Aalia Neelum, J.- This appeal has been referred to me under Section 378 read with Section 429, Cr.P.C for decision by the learned Chief Justice in view of the difference of opinion between the learned members which had earlier heard it. One of the learned member composing that Bench was of the view that the appeal of the appellant should be accepted and he be acquitted while the other learned Judge had concluded that the conviction should be maintained but the sentence should be reduced to the imprisonment for life.
2. The appellant was convicted by the learned Additional Sessions Judge, Okara, by order and judgment, dated 19.05.2010 under Section 302 (b) P.P.C for the murder of Shaukat Ali, brother of complainant and sentenced to death as Ta'zir and a fine of Rs.1,00,000/-in default whereof to suffer further six months S.I. And fine will be paid to the legal heirs of deceased under Section 544-A, Cr.P.C. Further convicted the appellant under Section 302 (b) P.P.C for the murder of Muhammad Ramzan, brother of complainant and sentenced to death as Ta'zir and a fine of Rs.1,00,000/-in default whereof to suffer further six months S.I., and fine will be paid to the legal heirs of deceased under Section 544-A, Cr.P.C. The appellant was also convicted under Section 324/34 P.P.C and sentenced to undergo Rigorous Imprisonment for five years for attempt to commit Qatl-e-Amd of Muhammad Hanif-injured with direction to pay Rs.50,000/-as fine and in default in payment of fine, to further undergo S.I. For six months. The appellant was convicted under Section 324/34 P.P.C and sentenced to undergo Rigorous Imprisonment for five years for attempt to commit Qatl-e-Amd of Jahangir-injured with direction to pay Rs.50,000/-as fine and in default in payment of fine, to further undergo S.I. For six months. Conviction was also recorded against the appellant under Section 452 P.P.C and sentenced to undergo R.I. For five years with fine of Rs.50,000/- and in default of payment of rent, further undergo S.I. For six months. The benefit of Section 382-B Cr.P.C was also extended in favour of the appellant.
3. Having heard learned counsel for the appellant and the complainant as well as Law Officer. I have thoroughly scrutinized the evidence on record. As per prosecution version, contained in the crime report (Ex.PB/2), the occurrence had taken place on the night of 23.07.2006 at 02:00 a.m.
When accused Mehboob Alim (the appellant), Noor Ahmad (since acquitted), Nazir Ahmad (P.O) and Muzammal (P.O) along with four unknown persons armed with fire arm weapons entered into the house of the complainant-Nasir Iqbal (PW-2) by scaling over the wall. Accused-Mehboob Alim (the appellant) had fired at Shoukat Ali which hit at his (Shoukat Ali) chest, second fire made by the accusedMehboob Alim (the appellant) hit on the right arm of Shoukat Ali and third fire made by the accused-Mehboob Alim (the appellant) also hit on the right arm of Shoukat Ali. During the incident, Noor Ahmad (since acquitted) caused fire arm injury to Muhammad Hanif (PW-4) at his right calf and thumb whereas accused-Nazir Ahmad (P.O) fired with his fire arm weapon at Jahangir (PW-3) which hit at left thigh of Jahangir. Thereafter the injured-Jahangir (PW-3) and Muhammad Hanif (PW-4) were shifted to Civil Hospital, Okara for treatment. The inter-se distance between the place of occurrence and the police station was ten (10) Kilometers and according to the police karwai endorsed at the end of the F.I.R, the Fard Beyan (Ex.PB) was recorded at the Toll Tax near Darbar Muhammad Ghose at 2:45 a.m. On the complaint of Nasir Iqbal (PW-2). It is noted that the injured-Jahangir (PW-3) and Muhammad Hanif (PW-4) were brought in the District Headquarter Hospital, Okara at 3:40 a.m. On 23.07.2006. At the time of their (injured Jahangir and Muhammad Hanif) arrival in the hospital for medical examination, it was mentioned in the Medicolegal certificates (Ex.PW and Ex.PX) that the injured were brought by Muhammad Rafique, Constable through Rapt No.31 dated 23.07.2006. The injured were medically examined by Doctor Ishtiaq Ali (PW-10) who deposed during examination-in-chief that "on 23.07.2006 at 3:40 a.m. I conducted Medicolegal examination of Muhammad Hanif son of Jahangir---The patient was brought by Muhammad Rafique Constable 1096 Police Station, Satghara---." He (PW-10) also deposed during examination-in-chief that "on the same day, I conducted Medicolegal examination of Jahangir son of Abdul Sattar---. Patient was brought by Muhammad Rafique 1096/C, Police Station Satghara." This fact got support from the Medicolegal Certificates (Ex.PW and Ex.PX). I have also noted that postmortem examination was conducted by Dr. Muhammad Arshad Iqbal (PW-6) at 03:00 p.m. The probable time between death and postmortem was within 12 hours.
