IQBAL AHMED KASI, J. The learned Additional Sessions Judge-IV, Quetta ('the trial Court'), vide judgment dated 13.05.2024 (`the trial Court') has convicted and sentenced the appellants Changaiz Khan son of Taj Muhammad, Taimoor Khan, Sikandar Khan both sons of Shah Muhammad, Fazal Muhammad son of Mir Shah Dad Khan and Bilal Ahmed son of Niaz Muhammad, under Section 302(b) of the Pakistan Penal Code, 1860 ('P.P.C.') to death as ta'zir with direction to pay Rs.400,000/- (rupees four hundred thousand) each to the legal heirs of each deceased as compensation, envisaged under the provisions of Section 544-A, Cr.P.C. or in default thereof to further undergo period of six months. The appellants were further convicted under Section 324, P.P.C. and sentenced to suffer imprisonment for a period of 06 (six) years and to pay a fine of Rs.50,000/- (rupees fifty thousand) eat h, to be paid to injured, or in default to further undergo a period of four months. They were further convicted for causing injures and liable to pay Daman Rs.30,000/- (rupees, thirty thousand) each, to be paid to each injured, or in default they were ordered to be dealt with in accordance with the provisions of Section 337-Y P.P.C.
2. The appellants preferred Criminal Appeals Nos. 153 and 156 of 2024 for their acquittal, whereas, the trial Court has sent Murder Reference No.04 of 2024 for confirmation of sentences of death or otherwise.
3. Since common question of law and fact is involved and all the matter arising out of the same judgment of the trial Court, therefore, are being disposed of through this common judgment.
4. Briefly stated facts arising out of the instant appeals and murder reference are that FIR No.184 of 2006 (Ex.P/8A-A), dated 28.07.2006 was lodged on the report of complainant, Ghulam Nabi son of Akhtar Muhammad, with Police Station, Saddar, Quetta, under Sections 302, 324, 147, 148, 149, P.P.C., with the averments that on the fateful day, he along with his sons Zahoor Ahmed, Munir Ahmed, Shabbir Ahmed and Mir Ahmed were present at their residence. At approximately 02:30 p.m. there was a knock on the main door, prompting him to step outside, where he encountered the accused individuals: Changaiz, Bilal Ahmed, Sikandar, Taimoor, Fazal, Imran Gul and 5-6 unidentified accomplices. The accused inquired about his sons and proceeded to assault him. As a result, a commotion ensued and his sons emerged from the house, subsequently, the accused launched an attack using sticks and firearms, leading to bullet injuries sustained by Zahoor Ahmed, Munir Aimed, Shabir Ahmed and Mir Ahmed. Tragically, Zahoor Ahmed and Munir Ahmed succumbed to their injures. The underlying cause of the incident stemmed from a recent dispute, as the sons of complainant had forbidden the accused individuals from visiting the residence of Ameer Badsha and from loitering in front of their house on the street, consequently, the FIR was lodged.
5. After registration of FIR, investigation was conducted and challan of the case was submitted before the trial Court.
6. A formal charge was framed and read over to the accused persons, to which they pleaded not guilty and claimed trial.
7. To substantiate the charge against the accused persons, the prosecution produced and examined the following witnesses: PW-1, Shabbir Ahmed, the eye-witness of the case.
PW-2, Bilal Ahmed, is also the eye-witness of the case.
PW-3, Ghulam Muhammad, is the other eye-witness of the case.
PW-4, Ghulam Rasool, is the circumstantial witness of the occurrence.
PW-3A, Murad Khan, IP, is the witness of recovery memo, produced recovery memo, of bloodstained clothes of deceased Zahoor and Munir Ahmed as Ex. P/3-A, whereas, sealed parcels Nos.5 and 6 as Art.P/1 and Art.P/2, bloodstained paint shirt as Art.P/3, seal samples as Art.P/4 and Art.P/5, bloodstained shalwar kameez as Art.P/6, respectively.
PW-4A Dr. Ali Mardan, is the Police Surgeon, BMC, Hospital, Quetta, who produced MLC of injured Shabbir Ahmed as Ex.P/4-A, MLC of injured Mir Ahmed as Ex.P/4-B, death certificate of Zahoor Ahmed as Ex.P/4-C and death certificate of Munk Ahmed as Ex.P/4-D, respectively.
PW-6A, Shabbir Hussain, Inspector, is the witness of disclosure memo. and produced disclosure memo of accused Changaiz Khan as Ex.P/6-A and pointation of place of occurrence as Ex.P/6-B, respectively.
PW-7A Muhammad Ali, is also the eye-witness of the incident.
PW-8A Muhammad Rasheed, IP, is the first Investigating Officer of the case, who produced FIR, Inquest reports, site sketch, FSL reports and incomplete challan Nos.165/2006 and 165-A/2006 as Ex.P/8-A-A to Ex.P/8-AG, respectively.
PW-8 Abid Gohram, SI, is the second Investigating Officer, who produced supplementary challan bearing No.165-B/2006, incomplete challan bearing Nos. 165-C/2006 and 165-D/2006 as Ex.P/8-A to Ex.P/8-C, respectively.
