Abher Gul Khan, J. Through this petition moved under Sections 435 & 439 Cr.P.C., Muhammad Iqbal & Muhammad Ahmed (petitioners) have called in question the legality and propriety of the judgment dated 28.10.2015 passed by learned Additional Sessions Judge, Chunian, whereby appeal filed by the petitioners against their conviction and sentence recorded by learned Magistrate Section-30, Chunian, in case FIR No.918/2009 registered under Sections 324,148 & 149 PPC at Police Station Chunian, was dismissed, thereby maintaining their conviction and sentence.
2. The petitioners were tried for allegedly causing injuries to Muhammad Shafiq (PW.3) and Muhammad Anwar (PW.4). After a full-dress trial, the learned trial Court vide judgment dated 30.11.2013 convicted and sentenced the petitioners as under:- (1).Muhammad Iqbal (petitioner)
Under Section 337-F(iii) PPC to suffer imprisonment for three years along with fine of Rs.100,000/- payable to injured Muhammad Shafique.
(2).Muhammad Ahmad (petitioner)
Under Section 337-F (i) PPC to suffer imprisonment for one year along with fine of Rs.100,000/-.
Benefit of Section 382-B, Cr.P.C. was extended to both the petitioners.
The afore-said conviction and sentence were upheld by learned Additional Sessions Judge, Chunian dismissing the petitioners' appeal, hence the instant criminal revision.
3. I have heard the petitioners who are present in person, learned counsel for the complainant well assisted by learned DDPP and perused the record.
4. Briefly stated the facts of the prosecution case as per contents of FIR (Exh.PB) are that on 07.12.2009 at about 1:30 p.m., Abdul Rauf complainant (PW.1) along with Muhammad Shafiq, Muhammad Anwar, Zia-ur-Rehman and Javed was present at his Dera. Suddenly, accused Iqbal armed with gun .12 bore, Pervaiz armed with pistol, Tahir armed with rifle, Zubair armed with rifle, Saleem armed with pistol, Ghani armed with pump action, Muhammad Ahmad armed with gun .12 bore and Sharif armed with gun .12 bore came there. While arriving, Iqbal raised Lalkara that the complainant-party be done to death for initiating litigation against him, upon which, the accused became infuriated and started firing shots with their respective weapons. Iqbal fired a shot from his gun which hit Muhammad Shafiq at his left shin. Muhammad Ahmad accused fired shot with his gun .12 bore which hit Muhammad Anwar on his left arm and the rest of the accused also continued indiscriminate firing. Additionally, the accused stole tape recorder and torch from the complainant's Dera. The motive behind the occurrence statedly was the litigation between complainant and accused Iqbal.
5. A careful analysis of the record unveils that the instant case is arising out of an incident having taken place on 07.12.2009 at about 1:30 p.m. at a place known as Behari Pur situated at a distance of 6-miles from Police Station Chunian. However, the information of crime was reported to police by Abdul Rauf complainant (PW.1) with the unexplained delay of four hours i.e. at 5:30 p.m. at the police station through submitting a written application (Exh.PA). Although Abdul Rauf (PW.1) tried to cover this delay by asserting that immediately after the occurrence both the injured were shifted to hospital for medical treatment and subsequent thereto the matter was reported to the police. Such stance of Abdul Rauf complainant (PW.1) stands belied from his own statement made before the Court as well as the testimony of Muhammad Anwar injured (PW.4). According to Abdul Rauf (PW.1) after the incident the police came at the spot and recorded the statements of the PWs. Likewise, Muhammad Anwar (PW.4) during cross-examination admitted unequivocally that after the occurrence the police arrived at the place of occurrence within 45-minutes of the incident and recorded his statement at the spot. From above, it can conveniently be concluded that information regarding the occurrence had already come in the knowledge of the police within 45-minutes of the incident and in such circumstances what refrained the complainant and the injured PWs to report the crime to the police is shrouded in mystery. The omission of the complainant and other PWs for non-reporting the crime at the spot also leads this Court to the conclusion that the time was consumed to concoct a false story so as to grill both the petitioners in this case. In this view of the matter, the delay of about four hours in lodging the FIR in the peculiar circumstances of the case is significant and persuades the Court to take a cautious approach while evaluating the prosecution evidence in arriving at a just decision. 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."
