' JAWAID NAWAZ KHAN GANDAPUR, J.--- Two real brothers, respondents Nos.1 and 2, namely, Hazrat Zaman and Ali Zaman have been charged for having killed Hukam Khan son of Mir Kabat Khan resident. Of Mohallah Sheikhanwala, Tehsil and District Tank, on 5-11-1989 at 8-15 a.m. By firing at him (deceased) with .12 bore shot-gun (single-barrel) and .12 bore pistol. Respondent No,3 Guldar Ali, father of respondents Nos.1 and 2, is charge for having hatched a 'conspiracy for the murder of Hukam Khan whereas respondent No,4 Gul Abbas son of Mirza Ali Khan has been charged to have raised a Lalkara and at the relevant time had directed respondents Nos.1 and 2 to kill the deceased.
It may be mentioned that respondent No,4 is the nephew of respondent No,3 and a first cousin of respondents Nos.1 and 2.
2. After completing the investigation a challan was submitted against the respondents acquitted accused. They were summoned and charge-sheeted by the Sessions Judge, on 8-6-1991 under section 302/109/34, P.P.C. All of them denied the charges levelled against them, professed innocence and claimed trial. In order to prove its case the prosecution examined as many as 12 witnesses. One of the witnesses F.C. Muhammad Ashraf (P.W.3) was examined twice i,e,, as P.W.7.
3. Stated briefly, the prosecution case, as disclosed at the trial, is that on the day of occurrence at about 8 a.m. Complainant Abdul Qayum (P. W.10) was proceeding to his school. When he reached near the shop of one Qasim Khan, his uncle Gul Shahzad (P.W.11), met him and accompanied him. It was at that time that the deceased (the father of the complainant) crossed them as he was going towards, his home. It has been alleged by the prosecution that the deceased, at the relevant time, was being followed by respondents Nos.1, 2 and 4 when all of a sudden respondent No,4 (Gul Abbas) raised a Lalkara and shouted at respondents Nos.1 and 2 to fire upon the deceased.
Respondent No,1, Hazrat Zaman, armed with a .12 bore shot-gun (S.B.) and respondent No,2, Ali Zaman, armed with a .12 bore pistol fired, one shot each, at the deceased. The deceased was hit and fell to the ground. All the three respondents (Nos.1, 2 and 4), mentioned above, then decamped from the scene of occurrence.
4. The complainant (P.W.10) and Gul Shahzad (P.W.11) attended the deceased (then injured) and put him in a Datsun, which was readily available in the Bazar, and rushed him to the hospital.
However, when they reached the hospital the injured, Hukam Khan, succumbed to his injuries and died. Complainant Abdul Qayyum (P.W.10) accordingly reported the matter to SubInspector/S.H.O.
Mohabat Khan (P.W.12) who reduced his report into writing in the form of a Murasila Exh.P.A./1 and sent the same to the Police Station, Tank for the registration of the case. On the basis of the Murasila, F.I.R. No,511 was registered under section 302/109/34, P.P.C. On the same day. P.W.12 then prepared the inquest report and the injury sheet and thereafter proceeded to arrest the accused.
5. According to the prosecution case the occurrence was witnessed by one F.C. Behram Khan (not cited as a P.W. Or produced as such) who, in the first instance, had informed I.H.C. No,198 Iqbal Hussain (P.W.6) about the occurrence in question. The said P.W.6 was present in the police station when he heard the report of fire shots as well as the hue and cry raised by the people and was thus attracted to the spot. F.C. Behram Khan informed P.W.6 that somebody had fired at Hukam Khan (deceased) who was injured and was taken to the hospital. Since the accused, who had allegedly fired on Hukam Khan, were running away from the scene of occurrence, therefore, P.W.6 started chasing them along with F.C. Behram Khan (not produced). According to him it was F.C. Behram Khan who fired three shots in the air so as to scare the accused. When the accused as well as F.C.
Behram Khan and P.W.6 reached the lands of one Alif Shah, A.S.I. Akbar Shah (not produced) and Sub-Inspector Allah Bakhsh (P.W.5) reached there along with the police personnel. Sub Inspector/S.H.O. Mohabat Khan (P.W.12) also, in the meantime, arrived at that place. The police party then encircled the accused and thus succeeded in arresting them. Respondent No,1 Hazrat Zaman was armed with .12 bore shot gun (S.B.) whereas respondent No,2 Ali Zaman was armed with .12 bore pistol. However, respondent No,4 (Gul Abbas) had no weapon on his person. After having arrested the three accused, mentioned above, the police party went to the scene of occurrence. Two empties (Ddi.P.1) and one pellet (Exh.P.2) were recovered from the scene of occurrence by the Investigating Officer (P.W.12) vide recovery memo. Exh.P.D. Similarly vide recovery memo. Exh.P.R./1, the Investigating Officer took into possession the blood-stained earth from the scene of occurrence. The site plan, Exh.P.B. Was also prepared by the Investigating Officer (P.W.12) at the instance of complainant Abdul Qayum (P.W.10). It may be mentioned that respondents Nos.1, 2 and 4 were arrested on 5-11-1989 whereas respondent No,3 (father of respondents Nos.1 and 2 and the uncle of respondent No,4) was arrested on 6-11-1989.