There is no plausible explanation as to why postmortem of the dead body of the deceased- Shoukat Ali was conducted with delay, as Dr. Muhammad Arshad Iqbal (PW-6) deposed during cross-examination that, "there is no delay on my part in conducting the postmortem of deceased namely Shoukat and Ramzan as soon as the dead bodies along with police papers produced before me, I conducted postmortem examination". These aspects of the case are sufficient to cast doubt about the authenticity of the F.I.R (Ex.PB/2) and that the F.I.R was recorded later on after due deliberation and consultation and was then ante time to give it the colour of a promptly lodged F.I.R. In my opinion, on account of shifting the injured to the hospital by the police as noticed above, the F.I.R has lost its value and authenticity and it appears that same had not been recorded till injured were medically examined. The prosecution failed to offer a satisfactory explanation for the shifting of the injured to the hospital after incorporating rapt No.31 dated 23.07.2006 and preparing injury statements of Jahangir (PW-3) and Muhammad Hanif (PW-4) prepared by Muhammad Ashraf Baig, S.I./Inv as Ex.PGG and Ex.PHH. The prosecution has led no evidence at all in this behalf.
Furthermore, even the statements of Muhammad Ashraf Baig, S.I./Inv and Muhammad Rafique Constable had not been recorded under Section 161 Cr.P.C. Muhammad Akram, S.I. (PW-11), the Investigating Officer has stated in his court statement that: "On the same day, Muhammad Rafique 1094/C produced before me injury statement of Muhammad Jahangir injured which is Ex.PFF and injury statement of Hanif which is Ex.PGG. The injury statements are written by Muhammad Ashraf Baig, S.I., his hand writing, his signatures are known to me as he worked with me."
This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence, as from the deposition of Dr. Muhammad Arshad Iqbal (PW-6), Medicolegal Certificates (Ex.PW and Ex.PX) and deposition of Muhammad Akram, S.I.
(PW-11), it reflects that police was aware about the occurrence and police officer of the same police station brought the injured to the hospital. There was no reason why the police could not have registered the F.I.R, since the incident was known to them. These facts indicate that the possibility of the complaint being motivated or manipulated being untrue can not be completely ruled out. The documentary evidence as well as depositions of Dr. Muhammad Arshad Iqbal and Muhammad Akram, S.I. (PW-11) indicate that the F.I.R was lodged after due deliberation and consultation.
4. Now I come to the crucial question as to the inconsistent evidence of ocular account advanced by Nasir Iqbal (PW-2), the complainant, Jahangir-injured witness (PW-3), Muhammad Hanif- injured witness (PW-4) and Jahangir (PW-5) gives a further fatal blow to the prosecution case.
There is a vital contradiction with regard to the place of the incident and source of light. There is no direct evidence to show that where the occurrence took place. Now coming to the prosecution case, it has been noted that Nasir Iqbal (PW-2), the complainant has deposed that, "the place of occurrence is on the last side of the village and the same is a cattle shed and the same is on the outer side end of the village on southern side." He (PW-2) re-affirmed place of occurrence as he (PW-2) deposed during cross-examination that, "Two oxes and two cows were tethered in our cattle shed on the night of occurrence at the alleged place of occurrence When the assailants left the place of occurrence, thereafter, I entered in the Haveli of cattle shed."
Muhammad Hanif (PW-4), the injured witness, deposed during cross-examination that, "Our cattle shed the alleged place of occurrence is located on the outer side and corner of the village "
Muhammad Akram, S.I. (PW-11), the Investigating Officer deposed during cross-examination that, "I had not shown the presence of cattle shed, and other parts of the fodder relating to the cattle shed in the rough site plan. The alleged place of occurrence however was cattle shed belonging to Muhammad Jahangir."
