other prosecution witnesses to have identified the appellant. Learned counsel went on arguing that the prosecution story regarding the catching hold of Nasir Ali (since acquitted) and thereafter making firing by the present appellant does not sound sense and there was every possibility that the fire shot might have caused injury to Nasir Ali co-.Accused. It was further contended on behalf of the appellant that no empty was recovered from the place of occurrence and as the occurrence had taken place inside the house, hence this circumstance squarely becomes of much importance/significance. Learned counsel next contended that as there is no report of Forensic Science Laboratory, hence the recovery of pistol .30-bore, allegedly effected on the pointing out of the appellant does not advance the prosecution case. Learned counsel vehemently argued that as per prosecution version Nasir Ali co-accused (since acquitted) caught hold the legs of Qasim Ali and thereafter the present appellant made fire shot, whereas, while conducting postmortem examination Dr. Asghar Ali Hanjra (P.W.6) observed injuries on thigh and tattooing was present meaning thereby that the fire shots were made by placing the pistol near the leg, hence the medical evidence is squarely in contradiction with the occular account.
Learned counsel further contended that the learned trial Court on the same set of evidence, acquitted three co-accused, which reveals that major portion of prosecution version was disbelieved, hence it was not justified in passing conviction against the appellant. In this backdrop, it was contended by learned counsel for the appellant, the conviction passed by the learned trial Court against the appellant is in utter disregard to the canons of safe administration of criminal justice as the prosecution had badly failed to prove its case against the appellant through leading cogent and confidence' inspiring ,evidence. The learned counsel, in the circumstances, prayed' for clean acquittal of the appellant from the charge.
9. On the other hand learned Deputy Prosecutor-General vehemently opposed the contentions raised by learned counsel for the complainant with the averments that the appellant is named in the F.I.R., who as per prosecution version is main stalwart of the occurrence and the prosecution through leading cogent and confidence inspiring evidence proved its case against the appellant.
Learned Deputy Prosecutor General further argued that the appellant made two fire shots upon Qasim Ali, who received two injuries. The pen-picture of the occurrence, learned Law Officer urged, given by the prosecution witnesses is not only trustworthy rather nevertheless they were cross- examined at length, however, the defence failed to shatter their testimony. It was next argued that both the parties are well-known to each other, hence no question of misidentification arises.
Learned Deputy Prosecutor-General further contended that the prosecution version of occular account finds full support from the medical evidence as well as recovery of pistol .30-bore. The motive behind the occurrence, learned Deputy-Prosecutor General contended, was fully substantiated. The complainant is unfortunate father of Qasim Ali, whose young son was done to death by the assailants and he was having no to have falsely implicated the appellant in place of real culprits. It was finally submitted that the prosecution proved 'its case against the appellant beyond shadow of reasonable doubt, who not only remained absconder for a reasonable period rather was found guilty during the course of investigation and his name was placed in Column No,3 of the report prepared under section 173, Cr.P.C, and the learned trial Court while appreciating the prosecution evidence in its true perspective was well justified in convicting the appellant.
10. I have given my anxious consideration to the arguments advanced by learned counsel for the appellant, as well as learned Deputy Prosecutor-General, and gone through the record available on file with their able assistance.
11. As per prosecution version the occurrence had taken place on the intervening night of 17/18 September, 2004 and it was at 11-45 p.m. (night) when ,allegedly the accused persons by scaling over the wall reached the roof of the complainant and Nasir accused (since acquitted) held Qasim Ali son of the complainant from legs and thereafter present appellant, who allegedly was armed with pistol 30-bore made two fires shots, which landed on right thigh of Qasim, who subsequently succumbed to the injuries, however, astonishingly, as per complaint (Exh.PA) presented by Mohra complainant (P.W.1) he reported the matter to the police on 23-9-2004, whereas, the F.I.R. Was lodged at 10-50 p.m. With a delay of five days and this fact alone is fatal to the prosecution case.
The explanation rendered by the complainant for such an inordinate delay is not confidence inspiring and straightway does not appeal to sense for the reason that if for the sake of arguments the version of the complainant that he remained busy in attending Qasim Ali at hospital is presumed to be true then what was the hurdle, which resisted Nasrullah and Azhar Iqbal from reporting the matter to the police especially when Nasrullah (given up P.W.) is real brother of the complainant and uncle (chacha) of the deceased. In a similar case reported as Mehmood Ahmed and 2 others v. State (1995 SCM R 127), the Hon'ble Supreme Court of Pakistan took serious notice of delay in lodging the F.I.R. And held as under:- "Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking instructions and calculatedly preparing report keeping the names of accused open for roping in such persons whom ultimately prosecution may wish to implicate. This does not mean that in any other case where the complainant does not mention the names of the accused an adverse inference has to be drawn but in cases where the facts show that in the normal circumstances the complainant could have known or obtained the names of the accused, it will be rather dangerous to rely upon such witnesses unless very strong piece of evidence is produced to substantiate the prosecution case. In the present case if the complainant would have reached the police station within 15 to 30 minutes of the incident, one could say that immediately after the incident the complainant having no interest in the matter had rushed to the police station to lodge information so that immediate steps may be taken by the police. Such is not the case here and as discussed above, the delay in particular circumstances of this case has not been explained."
