1. ' IFTIKHAR MUHAMMAD CH., J.--- Succinctly the facts of prosecution case are that on 27th June, 1993, absconding accused namely Ramzan, picked up a quarrel with a minor girl aged about 4/5 years Mst. Shazia, cousin of complainant Muhammad Ishaque in Killi Ismail, when she was playing with his Tanga on account of which, he abused the minor. In the meanwhile complainant also reached there and enquired the reasons of abusing the minor. On this, exchange of hot words took place between them. Upon this, residents of Mohallah intervened. But reportedly later on, at about 1-00 p.m. Appellants Faqir Muhammad, Pir Jan, Muhammad Ramzan son of Babrik alongwith absconding accused Muhammad Ramzan son of Abdul Khalique attacked upon Balach Khan, father of complainant as well as complainant Muhammad Ishaque, at Mission Road, Quetta, with Danda/iron bar, where former used to sell Lassi (diluted curd), on account of which they sustained injuries. However, they were brought to Killi Ismial by P.W. Khair Bakhsh and Muhammad Zaman in a Suzuki. On that day, no report was lodged at the police station. It is stated that due to injuries on skull, condition of Balach Khan, became serious during night time, therefore, initially he was removed to Muhammad Ali Hospital, from where, he was shifted to Civil Hospital, Quetta, and at that time i,e, on 28th June, 1993, a case was got registered under section 337-A, D.F., P.P.C. Against accused persons, at the complaint of Muhammad Ishaque. On 6th July, 1993, injured Balach Khan succumbed to the injuries, as such, accused were also charged for murder under section 302, P.P.C.
2. During investigation of case, on 14th June, 1994, appellant Muhammad Ramzan was arrested. On 18th November, 1994, appellant Faqir Muhammad was arrested and on 23rd January, 1995, appellant Pir Jan was arrested. Since accused could not be arrested immediately after commission of offence, as they succeeded in making their escape good, therefore, no incriminating articles used in crime were recovered from their possession. However, remaining formalities were completed and thereafter challan was forwarded against them before the competent Court of law, from where, it came for disposal, on the file of Additional Sessions Judge- III, Quetta.
3. ' Appellant Muhammad Ramzan, Faqir Muhammad (Faqir Hussain) and Pir Muhammad, denied the charge framed on 20th December, 1994 and 3rd April, 1995, respectively, and claimed trial.
4. ' Prosecution to establish the guilt examined P.W. Dr. Muhammad Amin Mengal on 8th November, 1994. Thereafter, on the arrest of Faqir Muhammad, this witness was recalled for purpose of cross- examination and on affording the opportunity of cross-examination, his statement was completed on 4th April, 1995, without recording fresh examination-in-chief. He produced medical certificate Exh.P.1/A. P.Ws. Karim Bakhsh and Muhammad Zaman were examined on 4th and 19th April, 1995, respectively whereas P.Ws. Muhammad Yakub, Nazir Ahmad and Muhammad Jamil were examined on 3rd May and 21st June, 1995, respectively.
5. ' Appellants were examined under section 342, Cr.P.C. Wherein they denied the prosecution case.
6. However, neither they opt to make statement on oath nor produced anyone in defence.
7. ' The trial Court vide judgment, dated 31st July, 1995, acquitted the appellants. As such complainant Muhammad Ishaque filed Criminal Acquittal Appeal No,179 of 1995 before this Court, which was accepted on 21st January, 1996, whereby the case was remanded to trial Court for rewriting the judgment. Accordingly vide impugned judgment, dated 31st October, 1996, appellants were found guilty for offence under section 302/34, P.P.C. And each of them has been sentenced to suffer life imprisonment with fine of Rs,20,000 and in default in payment of fine to further suffer S.I. For one year. As such, appellants Pir Jan and Faqir Muhammad have filed Criminal Appeal No,256 of 1996, whereas Muhammad Ramzan, has filed Criminal Appeal No,262 of 1996, challenging the impugned order.
8. ' As in both the appeals, common order has been assailed, therefore, we intend to dispose of them jointly, by this judgment.
9. ' Mr. Amanullah Kanrani, Advocate appeared on behalf of appellants Pir Jan and Faqir Muhammad, whereas Chaudhry Rafique Ahmad, Advocate, represented convict Muhammad Ramzan. Mrs. Ashraf Abbas, Advocate appeared on behalf of State.
10. ' Learned counsel for appellants contended as under:--
(a) There is unexplained delay in lodging the F.I.R., therefore, it has rendered the case of prosecution doubtful;
(b) The incident had not been witnessed by anybody including complainant Muhammad Ishaque, witnesses Karim Bakhsh as well as Muhammad Zaman, because their testimony suffers from material contradictions as well as unexplained delay in recording their statements, besides they were also interested witnesses;
(c) Medical and ocular evidence contradicts each others; and
(d) The prosecution has concealed the actual facts as well as the manner in which the incident had taken place, which cast serious doubt on the case of prosecution.
11. ' Mrs. Ashraf Abbas, learned State Counsel, repudiated the contentions of appellants' counsel and contended;
(a) The delay in lodging the F.I.R. Has not been explained because initially complainant party had no mind to lodge the report, as they wanted to settle the dispute tribally but later on when the condition of deceased Balach Khan became serious, then they took him to Civil Hospital, where authorities refused to provide him treatment, as such, they got registered the case;
(b) The contradictions in ocular testimony of witnesses being pointed out are not material in nature, because it had not changed the intrinsic value of their evidence. Inasmuch as the Police'
12. Officer, who recorded statements of witnesses, was not allowed opportunity to explain the reasons, on account of which, he could not record their statements, promptly;
(c) There is no contradiction in ocular and medical evidence; and
(d) The correct picture has been brought on record and nothing has been concealed from the Court, regarding the manner, in which, the crime was committed.