However, the draftsman-Saeed Nasir Hussain Mirza (PW-7) deposed during cross-examination that, "The alleged place of occurrence pointed out to me was inside the residential house and that was not a cattle shed."
From the above, it has been cleared that the place of occurrence was cattle shed. The complainant in his First Information Report (Ex.PB/2) had specifically stated that he identified the accused persons in the light of bulb which was installed in the courtyard of his house. Nasir Iqbal (PW2), the complainant deposed during cross-examination that, "it is correct that no electric bulb or wire was taken into possession by the I.O from the alleged place of occurrence, as the same was not available at the alleged place of occurrence, therefore, was not taken into possession by the I.O." Whereas the deposition of Jahangir son of Abdul Sattar (PW-3) was confronted with his earlier statement. He (PW-3) deposed that, "I got recorded in my statement Ex.DA that the bulb was on, in the compound of the house. Confronted with Ex.DA where the words "the compound of the house" are not recorded." While denying suggestion, he (PW-3) deposed that, "it is incorrect that I had received the injury outside the cattle shed and there was no any kind of electric light, available in the cattle shed and in its whereabout."
The above said important circumstances threw serious doubt on the credibility of the prosecution witnesses. This is in my opinion, a very strong circumstance to indicate that the occurrence took place in the "cattle shed" and there was no source of light available at the place of occurrence to identify the accused persons.
5. Apart from the infirmities from which the evidence of Jahangir son of Abdul Sattar (PW-3) appears to suffer, Muhammad Hanif (PW-4), the evidence of injured witness also suffers from the same defects of a vital character. He (PW-4) deposed that, "I have got recorded in my statement Ex.DB that we identified them in the light of electric bulb which was lighting in the compound of our house. Confronted with Ex.DB where it is not so recorded." This was undoubtedly a belated idea of introducing the light of electric bulb because if electric light had been available in the courtyard there was no reason why the injured prosecution witnesses should not have stated in their statements before the police. The prosecution witnesses were inconsistent with the source of light and place of occurrence, therefore, clearly falsifies the prosecution case regarding the identification of the accused persons in the light of electric bulb. This clearly shows that the occurrence has taken place at "cattle shed" and the place of occurrence has been shifted to courtyard only with view to make it appear that the occurrence took place in the house where the electric bulb was installed and the accused could be properly identified. Another important circumstance which supports this inference is that according to the evidence of Nasir Iqbal (PW-2), the complainant, who stated that the accused Mehboob (the appellant), Noor Ahmad, Nazir Ahmad (P.O), Muzammal (P.O) along with four unknown persons while armed with fire arm weapons entered in the house of the deceased by scaling over the wall and the accused persons fled away from the place of occurrence while making aerial firing by scaling over the wall of the house. Whereas Muhammad Akram, S.I. (PW-11), the Investigating Officer deposed during cross- examination that there was no outer door of the Haveli of the complainant. No outer door has been shown in the site plan (Ex.PM). There was no need for the appellant to enter into the house by scaling over the wall of the house and also fled away by scaling over the wall. As the appellant was resident of the same village and he knew about the surroundings of the house.
6. Another important circumstance which throws serious doubt on the credibility of the prosecution witnesses is that the complainant (PW-2) had alleged in the complaint (Ex.PB) that after shifting injured to the Civil Hospital, Okara he proceeded to the police station to report the incident, where he met with Muhammad Mushtaq, S.I. (PW-14) at Toll Tax near Darbar Muhammad Ghose and he reported the occurrence. However, Nasir Iqbal (PW-2), the complainant deposed during cross- examination that, "The injured were shifted to hospital in a Dala owned by black-smith resident of our village and the name of said owner of the Dala is not remembered by me. Police had shifted the injured from the place of occurrence to hospital. Police came at the place of occurrence at about four/4:00 a.m. The police put up the injured on the cot and thereafter wagon was brought, and the wagon also came at the spot as the police came there. My cousin Khizar and police officials accompanied the injured to hospital. I accompanied the police to police station, Satghara.
