ABDUL HAMEED BALOCH, J.---This criminal appeal has been directed against the judgment dated 27th June, 2019 (impugned judgment), passed by learned Sessions Judge Musa Khail (trial court), whereby the appellant was convicted under Sections 302(b), 34 Pakistan Penal Code (P.P.C.) and sentenced to suffer like imprisonment and liable to pay an amount of Rs. 200,000/-(Rupees two hundred thousand) as compensation to the legal heirs of deceased and in default thereof to further suffer six months simple imprisonment. Benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant.
2. The brief facts as gleaned from the Fard-e-Biyan dated 28th May, 2018 submitted by complainant Chaman that on 25th May, 2018 as per routine his son Kamal Khan went to jungle for grazing his cattle whereafter the complainant along with his other son Baz Muhammad and wife Zango went towards jungle for cutting and also to look after his son Kamal Khan. It was alleged that at 3:30 p.m., they were at a distance of 100 feet from Kamal Khan meanwhile accused Mahiran, Mandokhail, Rehmatan and Yaseen, who had already taken positions in armed position shouted do not come forward and ready for punishment for their deeds. It was further alleged that since they were empty handed as such they could nothing. Meanwhile Mahiran and Mandokhal went towards their son Kamal, on which the complainant asked him to run, but his son remain standing their and started reciting Kalma Shari! The accused Mahiran fired shot with kalashnikov on the chest of his son due to which he died at the spot. It was alleged that the incident was also witnessed by his wife Zango and other son Baz Muhammad, With these averments FIR No. 8 of 2018 was registe red with Levies Thana Toisar District Musa Khail under sections 302, 34, P.P.C. on 28th May , 2018.
3. After registration of FIR Abdul Salam Naib Tehsildar Toisar started investigation, who along with levies party and Medical representative went to the house of complainant at 9:00 p.m. and took into possession the dead body of the deceased, obtained blood-stained clothes and handkerchief through memos Ex; P/4-A to Ex: P/4-C, recorded statements of witnesses under section 161, Cr.P.C. The Investigating Officer visited the place of occurrence and prepared site plan on the pointation of complainant vide Ex: P/6-C, secured one empty shell, blood-stained earth through memos and sent them to FSL for examination. On 28th May 2018 he got registered FIR on the complaint of Chaman vide Ex: P/6-A. The Investigating Officer also recorded statements of eye-witnesses. On 3rd June, 2018 the I.O. arrested the accused Mandokhail and after completion of investigation submitted incomplete challans vide Ex: P/6-B and D and FSL report vide Ex; P/6-E.
4. After fulfilling the requisite formalities the learned trial court framed charge on 16th August, 2018, which was read over to the accused to which he denied and claimed trial. The prosecution in order to substantiate the charge produced following witnesses: PW-1 Chaman is complainant of the case, who produced Fard-e-Biyan as Ex: P/1-A; PW-2 Baz Muhammad is eye-witness of the incident PW-3 Zango Bibi is also eye-witness of the incident PW-4 Sher Zaman Levies Constable is recovery witness of blood-stained clothes and handkerchief vide Ex: P/4-A, blood-stained earth Ex: P/4 and empty shell Ex: P/4C; PW-5 Dr. Muhammad Moula Baldish Jamaldini, Medical Superintendent DHQ Musa Khail. He examined the dead body of the deceased and issued death certificate vide Ex: P/5-B; PW-6 Abdul Salam NaibT ehsildar Toisar is the Investigating Officer, who produced FIR as Ex: P/6-A, incomplete challan Ex: P/6-B, site map Ex: P/6-C, incomplete challan Ex: P/6-D and FSL Report Ex: P/6-E.
5. On conclusion of prosecution evidence she statement of appellant was recorded under section 342, Cr.P.C., in which he once again denied the accusation and pleaded innocence. The appellant neither opted to record his statement on oath within the meaning of section 340(2), Cr .P.C., nor produced any witness in his defence.
6. On conclusion of trial the learned trial court heard arguments and thereafter convicted and sentenced the appellant vide impugned judgment in the manner as mentioned in Para No. 1, hence the appellant has filed the instant appeal.
7. The learned counsel for the appellant/convict contended that no specific role has been assigned to the appellant.
Further , the FIR has been chalked with unexplained delay which has cast serious doubt on the prosecution case.
There are material contradictions in the statements of the prosecution witnesses. Further , the ocular witnesses are closely related to the deceased as such interested witnesses and there is no independent corroboration of the same. It was further contended by the learned counsel that the appellant was not present at the place of occurrence and he has falsely been involved in the instant case. The evidence furnished by the prosecution was not confidence inspiring. It was finally prayed that the impugned judgment be set aside and appellant be acquitted of the charge.
8. The learned Additional Prosecutor General strongly supported the impugned judgment and prayed for dismissal of the appeal.
