ABDULLAH BALOCH, J. This common judgment disposes of Criminal Appeal No.215 of 2022, Criminal Revision Petition No.08 of 2022 and Criminal Acquittal Appeal No.218/2022.
The Criminal Appeal has been filed by the appellants (convicts) Jalat Khan son of Safar Khan, Kareem son of Said Muhammad and Gulzar son of Hassan Khan, against the judgment dated 14th April 2022 ("the impugned judgment") passed by learned Sessions Judge, Musakhail ("the trial Court"), whereby they were convicted under sections 302(b), 34, P.P.C. and sentenced to suffer life imprisonment, with the benefit of section 382-B, Cr.P.C., while accused Hafiz Tahir son of Sattay, Rahmat Gul son of Safar Khan, Soba Khan son of Safar Khan and Alam Din son of Faqeer Khan were acquitted of the charge.
The petitioner (complainant) filed Criminal Revision Petition for enhancement of sentences awarded to the appellants (accused) Jalat Khan, Kareem and Gulzar from life imprisonment to that of capital punishment of death and also filed Criminal Acquittal Appeal against the acquittal of accused Hafiz Tahir, Rahmat Gul, Soba Khan and Alam Din.
2. Facts of the case are that on 22nd October 2019, the complainant Malik Ahmed Khan son of Ahmedaan, lodged FIR No. 03 of 2019 at Levies Station Tangisar, Musakhail, under sections 324, 337- A, D, F, 147, 148, P.P.C., with the averments that Jalat Khan Esoot and others had purchased a piece of land from him with permission to build house thereon. A dispute arose when Jalat Khan made encroachment which was settled through arbitration and he received Rs.150,000/- out of Rs.250,000/-. On 21st October 2019 at about 06.30 a.m., when the complainant and his companions came out of their house, they found the accused Jalat Khan, Rahmat Gul, Soba Khan, Hafiz Tahir, Alam Din, Kareem and Gulzar, who have made even more encroachment near the house of complainant by pitching a tent, thus they were asked the reason for such encroachment, the accused persons being armed with hatches and Kalashnikovs made murderous attack upon the complainant party and seriously injured Rahim Ali, Sher Zaman and Hazar Khan. Meanwhile, Shehrak Khan and Paikhail with the help of others came to rescue them. Whereafter he injured Rahim Ali, Sher Zaman and Hazar Khan were taken to RHC Durg, thus the FIR was registered, but subsequently the injured Rahim Ali succumbed to his injuries and expired, as such, section 302, P.P.C. was inserted in the FIR.
3. Pursuant to the above, investigation was conducted and on completion thereof, the accused persons were challaned in the trial Court, which indicated the charge, which was denied, where after the prosecution produced ten (10) witnesses, the appellant and acquitted accused were examined under section 342, Cr.P.C. They did not record their statements on oath under section 340(2), Cr.P.C., but however, produced two witnesses in their defence. On conclusion of trial, the appellants were convicted and sentenced as mentioned above, while the remaining accused persons were acquitted of the charge, vide judgement dated 14th April 2022. Whereafter, the appellants Jalat Khan, Kareem and Gulzar filed Criminal Appeal for their acquittal, whereas the complainant filed Criminal Revision Petition for enhancement of their sentences and also filed Criminal acquittal appeal against the acquittal of accused Hafiz Tahir, Rahmat Gul, Soba Khan and Alam Din.
4. Heard the learned counsel and perused the available record. The prosecution in order to establish the charge has produced the evidence of ten witnesses, which include direct, circumstantial and medical evidence. However, minute scrutiny of the statements of all the witnesses did not justify the impugned judgment of the trial Court, whereby he instead of acquitting all the accused, convicted and sentenced the appellants Jalat Khan, Kareem and Gulzar. The criminal machinery was brought into motion by the complainant (PW-1), who lodged the FIR on the following day of occurrence. It has been observed that the occurrence had taken place on 21st October 2019 at about 06.30 a.m. while the Levies Station from the place of occurrence was at the distance of only 10-KMs, but the FIR was not lodged promptly on the day of occurrence rather it was unjustifiably delayed for one day and instead, it was registered on 22nd October 2019 at about 09.00 a.m. No justification at all has been tendered by the prosecution for registering the FIR after delay of almost 27-hours and it appears that the FIR was lodged after consultation and deliberation of complainant party with each other. Even otherwise, it has come on record that on the day of occurrence, the Investigating Officer along with Medical Officer reached at the house of deceased and in presence of I.O., the Medical Officer conducted the external examination of deceased and also issued MLC, while the Investigating Officer also conducted proceedings under section 174, Cr.P.C. and prepared inquest report, thus the Levies could have lodged the FIR at their own or on the verbal complaint of complainant party, but this was not done so rather the same lodged on the subsequent day of occurrence. The main object of prompt registration of an FIR is to rule out the possibility of deliberation, consultation and inquiry. The element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval, thus non-registration of FIR promptly has damaged the very foundation of case.