I accompanied the S.H.O,. P. S. Satghara to P.S. Satghara. We came at police station Satghara at about 6:00 a.m. The dead bodies of both the deceased were also brought by the police at police station Satghara. It took about 2/ 2 % hours at P.S. In writing down the proceedings of the police.
Police lodged FIR at police station and the proceedings were made by the police while sitting at police station. After 2 % hours, remaining the dead bodies of both the deceased at police station and myself, then the dead bodies were escorted to mortuary for postmortem examination. The dead bodies of the deceased were escorted from police station after registration of FIR at 9:00 a.m.
It took about 1/ 1 % hours to reach D.H.Q Hospital Okara. We reached at D.H.Q Hospital Okara at 10:00/10:30 a.m. Along with the dead bodies." This is in stark contradiction of the case of the prosecution. As per prosecution case, all documents were prepared at the spot and not in the police station. The dead bodies were sent to the District Headquarter Hospital for their postmortem examination from the place of occurrence. It is also mentioned in the inquest reports (Ex.PZ and Ex.PCC) that dead bodies were shifted to the hospital from place of occurrence. Jahangir (PW-3), the injured witness, deposed during cross-examination that, "After one hour of the departure of the assailants, the villagers came at the place of occurrence. I and my son Muhammad Hanif were shifted to police station, Satghara by one Numberdar Khizar Hayat on the van of black-smith of our village i.e. Sabar. It would be about 2:20 a.m. When we left the place of occurrence for police station. The Constables were not available at police station, therefore, we consumed a sufficient time at police station. We reached at hospital Okara at 4:40 a.m. It took about 30 minutes to reach from Police Station, Satghara to hospital, Okara. I was accompanied by a Constable to the hospital."
Whereas Muhammad Hanif (PW-4), the injured witness, deposed during cross-examination that, "Soon after the departure of the and stopping of the firing, of the assailants, villagers came at the place of occurrence. About half an hour after the departure of assailants, police came at the place of occurrence. The police brought me, and my father Jahangir to hospital on a wagon. About half an hour after the occurrence we were sent to hospital for treatment by the police. We also went to police station when we were on our way to the hospital. Muhammad Akram, Sub-Inspector met us at the place of occurrence on the night of occurrence, and said Muhammad Akram, S.I. Sent us to hospital. Many police officials were accompanied with above said Muhammad Akram, S.I./I.O when he came at the place of occurrence at the night of occurrence."
Contrary to the deposition of the complainant (PW-2), Muhammad Akram, S.I. (PW-11), the Investigating Officer, deposed that, "On the same day, Muhammad Rafique 1094/C produced before me injury statement of Muhammad Jahangir injured which is Ex.PFF and injury statement of Hanif which is Ex.PGG. The injury statements are written by Muhammad Ashraf Baig, S.I., his hand writing, his signatures are known to me as he worked with me."
7. It means that the injured were shifted to the hospital by the police and Muhammad Rafique 1094/C brought both injured to the District Headquarter Hospital, Okara on 23.07.2006 at 3:40 a.m.