6. It was on 6-11-1989 that the blood-stained shirt and Shalwar (Exh.P.E.) of deceased Hukam Khan was sent to the Forensic Science Laboratory, Peshawar for chemical analysis. The report of the expert, in this behalf, is in the positive.
7. The autopsy, on the dead body of the deceased, was conducted by Dr. Misal Khan (P.W.4) who prepared post-mortem report (Exh.P.M.) alongwith pictorial. According to him the death was caused because of the injuries to the vital organs like right lung, liver, internal and external bleeding, leading to shock and subsequently death. The doctor opined that the injuries, which caused the death of the deceased, were inflicted by fire-arm.
8. After completing the investigation the challan was submitted in the Sessions Court, through the Assistant Commissioner, Tank for trial.
9. The Sessions Judge after framing the charge, recording the prosecution evidence, consisting of as many as 12 P.Ws. And recording the statements of accused under section 342, Cr.P.C. As well as under section 340(2), Cr.P.C. Came to the following conclusion:-- "The crux of my foregoing discussion is that the prosecution's case is full of doubts, lacunas, loop holes, conjectures and surmises and the benefit of doubt must go to the accused. Accordingly by extending the benefit of doubt to the accused, I acquit them of the charges levelled against them.
They being on bail, their bail bonds shall stand discharged. Case property be kept intact till the expiry of period of appeal/revision. "
10. The complainant, Abdul Qayum, it may be stated here, has not filed any appeal under section 417(2-A), Cr.P.C., as amended, to challenge the legality/validity of the judgment/order, dated 18-10- 1994 of the Sessions Judge vide which he has acquitted all the accused-respondents.. On the other hand, the State has filed the appeal in hand under section 417, Cr.P.C. And has challenged the legality and vires of the judgment/order of the Sessions Judge on the grounds that the same was contrary to law, facts and material on record and, therefore, not sustainable in the eye of law.
11. We have heard Mr. Ejaz Ahmad Khan, Assistant Advocate-General, D.I. Khan for the State and have had the advantage of going through the record of the case with some degree of case.
12. It may be stated at the very outset that the fate of the present case hinges mainly on the ocular testimony of complainant Abdul Qayum (P.W.10), son of the deceased, and Gul Shahzad (P.W.11) brother of the deceased. Since both of them are closely related to the deceased, therefore, their testimony has to be subjected to close examination and critical analysis.
13. The complainant, Abdul Qayum (P.W.10), to our mind, is not a truthful witness because while lodging the report at the hospital he had stated before the Investigating Officer that one Gul Zaman alias Bahaduri the son of respondent No,3 and the brother of respondents Nos.1 and 2, used to work with Gul Shahzad (P.W.11) in the shop of Wali Muhammad goldsmith 3/4 years back, at Tank. That Gul Zaman, being a drug addict, had taken some poisonous material as a result of which he died. That the accused, accordingly, suspected that it was Gul Shahzad (P.W.11) who had poisoned their son/brother to death. In other words, the complainant had stated in crystal clear words, before the Investigating Officer, that the accused party suspected Gul Shahzad (P.W.11) for having killed their son/brother (Gul Zaman alias Bahaduri). The report of the complainant (P.W.10) was recorded and duly reduced into writing in the form of Murasila (Exh.P.A./1) on the basis of which, the F.I.R. (Exh.P.A.) was registered in Police Station, Tank, Tehsil Tank, District Tank under section 302/149, P.P.C.
14. It may, however, be noted that when the complainant was examined on oath in the Court as P.W.10, he gave an absolutely different version in respect of the motive for the commission of the offence. He stated that the accused party suspected his father (Hukam Khan deceased) to have poisoned Gul Zaman alias Bahaduri. It appears to us that the complainant (Abdul Qayum) has made improvements in his Court statement and thus no reliance can be placed on his testimony.