Even otherwise, the prosecution witnesses, who were not vigilant in reporting the matter to the police, their statements cannot be given any credence. Moreover, the occurrence had taken place in the odd hours of night at 11-45 p.m. And neither in the complaint nor while appearing before the learned trial Court any source of light was mentioned due to which the complainant and other prosecution witnesses identified the appellant and his other co-accused.
12. As per averments of the crime report Nasir accused (since acquitted) caught hold Qasim from the legs and present appellant made fire shots, however, as per postmortem examination report Dr. Asghar Ali Hanjra (P.W.6) observed two fire shots made on front of thigh from a very close range as tattooing was present at the seat of injuries. It also does not appeal to reason that the appellant was required any help from Nasir Ali co-accused to have caught hold the legs of Qasim Ali in order to make firing upon him. Even otherwise, this act was straightway dangerous to the life of Nasir Ali co-accused, as well. Respectful reliance in this regard is made on the ratio decidendi of august Supreme Court of Pakistan in the case of Maqoosd Pervez alias Billa and ,another v. The State (2000 SCM R 1859); wherein it was held as under:-- "It is not believable that the principal accused could have fired at the deceased when the appellants had either caught hold of the deceased or had encircled him because that act was not only dangerous to their lives but there appears no reason to resort to it."
Admittedly during the course of visit/site inspection, Muhammad Yaqoob, S.I. (P.W.14) had not collected any empty from the place of occurrence. Nevertheless the Investigating Officer had reached there after five days of the occurrence, however, the place of occurrence is inside the house, hence non-collecting of empties when two fire shots have. Been alleged against the And present appellant squarely creates dents in the prosecution version and recovery of pistol .30-bore allegedly effected from the appellant in absence of any report of Forensic Science Laboratory cannot be considered a circumstance against the appellant to connect him with alleged crime.
13. Admittedly out of four accused persons involved in the case, three have been acquitted by the learned trial Court on the same set of evidence. It is settled principle of law that if evidence of the prosecution is disbelieved qua major portion of the accused it cannot be believed qua the other in the absence of very strong corroboration. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Akhtar Ali and others v. The State (2008 SCM R 6), Sheral alias Sher Muhammad's case (1999 SCM R 697) and Sher Bahadur's case.
(1972 SCM R 651).
14. As far as absconsion of the appellant as contended by learned Deputy Prosecutor General for about two months is concerned, it is established principle of law that mere absconsion is not a proof of guilt of an accused. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the case of Rasool Muhammad v. Asal Muhammad and another (1995 SCM R 1373); whereby their Lordships had held as under:-- "Disappearance of a person named as a murder/culprit after occurrence, is but natural, whether named rightly or wrongly Abscondance per se is not a proof of guilt of an accused person---It may, however, create suspicions against him but suspicions after all qre suspicions."
15. Upshot of the above discussion is that the prosecution case is full of material contradictions/discrepancies especially the conduct of the prosecution witnesses of the occular account that why they delayed in reporting the matter to the police nevertheless having the closest relationship with 'the deceased, the plausibility of the making of firing by the appellant upon the deceased when Nasir Ali co-accused was holding his legs, the contradiction in the prosecution version and the occular account, unproved motive, veracity of recovery of pistol .30- bore in absence of any report of Forensic Science Laboratory F and the fact that on the same set of evidence three accused persons were acquitted by the learned trial Court. In this backdrop it can be safely held that the prosecution has badly failed to bring home the guilt of the accused/appellant to substantiate its case on capital charge and the learned trial Court was not justified in convicting the appellant while basing upon such uncorroborated evidence which even otherwise is full of flaws and conviction passed by the learned trial Court in the circumstances is against all canons of law recognized for the dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Moreover, it is golden G principle of law that Court ought to let off 100 guilty but should not convict one innocent person. Resultantly, the salutary principle of benefit of doubt is extended in favour of the appellant as a. Consequence whereof; Criminal Appeal No,1458 of 2009 is accepted in toto. Conviction and sentence recorded in the judgment of the learned trial Court passed on 30-6-2009 is set at naught. Riasat Ali appellant is acquitted of the charge in case F.I.R. No,728, dated 23-9-2004, offence under sections 302, 452, 109, 34, P.P.C., registered at police Station Pindi Bhattian and he is directed to be released forthwith, if not required in any IH other case.