And in this regard, rapt No.31 was also incorporated. From the prosecution evidence, it stands proved that police reached after the occurrence at the place of occurrence but no attempt was made by the police immediately to record statements of Jahangir (PW-3) and Muhammad Hanif (PW-4), as both injured were shifted from the place of occurrence to the District Headquarter Hospital, Okara. On close scrutiny of the evidence of the complainant (PW-2), it has been found that the complainant (PW-2) admitted that entire proceedings were made in the police station and in this respect 2/ 2 1/2 hours were consumed. This shows that the occurrence had not taken place at the time as prosecution alleged. There are strong circumstances which lead to the irresistible conclusion that the occurrence had not been reported at 2:45 a.m. By the complainant (PW-2). The time of reporting the occurrence becomes doubtful from the fact that the injured prosecution witnesses were medically examined by Dr. Ishtiaq Ali (PW-10) on 23.07.2006 at 3:40 a.m., whereas as per prosecution case, F.I.R was lodged at 3:05 a.m., on 23.07.2006. If F.I.R number was in existence at 3:05 a.m., then there was no occasion for incorporating rapt No.31. The injured prosecution witnesses (PW-3 and PW-4) specifically deposed that it took about 30 minutes to reach hospital from police station, Satghara. The fact also reveals that the F.I.R. Was not registered at 3:05 a.m. Even the complainant (PW-2) was not present at the place of occurrence to report the incident. These facts get support from the deposition of the complainant (PW-2) who deposed that he went to the police station at 6:00 a.m. Along with police where entire proceedings were completed as well as the F.I.R was registered. According to Muhammad Akram, S.I. (PW-11), the Investigating Officer, at about 3:30 a.m. He was present at Satghara chowk along with other police officials when he received F.I.R and thereafter, he proceeded to the place of occurrence. If he (PW- 11) had reached at the spot at 3:30 a.m., and dead bodies were sent by him from the spot to the District Headquarter Hospital, then why the postmortem was conducted at 3:00 p.m. Dr. Muhammad Arshad Iqbal (PW-6) also stated that he found rigor mortis were developed. In the postmortem report (Ex.PK), it was mentioned that probable time which lapsed between the death and postmortem was within 12 hours. During the cross-examination, it was stated by PW-6 that there was no delay on my part in conducting the postmortem examination of the dead bodies of deceased namely Shoukat and Ramzan as soon as the dead bodies along with police papers were produced before him, he (PW-6) conducted postmortem examination. If the time lapsed between death and postmortem depicted by Dr. Muhammad Arshad Iqbal (PW-6) is to be believed, then the death could be at 03:00 a.m. On 23.07.2006. The postmortem examination was conducted on 23.07.2006 at 3:00 p.m. As per postmortem report, at the time of postmortem examination, rigor mortis were found present. Generally after death, the rigor mortis develop six to twelve hours in month of July, thereafter it starts receding. It is also noted that time of death was not mentioned in the postmortem examination reports (Ex.PZ and Ex.PCC). Thus, from the evidence of the prosecution witnesses, it would appear that they are wholly untrustworthy and unreliable witnesses who had found sufficient time for implicating the appellant. This also gets support from the admission of Nasir Iqbal (PW-2), the complainant, that, It is correct that all the above said neighbourer of the alleged place of occurrence has not been cited by me as PW of the alleged occurrence. It is correct that they have not supported our version of prosecution case, therefore, we have not cited them as prosecution witnesses of the alleged occurrence."
There is no denying fact that a large number of villagers had come to the place of occurrence and those villagers are not forthcoming to support the prosecution case as admitted by the complainant-Nasir Iqbal.
8. It has been admitted by Nasir Iqbal (PW-2) the complainant, during cross-examination that, "we all the private PWs of this case are related inter-se, and we are inimical with the accused persons."
He (PW2) deposed during cross-examination that, "about 500 fires were shot by the assailants during the occurrence. I hide behind the wall to save myself. I hide myself in the eastern boundary wall of the cattle shed. So long, the fight and the occurrence remained, in progress, I remained hidden myself behind the eastern boundary wall. The occurrence remained for 1/2 hour". Jahangir (PW-5) deposed that for about 10/15 minutes the firing remained continued during the alleged occurrence. He (PW-5) also deposed that he hid himself behind a wall to safe himself behind the small height wall and the woods pieces as well as the manger of cattle. He (PW-5) also deposed that so far as the firing remained continued, he remained hidden himself behind the wall to save himself from the firing. He (PW-5) also deposed during cross-examination that his statement was recorded by the Investigating Officer on the same day at Toll Plaza. However, the complainant- Nasir Iqbal (PW-2) deposed that while leaving Jahangir (PW-5) and Gul Sher (given up PW) he went to report the incident to police in police station and on the way at Toll Tax near Darbar Muhammad Ghose, the complainant met with police. This statement of Jahangir (PW-5) falsifies himself. From the deposition of Nasir Iqbal (PW-2) and Jahangir (PW-5), it reveals that they did not witness the occurrence. Whereas in the site plan, the place from where the complainant witnessed the occurrence has been shown at point "J". It is admitted case of the prosecution that site plan (Ex.PM) was prepared on the pointing of the complainant and eye-witnesses. The position of the complainant-Nasir Iqbal (PW-2) has been shown at point "J" which reveals that the complainant while lying on the cot witnessed the occurrence. Whereas Jahangir (PW-5) was shown at point "K" which was at Northern side of the house. He (PW-2) admitted that all PWs are related inter-se. Nasir Iqbal (PW-2) deposed during cross-examination that, "Shoukat Ali and Muhammad Ramzan deceased were my brothers, Muhammad Jahangir son of Abdul Sattar PW is my father. Muhammad Hanif son of Jahangir PW is my real brother. Jahangir son of Sajwar PW is brother-in-law (sala) of Muhammad Ramzan deceased. Shoukat Ali son of Raja PW is my paternal uncle. Younas son of Haiba PW is my chacha-zad, Gul Sher son of Muhammad PW is son of my paternal aunt. (Phuphi)."
