CH. MUSHTAQ AHMAD, J. This criminal appeal is directed against judgment dated 27.11.2010 passed by learned Additional Sessions Judge, Sahiwal, whereby appellant Nosher Ali was convicted under section 302(b) PPC and sentenced to imprisonment for life with payment of compensation to the tune of Rs.1,00,000/- to the legal heirs of deceased under section 544-A Cr.P.C., in default whereof, to further undergo six months' SI. Appellant was given benefit under section 382-B Cr.P.C.
Complainant Daraz Hussain has filed criminal revision No.41 of 2011 seeking enhancement of sentence of appellant. Both the matters arising out of same judgment dated 27.11.2010, will be decided through this consolidated judgment.
2. Appellant alongwith his co-accused Anwar Ali and Muhammad Ali was tried in a private complaint titled "Daraz Hussain Vs. Nosher Ali and 2 others" for the offence under section 302, 34 PPC, which was lodged by Daraz Hussain PW-1, alleging therein that on the night falling in-between 28 and 29th of June, 2008, at about 01:00 A.M., complainant's brother Mureed Hussain was irrigating his agricultural land. Nosher Ali (appellant), Anwar Ali and Muhammad Ali (co-accused since acquitted), all armed with 12-bore guns, came there and raising lalkara to teach a lesson to Mureed Hussain for his pre-empting sale of agricultural land, made a fire, which attracted complainant (PW-1), Muhammad Ashraf (PW-1) and Qasim Ali to the spot. Complainant had a torch with him. In their view, Anwar Ali accused made fires and the shots hit Mureed Hussain on both arms. Nosher Ali (appellant) made a fire and the shot hit on buttocks of Mureed Hussain. Fire shot made by Muhammad Ali accused hit Mureed Hussain at left buttock, who fell down and the assailants fled away. Motive for the occurrence was that accused had purchased agricultural land about six months prior to occurrence, which transaction was pre-empted by Mureed Hussain (deceased then injured). Injured was shifted to hospital with police docket, where he was medically examined. FIR was got registered on 10.07.2008 as he was under the impression that FIR had been registered on his statement recorded on the night of occurrence at the time of issuing police docket. During investigation, police declared Anwar Ali and Muhammad Ali co-accused as innocent, which fact necessitated filing of private complaint.
3.Prosecution examined three witnesses at trial whereas eight witnesses were examined as CW-1 to CW-8. Thereafter statements of accused were recorded under section 342 Cr.P.C., wherein they pleaded innocence. Certain documents were tendered by accused in defence evidence. On conclusion of trial, appellant was convicted and sentenced as mentioned in opening paragraph of this judgment, whereas both the co-accused Anwar Ali and Muhammad Ali were acquitted of the charge vide impugned judgment, hence this criminal appeal as well as revision.
4. Contention of learned counsel for appellant is that registration of FIR was delayed for twelve days, for which prosecution failed to give any plausible explanation as such delay itself suggests deliberation and consultation for falsely implicating the appellant; that it was a blind occurrence and none of the PWs witnessed it nor there was any source of light which was introduced for the first time in private complaint; that PWs are closely related to deceased, as such their testimony without independent corroboration cannot be relied upon; that statements of PWs are full of contradictions and inconsistent with the story narrated in the complaint; that there was no motive for the appellant and his co-accused to commit the alleged offence; that deceased was having civil as well as criminal litigation with many persons; that recovery is inconsequential; that two co-accused against whom evidence was same, were acquitted by learned trial court as prosecution evidence was disbelieved qua them by trial court, therefore, impugned judgment is not sustainable.
5. Appeal has been opposed by learned APG assisted by learned counsel for complainant. It was argued that matter was reported to police immediately after the occurrence, issuance of police docket and preparation of his injury statement is proof whereof, as such no adverse inference can be drawn from the factum of delay in registration of FIR which fault was on the part of police and not of the complainant. Further argued that deceased in his statement when he was admitted in hospital in critical condition and had no ulterior motive in his mind, implicated the appellant, which sole statement was enough to record conviction; that source of light was explained by PWs and the same was also mentioned in the site plan and even the assailants were already known to PWs, as such, there was no question of their mis-identification; that despite lengthy cross examination presence of PWs at the place of occurrence at relevant time could not be shattered; that medical evidence as well as recovery corroborate ocular account, therefore, learned trial court rightly convicted the appellant. Learned counsel for complainant maintained that charge against appellant was fully proved through cogent and confidence inspiring evidence, as such he was awarded normal penalty of death.
6. I have heard learned counsel for the parties as well as learned APG and gone through the record with their assistance.
