Abher Gul Khan. Through this revision petition, petitioner has challenged the vires of judgment dated 23.04.2014 passed by learned Magistrate Section.30, Jaranwala whereby he, on culmination of trial in case F.I.R.No.10/2013 of police station Lundianwala, District Faisalabad, was convicted and sentenced as under:- Under section 324 PPC To undergo rigorous imprisonment for seven years with fine of Rs.50,000/- and in case of non-payment of fine to further undergo simple imprisonment for two months Under section 337F(vi) PPC To undergo five years rigorous imprisonment as Tazir and to pay daman amount of Rs.200,000/- Benefit of section 382-B Cr.P.C. was extended to the petitioner.
2. The petitioner preferred an appeal against the judgment dated 23.04.2014 passed by the Learned Judicial Magistrate Section. 30 which was finally decided by the learned Additional Sessions Judge, Jaranwala who vide judgment dated 26.06.2014 dismissed the appeal of the petitioner and upheld the conviction and sentence awarded to him.
3. Arguments heard and record perused.
4. Precisely the facts giving rise to the criminal case as narrated in complaint Exh.PA are that Shah Muhammad-complainant got lodged FIR alleging therein that on 14.01.2013 at about 01.00 p.m. he along with his son Falak Sher was on way back to the house from Haveli whereas his brother Bahawal and Sultan were behind them and when they reached near the house of accused they got waylaid along with the wall of their house and Anwar accused raised lalkara and Abdul Rashid accused made straight fire with his pistol which didn't hit to anybody while shot fired by Javed was also missed. Imran made a straight fireshot from his pistol which landed on the right shin of Falak Sher which went through and through. Upon hearing commotions witnesses attracted to the spot while accused decamped therefrom while brandishing their weapons
5. Perusal of record reveals that regarding the occurrence which took place on 14.01.2013 at about 01.00 p.m., F.I.R. was got registered on 15.01.2013 at 06.20 p.m. It is noted that the distance between the place of occurrence and Police Station Landianwala is of 03-kilometers. Therefore, immediately after the incident the matter could conveniently be reported to the police by the complainant but no such effort was made in this regard. Even from the date of occurrence i.e. 14.01.2013 to 15.01.2013 neither complainant appeared before the investigating officer nor made any application for the registration of F.I.R. It is also not proved from record that investigating officer received any information about the occurrence from wireless or any source. I feel no hesitation in holding that the information regarding the incident was imparted to the police by the complainant after a considerable delay and that too after due consultation and deliberation. Thus, a cautious approach ought to be adopted by the Courts for evaluating the evidence. Reliance is placed upon the case reported as Muhammad Jahangir and another v. The State and others (2024 SCMR 1741), wherein the Supreme Court of Pakistan held as under: - "......perusal of record reveals that FIR was lodged after an unexplainable delay of 3 hours despite the fact that the distance of the police station from the place of occurrence was 5 km. The time of occurrence is around 05:00/05:30 pm and the matter is reported at 08:30 p.m. The complainant had a bike that he used to go to the police station. This delay has not been encountered through plausible explanation by the prosecution."
Another blatant lacuna in this case noticed is to the effect that witnesses did not record their statements immediately after the registration of F.I.R. which was registered on 15.01.2013 and as per statement of investigating officer the witnesses got recorded their statements on 20.01.2013 and prior to that they did not appear before him in proof of allegations leveled by the complainant. The injured got recorded his first statement on 31.01.2013 i.e. with the further delay of 11 days from the date of recording the statements of PWs and 15 days after the date of registration of F.I.R. for which no cogent explanation was offered by prosecution.