6. The prosecution in order to secure conviction against the petitioners mainly relied upon the statements of four eyewitnesses, namely Abdul Rauf (PW.1), Zia-ur-Rehman (PW.2), Muhammad Shafiq (PW.3) and Muhammad Anwar (PW.4), out of whom latter two allegedly received firearm injuries, the medical evidence furnished by Dr.Shaukat Ali (PW.6) and the motive set out in the FIR, however both the courts below have failed to appreciate the record as per law.
7. It is the case of the prosecution that during the occurrence Muhammad Shafiq (PW.3) and Muhammad Anwar (PW.4) received firearm injuries at the left shin and left arm due to the shots fired by Muhammad Iqbal and Muhammad Ahmad (petitioners). Needless to mention here that the receipt of grievous hurt by an eyewitness though is a factor which reflects positively an assumption of his presence at the spot but it is not a conclusive proof about the truth of his deposition. For handing down guilty verdict to an accused in such incident, the testimony of an injured eyewitness is still required to be tested on the touchstone of the principles laid down for the appraisal of evidence. To say that an injured witness seldom tells lie might be true in a case of single accused but is an overstatement when the number of assailants is more than one. It will wholly be unjust to raise the superstructure of conviction on the deposition of an injured witness, without subjecting it to strict test of scrutiny for adjudging his credibility. If any reference in this regard is needed that can be made to the case reported as Amin Ali v. The State (2011 SCMR 323) wherein the Supreme Court of Pakistan observed as under:- "Certainly, the presence of injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the person of P.Ws. would not stamp them truthful witnesses."
In another case reported as Nazir Ahmad v. Muhammad Iqbal and another (2011 SCMR 527), the Supreme Court of Pakistan while examining the case of an injured witness held as under:- "It is settled law that injuries of PWs are only indication of his presence at the spot but are not affirmative proof of his credibility and truth. See Said Ahmed's case (1981 SCMR 795) and Muhammad Pervez's case (2007 SCMR 670)."
In the aftermath of afore-discussion, it is noticed that Abdul Rauf complainant (PW.1) while lodging FIR (Exh.PB) mentioned that the shot fired by Muhammad Iqbal (petitioner) hit the left shin of Muhammad Shafiq. However, all the aforesaid four PWs while appearing before the trial court deposed that the firearm injury received by Muhammad Shafiq injured was on his left thigh.
Moreover, Abdul Rauf complainant (PW.1) in his examination-in-chief did not mention as to whose fire hit Muhammad Shafiq on his left shin and instead attributed Muhammad Ahmad (petitioner) the role of causing injury to Muhammad Shafiq on his left arm. Since this is an important aspect, hence a relevant portion of examination-in-chief of Abdul Rauf (PW.1) is mentioned hereunder:- "The accused fired with his gun 12 bore which hit Muhammad Shafiq on his left thigh. Accused Muhammad Ahmad fired with his gun 12 bore which hit Muhammad Shafiq on his left arm."
Abdul Rauf (PW.1) also nowhere mentioned in his statement before the Court that when the accused came at the spot he was sitting on some cot. Contrarily, Zia-ur-Rehman (PW.2), Muhammad Shafiq (PW.3) and Muhammad Anwar (PW.4) during cross-examination took the stance that they were sitting on the cots when they were attacked by the accused. Similarly, regarding the time when the PWs reached at the police they took divergent stances. According to Abdul Rauf (PW.1), they reached the police station at 4:00 p.m, whereas Zia-ur-Rehman (PW.2) took the stance that they reached the police station at 2:00 p.m. On the other hand, Muhammad Shafiq (PW.3) deposed that they reached the police station at 2:00/2:30 p.m. Muhammad Anwar (PW.4) while appearing before the trial court took the stance that they reached the police station at 3:30 p.m. All the afore-said four PWs while appearing before the trial court also mentioned different time of their reaching at the hospital. It was the stance of Abdul Rauf (PW.1) that they reached the hospital at 4:00/4:15 p.m. On the other hand, Ziaur-Rehman (PW.2) stated before the trial court that they arrived at the hospital at about 2:00/2:30 p.m. Similarly, Muhammad Shafiq (PW.3) and Muhammad Anwar (PW.4) who are the injured witnesses also deposed before the trial court that they reached the hospital at 3:30 p.m. and 2:45 p.m. respectively. It has further been noted by this Court that according to Abdul Rauf (PW.1) & Zia-ur-Rehman (PW.2) the accused came at the spot from Western side, whereas Muhammad Shafiq (PW.3) & Muhammad Anwar (PW.4) took the stance that the attackers arrived at the spot from Eastern side. This Court has also observed that after the receipt of injuries both the injured PWs would have received stains of blood on their clothes but the same were not secured during investigation. In this regard, Muhammad Anwar (PW.4) during cross-examination admitted that he did not produce the blood stained clothes before the police. Ashiq Hussain SI (PW.8) who investigated the case during cross-examination admitted that neither any crime empty was secured from spot inspection nor blood stained clothes were produced before him. Since this is an important aspect, hence relevant portion of the cross-examination of Ashiq Hussain (PW.8) is being reproduced hereunder:- "At the place of occurrence no empty was found neither the complainant has produced before me blood stained clothes."