7. Perusal of file reveals that entire case of the prosecution hinges on ocular account, medical evidence and recoveries. Since the vital role is that of ocular account, therefore, I would like to discuss it by making careful appraisal to draw conclusion as to whether presence of eye witnesses on the spot at the time of occurrence has been established by the prosecution and whether their testimony is credible and believable. Ocular account was furnished by complainant Daraz Hussain (PW-1) and Muhammad Ashraf (PW-2). Occurrence took place at 01:00 A.M. in the fields. As per private complaint, Mureed Hussain (deceased) was irrigating his agricultural land and the PWs attracted to the spot on hearing report of fire and then the assailants committed the occurrence in their view. However, while appearing in the witness box, PW-1 and PW-2 made improvement by stating that complainant (PW-1) and Mureed Hussain (deceased) were irrigating land whereas PW-2 Muhammad Ashraf and Qasim Ali PW were accompanying them. Many other improvements were also made by PWs, which were inconsistent to their earlier version. Mureed Hussain (deceased) in injured condition was shifted to hospital alongwith police docket, where he was medically examined. It was version of complainant that the occurrence was explained by him to police at the time of issuance of police docket and his statement was also recorded by police at that time but despite that FIR was not registered. In this respect, it is pointed out that injury statement of Mureed Hussain (deceased) was bearing rapat No.14, however, copy of that rapat was not brought on record during trial. Version of defence that there was no mention of the occurrence in said rapat, due to which the same was not produced during trial, sounds logical.
Complainant while appearing as PW-1 explained that he was under impression that FIR had been registered on his statement recorded on the night of occurrence, but when he contacted police in order to know about progress of case, it transpired that no FIR was registered till then; thereafter he submitted application Ex.P-A. It is beyond comprehension that a person, whose brother was severely wounded by making several fire shots in his presence, would not approach police for a period of twelve days in order to prosecute the culprits. Motive for the occurrence was institution of a suit for pre-emption by deceased against accused. It was admitted position that deceased had civil as well as criminal litigation with many other persons. Presence of the witnesses at the place of occurrence, was highly doubtful, as such ocular account was neither credible nor it could be relied upon. According to prosecution case, all the three accused were attributed firearm injuries, however, learned trial court proceeded to disbelieve statements of eye witnesses qua specific attribution of fire shots to each assailant and acquitted the co-accused. Another piece of evidence relied upon by prosecution was statement of Mureed Hussain (deceased) recorded on 12.07.2008 when he was admitted in hospital. As per learned counsel for complainant, statement of deceased recorded prior to his death has to be treated as dying declaration in which he had implicated present appellant alongwith his co-accused. However, it is worth noticing that the occurrence took place on 29.06.2008 whereas the FIR was got registered on 10.07.2008. Statement of Mureed Hussain, then injured, was recorded on 12.07.2008, two days after registration of FIR. Delay in recording statement of the injured was also not explained by prosecution. From the facts established on the record it can be inferred that reason for delaying registration of FIR was only that assailants were not known to the complainant party and they took time in deliberation and consultation, whereafter the case was got registered. Learned trial court has rejected the statement of deceased on the ground that it was not recorded in presence of doctor or any other witness. For the above reasons, this piece of evidence is also not worth reliance.
8. As regards medical evidence, seven injuries were noted by doctor (PW-8) on the body of Mureed Hussain (deceased then injured), out of which four were firearm injuries. Cause of death according to PW-7, who conducted autopsy, was extensive infection and gangrene of the wound of surgical intervention (exploratory laparotomy and surgical repair of small gut) resulting septicemia causing the septicemia shock leading to death as consequent upon injury No.4.
However, ocular account as discussed in preceding paragraph, was not reliable, therefore,medical evidence being only corroborative in nature did not advance the prosecution case.
9. Occurrence took place on 29.06.2008. During investigation a gun 12-bore was recovered from appellant on 24.07.2008. An empty was recovered on 31.08.2008, i.e. after two months of the occurrence, which was sent to Forensic Science Laboratory on 05.10.2008. Recovery of said empty itself is highly doubtful. Factum of its keeping with police till 05.10.2008 without any reason, in my view, makes the whole process of recovery doubtful. As such, evidence of recovery cannot be relied upon.
10. On re-appraisal of evidence, in my view, prosecution had failed to prove charge against appellant, as such findings recorded by learned trial court are not sustainable. Resultantly, criminal appeal No. 1172 of 2010 is allowed and conviction and sentence of the appellant awarded by learned trial court through impugned judgment are set aside. Appellant Nosher Ali is acquitted of the charge extending benefit of doubt to him. He is on bail. His surety stands discharged of the liability of bail bonds.
11. For the reasons recorded above, criminal revision No.41 of 2011 is dismissed.