6. Similarly, it is also observed from record that medical examination of the injured was conducted by Dr. Qurban Ali (PW.8) and MLC is crystal clear of the fact that injured was produced for his medical examination at 08.10 p.m. and keeping in view the fact that Falak Sher (injured) allegedly received firearm injury at the hands of accused, who was in critical condition, then why complainant waited for long eight hours in getting the injured for his medical examination to the hospital. It is also crystal clear from record that though four accused were nominated in the occurrence, out of which accused namely Anwar, Abdul Rasheed & Javed were acquitted by the trial court and their acquittal order was not challenged by the complainant at any forum and only Imran (petitioner) was convicted on the basis of similar set of witnesses disbelieved to the extent of remaining accused. Under such circumstances, it would not be safe to hold him alone responsible for the commission of offence. Reference in this respect can be made to the case law reported as MUHAMMAD NAWAZ and another vs. The STATE and others (2024 SCMR 1731), wherein Hon'ble Supreme Court held as under ;- It was a fact that except the petitioner, rest of the accused were acquitted of the charge by the High Court and one of them by the Trial Court on the same set of evidence. Complainant has ascribed injuries jointly to all the accused and did not single out the petitioner. Under such circumstances, it would not be safe to hold him alone responsible for causing death of the deceased Likewise, though in his complaint (Exh.PA) Shah Murad (complainant) alleged that Imran (petitioner) inflicted a fire shot from his pistol which hit on the right shin of Falak Sher and went through and through, however, Dr. Asher while appearing as PW.4 admitted it as correct that "in his opinion, many metallic pieces were found in the area of injury. It may be a pieces of many bullets or pellets". The aforementioned statement of Dr. Asher (PW.4) was further corroborated by Dr. Qurban (PW.8). The relevant portion from his cross examination is reproduced below for reference sake:- It is correct that entry wound was in round shape. It is correct that there is a big difference in bullets and pallets. It is correct that pallets were of round shape and bullets are of lengthy shape.
The above-mentioned portion is crystal clear of the fact that the injury was not caused through a .30 bore pistol rather it would be caused through a different weapon containing cartridges and the aforementioned conflict between medical evidence and ocular testimony was so severe that it traveled to the roots of the matter and knocked the bottom of the prosecution's case against the accused. It is now a settled principle of law that variation in the medical and ocular account totally mars the case of the prosecution and if any reference is needed that can be made to the case reported as Abdul Jabbar and another v. The State (2019 SCMR 129) wherein the Supreme Court of Pakistan while dilating upon inconsistency between medical ocular evidence observed as under:- "It is the settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye-witnesses is not free from doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
7. There was admission on the part of Ramzan, S.I. (PW.7) that on the pointing of the complainant and witnesses, he got prepared unscaled site plan Exh.PE. If the presence of the accused is considered at point No.2 i.e. haveli, then it was not possible for the witnesses to witness the occurrence of receiving of firearm injury to Falak Sher (injured) who at the eventful time was shown to be present in the wheat crop. Un-scaled site plan also did not demonstrate the total distance between the accused and complainant's party and if witnesses were present at considerable distance from the place where injured received injuries by the hands of assailants and grown up wheat crop was intervening the places then witnesses' deposition with specification of roles of assailants qua inflicting firearm injuries was not believable because if accused were present in the haveli, then, in the presence of wheat crop, it was not possible for witnesses to see the incident with specification.
8. So far as recovery of .30 bore pistol is concerned, no doubt .30 bore pistol along with two live bullets was allegedly recovered at the time of arrest of the petitioner but there is no report of the Forensic Science Laboratory, that the weapon had matched with the crime empties because no crime empty was recovered from the place of occurrence which could be matched with the weapon recovered. Similarly, no blood stained earth was taken into possession to prove the place of occurrence, therefore, there was no incriminating recovery in the case available on record to connect the petitioner with the commission of offence and recovery has become inconsequential in circumstances. Reference in this regard is made to the case law cited as RAJAB ALI VERSUS The STATE and others (2025 YLR 493) wherein this Court held as under;- I observe that recovery of weapon of offence is always considered to be the corroboratory evidence and no conviction could be sustained on the evidence of recovery alone, and while observing earlier, the ocular account, furnished by the prosecution has been doubted and disbelieved, so, the evidence of recovery of weapon of offence, hardly advances the case of the prosecution in any manner.
9. The epitome of above discussion is to the effect that the case in hand is arising out of a crime report which was registered with unexplained delay, the ocular account was disbelieved to the extent of similarly placed co-accused and there is a conflict between ocular account and medical evidence. From such aspects, a reasonable doubt emerges, the benefit of which cannot be withheld from the petitioner. In these circumstances, it does not appear safe to uphold the conviction of petitioner. Resultantly, while allowing Criminal Revision No.91 of 2015 , the conviction and sentence of Muhammad Imran (petitioners) awarded by learned Judicial Magistrate Section.30 Jaranwala and further affirmed by Additional Sessions Judge, Jaranwala vide judgment dated 26.06.2014 is set aside and the petitioner is acquitted of the charge. He is on bail and his surety stands discharged from liability.