' JAWAID NAWAZ KHAN GANDAPUR, J.--- Accused Mehbubur Rehman son of Amin Daraz resident of Lawagharohi Khel, Tehsil and District Karak was put on trial in the Court of Sessions Judge, Karak for having committed an offence punishable under section 302/34, P.P.C.
2. The allegations against the accused facing trial are that he, alongwith his co-accused Mahmood son of Muhammad Rahim (since acquitted by the then Sessions Judge, Karak, Mr. Abdul Jabbar Khan, vide his judgment, dated 5-5-1992), while armed with deadly weapons and in furtherance of their common object intentionally caused the death of Sardar Badshah son of Abdul Badshah by firing at him with a shotgun on 1-12-1988 at "Peshin Qaza Vela" at a place called "Dawara" situated at a distance of about 8/9 miles from Police Station Sabir Abad, District Karak. The Sessions Judge, by his judgment recorded on 5-5-1992, found the appellant-accused guilty of killing Sardar Badshah. Accordingly he convicted him (the appellant-accused) under section 302, P.P.C. And sentenced him to imprisonment for life and also to pay a fine of Rs,20,000 or in default thereof to undergo further S.I. For a period of one year. The Sessions Judge further directed that compensation amounting to Rs,20,000 be paid to the legal heirs of the deceased under section 544-A, Cr.P.C. And that in default thereof the appellant-accused shall undergo further imprisonment for a period of 6 months. He however, extended the benefit of section 382-B, Cr.P.C.
To the appellant-accused. At the time of the announcement of the order the appellant-accused was on bail, therefore, he was taken into custody and sent to jail to serve his sentence as stated above.
2. To redress his grievance the convict-accused has now challenged the legality/vires of the conviction and sentence imposed upon him, by filing this appeal.
3. On the other hand, the complainant Mst. Bibi Zara (P.W.8) has filed Criminal Revision No,51 of 1992 (Mst. Bibi Zara v. Mehbubur Rehman and others) for the enhancement of the sentence awarded to the appellant-accused and has prayed that the punishment for imprisonment of life be enhanced to the normal sentence of death. She has also prayed that the amount of fine imposed as well as the compensation awarded be also increased.
4. Stated briefly the prosecution case can be enumerated as under:- ' That on 1-12-1988 Sardar Badshah deceased son of Abdul Badshah, alongwith his mother, complainant Mst. Bibi Zara (P.W.8) had gone to the shrine of Mandori situated in village Shawa Hindo Kash for offering his respects/regards. After having done so, while they were on their way to their village and had reached the place of occurrence, situated near Dawara Banda, at about "Peshin Qaza Vela", they saw accused Mahmood son of Abdur Rahim (since acquitted) and the appellant-accused, Mehbubur Rehman, sitting there. Both were variously armed.
' That at that time Sardar Badshah deceased was walking ahead of Mst. Bibi Zara (P.W.8) whereas she was following him at a distance of about few paces.
' That it was accused Mahmood (since acquitted) who opened the assault, in the first instance, and fired a shot at Sardar Badshah (deceased). The shot, however, did not prove effective. He was then, followed by Mehbubur Rehman accused-appellant who opened fire at the deceased which proved effective. That deceased was hit, injured/wounded and fell to the ground. Both the accused after the commission of the offence, decamped from the scene of occurrence.
(iv) That the complainant Mst. Bibi Zara (P.W.8) rushed towards her son and on reaching him found him dead. The occurrence is stated to have been witnessed by the complainant only. No one else was present there, on the spot at that time.
(v) That motive for the occurrence was alleged to be a petty matter i,e,, repayment of loan, which the appellant-accused (Mehbubur Rehman) had taken from the deceased.
(vi) That the report was lodged by the complainant, Mst. Zara (P.W.8), -mother of the deceased, vide F.I.R. No,89 (Exh.PA.) on the same day (1-12-1988) at about 23-15 hours in Police Station Sabir Abad which was recorded by S.H.O. Muhammad All Khan (P.W.9).
5. The S.H.O. Muhammad Ali Khan (P.W.9) after registering the case, read over the same, to the complainant and obtained her thumb-impression on the same in token of its being correct.
Thereafter, he initiated the investigations and prepared the injury-sheet (Exh.P.B.) and the inquest report (Exh.P.B./1) of the deceased. He, then, despatched the dead body of the deceased to the mortuary, under the escort of Constable Zahir Shah (P.W.4) and proceeded to the spot where the occurrence had taken place.
6. It was there that he, vide recovery memo. (Exh.P.W.4/1) took into his possession blood-stained earth. The site plan (Exh.P.C.) was also prepared by him. He recorded the statements of some of the P.Ws. The blood-stained shirt (Exh.P.2) of the deceased was taken into possession by the Investigating Officer (P.W.9) vide recovery memo. Exh.P.W.4/2) which was produced to him by Constable Zahir Shah (P.W.4). These blood-stained articles, were accordingly sent to the Chemical Examiner who submitted his report (Exh.P.W.9/1).