Similarly, no blood stained earth was secured from the spot for which site plan was also prepared.
Thus, there is no corroborative piece of evidence on the record to establish that both the injured PWs received injuries at the place canvassed by the prosecution. In the light of the lacunas and omissions hinted at above, the testimonies of four eyewitnesses cannot be made basis for maintaining the conviction and sentence of the petitioners.
8. The medical evidence produced by Dr.Shaukat Ali (PW.6) is also of no help to the prosecution. I have minutely gone through the statement of Dr.Shaukat Ali (PW.6) and noticed that both injured, namely Muhammad Sahfiq and Muhammad Anwar were examined by him on 07.12.2009 at 4:00 p.m. & 5:00 p.m. respectively. The doctor on the statements of both the injured also mentioned the history of fight in MLCs (Exh.PC & Exh.PD) as two hours and three hours respectively before their medico legal examination. If the difference between medical examination and occurrence is considered, then the injured had sustained injuries at 2:00 p.m., which is not the case of prosecution. The doctor while making statement before the Court was also not sure that whether the injuries on both the injured were self-inflicted or not. In this regard a relevant portion of cross- examination of Dr. Shaukat Ali (PW.6) for advantage sake is reproduced hereunder:- "I cannot tell about the injuries whether they are self-inflicted or not."
9. The motive behind the incident canvassed by the prosecution was that Abdul Rauf complainant (PW.1) had initiated litigation against Muhammad Iqbal (petitioner). In this regard, I have observed that though all the four witnesses of ocular account have deposed that the incident occurred because the complainant had lodged a criminal case against Iqbal (petitioner), however the prosecution produced no documentary proof in support thereof. I have further noticed that the accused-side produced copy of FIR No.823/2009 (Exh.D-1), copy of suit for permanent injunction (Exh.D-2), copy of suit titled Fayya z Mehmood v. Iqbal (Exh.D-3), copy of suit titled Fayya z Mehmood v. Iqbal (Exh.D-5), copy of suit for specific performance titled Saddique v. Iqbal (Exh.D- 6) and copy of affidavit of injured (Exh.D-7). In this view of the matter, filing of three suits against Iqbal (petitioner) by the complainant-side can also be considered a factor for his false implication in the instant case. Needless to mention here that the motive on occasions provides corroboration to the case of prosecution and often becomes a root cause for the false implication of an accused and for this reason is always considered as a double-edged weapon. Guidance in this regard can be sought from the case reported as Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652), wherein the Supreme Court of Pakistan held as under:- "The motive is always a double-edged weapon. The complainant Sultan Ahmad (PW9) has admitted murder enmity between the parties and has also given details of the same in his statement recorded before the trial court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse."
10. Last but not the least, it is observed that Muhammad Anwar injured (PW.4) executed an affidavit before the learned Magistrate asserting therein that Muhammad Ahmad (petitioner) gave him proof of innocence and he is satisfied that Muhammad Ahmad has not injured him by firing shot and as such Muhammad Anwar showed no objection in acquitting the afore-said petitioner. The execution of affidavit by Muhammad Anwar injured (PW.4) further belies the case of prosecution.
Moreover during investigation no crime weapon was recovered from any of the petitioners which is also termed as a final nail in the coffin of the frail prosecution case.
11. In view of the foregoing discussion the learned courts below have erred in law while recording conviction of the petitioners. Consequently, the instant criminal revision is allowed. The impugned judgments passed by the learned trial court as well as appellate Court are set aside and the petitioners are acquitted of the charge levelled against them. They are on bail. Their sureties stand discharged.