14-A. We have also noted that at the time of occurrence the complainant, Abdul Qayum (P.W.10) was about 14/15 years of age whereas his uncle, Gul Shahzad (P.W.11), was an adult. If Gul Shahzad (P.W.11) was present at the time of occurrence, as has been alleged, and had attended the deceased when he was injured and had removed him to the hospital and thereafter gone to the scene of occurrence with the Investigating Officer then in that case what prompted him not to lodge the report against the respondents with the police at the hospital in the first instance instead of the complainant who was admittedly a minor boy at that time. The only inference, in our opinion, which can be drawn is that he (P.W.11) was not at all present on the scene of occurrence and that he had not seen the occurrence.
15. Two disinterested/independent witnesses, Abdur Rauf (P.W.8) and Muhammad Ayub (P.W.9), were produced by the prosecution in an effort to establish the prosecution case. However, it may be noted, that when these alleged eye-witnesses were examined as P.W.8 and P.W.9 respectively, they expressed their ignorance, about the involvement of the respondents with the commission of the offence with which they are charged.
16. Last but not the least, I.H.C. No,198 Iqbal Hussain (P.W.6) deposed before the trial Court that at the time of the occurrence he was present. In the police station, at about 8 a.m., on the fateful day, when he heard the report of the fire shots as well as the hue and cry raised by the people and therefore, rushed towards the scene of occurrence when Constable Behram Khan (not produced as P.W.), who was on duty at that time, informed him that somebody had fired at Hukam Khan and that the accused were trying to decamp from the scene of occurrence. He further stated that on the basis of the said information he, alongwith the said F.C. Behram Khan, chased the accused who were running towards Street No,3. They therefore, followed them. According to him it was F.C.
Behram Khan who had also opened serial firing and had fired three shots, that when they had reached the lands of one Alif Shah; while chasing the accused, A.S.I. Akbar Shah and A.S.I. Allah Bakhsh (P.W.5), alongwith police party, arrived there. He further stated that immediately thereafter Sub-Inspector Mohabat Khan (P.W.12) also reached the spot. Respondents Nos.1, 2 and 4 were accordingly encircled by the police party and were arrested. That a .12 bore shot-gun (S.B.) was recovered from the possession of respondent No,1 (Hazrat Zaman) whereas a .12 bore pistol was recovered from the possession of respondent No,2 (Ali Zaman). Respondent No,4 (Gul Abbas) was however, found empty-handed. We are at a loss as to why F.C. Behram, who, in the circumstances of the present case, was a very important/material witness, as he was allegedly present on duty at the scene of occurrence, was not produced- to support the presentation version. It is really strange that he was not even cited as a prosecution witness in the calendar/challan. The non-production of this important witness has cast serious doubts about the truthfulness of the prosecution story, especially with regard to the chasing/arrest of respondents Nos.1, 2 and 4 and the recovery of the weapons from their possession.
17. There is yet another aspect of the case and that is that the Investigating Officer had not sent the empties, allegedly recovered from the scene of occurrence, and the weapons used which were recovered from respondents Nos.1 and 2, to the Arms Expert so as to determine as to whether or not the shots were in fact fired from the .12 bore shot-gun, .12 bore pistol allegedly recovered from the possession of respondents Nos.1 and 2. This act of omission or commission on the part of the Investigating Officer (P.W.12) has further damaged the prosecution case. No explanation, whatsoever, has been furnished by the prosecution in this respect.
18. A close scrutiny of the prosecution evidence, especially that the A.S.I. Allah Bakhsh (P.W.5) and the Sub-Inspector Mohabat Khan (P.W.12) has, to our mind, created uncertainty with regard to the place where the occurrence had taken place. A.S.I. Allah Bakhsh (P.W.5) when examined stated before the trial Court that he had received a telephonic message from the Police Station, Tank to the following effect:-- "A murder has been committed near the Chowki and that the accused had decamped from the spot and therefore, we were directed to arrange a Nakabandi."
19. This contention of P.W.5 is fully corroborated by the evidence of Sub-Inspector Mohabat Khan (P.W.12) who, while in the witness-box, deposed as under:-- "I got the information that a murder has been committed near the police post and the accused have decamped and the injured has been taken to the hospital."
20. From the above deposition of the two P. Ws. It is clear that the occurrence took place near the Police Post (Chowki) City, Tank. This place is decidedly other than the place of occurrence as has been shown in the site plan E (Exh.P.B.), prepared by Investigating Officer (P.W.12) at the instance of complainant (P.W.10). This fact, too, has created some doubt in the credibility of the prosecution story.
21. Needless to mention that in criminal case the burden of proving its case rests 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 defense plea is taken by the accused. 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 defense.
22. Accordingly we are of the considered view that the prosecution has miserably failed to establish its case against the respondents-accused beyond reasonable doubt and that the respondents were rightly acquitted by the trial Court. The State appeal does not merit consideration and is dismissed in limine.