5. Now adverting to the direct evidence, suffice to observe here that the prosecution produced direct evidence in the shape of evidences of PW-1 Ahmed Khan, who is the complainant of the case, while PW-2 Sher Zaman, PW-3 Hazar Khan are injured witnesses, whereas PW-5 Pai Khail is claiming to be mediator in between the parties. The complainant of the case in his fard-e-bayan Ex.P/1-A clearly stated that on the morning of occurrence he along with the injured and deceased approached the accused party, who were armed with sticks and Kalashnikov and during altercation they launched attack upon them, due to which Rahim Ali, Sher Zaman etc were injured.
The contents of Fard e-bayan are silent with regard to any minor injury received by the complainant, while the complainant contradicted his earlier statement contained in Fard-e-bayan and stated he was not injured in the incident as he was mediating in between them. The assertion so narrated in his Court statement not only contradicts the earlier statement of PW-1, but also creates suspicious with regard to his presence at the relevant time. It does not appeal to the logic that the complainant along with injured and deceased quarreled with the accused party and after severely beating to the injured and deceased, the accused party did not harm the complainant, who otherwise belong to the tribe of victims and he was accompanying the victims at the relevant time. Admittedly, the prosecution has failed to justify the presence of the complainant at the relevant time. Reliance in this regard is placed on the case of Muhammad Farooq v. State 2006 SCMR 1707 and on the case of Dohlu v. State 2002 PCr.LJ 690.
6. PW-2 Sher Zaman and PW-3 Hazar Khan are claiming to be the eye-witnesses, who were injured in the alleged incident. The statements of both the statements are not corroborating with each other and also not corroborating the statement of PW-1 (complainant). According to PW-2 on the day of occurrence after offering prayer and taking breakfast, he went towards jungle side to locate his cattle and when at about 6.30 a.m. he heard hue and cries, thus reached near the house of Rahim Ali, where found pitched a tent and several persons were fighting, which includes Jalat Khan, Gulzar and Kareem, who were beating Rahim Ali with Axes, while accused Tahir, Rahmat Gul, Ilam Din and Soba Khan were also present, out of whom Tahir and Rahmat Gul attacked upon him with Axes. In the meantime, he heard firing shots, while his brother Hazar Khan also reached at the spot, who was attacked by accused Ilam Din and Soba Khan. At the moment Pai khail and Sherk Khan were mediating in between the parties. Likewise, PW-3 recorded his statement in line with the statement of PW-2 Sher Zaman and stated that after hearing firing shot he came out from his house and reached at the tent, wherein fighting was being made.
7. If the statements of both the injured witnesses are compared with the statement of PW-1 (complainant) it transpires that the same are contradicting each other. According to PW-1 he along with others i.e. Injured approached the accused party where the occurrence had taken place, while the PW-2 and PW-3 have stated that after hearing hue and cries and firing shots, they reached at the place of occurrence and the accused party also launched attack upon them. Now question arises that if both the PW-2 and PW-3 reached at the place of occurrence when already the fighting had started, then who was accompanying the complainant/PW-1, who approached the accused prior to the occurrence.
The evidence of both the injured witnesses is contradictory with each other and also not corroborating the statement of PW-1. Thus, the presence of PW-1 is doubtful.
8. Now adverting to the role of mediator in the case i.e. PW-5 Pai Khail, who claims to be the independent witness of the occurrence and according to his statement the hue and cries attracted him along with witness Sherak Khan to the place of occurrence, where they observed fighting in between the parties. PW-5 ascribed roles upon all the accused persons as narrated by PW-2 and PW-3. However, in his cross-examination he admitted that the victims belong to Sub-Caste of Jaffar tribe i.e. Mira and he also belongs to the same tribe, while the accused belongs to Essot tribe.
