SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Noor Nawaz son of Wali Jan Khan, caste Pathan Khattak, resident of Janda Khurram, Tehsil Banda Dawood Shah, District Kark, Province of Khyber Pakhtoonkhawa, appellant along with Abdul Rahman alias Hafeez, Azmat Ali Khan and Shahid Ullah Khan (since acquitted) was involved in case FIR No, 653/2015, dated 17.12.2015, offence under Sections 302, 114, 34, P.P.C., registered with Police Station Sialkot Cantt. He was tried by learned Additional Sessions Judge, Sialkot under the afore-mentioned offences.
Learned trial court seized with the matter in terms of judgment dated 21.12.2016 convicted and sentenced the appellant in the following terms:- > Under Section 302(b), P.P.C., sentenced to death as Ta'zir with direction to pay Rs,2,00,000/- as compensation to legal heirs of deceased in terms of Sectio n 544-A, Cr. P. C. and in case of default in payment thereof, to undergo S.I. for six months.
2. Feeling aggrieved by the judgment of the learned trial court, the appellant has assailed his conviction and sentence through filing Crl. Appeal No,889-J/2016 while learned trial court forwarded Murder Reference No,23/2017 for confirmation or otherwise of sentence of death inflicted upon the convict in terms of Section 374, Cr.P.C. As both the matters are arising out of one and the same judgment of the learned trial court, therefore, both are being disposed of f through consolidated judgment.
3. Prosecution story as portrayed in the FIR (Exh.P A/1) lodged on the application (Exh.P A) of Azmat Ali Khan son of Khan Zada, caste Pathan Khattak (PW-1) is that the complainant is resident of Chanda Khurram, Tehsil Banda Dawood Shah, District Karak and involved in Zamindara. Shahid Ullah Khan son of the complainant aged 19/20 years used to run tractor with the complainant. One and a half months prior to the occurrence son of the complainant went for Lahore for labour . Few days prior to the occurrence son of the complainant told him on phone that he had got job at the dera of Abid Gujjar against consideration of Rs,10,000/-. On 16.12.2015 at 8:00/9:00 p.m. the complainant was informed on phone that Shahid Ullah Khan had received firearm injuries at his head. On this information the complainant along with (1) Abdul Karim son of Khan Zada, (2) Umar Hayat son of Muhammad Hayat, both Pathan Khattak by caste and residents of the same village reached Sialkot Cantonment. On reaching there the complainant saw that Shahid had succumbed to the firearm injuries at his head. The complainant alleged that Hafeez who had contracted marriage with Azmat son of Noor in the village of the complainant, (2) Shahid Ullah son of Spain Khan, (3) Azmat son of Noor Sahib, Khattak by caste had committed the murder of his son on the suspicion of having developed illicit relationship with wife of Hafeez.
4. The complainant along with written application reached Police Station and appeared before Muhammad Naseer , S.I. (PW-8), who chalked out formal FIR and thereafter investigation was entrusted to Fida Hussain, S.I. (PW-15).
Investigating Officer inspected the dead body and recovered, two mobile 'phones, wallet, and original I.D. Card, National Security Card vide recovery mem o. Exh.PK. He also prepared inquest statement (Exh.PM), drafted injury statement (Exh.PN) and dispatched the dead body to mortuary under the escort of Ghulam Sarwar 716/C (PW-4).
From the spot' he secured blood through cotton vide recovery memo. Exh.PL and prepared rough site plan of the place of occurrence (Exh.PP). After postmortem examination last worn clothes of the deceased, qameez (P-1), shalwar (P-2), bunyan (P-3), jersey (P-4), bunyan (P-5), jacket (P-6) and pair of shoes (P-7/1-2) were produced before the Investigating Officer which were taken into possession vide recovery Exh.PJ. On reaching Police Station Investigating Officer handed over case property to Moharrar Malkhana for its safe custody and onward transmission to the quarter concerned. On 18.12.2015, Investigating Officer recorded supplementary statement of the complainant and also recorded statem ents of the prosecution witnesses unde r Section 161, Cr.P.C. Upon the direction of the Investigating Officer and pointing out of the PWs on 18.12.2015 Mirza Tahir Tasleem, Draftsman (PW-9) took rough notes of the place of occurrence and thereafter prepared scaled site plan (Exh.PH and Exh.PH/1). On 21.01.2016, Investigating Officer formally arrested the appellant 'and obtained his physical remand.
During the course of interrogation in pursuance of disclosure on 24.01.2016, appellant led to the place where he had thrown away his pistol.