7. At the mortuary the autopsy, on the dead body of Sardar Badshah deceased (aged 28 years), was conducted by Dr. Abdur Rauf, Medical Officer, R.H.C., Sabir Abad on 2-12-1988 at 7-40 a.m. And he prepared the postmortem report (Exh.P.B./2) in this respect. On examination he found the following:-- External: ' The body was pale with normal stature.
' Clothes were blood-stained. Qamees contains holes which corresponded to the wounds. Post- mortem regidity was present and fully developed. Post-mortem staining present and fixed.
Injuries:
(1) An entry wound over the front of right shoulder 1-1/2" above the anterior and of right axillary pit.
The margins were inverted, size about 1/4" x 1/4" almost circular in shape.
(2) An exit wound on the right side of the back at the level of 12th thoracic vertebra. It is 1/2" to the right of with everted margin.
Internal: ' Entry wound is directed downward and to the left injuring subslavian vessels, right lung and liver.
Thorax. Walls, ribs and cartilages injured.
' Pleura injured, right lung injured, blood vessels injured. Abdomen. Diaphragm ruptured. Liver injured. Stomach, Normal containing semi-digested food.
8. According to him injuries caused by the bullet besides damaging the major blood vessels also damaged the right lung and liver, resulting in severe bleeding (from the vital organs), which caused the death of the deceased. According to him the probable time between injury and death was about one hour whereas the time between the death and post-mortem examination was about 12 to 18 hours. Since the doctor who had conducted the post-mortem examination had gone to Iran and was not available to appear as a prosecution witness in this case, therefore, the post- mortem examination report (Exh.P.B./2) was proved by Dr. Abdul Sattar (P.W.7) who is also a doctor and is posted at the same place and happens to be his real brother.
9. The Investigating Officer (P.W.9) was then transferred and as such handed over further investigations to his successor S.H.O. Haq Nawaz (P.W.2). Since both the accused were not traceable, therefore, he obtained search warrants and proclamation under section 87, Cr.P.C. In respect of the acquitted accused as well as the appellant-accused. All this yielded no result and proved ineffective.
10. After completing the investigation complete challan against the appellant-accused was submitted in the Court by S.H.O. Haq Nawaz (P.W.2).
11. It was however, on 21-9-1991 that the appellant-accused was produced by Qudratullah, an elder of the Illaqa, before S.H.O. Riazuddin (P.W.6) who arrested him. He (P.W.6) then examined him under section 161, Cr.P.C. And thereafter submitted a supplementary challan against him (the appellant- accused) in the Court.
12. At the trial the accused pleaded not guilty to the charge levelled against him and professed innocence. He stated that he was falsely charged for the commission of the offence because of bitter relationship which existed between the parties and thus claimed trial.
13. To establish its case the prosecution produced and examined as many as 9 witnesses, most of them mentioned above. The accused, it may be mentioned, did not produce any evidence in his defence.
14. In the main, reliance has been placed on the direct evidence of complainant Mst. Bibi Zara (P.W.8), the post-mortem report Exh.P.B./2 and the motive. Let us proceed to discuss these one by one. The ocular evidence is taken up in the first instance.
15. There is no denying of the fact that in the case in hand the eye-witness account is furnished only by the complainant Mst. Bibi Zara (P.W.8) who happens to be the mother of the deceased. As she is the only eye-witness, therefore, her evidence requires to be subjected to close and critical scrutiny/analysis.
16. It may be noted here that while lodging the F.I.R. The complainant Mst. Bibi Zara (P.W.8) had categorically stated:-{{URDU TEXT}}
17. On the other hand, when she was examined on oath, in the Court, as P.W.8, she made an improvement in her statement and stated:-- "After that the present accused Mehbub Khan fired at my son with which he was hit on his right side chest and shoulder, and fell to the ground. Both the accused then decamped from the spot."
(Print Book, page 23).
18. Again complainant Mst. Bibi Zara (P.W.8) had mentioned in the F.I.R. That at the time of the occurrence her son was going a few paces ahead of her. While in the witness-box, she changad her stance and stated that her son was going 15/20 paces ahead of her. This is again contradicted by the site plan (Exh.P.C.) wherein it has been mentioned that at the time of occurrence the deceased was at point No,1 whereas the complainant was following her son and was at point No,3.
The distance between point No,1 and 3, as given by the Investigating Officer who prepared the same, is 45 paces.
