ASSADULLAH KHAN CH AMKANI, J.---The appellants Arshid and Sajjad stood trial in case FIR No,737 dated 28-9-2009 under section 302(b), P.P.C. Police Station Lahor and after having been found guilty by learned Additional Sessions Judge, Lahor District Swabi vide judgment dated 10-7-2010, they were convicted and sentenced to life term imprisonment with a fine of Rs,2,00,000 each, as compensation to the legal heirs of the deceased and in default thereof they shall undergo six months/ SI, however, benefit of section 382-B, Cr.P.C. Was extended.
2. The complainant Shaman-ud-Din while reporting the matter to the Incharge of Police Post Jehangira alleged that on the eventful day at the relevant time his son Mulki Aman took tea to the Hujra of his co-villager, namely, Kaar Khan and on return when he reached to the crime spot, the appellants came out from their house and started firing at his son with the intention to kill with which he got hit and died on the spot. Beside him, the occurrence was witnessed by Noroz and Rambail. Motive for the crime was stated land dispute, hence the case was registered against the accused.
3. After registration of the case, the appellants were charge sheeted where they did not plead guilty and claimed trial.
4. The prosecution in order to prove its case against the appellants produced 11 witnesses in all whereafter statements of accused were recorded, however, the trial culminated in conviction and sentence of the appellants, which they have now questioned through the instant appeal while the complainant has filed Cr. R.1/2013 for, enhancement of the sentence, therefore, both being outcome of one and same FIR are disposed of through this single judgment.
5. Learned counsel for appellants contended that there is a delay of about three hours in lodging the first report, which has not been explained reasonably and that the occurrence is un-witnessed one and that the presence of P.Ws. 8 and 9 on the crime spot at the relevant time is doubtful and that being interested witnesses their testimony cannot be relied upon. Moreover, the FSL report with regard to the crime weapon is in negative and that the charge is exaggerated as net has been thrown wider and innocent person with the guilty one has been charged for the crime and that the recoveries effected from the spot are doubtful and That the medical evidence, site plan positions and circumstantial evidence do not support the prosecution version, therefore, keeping in view the above facts and circumstances the learned trial Court has not appreciated the evidence properly and wrongly convicted and sentenced the appellants through the impugned judgment, which requires to be set at naught.
6. Learned counsel for complainant while opposing this appeal and in support of his revision petition contended that the appellants have been directly nominated in the promptly lodged FIR and that the occurrence took place in the daylight and both the parties are closely related to each other, therefore, question of mistaken identity does not arise. The delay in lodging the report has been explained in a reasonable manner and that the medical evidence as well as recoveries effected from the spot fully support the prosecution version. Moreover, the motive stands proved and that the testimony of P.Ws. 8 and 9 is consistent, coherent and their stance could not be shattered despite lengthy and taxing cross examination, hence on the available record the appellants are well connected with the crime but despite that the learned trial Court has taken lenient view of the matter and awarded lesser sentence to the accused, which requires to be enhanced.
The learned State counsel also adopted the same arguments as advanced by learned counsel for complainant.
We have heard learned counsel for the parties and gone through the record available before us.
7. Admittedly, the occurrence took place on 28-9-2009 at 1730 hrs while the report has been lodged at 2030 hrs with a delay of about three hours, which has not been explained in a reasonable manner. This unexplained delay in lodging the FIR leads to suspicion and reflects on the truth of prosecution story. Early information of the crime is required to be furnished to the police in time in order to avoid criticism of the report as being manipulated and result of consultation and deliberation. We have to see the delay in the background of each and every case and also to keep in mind the prevailing circumstances of the case, so in the case in hand the delay has important role to play and that would affect the prosecution case.
8. Secondly, the ocular evidence furnished by the P.W.8 Shamanuddin and P.W.9 Rambail, now we have to see whether the prosecution has established the presence of the eye-witnesses on the spot at the relevant time. Whether their testimony is in line with medical evidence and site plan?
The answer would be in negative for the reason that the complainant party was having a long criminal history. As according to P.W.9 Rambail that prior to the present occurrence the deceased had several enmities in the locality and he used to walk well armed. Similarly, according to P.W.8 Shamanuddin the deceased was charged in many cases i.e, abduction of Mst. Shabana and thereafter contracting of marriage with her and the other for the murder of Izzat Khan of the locality some 12 years back. It was also admitted by this witness that the deceased was charged along with one Hazrat Hussain for firing at each other by one Dervaish, who sustained injury. This witness further admitted that the deceased was also involved in another case of firing with his opponents for which he was charged. The involvement of the deceased in some other cases is fully explained and mentioned by P.W.8 in his cross-examination, which suggests his enmities with different people.