5. As a result of investigation, the appellant was found guilty , hence Investigating Officer prepared report under Section 173, Cr.P.C. while placing his name in column No,3, and sent the same to the court of Sessions en-routed through the Illaqa Magistrate as provide d under Section 190(2), Cr.P.C. The learned trial court formally charge sheeted the accused vide order dated 06.04.2016 to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as fifteen (15) prosecution witnesses.
6. Occular account in this case consists of the statements of Hameed Ullah (PW-2) and Sial Khan (PW-3).
Muhammad Naseer , S.I. (PW-8) had chalked out formal FIR while Mirza Tahir Tasleem, Draftsman (PW-9) had prepared scaled site plan of the place of occurrence. Investigation of this case was conducted by Fida Hussain, S .
I. (PW - 15) .
Dr. Umer Saleem (PW-7) had conducte d postmortem examination on the dead body of Shahid Ullah Khan deceased and observed following injuries on his person:- "1-A. A lacerated firearm injury wound of 2 cm x 2 cm in diameter with blackening and contused margins present on right mastoid region of head. Muzzle impression present around this firearm injury wound. This is entry wound. On dissection underlying mastoid bone is fractured with fracture lines radiating outward to occipital and parietal bone of skull. On opening skull haemorrhage present on dura, subarachnoid and pia matter of brain, meninges and underlying brain matter or contused and haemorrhagic.
Injury track explode and brain found damaged, basal skull bones found fractured and later part of mandible bone also found fracture.
1-B A lacerated wound firearm injury wound of 0.5 cm x 0.5 cm present on left cheek about 5 cm below left ear, blackening is not present around margins and margins are evened. Injury No,1-A is entry wound and injury No,1-B is exit wound. Spinal cord not opened to avoid mutilation of dead body .
2-A Left upper forearm a lacerated firearm injury with blackening around margins, margins are contused, size of 0.5 cm x 0.5 cm present on posterior upper left forearm about 8 cm below left elbow joint (entry wound).
2-B A lacerated firearm injury of 2 cm x 2 cm present on anteriorly upper left forearm (exit wound)."
After postmortem examination the doctor rendered the following opinion:-- "Keeping in view the postmortem finding s, I am of the opinion that injury Nos,1-A and 1-B and injuries on left forearm are firearm injuries and are ante mortem in nature. Injury No,1-A and injury No,1-B are sufficient to cause death in ordinary course of nature. Time between injury and death is instantaneously . Time between death and postmortem is twenty hours."
Statements of rest of the prosecution witnesses are formal in nature.
7. The appellant was examined under Section 342, Cr.P.C., wherein he opted neither to appear as his own witness in terms of Section 340(2), Cr.P.C. nor he opted to adduce evidence in his defence. While replying to the question why this case against him and why the PWs deposed against him, the appellant made the following deposition:- "It is a false case. I am innocent. According to FIR, it was a blind murder . Initially case was registered against Hafeez and Azmat on the basis of suspicion. Later on, at very later stage evidence was concocted. Eye-witnesses namely Hameedullah PW-2 and Sial Khan PW-3 who claimed to be present at the place of occurrence are blood relatives of the deceased and it is quite unnatural for them to remain quiet and not to disclose the real facts of the case to the complainant. Deceased's family has certain grudge against my family and they have taken the opportunity of a blind murder to involve me and my other relatives for blackmailing us. I am serving in Pak Army and my unit was posted at Siachin and I have no reason to murder Shahid Ullah. Witnesses are inter se related and are inimical against me and my family ."
8. Learned trial court after evaluating the evidence available on record, found version of the prosecution proved beyond shadow of reasonable doubt against the appellant, which resulted into his conviction in the afore-stated terms.
9. Learned counsel for the appellant at the outset contended that impugned judgment has been passed by the learned trial court in a slipshod manner without adverting to real facts of the case and material available on record.
Learned counsel vehemently argued that the FIR was lodged with a delay of 11 hours for which no plausible explanation has been rendered by the prosecution. Further contended that the complainant is not eye-witness of the occurrence while in the crime report the appellant was not named, who was brought in through supplementary statement recorded on 18.12.2015. Main crux of arguments of learned counsel for the appellant is that although according to prosecution version Hameed Ullah (PW-2) and Sial Khan (PW-3) had witnessed the occurrence, however , their statements under Section 161, Cr.P.C. were recorded after two days of the occurrence. Even they are not truthful witnesses; they failed to establish their presence and made contradictory statements. Further argued that medical evidence does not corroborate the prosecution version on minute details. Learned counsel vigorously argued that there was no reason with the appellant to have committed the murder of son of the complainant without any reason. Further contended that on the same set of evidence Abdul Rahman alias Hafeez, Azmat Ali Khan and Shahid Ullah Khan, who were named as culprits in the crime report, were acquitted of the charge and no appeal against their acquittal was filed. Learned counsel finally argued that the prosecution has miserably failed to establish its case against the appellant beyond shadow of reasonable doubt, therefore, conviction and sentence recorded by the learned trial court is not sustainable in the eyes of law .
