OMAR SIAL, J.---This appeal has been preferred against a judgment dated 31-3-2012 passed by the learned Additional Sessions Judge, Naushero Feroze. In terms of the said judgment, the Appellant was convicted and sentenced as follows:-- Imprisonment for life for an offence under section 302(b), P . P. C . and payment of Rs,100,000/- as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C.
2. Brief facts of the prosecution case are that on 16-6-1997 at about 1830, one Nazir Ahmed lodged a report regarding an incident that had occurred earlier that day at 5:00 p.m. Nazir Ahmed reported that on 15-6-1997, his brother named Khalid Shah had purchased two pigeons from the Appellant for a grand sum of Rs,50/. His brother Khalid Shah had promised to pay the Appellant the Rs,50/- in the evening of 16-6-1997. At 5:00 p.m. on 16-6-1997 the complainant and his cousin named Habib were sitting in their house when they heard the cries of Khalid Shah and his cousin named Zamir. On hearing the cries, the complainant and Habib went outside the house and saw the Appellant stab Khalid Shah. Cousin Zamir tried to save Khalid Shah but was also stabbed on the hand by the Appellant. The Appellant then ran away with the knife. The FIR of the complainant was lodged under sections 337-A(ii) and 337-F(ii), P.P.C.. Subsequently, the charge was converted to one of section 302, P.P.C. as Khalid Shah expired.
3. Interestingly, Zamir who was said to have tried to save Khalid Shah from the stabbing was subsequently impleaded as an accused on a further statement made by the mother of the deceased. Another person Dinal Shah was also joined in as an accused on the statement of the mother of the deceased. The roles now ascribed to Zamir and Dinal was that they held the deceased while the Applicant stabbed him.
4. On 13-8-1998, the charge against three accused, namely Baqir Shah (the present Applicant), Zamir Shah and Dinal Shah was framed. All three pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined nine witnesses. PW-1 Hamz Ali was the first investigating officer. PW-2 Dr. Punhal Panhwar was the doctor who examined the injured Khalid Shah and then also conducted the post mortem. PW-3 Nazir Ahmed was the complainant. PW-5 Ghulam Shabbir was the brother of the deceased who claimed that he too was an eye-witness of the crime. PW-6 Badshahzadi was the mother of the deceased who also claimed in trial to be an eye-witness of the crime. PW-7 Khuda Bux was said to be a witness to the immediate aftermath of the crime. PW-8 Khamiso Khan was the second investigating officer of the crime. PW-9 Ghulam Mustafa was the Tapedar who prepared the sketch of the place of incident.
6. Statements under section 342, Cr,. P.C., of the accused were made on 13-5-2004. All three pleaded innocence and further stated that they had been implicated in this case because of PW-7 Khuda Bux due to a dispute over buffaloes.
7. On 16-4-2005 the judgment impugned herein was announced. Accused Zamir Shah and Dinal Shah were acquitted whereas Baqar Shah was convicted and sentenced.
8. I have heard the learned counsel for the Applicant and the learned APG and have also examined the record with their able assistance. The complainant and his counsel remained absent despite notice. My observations are as follows.
9. It is pertinent to reiterate that the FIR which was lodged by the complainant on 16-6-1997 at 1830 hours stated that Baqar Shah stabbed the deceased Khalid Shah whereas Zamir Shah's hand got injured as he was trying to save the deceased. PW-1 Hamz Ali in trial deposed that when the complainant had come to the police station to lodge the FIR, he was accompanied by an injured Zamir Shah. In trial however, the complainant took a completely different stance. He deposed in trial that what ever he stated in the FIR was due to threats given to him by Zamir Shah and his brother Habib Shah and that the actual facts were what he recorded in his statement under section 162, Cr.P.C. that was recorded on 25-6-1997. What the complainant recorded in his 162 statement was that Zamir Shah along with the other co-accused Dinal Shah had held the deceased while Baqar Shah had stabbed him. It is very important to note that the complainant's own brother, PW-4 Ghulam Shabbir (whose testimony I have examined below) gives a different version to the same event. In his statement under section 164, Cr.P.C. to the magistrate, he gave a hybrid of the two versions of the complainant. He stated that Zamir did hold the deceased but that Zamir got injured with the knife of Baqar.