9. Nasir Iqbal (PW-2) admitted that Jahangir son of Sajwar (PW-5) is resident of 42/D village kallan Tehsil Depalpur. The distance between the alleged place of occurrence and the residence of Jahangir PW is at a distance of 15-Kilometers. Jahangir (PW-5) also deposed that it is correct that my village 42/D is situated in Tehsil Depalpur at a distance of 15/20 Kilometers in short way and 40/45 in long way. However, he (PW-5) admitted that he has no business and land in chak No.15/I.R.
Jahangir (PW-5) was chance witness. He was not resident of the locality where the incident took place. The witness (PW-5) has not advanced any plausible reason for his presence at the place of occurrence.
10. The prosecution witness alleged that motive behind the occurrence was that brother of the complainant-Shoukat Ali deceased abducted the daughter of Nazir Ahmad and then married with her, due to this grudge, the accused persons murdered both brothers of the complainant and injured complainant's father and brother Muhammad Hanif. During cross-examination the complainant-Nasir Iqbal (PW-2) deposed that, "Mst. Zahida Bibi daughter of Nazir Ahmad had contracted marriage with my brother Shoukat Ali deceased four years prior to this occurrence. One daughter and one son was born out from the wedlock of Mst. Zahida Bibi and Shoukat Ali deceased. The house of the accused persons and residence of Shoukat Ali deceased was in the same village and the deceased was residing in the same village since his marriage with Zahida Bibi."
Besides, he (PW-2) also deposed that, "Mst. Zahida Bibi after the murder of Shoukat Ali deceased was married with my brother Muhammad Rafique and that she is residing with him happily."
Muhammad Akram, S.I. (PW-11), the Investigating Officer, deposed during cross-examination that, "According to the prosecution case, the motive for the commission of occurrence was alleged by the complainant that Mst. Zahida Bibi had contracted marriage with Shoukat Ali deceased. Due to that grudge, the accused had committed the occurrence. During the course of investigation, said Zahida Bibi had not joined the investigation before me. She had not supported the alleged motive set up by the prosecution through out the investigation conducted by me. Only motive alleged by the prosecution was against Shoukat deceased but there was no motive for the commission of murder of Ramzan deceased and that of other alleged injured."
11. The motive established by the prosecution was not proved, which as alleged could not be considered against the appellant. The Hon'ble Supreme Court of Pakistan in the case of "Mst.
Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) held that, "Reappraisal of evidence---Motive unproved---Case of marriage without consent---Motive set up by the prosecution was that deceased had married daughter of co-accused without his consent, therefore, five to six years after the marriage, deceased was alleged murdered on the instigation of the co-accused---Prosecution had not alleged that daughter of co-accused was abducted or she had eloped with the deceased 5/6 years prior to the occurrence---Motive set up by the prosecution was not only sketchy, shaky and feeble but also not believable because during the long period of 5/6 years no unpleasant incident took place between the parties and no criminal case was registered---According to the motive set up by prosecution revenge should have been taken at the very beginning (of the marriage)---After the deceased and his wife were blessed with a son and a daughter, it did not seem plausible, as to why co-accused decided to ruin the life of his own daughter at such belated stage, rendering his grandchildren orphans and his daughter a widow---Wife of the deceased was also withheld from the court and she was not cited as a witness to substantiate the motive set up by the prosecution---Motive in the present case was not established in a fair and legal manner---Appeal was allowed accordingly and the accused was acquitted of the charge of murder."