10. On the other hand learned Deputy Prosecutor General vehemently opposed the contentions raised by learned counsel for the appellant. It was argued that on receipt of information regarding the occurrence as the complainant had to come from District Karak (Province of Khyber Pakhtoon Khawah) by covering a distance of 500-KMs, therefore, delay in lodging the FIR is not fatal. Learned Law Officer contended that nevertheless the appellant was not named in the crime report, however , he was brought in subsequently through supplementary statement. Next argued that both the prosecution witnesses of occular account viz. Hameed Ullah (PW-2) and Sial Khan (PW-3) fully supported the prosecution case on minute details and despite lengthy cross-examination nothing adverse to the prosecution version could be brought on record. He contended that medical evidence fully supports the occular account. It was argued that during the course of investigation the appellant had pointed out the place where he had thrown away his pistol after the occurrence. Further submitted that during the course of investigation the appellant was found guilty as such his name was placed in column No,3 of the report prepared under Section 173, Cr.P.C. It was finally argued that the appellant had taken the life of a young guy without any just cause and keeping in view evidence brought forth on record, learned trial court was rightly justified in recording conviction/sentence against the appellant under the relevant provisions of law .
11. Arguments advanced from both sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.
12. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features., Admittedly it is an unfortunate incident in which son of the complainant who was quite young 19/20 years of age lost his life after sustai ning firearm injuries at his head.
Brutality of the occurrence hardly leads any justification for bailing out the, barbarism shown by the accused but to put the facts and circumstances in equilibrium on the touchstone of safe administration of justice, we have scrutinized the whole evidence available on record while weighing the same on judicial parlance. It has been observed by us that the prosecution has led evidence in the shape of occular account, medical evidence, motive, as well as, investigation besides other attending circumstances.
13. As far as merits of the case are concerned we have observed that there is an inordinate delay of eleven hours in lodging the crime report for which no plausible explanation has been rendered by the prosecution. As per prosecution version the occurrence had taken place on 16.12.2015 at 8:00/9:00 p.m. while the matter was reported to the police on 17.12.2015 at 7:00 a.m. whereas inter-se distance between the place of occurrence and Police Station is only 1-1/2 KM. Superior Courts have always sensed inordinate delay with suspicion and there are number of judgments on this point in which the Superior Courts discarded the prosecution version on this score alone. In the case of Azhar Ali and others v. The State (2008 SCMR 6) the august Supreme Court of Pakistan had held that inordinate delay in lodging the FIR would mean that the occurrence was un-witnessed. In a similar case reported as Mehmood Ahmed and 2 others v. State (1995 SCMR 127), the Hon'ble Supreme Court of Pakistan took serious notice of delay in lodging the FIR 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 prosecuti on 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."
14. Besides delay in lodging the crime report perusal of record available on file reflects that the appellant was not named in the crime report rather the same was lodged against Hafeez, Shahid Ullah and Azmat, co-accused.
Subsequently through supplementary statement, the complainant involved the appellant on the basis of statements of Hameed Ullah (PW-2) and Sial Khan (PW-3) recorded under Section 161, Cr.P.C. However , fact remains that although the occurrence had taken place on 16.12.2015 while both PW-2 and PW-3 claim to have seen the occurrence and they are also closely related to the complainant, as well as, the deceased, however , their statements under Section 161, Cr.P.C. were recorded with a delay of two days on 18.12.2015 without any plausible explanation. Therefore, the same are hit by the ratio decidendi of august Supreme Court of Pakistan laid down in the case of "Abdul Khaliq v . The State" ( 1996 SCMR 1553 ) where it was held as under: - "---S. 161---Penal Code (XLV of 1860), S. 302/34---Late recording of statement under S. 161, Cr.P.C.---V alue--- Late recording of a statement of a prosecution witness under S. 161, Cr. P. C. reduces its value to nil unless delay is plausibly explained."
Reliance is also placed on the dictum of law laid down in the cases of Sahib Gul v. Ziarat Gul and others (1976 SCMR 236 ) and Muhammad Iqbal v . The State ( 1984 SCMR 930 ).