10. At trial, the complainant also changed the motive of the stabbing. In his FIR, he had stated that the fight which led to the stabbing had occurred because the deceased had bought two pigeons from the accused Baqar Shah and that Baqar had stabbed Khalid because Khalid had not given him the money. In trial the complainant changed his story. In trial he stated that the accused used to restrain the deceased from visiting the house of one Dad Shah and due to that they had committed his murder. Dad Shah was not examined as a witness. Be it the dispute over the sale price of the pigeons or restraint from visiting Dad Shah's house, not only did the prosecution witness change the motive in its story but also failed to establish either.
11. In trial the complainant also changed his stance on the location of the place where the stabbing occurred. In his FIR he had recorded that incident had taken place outside his house. In trial he deposed that the incident had occurred inside the courtyard of a house owned by one Mehdi Shah.
According to the complainant. Mehdi Shah's son named Lal Shah was present in the house at that time. Neither were statements of Mehdi Shah and Lal Shah recorded by the police nor were they examined in trial. PW-4 Ghulam Shabbir deposed that the incident occurred in a street outside the house of Mehdi Shah. PW-6 Badshahzadi deposed that the incident occurred inside the house of Mehdi Shah. PW-7 Khuda Bux, who was said to have reached the place of incident immediately in the aftermath witnessed the memo of site inspection in which it was recorded that the place of incident was outside the house of Mehdi Shah but in trial he deposed that the incident occurred inside the house in its courtyard. The contradictions between the eye-witnesses on a simple fact as to the place of incident creates doubt whether they were even present on the spot or not.
12. When he lodged the FIR, the complainant had stated that he along with his cousin Habib Shah were the only two persons who were present at home when they had heard cries of the deceased Khaild Shah and that these two persons had seen the incident. In trial, PW-4 Ghulam Shabbir (who was the brother of the Complainant) deposed that he was present with his brother at home that day and that it was he and his brother the complainant who had heard the cries of the deceased and had witnessed the stabbing. He also introduces a new character, the mother. Badshahzadi, who was now said to be also present at home and had witnessed the stabbing. According to Ghulam Shabbir, the house of Mehdi Shah where the incident occurred was situated "one hundred or one hundred and fifty feet away from our house". It sounds a little far fetched that the complainant party had reached the place of incident so, quickly after hearing the cries, walked into someone else's home and not only witnessed the stabbing but the dialogues that preceded the stabbing. Ghulam Shabbir in his testimony also changes the location of the incident from the courtyard of Mehdi Shah to outside the house of Mehdi Shah. According to him there are many houses situated there, yet, no one from the houses saw the incident or come to the place of incident before the complainant party or recorded a statement, let alone depose at trial except one Khuda Bux, who is mentioned below.
13. The delay in the complainant party changing its version of the entire incident from the one given in the FIR to the one they recorded subsequently was that the mother Badshahzadi had fallen immediately unconscious at the time of the incident and regained her senses three days later. That is when she found out that the true version had not been recorded in the FIR. Upon a question by the defence counsel in his cross-examination, the complainant admitted that he and the rest of the family members were all conscious through out. The cause for delaying the version of events so drastically is unbelievable, keeping in view that all the male family members were hale and hearty throughout. In fact till 23-6-1997, seven days after the incident, no effort was made by the complainant party to protest that an incorrect FIR had been lodged by the police. No evidence was led to prove even that Badshahzadi remaind unconscious for three days.
14. Both PW-4 Ghulam Shabbir and PW-6 Badshahzadi deposed that the main person behind the murder was one Gul Shah. This person does not figure in any police investigation. However, Gul Shah was the accused Bagar Shah and Dinal Shah's brother. The attempt to throw the net wide at a belated stage also suggests vendetta on the part of the complainant party.