12. As far as evidence adduced by the injured prosecution witnesses is concerned, the injured witness-Jahangir (PW-3), deposed in his cross-examination that his statement was recorded by the Investigating Officer after six (6) days of occurrence. Similarly, injured witness-Muhammad Hanif (PW-4) deposed during cross-examination that his statement was recorded by the Investigating Officer after three days of the occurrence. Whereas Muhammad Akram, S.I. (PW-11), the Investigating officer deposed that he prepared applications for recording statements of injured PWs on 26.07.2006 (Ex.PHH and Ex.PJJ of Muhammad Jahangir and Muhammad Hanif) and after receiving certificate of fitness, he recorded statements of injured PWs on 26.07.2006. However, during cross-examination Muhammad Akram, S.I. (PW-11) deposed that, "I recorded the statements of Jahangir and Hanif alleged injured/PWs after three days of the occurrence prior to this, neither they appeared before me nor I recorded their statements. It is incorrect that on that day even they have not recorded their statements before. It is incorrect that whole proceedings were made by me fictitiously while sitting at P.S on the following day of the occurrence."
Whereas Jahangir (PW-3) deposed that his statement was recorded after six (6) days also creates doubt about recording of the statement of the prosecution witness.
No explanation whatsoever was offered by the prosecution for such delay. The delay in recording statements of the prosecution witnesses without plausible explanation is sufficient to raise suspicion about the claim staked by the witnesses.
It is held by the Hon'ble Supreme Court of Pakistan in the case reported as "Rahat Ali v. The State"
(2010 SCMR 584) that, "----Delayed examination of witnesses by police----Effect----Delay in recording the statement of a witness by police without furnishing any plausible explanation, is fatal to prosecution case and the statement of such witness is not to be relied upon."
13. It has been observed that delay in recording the statement of a witness by police without furnishing any plausible explanation, is fatal to the prosecution case and the statement of such witness is not to be relied upon. The major portion of evidence of both the injured prosecution witnesses is found to be deficient on material aspect of the case. In the present case, the learned trial court on the basis of testimony of the injured witnesses had acquitted Noor Ahmad and Arif who allegedly caused injuries to them. The judgment of acquittal was not assailed by the complainant, which attained finality, therefore, the testimony which was not believed against Noor Ahmad and Arif co-accused of the appellant (since acquitted) can not be used against the appellant for maintaining his conviction. The Hon'ble Supreme Court of Pakistan has held in the case of "Ghulam Sikandar and another v. Mamaraz Khan and others" (PLD 1985 SC 11) that, "Appreciation of evidence---Principle of indivisibility of credibility---Maxim: Falsus in uno falsus in omnibus---Application of principle----witness found false with regard to implication of one accused about whose participation he had deposed on oath-- Credibility of such witness regarding involvement of other accused in same occurrence when shaken---Where it was found that a witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to other accused in same transaction but if testimony of such witness was corroborated by very strong and independent circumstances regarding each one of other accused, reliance might then be placed on such witness for convicting other accused when principle of indivisibility of credibility as laid down in Muhammad Faiz Bakhsh v. The Queen is to be ignored."---[Maxim---Evidence].
14. Apart from the delay in recording of the statements of both the injured witnesses what makes the prosecution case wholly doubtful is the inconsistent version with regard to the time, place of occurrence, and acquittal of co-accused. The testimony of the injured also required scrutiny with extreme care and caution. Reliance is placed on the judgment of Hon'ble Supreme Court of Pakistan in the case of "Amin Ali and another v. The State" (2011 SCMR 323) that, "----Presence of injured witnesses can not be doubted at place of incident merely because they had injuries on their person does not stamp them to be truthful witnesses."
The Hon'ble Supreme Court of Pakistan in the case reported as "Muhammad Pervez and others v.
The State and others" (2007 SCMR 670) held that, "---Injured prosecution witness---Effect--Injuries on a prosecution witness are only indication of his presence at the spot but are not affirmative proof of his credibility and truth."