15. As far as presence of the prosecution witnesses at the place of occurrence at the relevant time is concerned, there is no denial to this fact that both of them are residents of District Karak (Province of Khyber Pakhtoon Khawah). According to claim of both the prosecution witnesses of the occular account they had visited Sialkot in connection with getting some labour work. However , during the course of trial, Hameed Ullah (PW-2) admitted that he was running a general store in his village including items of bakery . Relevant extract out of his statement is reproduced as under:- "I am shopkeeper in my village. I run general store. The material available at Bakery is also available at my store."
If this aspect is taken into consideration that PW-2 was running a general store at his village, it does not appeal to reason that he would visit a place 500-KMs away from his residence for getting labour particularly when the deceased had allegedly got labour job against the wages of a meager amount of Rs,10,000/-. Similar is the position with PW-3, who during the course of trial admitted that he was operated upon at his right kidney . However , it does not appeal to reason that he would go for search of labour work while covering such a huge distance in presence of his health condition.
As far as authenticity of the statements of the prosecution witnesses is concerned, both of them claim that the appellant had made firing upon the deceased in their eye view. However , despite of the fact that they are cousins of the complainant but astonishingly there is nothing on record that why they didn't opt to report the matter to him although they were having his mobile number . They even didn't disclose the details of the occurrence in which a young boy was done to death to other family members. This fact was admitted by PW-2 while making his statement during the course of trial in the following terms:- "I did not inform the complainant or his family or any other relatives telephonically about the occurrence..."
Similarly PW-3 stated that soon after the occurrence they disappeared from the place of occurrence and rushed towards Lorry Adda where they stayed overnight, however , they didn't bother to inform the local police or even made call at Emergency-15. Relevant extract out of his statement is reproduced as under:- "We remained the whole night at the Lari Adda without informing any one about the occurrence. We did not also call up at 15 with regard to this occurrence."
Their passive conduct subsequent to the occurrence qua not informing the complainant, other family members or police when they were closely related to the deceased speaks volume and leads to the conclusion to believe that they were not present at the place of occurrence at the relevant time.
16. As far as medical evidence is concerned in the crime report no specific role was assigned to the appellant rather he was not even named as an accused, therefore, the same is of least importance in this case. As far as the prosecution version that during the course of investigation the appellant had pointed out the place where he had thrown away his pistol is concerned as nothing was recovered at that time, therefore, mere memo. of pointation cannot be given any legal credence.
17. As far as motive of this case is concerned according to FIR Hafeez was married in the village of the complainant, who had suspicion that the deceased had developed illicit relationship with his wife, hence the same has not been alleged against the appellant. Moreover , on the same set of evidence, Hafeez, Shahid Ullah and Azmat who were arrayed as accused in the crime report, were acquitted of the charge and no appeal against their acquittal was filed by the prosecution.
18. All the above narrated facts and circumstances when evaluated on judicial parlance reflect that the prosecution has failed to establish culpability of the appellant in the instant case through reliable, trustworthy and confidence inspiring evidence. It is established principle of law that for extending the benefit of doubt in favour of the accused, so many circumstances are not required, rather one circumstance which creates reasonable dent in the veracity of the prosecution version, can be taken into consideration for the purpose, not as a matter of grace, rather as a matter of right. Respectful reliance in this regard is placed on the ratio decidendi of august Supreme Court of Pakistan in the cases of "Tariq Pervez v. The State" (1995 SCMR 1345 ) "Riaz Masih alias Mithoo v. The State"
(1995 SCMR 1730 ) and "Muhammad Akram v. The State (2009 SCMR 230). In the case of "Tariq Pervez v. The State" ( 1995 SCMR 1345 ), the august Supreme Court of Pakistan has held as under:- "---Art.4 --- Benefit of doubt, grant of---For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubts---If a simple circumstance creates reasonable doubt in a prudent mind about the guilt of accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right".
19. From the facts and circumstances narrated above, we are persuaded to hold that conviction passed by the learned trial court against the appellant in the circumstances is against all canons of law recognized for the safe 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 principle of law that the Court may err in letting off 100 guilty but should not convict one innocent person on the basis of suspicion. Resultantly while setting aside the conviction and sentence recorded by the learned trial court in terms of judgment dated 21.12.2016, Crl. Appeal No,889-J/2016 filed by the appellant is allowed as a consequence whereof he is ordered to be acquitted of the charge in FIR No,653/2015, dated 17.12.2015, offence under Sections 302, 114, 34, P.P.C., registered with Police Station Sialkot Cantt. He is directed to be released forthwith if not required in any other case.
20. Murder Reference No,23/2017 is answered in negative. Death sentence is not confirmed.