9. We have heard the learned counsel for the appellant/convict and Additional Prosecutor General at length and also gone through the material available on the record. In order to prove its case the prosecution examined six witnesses. The record transpires that the complainant Chaman submitted written application for registration of FIR on 28th May, 2018, whereafter , the investigation was entrusted to PW-6. On 25th May, 2018 the Investigating Officer visited the site along with the complainant where he prepared recovery memo of blood-stained clothes of deceased vide Ex; P/4-A, secured blood-stained earth vide Ex: P/4-B, casing Art. P/4-C, obtained MLC. The Investigating Of ficer produced FIR vide Ex: P/6-A, site plan Ex: P/6-C and FSL report vide Ex: P/6:-C.
10. The prosecution case stands on ocular account of complainant, PW-2 Baz Muhammad, PW-3 Zango Bibi, medical evidence, recovery of incriminating article and FSL report. It appears from Ex: P/6-A that the occurrence was taken place on 25th May, 2018, whereas the complainant submitted Fard-e-Biyan Ex: P/1-A, for registration of FIR on 28th May, 2018, meaning thereby that the complainant submitted application for registration of FIR with delay of three days without any plausible explanation. The complainant (PW-1) stated that he was busy in taking Fatiha due to which he could not immedia tely approached the levies station for registration of FIR. The contention of PW-l's negated by PW-6 the Investigating Officer, who stated that on the fateful day PW-1 visited the venue of occurrence on the pointation of PW-1 and prepared memos vide Ex: P/4-A to Ex: P/4-C; The complainant tried to cover inordinate delay in registration of FIR. In criminal cases the FIR is corner stone of the case and where recording of FIR became doubtful the whole prosecution story set out in the FIR itself would be doubtful. The FIR was registered with the delay of three days without any plausible explanation which creates doubts about its credibility . Undoubtly without unreasonable explanation the delay in filing FIR lead to suspicion in the truth of prosecution case. Reliance is placed on the case of Akhtar Ali v. The State 2008 SCMR 6 , wherein it was held: "........It is also an admitted fact that the FIR was lodged by the complainant after considerable delay of 10/11 hours without explaining the said delay . The FIR was also not lodged at police station as mentioned above. 10/11 hours delay in lodging of FIR provides sufficient time for deliberation and consultation when complainant had given no explanation for delay in lodging the FIR. It is enough time for complainant to fabricate the story even then the complainant did not nominate appellants and their acquitted co-convict, therefore, possibility cannot be ruled out qua false implication of the appellants. It is also a settled law that delay of 10/11 hours in making FIR not explained leads to inference that the occurrence was unwitnessed.
The Honorable Apex Court further elaborate delay in case of Noor Muhammad v . The State 2010 SCMR 97 : "------ It appears that when the deceased was removed from the place of incident to the hospital they must have passed from Rawat Police Station and could have easily stop therefore, for a little while for lodging the report and at that time the deceased was also in his senses he could have given the true facts about the incident to the police but the complainant and P. Ws. did not choose to do so. Even one of the P. Ws. could have been dropped at the Rawat for lodging the report but this had also not happened. This gives support to the arguments of the learned counsel for the appellant that at the initial stage the complainant and P. Ws. were not with the deceased except his son while taking him to the hospital. Thus, the prosecution has failed to furnish any plausible explanation for delay in lodging the FIR. Under these circumstances, it appears that the time was spent in consultation and preparing the ease, hence the delay of 12 hours in lodging the FIR is very fatal to the prosecution case."
11. Now adverting to the point of motive. PW-1 in his Fard-e- Biyan Ex: P/1-A stated that eleven (11) years ago the absconding accused with his companions killed his brother and due to non arrest of culprits he submitted an application for their arrest. The Levies authorities raided their house due to which they became furious/angry and threatened the complainant of dire consequences, but the record is silent in this regard. PW-1 has not produced the copy of FIR in respect of murder of his brother . As per complainant the motive for commission is old enmity . It is settled principle of law that the prosecution is not bound to prove the motive. but once a motive is set up then it is for the prosecution to prove the same, if failed it cause damage to the prosecution case. PW-1 specifically alleged the motive for committing murder of his son. The prosecution failed to collect any incriminating evidence in order to prove the motive. Reliance is placed on the case of Ahmed Yar v. The State 2005 YLR 747 , It was held: "17. ---------- Although it was not necessary to set up any motive yet once it is set up then it becomes the duty of the prosecution to prove the same and in case of failure to prove the same that will adversely affect case of the prosecution.--------"
12. Now adverting to the unnatural conduct of the accused person. Suffice to say that four accused persons were armed with sophisticated weapons, while the complainant party was empty hand ed. As per statements of ocular witnesses the accused and absconding accused came out from the trench. The absconding accused made firing upon deceased, whereas the witnesses were near to the appellant and absconding accused, but they were let them to go and did not harm the witnesses. The ocular witnesses are father , mother and brother of the deceased. It is unnatural that the accused killed the deceased in presence of witnesses, but let them free. It does not appeal to prudent mind that while killing a person in presence of his close relatives the accu sed would not attempt to cause any injury/ kill the prosecution witnesses leaving them for evidence to be hanged. In this regard reliance is placed on the case of Dholu Khan v. The State 2002 PCr.LJ 690. Reliance is also placed on the case of Muhammad Farooq v . The State 2006 SCMR 1707 . It was observed: "19. We will first like to examine the question whether presence of P.W. 9 at the spot could in the circumstances, be believed. It may be noted that the deceased had twenty-five injuries out of which eighteen were entry wounds.