15. The ocular account produced by the prosecution included injured witnesses is not of worthy credence and same can not be believed against the appellant. As a matter of fact, the prosecution has deliberately suppressed as to how police shifted both injured from the place of occurrence and why rapt No.31 dated 23.07.2006 was incorporated in roznamcha. This aspect of the matter has also not been clarified by the Investigating Officer who also stated during cross-examination that he reached at the place of occurrence at about 3:30 a.m. (night). It seems that the truth was seen buried under deep debris and a different story was structured perhaps to lug the appellant into trial under the serious offence.
16. As far as abscondance of the appellant is concerned, the piece of evidence taken against the appellant is that he had absconded after the incident. Mushtaq Ahmad 480/C (PW-8) deposed during cross-examination that, "According to the proclamation of Nazir Ahmad, Mehboob and Muzammal accused, it is not mentioned the name of the learned Magistrate and the name of any court. According to the alleged proclamation, the date of issuance of the said proclamation is not mentioned. There was no seal of the Magistrate on the alleged proclamation. The columns regarding the dates and regarding the court in the said proclamation are blank." Muhammad Akram, S.I. (PW-11) deposed during cross-examination that, "I obtained the proclamation on 02.09.2006 and submitted the challan on 06.09.2006. I had read out Section 87 Cr.P.C. And according to that section, the period of 30 days is provided in which the accused shall appear before the court or I.O. It is correct that I had not waited for the statutory period given in the said section and submitted the challan U/S 512 Cr.P.C. Just after six days of receiving the proclamation from the learned Magistrate."
17. There is nothing to show that proceedings under Section 87 and 88 of Cr.P.C were taken place against the appellant as prescribed in law. In the present case, the substantive piece of evidence in the shape of ocular account has been disbelieved, therefore, no conviction can be based on absconsion alone. Reliance is placed on the case reported as "Rohtas Khan v. The State"(2010 SCMR 566).
18. According to the prosecution, on 26.07.2009, carbine 12-bore P-3 was recovered on the disclosure of the appellant which had not been matched with the crime empties recovered from place of occurrence. Even otherwise, the witnesses never uttered a word about a carbine being used in the incident.
19. From the above detailed discussion, I am, however, convinced that the prosecution has failed to establish its case. It is obvious that prosecution witnesses of ocular account are interested witnesses and their testimony was not corroborated by the independent evidence and their statements were also not confidence inspiring. I have gone through the process of keen examination of the entire material and found compelling reasons as stated above that the prosecution has miserably failed to prove the guilt of the accused-appellant beyond reasonable doubt. In the case of Muhammad Akram v. The State" (2009 SCMR 230) it is held as under "----Benefit of doubt---Principles---For giving the benefit of doubt it is not necessary that there should be many circumstances creating doubts---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefit, not as a matter of grace and concession, but as a matter of right."
20. In view of Sections 378 and 429 Cr.P.C, the opinion of the referee Judge would have decisive effect and would be of binding nature. Reliance is placed on the case reported as "Niaz Muhammad alias Niazi v. The State" (1996 P.Cr.L.J 394).
21. It was at some stage of the hearing of the case felt as to whether the referee Judge has to agree with the opinion of one of the Judges of the Division Bench or he would be at liberty to form his own independent opinion on the basis of the evidence on record. The learned advocates produced the following precedent case to clear this point.
PLD 1971 Lah. 292 and 708.
PLD 1963 (W.P) Kar. 92, PLD 1964 (W.P) Peshawar 67, PLD 1971 Lah.292, 1975 P.Cr.L.J 957, AIR 1953 Orissa 160 and 1983 P.Cr.L.J 72.
22. The perusal of the above judgments and the reading of Sections 378 and 429, Cr.P.C., makes it clear that the Judges to whom the case is referred for decision would independently assess the evidence and would form his own opinion about it. The cumulative effect of the precedent case is that the case is not to be referred again to the Division Bench which had heard it and the decision would not be that of the majority rather it would be the opinion of the referee Judge which would have decisive effect and would be of binding nature and the judgment or order will follow such opinion.
23. The upshot of the above discussion, I hold that the prosecution had badly failed to bring home charge against the appellant beyond any reasonable doubt. In consequence of this opinion, I allow the appeal and the orders of conviction and sentence are set aside. The appellant is acquitted of the charge and he be set at liberty forthwith, if not required in any other case.