15.Badshahzadi also recorded in her section 164, Cr.P.C. that she was present in the house with her son Nazir Shah (the complainant) and Bashir Shah when the heard the cries. I have examined the statements of Badshahzadi in the complaint that she lodged with the SP Nausheroferoze with regards to the new version of the incident she had introduced and then again her section 164, Cr.P.C. statement to determine whether there was a spelling mistake made in the record in the names of Bashir and Shabbir. I notice that consistently she has mentioned Bashir and not Shabbir as being present on the spot.
16. Incident occurred on 16-6-1997. Eye-witness Ghulam Shabbir did not record his statement before the police but recorded one under section 164, Cr.P.C. before a magistrate on 1-7-1997.
Badshahzadi recorded her first statement before the police on 23-6-1997 and the one before the magistrate on 1-7-1097. The statement of Khuda Bux was recorded on 25-6-1997 before the police and on 1-7-1997 before the magistrate. No cogent explanation has been given for such delays. It has been held by the Hon'ble Supreme Court in a number of cases that delay in recording the statements of eye-witnesses of even one or two days without an explanation can not be safely relied upon. Reference in this regard may be made to Muhammad Asif v. The State (2017 SCM R 713).
17. Accused Baqar Shah was said to be arrested by SHO Hatnz Ali Sahito on 19-6-1997 according to the memo of arrest and recovery. Khuda Bux in his deposition however seems to state that the accused was caught by the complaint and the alleged eye-witness Ghulam Shabbir and the alleged knife recovered from him. Keeping the entire circumstances of the case in mind it does not appeal to logic that the accused would be roaming around with the knife he had committed a murder with the previous day. In any case, the dagger was not produced in trial.
18.Another aspect of the case is the timing as narrated by the prosecution. Incident occurred on 16-6-1997 at 1700 hours. It is reported at 1830 hours. The complainant was said to have left to report the incident from the hospital at Tharushah where he had brought the injured. According to the complainant, accused Zamir was present at the police station when he reached there. This is in complete conflict with the deposition of PW-2 the doctor, who deposed that accused Zamir and the deceased were both at the hospital at 1800 hours and were being examined by him. It sounds unlikely that Zamir was examined, rendered first aid, discharged from hospital and still managed to reach the police station before the complainant at 1830 hours to threaten him to change the version of the story. Ghulam Shabbir deposed that Khuda Bux arrived at the place of incident after five minutes. Khuda Bux deposed that he arrived fifteen to thirty minutes after the incident. The complainant left the deceased at the hospital at Tharushah at 1800 hours and according to Khuda Bux returned in thirty to forty minutes. Again seems implausible. The witnesses have not corroborated each other on the time line of events.
19. The post mortem was conducted at about 11:00 a.m. on 17-6-97. The doctor opined that the time between injury and death was eight hours and the time between death and post mortem was twenty four hours. This would mean that the time between injury and post mortem would be approximately thirty two hours. According o the prosecution story Khalil Shah was stabbed at 5:00 p.m. on 16-6-97. The medical evidence therefore does not corroborate the ocular version.
20. On the same set of evidence, the co-accused Zamir Shah and Dinal Shah have been acquitted. The Hon'blc Supreme Court has held in Muhammad Asif v. The State supra that prosecution witness disbelieved for co-accused cannot be relied upon with regard to the accused unless they were corroborated by evidence which came from an independent source that was also unimpeachable in nature. Such unimpeachable corroboration was not brought on record by the prosecution.
21.In view of the above, the prosecution was unable to prove its case beyond reasonable doubt.
Substantial doubts were created in the prosecution story. The benefit of such doubt according to well settled principles of law should have gone to the accused.
22.Above are the reasons for my short order of 22-5-2017 in terms of which I allowed the appeal, acquitted the Appellant of the charge(s) and ordered that he may be released forthwith if not required in any other case.