Admittedly, the accused persons and this witness are not only belonging to same area, but also they are same tribesmen and relatives, thus no implicit reliance could be placed upon the testimony of this witness. Even otherwise, earlier on the request of prosecution this witness along with another witness namely Sherak Khan were dropped, which is evident from the order sheet dated 22nd October 2020, but subsequently this witness was produced and the evidence of Sherak Khan was withheld and he was not produced before the Court, though the said witness was material witness, therefore, a presumption under Illustration (g) of Article 129 of Qanun-e- Shahadat Order, 1984 can fairly be drawn that had the said witness been examined in the Court his evidence would have been unfavourable to the prosecution. Although, the prosecution was not bound to produce each and every witness, but if the prosecution fails to produce such witness who was central figure and the entire story revolves around him, then the prosecution story would become doubtful.
9. The initial investigation in the matter was conducted by PW-7 Nadir Khan, Naib Tehsildar, who counted the steps taken by him during the course of investigation and admitted that he did not take into possession the blood stained earth, stone and empties etc. from the place of occurrence.
He also admitted that he did not go to hospital along with injured and even neither he visited the hospital on 21st or 22nd October 2019. He also admitted that on the days of occurrence Dr. Nisar was posted as Medical Officer, but he did not meet him from 21st to 26th October 2019. The admissions so made by the Investigating Officer further create doubts in the case of prosecution rendering his investigation not worth credence.
10. Now adverting to the disclosure of the appellant Jalat Khan recorded in police custody. PW-9 Sher Dil, ASI, produced the said disclosure as Ex.P/9-A, perusal whereof transpires that the appellant in the said disclosure admits his guilt and also got recovered the crime weapons i.e. Axes and Sticks. However, admitted in his cross examination that the said crime weapons were not stained with blood. It has been observed that such kind of Axes and sticks are available in every house, thus it cannot be said with certainty that the recovered Axes and sticks were the same that were used in the incident, when otherwise they were not stained with blood and even not examined by the expert. Even otherwise, no new facts were emerged pursuant to said disclosure rather all the facts brought through the said disclosure were already known to the prosecution, as such, the disclosure so recorded in the police custody is not helpful to the case of prosecution.
11. So far as the unnatural death of deceased Rahim Ali is concerned, the same is undisputed. The defence is also not disputing the unnatural death of deceased, but pleaded their false implication on the basis of previous enmity. Soon after the crime, the deceased Rahim Ali was taken to Hospital and subsequently shifted to his own house, where after examination of dead body, the Medical Officer issued MLC, perusal of which reflects that the deceased received multiple injuries on his person. Likewise, the PW-2 and PW-3 were also examined and MLCs were issued, but however, the fact remains that the medical evidence is not corroborating with the oral testimony. Even otherwise, the medical evidence is not substitute of direct evidence rather is only a source of corroboration in respect of nature and seat of injury, the kind of weapon used, the duration between the injury and death and may confirm the ocular account to a limited extent but cannot establish the identity of the accused or connect him with the commission of offence, therefore, if the charge of murder is not proved through the direct evidence, solely the medical evidence is not helpful to the case of prosecution.
12. We have analyzed the statements of the entire four star witnesses of the prosecution case and found the same contradictory to each other. PW-1 and PW-5 made unsuccessful attempt to establish their presence at the place of occurrence, but they failed to justify/explain their presence.
The delay for one day in lodging the FIR has damaged the case of prosecution, due to which no proper investigation could have been conducted. The complainant party tried to conceal material facts, which has rendered their testimony doubtful. It is further observed that similar role has been ascribed to all the accused, but the trial Court disbelieved the same to the extent of acquitted accused, but on the same set of evidence, the appellants were awarded conviction and sentence.
All the above circumstances have created reasonable doubt in the case of prosecution, but benefit of doubt has not been extended in favour of the appellant.
13. For the above reasons, the Criminal Appeal No.215 of 2022 is accepted. The impugned judgment dated 14th April 2022 passed by learned Sessions Judge, Musakhail to the extent of conviction and sentence of the appellants Jalat Khan son of Safar Khan, Kareem Son of Said Muhammad and Gulzar son of Hassan Khan, is set-aside and they are acquitted of the charge. The appellants being in custody, are ordered to be released forthwith, if not required in any other case. Consequent to the above, the Criminal Revision Petition No.08 of 2022 and Criminal Acquittal Appeal No.218 of 2022, being devoid of merits are hereby dismissed.