ROZI KHAN BARRECH, J.---The appellant namely Meer Hassan son of Peer Muhammad was involved in. FIR No. 19 of 2017 registered under sections 302 and 34, P.P.C. of Police Station Saddar Harnai and was tried by learned Additional Sessions Judge/Model Criminal Trial Court, Harnai ("trial court" ). The trial court in terms of judgment dated 5th April 2019 (herein "impugned judgment") convicted and sentenced the appellant in the following manner: "21..... Therefore, I convict accused Meer Hassan son of Peer Muhammad by Caste Khidrani resident of Qilla Gozha, District Harnai, under section 302(b) read with Section 34, P.P.C. and sentence him to life imprisonment i.e. 25 (Twenty Five) years R.I. as well as to pay compensation amount of Rs. 200,000/- (Rupees Two Lac) to the legal heirs of the deceased Sheer Zaman or in default whereof to undergo 06 (six) months S.I. for committing the murder of deceased Sheer Zaman. Benefit of Section 382-B, Cr . P. C. is extended in favour of accused."
2. Aggrieved from the impugned judgme nt the appellant has assailed his complainant namely Dost Muhammad filed Criminal Revision Petition No. 08 of 2019 for enhancement of sentence awarded to appellant by the trial court.
As both the cases are arising out of one and same judgment, therefore, same are being disposed of through this single judgment.
3. The prosecution story as disclosed in the FIR Fx.P/5-A recorded on statement of Dost Muhammad (complainant/PW -1) is that on 05.06.2017 at 11:00 a.m. the complainant along with his sons Gula Khan, Naqeebullah, brother Gul Shah Khan and cousin Sheer Zaman were busy in Tomatoes' field; that the appellant along with co-accused Mosam Khan equipped with Kalashnikov and 303 bore rifle came to the spot and raised 'Lalkara' to be ready for fighting; that they opened firing and the appellant Meer Hassan's shot hit Sheer Zaman inflicting bullet injuries to him, who fell down and was shifted to hospital but he could not survive and succumbed to his injuries in Civil Hospital Harnai. Hence, the crime report.
4. The appellant was arrested and after completion of the investigation, he was challaned to the court. He was formally charge sheeted, to which he pleaded not guilty and claimed trial. Thereafter , in order to prove its case the prosecution got examined as many as seven witnesses. Then, statement of appellant was recorded under Section 342, Cr.P.C. wherein he refuted allegations levelled against him. Appellant also recorded his statement on oath as envisaged under section 340(2), Cr.P.C. and also produced one witness DW-1 namely Behram Khan in his defense.
The trial court after conclusion of trial has convicted and sentenced the appellant as mentioned above through the impugned judgment dated 05.04.2019.
5. Counsel for the appellant did not appe ar due to corona virus pandemic and he sent his written arguments, copy whereof was provided to learned counsel for the complainant.
We have heard learned counsel for the complainant and learned State Counsel and have gone through the written arguments of learned counsel for the appellant and the record.
6. 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 complainant's nephew lost his life after sustaining firearm injuries, but to put the facts and circumstances in equilibrium with 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 ocular account, medical evidence, as well as investigation besides other attending circumstances.
7. As far as merits of the case are concerned we have observed that prosecution in support of its charge produced PW-1 Dost Muhammad, PW-2 Naimatullah and PW-3 Naqeebullah, who were eye-witnesses of the alleged occurrence but all the above witnesses are closely related to the deceased Sheer Zaman. PW-1 Dost Muhammad is uncle of the deceased whereas PW-2 and PW-3 are cousins of the deceased, therefore, for safe dispensation of justice, their evidence will have to be appreciated with care and caution. No doubt the evidence of the related witnesses cannot be discarded on the ground of its being related to the victim but if it is found that the testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or`just thereafter as such, which cannot be expected from a prudent person, then under such circumstances the evidence furnished by related witnesses cannot be easily discarded. At the touchstone of the above we now take into consideration the testimonies furnished by the above witnesses in the case.
8. It reflects from the record that the occurrence took place at 11:10 am and on the same day at 1:00 pm the FIR was lodged. The FIR disclosed that the place of occurrence is at a distance of six kilometers from the police station. Thus, there is delay of two hours in lodging the FIR. According the medic al certificate produced by PW-4 Dr. Wazir Khan, who examined the deceased on 5.6.2017 at 11:10 am the complainant stated in his statement that he himself went to the police station and submitted application for registration of the FIR and the said application was written by one person from the city. He further stated during cross-examination that police came to the spot at 2:00 pm. Although the FIR was lodged on 5.6.2017 at 1:00 pm but same appeared to be for the reason that the prosecution waited for medical opinion of the doctor which resulted in delay to lodge, the FIR. Since this delay in registration of the FIR has provided ample opportunity to the prosecution to deliberate and consult in the flatter , therefore not only the mode and manner of the occurrence has to be thoroughly examined but ocular testimonies also require very careful probe.