19. The complainant Mst. Bibi Zara (P.W.8) is also contradicted by the Medical evidence inasmuch as in the F.I.R. (Exh.PA.) she stated that the acquitted accused as well as the appellant-accused fired at his son while they were sitting. However, when she was examined as P.W. She did not utter a single word as to whether or not the acquitted accused/appellant-accused were sitting or were standing when they resorted to firing at her son. The assertion of the complainant is reproduced which is to the following effect:-- "In the meanwhile I saw accused Mehmood the acquitted accused and Mehboob the present accused both armed with Topaks. Accused Mehmood (acquitted accused) fired the first shot, but my son was not hit. After that the present accused Mehboob Khan fired at my son with which he was hit on his right side chest and shoulder and fell to the ground. Both the accused then decamped from the spot."
20. On the other hand, when the doctor was examined he stated that there was an entry wound over the front of right shoulder 1-1/2" above the anterior end of right exhilary pit whereas there was an exit wound on the right side of the back at the level of 12th thoracic vertebra. He further went on to state that on internal examination he found that the entry wound is directed downward and to the left injuring subslavian vessels, right lung and liver.
21. From the above version of facts it is, therefore, crystal clear that when the accused fired the effective shot at the deceased he was on higher pedestal than the deceased.
22. This conflicts/contradictions between the report lodged by the complainant Mst. Bibi Zara (P.W.8), her ocular testimony, the site plan and the medical evidence is irreconcilable and has shattered the very veracity of the ocular testimony of the complainant which has become highly doubtful. Besides, the story narrated by her in the witness-box is also not confidence inspiring. In her cross-examination she admitted that the house of Matashin Mian, the father-in-law of the deceased, is situated on the way to the shrine of Mandori. She also admitted to have gone to his house, alongwith her son (deceased) while on their way back and had taken meal there. She also admitted that the house of the father-in-law of the deceased is situated at a distance of about 2- 1/2 miles from the place where the occurrence took place and her son (the deceased) was killed. It is in her evidence that after the death of the deceased she did not opt to go to the house of the father-in-law of the deceased and to inform him about the incident. Instead, according to her, she chose to go to another village by the name of Malik Din Banda where she met 20/25 persons including the female and the children. It was there that she narrated the incident of her son's death to them. According to her, out of those 20/25 persons, a few persons went to her village (Sabir Abad) to inform her relatives/co-villagers. She further stated that a cot was brought to the spot at about 10-00 p.m. By her co-villagers, 20/25 in numbers, from village Sabir Abad. According to her, her co-villagers had brought two pick-ups and one car alongwith them. She, however, admitted that her own relatives had not come to the scene of occurrence alongwith those persons. When asked to disclose the name of those 20/25 persons, who had brought the cot from the village, she (P.W.8) expressed her ignorance about the same. She went on to state that the village people of Sabir Abad, mentioned above, had accompanied her and the dead body of the deceased to the police station from the spot. However, in the next breath, she stated:- "At the time of report no one was present with her. My report was recorded inside the police station the dead body was also present inside the police station."
23. According to her, the dead body of her son was then removed from the police station to the hospital and that she had accompanied the same. She further stated that on the following morning she' had accompanied the Investigating Officer (P.W.9) to the spot from the hospital. She, however, refuted the suggestion that she was not present on the spot, had not seen the occurrence and had falsely charged the accused due to She further refuted the suggestion that the dead body of the deceased was found by the people of village Malik Din Banda who had brought the same to her house, situated in Sabir Abad, and that she, after consultation with her relatives, had lodged the report against the appellant-accused.
24. A close scrutiny of the statement of the complainant, the alleged sole eye-witness, would reveal that she had stated that she had accompanied the dead body to the mortuary and that it was from there that she had gone to the spot alongwith the Investigating Officer (P.W.9). We are afraid that this contention of the complainant (P.W.8) is not correct because when S.H.O. Muhammad All Khan (P.W.9) was examined on oath, he, in his examinationin-chief, stated that after preparing the injury-sheet (Exh.P.B.) and the inquest report (Exh.P.B./2) he despatched the dead body to the mortuary under the escort of Constable Zahir Shah (P.W.4) and that thereafter he straightaway proceeded to the spot. The complainant (P.W.8) therefore, stands contradicted by the S.H.O. (P.W.9) on this score. Again in his cross-examination, the Investigating Officer (P.W.9) stated that the dead body of the deceased was brought by 6/8 persons to the police station. As against this the complainant (P.W.8) had stated, as mentioned above, that 20/25 persons had accompanied her to the police station. Thus, there is again a clear contrgdiction between the statements of these two material P.Ws. Even on this point. It may be noted that according to the complainant, her villager, 20/25 in numbers, had brought two Datsuns and one car to the scene of occurrence and took the dead body of her son to the police station. As against this the Investigating Officer (P.W.9), in his cross-examination, stated that the dead body was brought in a pick-up to the police station and that there was no other vehicle. He was certain because he had himself seen only one pick-up. The Investigating Officer (P.W.9) stated that after despatching the dead body to the mortuary he proceeded to the spot in the pick-up. Since the pick-up had broken down at village Shangi Banda, therefore, he had to remain in the said village for the night. According to him the complainant had accompanied him from the police station, in the said Datsun. He further stated that when the Datsun broke down at village Shangi Banda the complainant went away with her two relatives, to her village and then came back in the morning and met him in the said village. The above- mentioned desposition of the Investigating Officer (P.W.9), recorded on oath, again contradicts the complainant's version who stated that she had accompanied the dead body to the hospital and that it was from the hospital that she had gone with the Investigating Officer (P.W.9) to the place where the occurrence took place.