PW-9-A, Mustafa Hussain, SI, is the last Investigating Officer, who produced incomplete challan as Ex.P/9-A.
8. After completion of evidence from the prosecution side, the appellants were examined under Section 342, Cr.P.C., wherein, they once again denied the prosecution allegations and claimed innocence. However, neither their opted to record their statements under Section 340(2), Cr.P.C. nor produced any witness in their defence.
9. On conclusion of evidence from both sides and after hearing arguments, the trial Court convicted and sentenced the appellants, as mentioned in para supra.
10. Learned counsel for the appellants inter alia contended that the impugned judgment of the trial Court is contrary to law and facts; that there are procedural irregularities in the prosecution's case; that there is considerable delay in recording witnesses statements under Section 161, Cr.P.C.; that there are contradictions in the testimony of prosecution witnesses, which makes the case of prosecution doubtful; that the trial Court has not considered the evidence in its true perspective and undue weight has been given to the prosecution version; that the impugned judgment is based on surmises, thus, liable to be set aside. Lastly, in alternative stated that the appellants do not deserve capital punishment, as the prosecution has failed to establish the alleged motive.
11. On the contrary, learned APG duly assisted by the learned counsel for the complainant opposed the contention of the learned counsel for the appellants and contended that the FIR was lodged promptly; that the testimony of eye-witnesses proved a coherent and consistent account of the alleged offence; that the impugned judgment has been passed after proper appreciation of evidence, hence is sound and well reasoned.
12. We have carefully considered the respective contentions put forth by the parties counsel in the light of evidence available on record.
13. The story narrated by complainant that after brutal attack upon him, his two sons lost their lives and two other sons were seriously injured. Record reflects that the conduct so adopted by the complainant is unnatural, as, as per PW-1 and PW-2, the injured and deceased were shifted to hospital by the inhabitants of the area, which shows that the complainant remained in his house, he neither shifted the injured and deceased to hospital, nor informed the Police, rather, his natural aid immediate conduct would have been to go to rescue the lives of his sons or to inform the Police. As per contents of FIR, the alleged incident occurred at about 02:10 p.m., whereas, the present case was registered at about 04:10 p.m. despite the fact that the Police Station is away only 3 kilometers from the place of occurrence. Delay of 1 hour and 40 minutes in reporting the matter to the Police adversely affected the veracity of complainant.
14. It is worthwhile to mention here that complainant Ghulam Nabi son of Akhtar Muhammad was not examined during course of trial due to his natural death. Now the case of prosecution hinges upon the statements of PW-1 Shabbir Ahmed, PW-2 Bilal Ahmed and PW-7 Muhammad Ali. The PW- 1 Shabbir Ahmed, was also injured in the incident. It is interesting to note that both the eye- witnesses i.e. PW-1 Shabbir Ahmed and PW-2 Bilal Ahmed were present at the place of alleged incident, whereby, the PW-1 was injured, while PW-2 Bilal Ahmed shifted the injured and deceased persons to hospital and meet the Police officials, but the statements under Section 161, Cr.P.C. of these witnesses were recorded by the Police with the delay of about 8/10 days. This fact was also admitted by the PW-2 Bilal Ahmed, PW-3 Ghulam Muhammad and PW-7 Muhammad Ali. The Hon'ble Supreme Court of Pakistan as well as this Court has time and again ruled that recording of statements of the witnesses under Section 161, Cr.P.C. at belated stage' cause serious doubts on the version of prosecution.Reference may be made to the case of "Muhammad Khan v. Moula Bakhsh and another", 1998 SCMR 570, wherein, the it has been held by the Hon'ble Supreme Court of Pakistan that: "It is settled law that the credibility of witness is looked with serious suspicion, if his statement under Section 161; Cr.P.C. is recorded with delay without affording any plausible explanation."
In the case in hand, no plausible explanation was rendered by the prosecution as to why the statements of star witnesses were recorded after such delay. The record further reveals that the Investigating Officer, met all the witnesses in hospital after the occurrence and thereafter the witnesses were present in Quetta, but at such time he did not bother to record the statements of the witnesses to avoid latches. PW-1 Shabbir Ahmed is the star witness of prosecution for the reason that he was injured in the alleged occurrence. Record reflects that during investigation, his statement under Section 161, Cr.P.C. was not recorded by the Investigating Officer and this fact was also admitted by the PW7-1 Shabbir Ahmed in reply to question No.1 that during investigation his statement under Section 161, Cr.P.C. was not recorded. It is well settled that evidence of witness whose statement has not been recorded during the investigation, is not worth of reliance. We may refer here the cases reported in 1996 MLD 1311 and 1995 PCr.LJ 248.
15. As far as disclosure of appellant Changaiz Khan is concerned, it is of least importance when the place of alleged occurrence was in the knowledge of Investigating Officer prior to the said disclosure. Even otherwise, it is well established principle of Criminal Jurisprudence that the disclosure is weak type of evidence and it must receive strong corroboration from the other reliable evidence. It is settled law that if after disclosure new facts not come on record, the same has not to be considered.