Besides the deceased Muhammad Abbasi P.W. 9 was also challaned In the case of murder of Saeed the brother of appellants. Had P. W. 9 been present on the spot, he was not likely to be spared because the number of injuries on the person of deceased show that at least eighteen rounds were fired. It only shows the degree of venom the killer had for the deceased. The number of injuries on the person of the deceased also leads us to believe that more than one person participated in the occurrence. Therefore, it is unnatural and improbable that if P. W. 9 was present at the spot, he would not be targeted.
13. The record reflects that the ocular witnesses attributed specific role of firing to absconding accused. As per ocular account despite armed with sophisticated weapons the appellant did not cause harm to the witnesses. Mere presence of a person with an accused at the relevant time cannot lead to the inference that they shared common intention. When the prosecution alleged that the offence was committed with common intention which presuppose prior consent. It must be proved that the offence was committed by pre-arranged plan. The inference of common intention should never reach unless it is proved by direct evidence or circumstances. In this regard reliance is placed on the case of Hakmin Zafar v . The State 2017 YLR 232 . It was held: "19. We are of the view that to attract the provisions of 34, P.P.C., there must be some proof of overt act on the part of each accused done in furtherance of the common intention. Mere presence of an accused without any overt act at the place of occurrence at the time of occurrence with co-accused, who commits the offence may not be sufficient to connect former with vicarious liability . Principle of vicarious liability cannot be invoked unless and until common intention and object is proved. For this purpose, strong circumstances must exist manifesting a common intention which is missing in the present case. The word intention is a state of mind which is not ordinarily ascertainable but is to be gathered or inferred only from external act and for this purpose it is very necessary to show examine the act itself of the accuse d. There must be material to show some overt act done in furtherance of common intention which is missing in the present case. Reliance is placed on case titled "Hassan v. The State "
(1969 SCMR 454 ) in which Hon'ble Supreme Court of Pakistan has observed at page 456 as under:- "This explanation was not considered by the High Court. It appears from the observations of the High Court that the High Court was still thinking of the charge of rioting and that mere presence or being a member of the unlawful assembly was sufficient to warrant a conviction. The Sessions Judge had applied section 34 to the case and in order to support a conviction under that section mere presence would not be sufficient, but there must be proof of some overt act on the part of each accused done in furtherance of the common intention. Here the evidence is clear that the appellant was empty handed and he did not assault Suleman, as was stated by P. W.
3. Neither of the Courts has considered the case of this appellant separately or the evidence against him. He went to the place empty handed and there is no evidence that he assaulted anybody or that in the circumstances he could have intended to cause a grievous hurt to anybody . Judged by the standard applied by both the High Court and the Sessions Judge to the case of the three acquitted persons, the case of the appellant stands on a much more favourable ground and we see no justification for upholding his conviction. The appeal is, therefore, allowed and the conviction and sentence on the appellant are set aside and he is acquitted".
14. The record reflects that the deceased was examined by a Dispenser . While PW-5 Dr. Moula Bakhsh appeared to testify . The witness exhibited letter of Naib Tehsildar in regard of post mortem of deceased as Ex: P/5-A. The MLC was not exhibited. While a document which was not exhibited; it could not be taken into consideration. The medical evidence is confirmatory/support ing which never held to a corroborative evidence to identify the culprit(s).
Reliance is placed on the case of Hashim Qasim v . The State 2017 SCMR 986 .
15. So far as the recovery of blood-stained clothes of deceased, blood-stained earth and casing is concerned. The record reflects that the referred materia l/articles were secured on 25th May, 2018. PW-4 Sher Zaman Levies Constable in his deposition stated that he along with Abdul Salam the Investigating Officer visited the venue of occurrence on 25th May, 2018, where the investigating Officer had taken into possession the blood-stained shirt, trouser and handkerchief, prepared recovery memo vide Ex: P/4-A. While PW-1 in his statement stated that on the fateful date he shifted the dead body to his house. It is unbelievable that Art: P/1 to Art: P/3 were kept in an abandoned place for three days. Even otherwise the referred to articles were received to FSL on 5th July, 2018, with the delay of more than forty (40) days without any plausible explanation that during such period where these articles were kept and in whose custody .
16. The reappraisal of the material on the record would establish the fact that the prosecution evidence cannot term to be confidence inspiring. Admittedly series of doubts have been created in the case in hand which according to settle principles of criminal administration of justice the accused cannot be deprived from getting the benefit of doubts. Reliance is placed on the case of Tariq Pervez v. The State 1995 SCMR 1345 wherein the Honorable Supreme court held: "--------The concept of benefit of doubt to an accused person is deep-rooted in our country . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace, and concession but as a matter of right."
For the above reasons the appeal is accepted. The impugned judgment dated 27th June, 2019, passed by learned Sessions Judge Musa Khail it is set aside. The appellant Mandokhail son of Mahiran is acquitted of the charge under sections 302, 34, P.P.C. in case FIR No. 8 of 2018 Levies Station Toisar District Musa Khail. He be released forthwith if not required in any other case.