25. There is yet another aspect in this case which cannot be lost sight of. The Investigating Officer (P.W.9) had at all bothered to verify the fact as to whether or not the complainant had, in fact, gone to the shrine in question alongwith her son on the eventful day. He also failed to have contacted Mathashin Mian, the father-in-law of the deceased, and to ascertain from him as to whether or not, on their way back, the complainant and her son had visited his house and had taken their meals with him. The Investigating Officer (P.W.9) admitted that the fatlfer-inlaw of the deceased did not contact him regarding this case. According to him when he contacted the other relatives of the deceased they expressed their ignorance about the alleged motive for the occurrence. He admitted that he was informed about the motive in question by the friends of the deceased who were, however, not ready to give any statement in this respect. The Investigating Officer (P.W.9) further stated that after completion of the investigation he had come to the conclusion that the appellant-accused as well as the deceased were of "bad character". He admitted that the people hailing from the nearby villages, when contacted, had shown their ignorance about the occurrence in question. He also admitted that the complainant (P.W.8) had never informed him that immediately after the occurrence she had gone to village Malik Din Banda and had narrated the incident to the villagers there. He further stated that it was for this reason that he did not make any inquiry from the people of village Malik Din Banda.
26. It is a well-settled principle of law that anything which goes in favour of the accused must be taken into consideration and benefit of the same, if any, be extended to him not as a matter of grace but as a matter of right. The damaging admission, coming as it does from the mouth of the prosecution's own witness, cannot be legally/easily brushed aside keeping in view the rule stated above. If the contradictions between the statements of the complainant (P.W.8) and the Investigating Officer (P.W.9) are taken into consideration, as it should be, it not only demolishes the case as set up in the F.I.R. But also shatters the entire fabric of the testimony of the complainant (P.W.8). Thus, both the prosecution witnesses have contradicted each other on material points. This has introduced an element of uncertainty regarding the credibility of the complainant's version with regard to the manner in which the deceased was done to death. The question of sifting the grain from chaff, in the circumstances of the present case, does not arise because the ocular account given by the complainant (P.W.8) suffers from false implications of the acquitted accused.
It appears to us that the occurrence in question has taken place in a different context than the one alleged by the prosecution. The prosecution, no doubt sees only what is it prepared to see but in the present case the ocular version being inherently defective and false merits no consideration and is accordingly discarded.
27. Next we have to ascertain about the motive. It may be stated at the outset that even the motive for the commission of the offence, as mentioned in the F.I.R., has not been proved by cogent evidence during the trial. The motive relating to the return of the loan has not been disclosed with full details. It is not only vague but is also hazy. The prosecution, it may be mentioned, is not bound to set up a motive for the commission of an offence. The fact, however, remains that if any motive is advanced by the prosecution for the commission of the offence, then in that case, it becomes obligatory for the prosecution to prove that motive. Failure to do so would be fatal for the prosecution. In the instant case the motive set up in the F.I.R. As well as alleged by the complainant (P.W.8) stands unproved. This fact has further weakened the prosecution case.
28. Needless to mention that in criminal case the burden of proving its case rest entirely on the prosecution. The prosecution is duty bound to prove the case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with prosecution case and in the final analysis if the defence plea is proved or accepted then the prosecution case would stand discredited. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case then in that case it would be enough but it may be mentioned here, that in case it is not established at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond reasonable doubt would not diminish even if the defence plea is not proved or is found to be false. Reliance may be placed on case Ashiq Hussain v. The State reported in 1993 SCM R 417. Similarly it was held in Hakim Ali and others v. The State reported as 1971 SCM R 432 that in criminal trial the onus always lies on the prosecution to prove its case and the prosecution has to succeed on the strength of its own case and not on the weakness of the defence.
29. For the foregoing reasons, we are of the view that the prosecution has not been able to prove its case against the appellant-accused beyond reasonable doubt and, therefore, we accept this appeal, set aside the conviction and sentence of the appellant-accused and acquit him. He shall be released forthwith if not required in any other case.
30. Since the appeal has been accepted, therefore, the revision petition for the enhancement of the sentence has become infructuous and is hereby dismissed.