It may be seen that the FIR was lodged with delay , after deliberation and consultation for the reason that the prosecution waited for the medical reports and after obtaining of same the prosecution witnesses attributed individual role to each accused.
9. On the face of it, there is inordinate delay of two hours in lodging the report by the complainant. It is astonishing that when the deceased received injuries and as per medical certificate within five minutes he succumbed to his injuries i.e. at 11:15 a.m., then what prevented the complainant to lodge the report, despite the fact that the distance of police station from the place of occurrence is mentioned as six kilometers. It is worthwhile to mention here that according to PW-4 Dr. Wazir Khan the injured was brought by the gene ral public. He further confirmed during cross-examination that the deceased was accompanied by twenty persons when he was brought to the hospital. Neither the name of complaint and other eye-witnesses is mentioned in the medical certificate Ex.P/4-A nor PW-4 Dr. Wazir Khan stated a single word in his statement that the injured was brought by the complainant or eye-witnesses themselves. For the sake of arguments if it is presumed that the complainant and eye-witnesses were accompanying the deceased Sheer Zaman when he was brought to hospital and the doctor examined him at 11:10 a.m. on basis of injury report why the police officials did not record/register the complainant's report at the hospital promptly but despite that the complainant went to the police station at 1:00 pm in that two, hours after the alleged occurrence. This aspect of the matter creates serious doubt in the prosecution story as to why the report was not lodged promptly . Needless to say that the delay in lodging the report cann ot be simply brushed aside, as it assumes great significance, and it could be attributed to consultations, taking instructions and calculatedly preparing the report keeping in view the names of the assailants opened for involv ing such persons who ultimately the prosecution might wish to nominate.
In this respect, reliance is placed on case law reported in 'Mahmood Ahmad and 3 others v. The State and another ' (1995 SCMR 127), 'Imran Hussain v. Amir Arshad and 2 others' (1997 SCMR 438), 'Muhammad Rafique v . The State' (2014 SCMR 1698 ) and 'Altaf Hussain v . The State' (2019 SCMR 274 ).
10. It is important to mention here that the occurrence took place on 5.6.2017 at 11:10 am while PW-2 Naimatullah and PW-3 Naqeebullah claimed to have seen the occurrence, who are closely related to the deceased but the statement of PW-2 Naimatullah was recorded under section 161, Cr.P.C. on the same date after 4:00 pm.
According to PW-5 Muhammad Islam SI, who conducted investigation of the case, he went to the place of occurrence at 2:30 pm. PW-2 stated during cross-examination that the police took his signature at the place of occurrence on four papers on the day of occurrence. On the other hand PW-5 stated during cross-examination that he recorded statements of Naimatullah and Gul Shah Khan at the police station. He further stated during cross- examination that he came back to the police station at 4:00 pm, meaning thereby that the statement of PW-2 was recorded by the investigating officer at the police station after 4:00 pm after delay of five hours from the occurrence.
Statement of PW-3 namely Naqeebullah was recorded under section 161, Cr.P.C. with delay of two days, which was confirmed by PW-5 Muhammad Islam SI, who stated during cross-examinatio n that he recorded statement of Gula Khan and Naqeebullah on 7.6.2017 without any plausible explanation, therefore the same is hit by ratio decidendi given by august Supreme Court of Pakistan laid down in the case of Abdul Khaliq v. The State (1996 SCMR 1553 ) wherein it was held as under: "......It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay ."
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 ).
11. The presence of the complainant, PW-2 Naimatullah and PW-3 Naqeebullah is also doubtful at the time of alleged incident at the place of occurrence. It is stated earlier that according to medical certificate Ex.P/4-A PW-4 issued by PW-4 Dr. Wazir Khan, Medical Officer DHQ Hospital Harnai the injured was brought to the hospital by general public. Neither the name of the complainant and the eye-witnesses is mentioned in the medical certificate nor PW-4 stated a single word that the injured was brought by the complainant or the eye-witnesses to the hospital.
Had they been present at the spot at the time of occurrence they would have taken the deceased Sheer Zaman either to hospital or to the police station, which admittedly was not done. PW-1 is uncle of the deceased whereas PW-2 and PW-3 are cousins of the deceased. Apart from that all the above witnesses being highly interested witnesses inimically deposed against the appellant. First reason for, disbelieving them is that their presence on the spot was unnatural because had they been present on the spot they would have received some injuries by the shots fired by the appellant and absconding accused. It appears that they have tried to suppress their interestedness. All the above witnesses stated in their statements that they were doing work in the tomato fields.