16. Apart from above, the eye-witnesses have also not assigned role of firing to appellants Sikandar and Taimoor (appellants in Criminal Appeal No. 156 of 2024). They only stated that the above named appellants along with the other appellants came there and opened fire upon deceased.as well as injured persons. No specific role was attributed to appellants Sikandar and Taimoor, but the trial Court convicted the appellants under Section 149, P.P.C., which is otherwise not established by the prosecution. At this juncture, to better understand the language of the Section ibid, it would be relevant to reproduce the same, which states that: "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence."
The learned trial Court has discussed the common object of unlawful assembly in para No.30 of the impugned judgment, wherein, mainly the principle governing constructive liability of the appellants have been discussed, but no discussion was made that on what ground the murders of deceased persons was an organized commission of the crime by the appellants. The learned trial Court has also not clarified in the light of evidence that whether the appellants had come to the house of deceased after a pre-concert between them or they had formed their common intention tor the murders at spur of the moment. Criminal intention of an accused or pre-concert or prearrangement of several accused cannot be proved through direct evidence and surrounding circumstances in each case. The prosecution badly failed to prove the common intention of the appellants.
17. Another important limb of instant case is that the prosecution has also failed to exhibit the written application of complainant. As stated above, the complainant of the instant case died during trial, but as per deposition PW-8 Muhammad Raked, IP, the Investigating Officer of the case, who stated that he reduced into writing the fard-e-bayan of complainant. The prosecution too failed to exhibit the fard-e-bayan, which makes the prosecution case doubtful. As per prosecution's version the Investigating Officer inspected the site on the alleged day of occurrence and taken into possession bloodstained earth, one empty of TT pistol through recovery memos in the presence of witnesses. We are strange to note here that neither the recovery memo. of bloodstained earth, nor the recovery memo. of empty of TT pistol was brought on record during the trial. The prosecution also failed to explain as to why both the recovery memos were not produced during the trial. The record further transpires that prior to the arrest of appellants, accused namely Ameer Badsha was arrested and challenged. After full-fledged trial he was acquitted of the charge and his acquittal was challenged before this Court, hut the same was dismissed. The judgment of this Court was not challenged until now. During previous round, the witnesses Munir Ahmed (injured) and Shah Nawaz were produced before the trial Court, but after arrest of the appellants, both the above named witnesses were not produced by the prosecution Specific question was put to PW-1 and PW-2 that both the witnesses are reluctant to depose against the appellants, though such suggestion was denied, however, it was stated that due to bad mental conditions, both the witnesses are not produced. The prosecution failed to produce any single document which could prove the stance of both the PWs. It is well established that whenever a party withholds the best evidence available, it is presumed under Article 129(g) of the Qanun-e-Shahadat Order, 1984, that if such evidence had been produced, it would not have supported the stance of that party. Reliance in this respect is placed to the case titled as "Muhammad Ijaz alias Billa and another v. The State and others" 2024 SCMR 1507.
18. In the instant case, there also appear major contradictions, which cannot be ignored. The PW-1 and PW-2 stated that after the occurrence their father stayed at home while on the contrary the medical certificates Ex.P/4-A to Ex.P/4-D reflect that the injured and deceased were taken to hospital and identified by Ghulam Nabi, the complainant of the case. Furthermore, the site map Ex.P/11-D also contradicts the testimony of private PWs, because the prosecution version is that the alleged occurrence occurred in front of house of complainant, while as per site map Ex.P/11-D, the occurrence took place 60/70 paces away from the house of complainant. Furthermore, PW-8, IP.
Muhammad Rasheed, the Investigating Officer of the case in reply to question No, 15 admitted that no occurrence took place in front of the house of the complainant.
19. It is cardinal principle of criminal jurisprudence that the prosecution must prove its case beyond a reasonable doubt and it is not for the accused to disprove the case against him who may take any and as many defences as he likes to the allegations against him as the onus rests on the prosecution to prove its case beyond a reasonable doubt, as held in the case of "Muhammad Shah v. The State", 2010 SCMR 1009, and if at any point there raise doubts in the prosecution case, the benefit of the same must go to the accused As was held in the case of "Tariq Perveez v. The State" 1995 SCMR 1345, that "even if there is a single 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". Such principle was reiterated by the Hon'ble Supreme Court in the case of "Abdul Jabbar v. The State" 2019 SCMR 129.
For what has been discussed above, we have reached the undisputed conclusion that prosecution has failed to prove its case against the appellants, therefore, the instant Criminal Appeals Nos.153 and 156 of 2024 are allowed, the impugned judgment dated 13.05.2024 of the trial Court is set aside and the appellants Changaiz Khan son of Taj Muhammad, Taimoor Khan, Sikandar Khan both sons of Shah Muhammad, Fazal Muhammad son of Mir Shah Dad Khan and Bilal Ahmed son of Niaz Muhammad, are acquitted of the charge in case FIR No.184 of 2006, of Police Station, Saddar, Quetta. They are in custody, shall be set at liberty, if not required in any other case. Resultantly, the Murder Reference No.04 of 2024 is answered in negative.