9. In the FIR as well as in the court statements, P.W.8/complainant and P.W.9 have not described the kind of weapon. So, the non-specification of the weapon shows that they were not present on the spot at the relevant time. Had they been present, definitely they would have specified the weapon of offence.
10. Motive is common, then why the complainant was spared and why the accused have not attempted at the life of the complainant. Moreover, the complainant in his cross-examination admitted that he had left his house on the day of occurrence at 5-30 p.m. While his deceased son at "Maspakheen time" and since then till 5-30 p.m. He remained inside his house. Further stated that he returned to his house from work in the field and at that time inquired about his deceased son and was informed that he had taken the tea to the hujra at "Maspakheen time". Moreover, this witness had admittedly not disclosed the object of his presence on the spot to the I.O.
11. P.W.2 while deposing in cross-examination admitted that neither the crime weapon nor any incriminating material have been recovered from personal possession of the appellants or during spot inspection.
12. Dr. Inamullah Khan, SMO RHC Kunda appeared as P.W.5 and in cross-examination admitted that the time duration between the death and post mortem examination was 3 to 4 hrs, therefore, the possibility cannot be excluded that the death might have occurred at 4-30 p.m., which is alleged by the prosecution to be 5-30 p.m. Hrs or soon thereafter, hence the medical evidence is in clash with ocular account.
13. The complainant appeared as P.W.8 and in cross-examination admitted that he can differentiate in different types of fire arms but in the murasila/FIR as well as in court statement he could not disclose the nature of crime weapon and only the word "fire arm" has been described.
14. Rambail, the eye-witness appeared as P.W.9, who stated that he is farmer by profession having agriculture land and cultivate the same. He has no business on the spot at the relevant time. Next day of the occurrence, he has given the statement at 9/10 a.m. For this delayed statement he has not offered any explanation. Both the eye-witnesses have not offered any reasonable explanation or object of their presence at the spot. Soon after the occurrence, none of them proceeded to the police station for lodging the FIR rather they were waiting for the arrival of the police party so much so the dead body was shifted to the house of the complainant, which remained there for some time rather than to the hospital, thus, in the above mentioned facts and circumstances, prosecution could not establish the presence of the eye-witnesses at the relevant time on the spot.
15. The complainant party could not produce the owner of the Hujra in the court where the deceased has allegedly taken the tea, so in the circumstances the examination of the owner of the Hujra was essential in order to confirm the visit of the deceased to the said Hujra.
16. The medical evidence suggests three entry wounds with corresponding exits wounds having the same dimension i.e, 1/2 cm, which appear to be the job of a single person, thus, the charge has been exaggerated one.
17. Site plan is not in line with the ocular evidence as no bullet marks have been shown by the I.O.
Though they were in the firing range, which continued for about 5 minutes. The I.O. Did not recover any spent bullet from the spot. He also failed to recover the thermos/tea pot etc to confirm the visit of the deceased to the Hujra, which is another lacuna in the prosecution case.
18. Recovery of 13 rounds of Klashnikov and 5 empties of .30 bore, which would not advance the case of prosecution for the reasons that the I.O. Has sent the Kalashnikov empties along with weapon of offence to the FSL for test, however, the report of FSL is in negative. No explanation has been given by the prosecution that why they have not sent 5 empties of .30 bore to the FSL for the test. All these create doubts in the case of prosecution.
19. While going through the testimony of above P.Ws., it can be concluded that the prosecution has failed to explain the delay of three hours in lodging the report by the complainant in a convincing and reliable manner. Moreover, presence of P.Ws. 8 and 9 at the crime spot is highly doubtful. The report of crime weapon attributed to appellants is in negative. The recovery of crime weapon from the appellants has not been proved. Moreover, the opinion of Medical Officer that the death of deceased might have caused at 4-30 p.m., as against the alleged time of occurrence as 5-30 p.m., hence the medical version negates the prosecution version. The recoveries effected from the spot are highly doubtful. The circumstantial evidence also does not tag the appellants with the alleged crime. To prove the guilt of an accused, the prosecution evidence must come from unimpeachable source, which is not the case in hand. The learned trial court has convicted and sentenced the appellants on cryptic and inconsistent evidence, which is not sustainable in law.
20. As far as the revision petition of the petitioner/complainant is concerned, the same is hopelessly barred by time and the learned counsel for petitioner has failed to explain the delay in filing the same in a proper manner, hence this petition is not entertainable and is dismissed.
For the aforementioned reasons, this appeal is allowed. The conviction and sentence of the appellants is set aside and they are acquitted of the charges levelled against them. They be set at liberty forthwith if not required in any other case.
These are the detailed reasons for our short order of even date.