The appellant equipped with Kalashnikov and the absconding accused armed with a 303 bore rifle made firing upon them; that the shot fired by the appellant hit deceased Sheer Zaman, who fell down after receiving injury .
According to the above witnesses they were present at a distance of four to five feet to each other at the time of occurrence. According to PW-3 Naqeebullah the accused persons fired repeated shots (burst firing). According to recovery memo of bullet empties from the place of occurrence Ex.P/2-C eleven empties of SMG and two bullet empties of 303 bore rifle were recovered from the place of occurrence. However this court believes that if indiscriminate firing is made by two persons upon six persons from a short distance and the complainant, PW-2 Naimatullah, PW-3 Naqeebullah and other witnesses (Gula Khan and Gul Shah Khan not produced before the trial court) were standing at a distance of four to five feet from each other but none of them received injuries and only one person i.e. the deceased received only one firearm injury . If the statement of the above witnesses is believed to be true then the question arises as to why and how the appellant spared Gula Khan, Gul Shah Khan (not produced as witnesses), PW-1, PW-2 and PW-3 and did not even try to kill them, when he could have easily killed them because they were empty handed and at his mercy coupled with the fact that could depose against him as witnesses being uncle and cousin of the deceased. The mode and manner of the occurrence advanced by the prosecution witnesses is not appealable to a prudent mind.
12. Another interesting feature of the case is that the appellant had no motive to fire at the deceased. According to the statement of the above so called eye-witnesses they escaped unhurt and did not received even a scratch in the alleged incident despite being empty handed and totally at the mercy of the appellant, but they were left alive and the appellant selected to kill the deceased with whom the appellant and absconding accused had no direct motive.
So it may be inferred that the incident did not take place in the way and manner , as it was alleged.
13. The prosecution story as put-up before the trial court is hardly believable. Even otherwise when a single drop of dirt is mixed and dissolved in the tank of bulk clean water , it makes the whole dirty. In the same manner , when some falsehood is mixed with truth, the same makes the truth carrying possibility of falsehood as a whole. The Hon'ble Supreme Court of Pakistan had disbelieved the statement of an alleg ed eye-witness whose conduct remained unusual in a case law titled "Muhammad Khan and another v. The State reported as 1999 SCMR 1220 ", wherein it was held that: "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective".
14. According to the eye-witnesses at the time of occurrence one Muhammad Islam who was the pickup driver was also present at the time of occurrence, who took the injured to the hospital in his vehicle. He was neither produced before the trial court nor his statement was recorded under Section 161, Cr.P.C. by the I.O. Moreso, the I.O. also did not record the statements of the twenty persons from the general public who were accompanying the deceased at the time when he was brought to the hospital. No impartial evidence could have come from the neighborhood to corroborate the prosecution case, which of course could have been available due to gunshots fired. Such being the case, the indication and production of only interested and inter-related persons and non-production of Muhammad Islam and other person who took the injured to the hospital as witnesses before the court further makes the prosecution case doubtful under Article 129(g) of Qanun-e-Shahadat Order 1984. Reliance is placed in the case of Pathan v . The State (2015 SCMR 315 ).
15. Adverting next to the abscondence of the appellant, no doubt it is a relevant fact and can be used as corroborative piece of evidence, but it cannot be read in isolation, as it has to be read along with substantive piece of evidence. The Hon'ble Supreme Court of Pakistan in the case of Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 observed that abscondence is only a suspicious circumstance. Even otherwise while the accused was examined under Section 342, Cr.P.C. the trial court did not put the question to the appellant about his abscondance, therefore this piece of evidence cannot be used against the accused. In the present case the substantive piece of evidence, which is in the shape of ocular account has been disbelieved by us therefore no conviction can be based on absconsion alone.
16. All the above narrated facts and circumstances when evaluated on the judicial parlance reflect that the prosecution has failed to establish the culpability of the appellant in the instant case through reliable, trustworthy and confidence inspiring evidence.
From the facts and circumstances narrate d 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.
17. Resultantly Criminal Appeal No.84 of 2019 filed by the appellant is allowed while setting aside the conviction and sentence recorded by the trial court in terms of judgment dated 5th April 2019, the appellant is acquitted of the charge under sections 302(b), 34, P.P.C. in FIR No. 19/2017 dated 5.06.2017 Police Station Saddar Harnai. The appellant is ordered to be released forthwith if not required in any other case.
As a natural corollary , the Criminal Revision Petition No. 08 of 2019 seeking enhancement of sentence is dismissed.