13. ' We have heard the parties counsel at length and also carefully perused the record of case.
14. ' It is an admitted position that incident of causing injuries to deceased Balach Khan took place on 27th June, 1993, around 1-00 p.m. Whereas matter was reported to the police on following day i,e, 28th June, 1993, when deceased was taken to Civil Hospital, for purpose of treatment. Undoubtedly there is delay of about 24 hours in lodging the F.I.R., for which, P.W. Muhammad Ishaque, had offered explanation during cross-examination, by deposing that "we did not consult without relatives for any attack upon the accused party or lodgment of report. Our elders said that do not attack upon the accused party and to report the matter to the police. Takri Murad Bakhsh and Karim Dad were the elders who advised me to report the matter to police, but they did not advise me to nominate the accused persons present in the Court but they said whoever had been seen by me be implicated". From this version of complainant it reveals that after the incident he consulted to one Takri Murad Bakhsh and Karim Dad, who are the elders of their family, who advised him to lodge the report. As such, on following day, the report was lodged, in which, four persons were nominated as accused for the commission of offence namely appellants and absconding accused Muhammad Ramzan. In the report he had also named to the eyewitnesses Karim Bakhsh and Muhammad Zaman.
15. ' In criminal cases, the object of lodging First Information Report is to put the machinery of law into motion for the purpose of initiating action against the culprits, therefore, it is always emphasized that without any amount of delay, information should be placed before the concerned agency with promptitude. If there is delay and that plausibly could be explained, then the conduct of complainant is not considered doubtful in involving the accused persons in commission of offence, but if there is no convincing reason mentioned in the F.I.R. Or subsequently put forth during trial, it becomes the duty of Court ceased with the matter, to examine the case of prosecution cautiously in order to obliviate the chance of false implication of any person in the crime. In this behalf the Honourable Supreme Court in the case of Mst. Shamim Akhtar v. Faiz Akhtar and 2 others PLD 1992 SC 211, had held that delay in lodging the F.I.R. Per se was no ground to disbelieve the prosecution witnesses. Intrinsic worth of the statements of witnesses is to be considered. In another judgment delivered in case of Mehmood Ahmad and 3 others v. The State and another 1995 SCM R 127 the Honorable Supreme Court has held that delay of 2 hours in lodging the F.I.R. In particular circumstances of case had assumed great significance, as the same can be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of accused open for roping and such persons whom ultimately prosecution might wish to implicate. It was further held that non-explanation of delay in making the report to police coupled .With improvements and contradictions made by eye-witnesses in their statements, has rendered their testimony doubtful and unreliable, which did not inspire confidence.
16. In view of the circumstances of instant case, we do not find ourself satisfied with the explanation putforth by complainant in lodging the F.I.R. With I delay. It is noteworthy that through evidence of complainant, it has come on record that complainant did not go to report the matter to police station at that time, therefore, injured was taken to Civil Hospital. It may be noted that Balach Khan, deceased was attacked upon at Mission Chowk, which is a thorough fare, where he used to sell Lassi (Diluted Curd) for the last about 15 years and in the area other shops are also situated, but neither complainant nor his father had a friendship with any one of the shopkeeper. Surprisingly note amongst the shopkeepers or public informed to Quaidabad Police Station about the incident, in whose jurisdiction fight had taken place, during broad daylight around 1-00 p.m. The time which the complainant himself has stated in Fard-e-Biyan.
17. ' It is also essential to examine, whether complainant himself was present at the place of incident or not. As per his statement he was also beaten up by Faqir Muhammad with Danda. His this version has been supported by other witnesses namely Karim Baldish and Muhammad Zaman as well. Inasmuch as it is stated that he became unconscious and later on was shifted in a Suzuki to his home in Killi Ismail. The factum of becoming unconscious suggests that he too had received injury on vital part of his body i,e, head. But there is no medical evidence to prove any injury on his head. It is not known as to why he did not received medical treatment and if he can admit his father in hospital during night time, why he did not examine himself from the doctor. Non- production of medical certificate of complainant creates doubt about his presence at the place of incident.
18. ' This situation leads us to determine; whether other witnesses namely Karim Bakhsh and Muhammad Zaman had also seen the incident or not. It may be noted that both of them are resident of Killi Almo and Killo Shabo, Quetta, both villages situated sufficiently away from Mission Chowk, where incident took place. We failet, to understand that how two persons who are residing in different villages came to Killi Isma il where complainant and his father were residing and came across with women-folk of the family of complainant who told them that accused persons had gone to kill Balach Khan, therefore, they hired a Rickshaw and rushed towards Mission Chowk. It is also significant to note that if the version narrated by complainant in F.I.R., concerning earlier incident which took place at 9-00 a.m. Before the fight between appellants and Balach Khan, is believed, still question arises that as for as Balach Khan is concerned there was no altercation between him and Faqir Hussain, because and it was the complainant who enquired from Muhammad Ramzan, as to why he is abusing to Mst. Shazia minor cousin of complainant, therefore, instead of settling the account with complainant, why they would choose to go to Bazar for purpose of attacking Balach Khan is a highly thickly populated area with a clear risk of being apprehended either by public or police. Be that as it may, Karim Bakhsh stated that when he and Muhammad Zaman reached at Mission Chowk and when they were getting down from Rickshaw, they saw four persons, who after attacking Balach Khan were running away. It would mean that on having completed their task they have left the place of incident. In same breath, this witness says that meanwhile son of Balach Khan namely Ishaque also reached there, who was also attacked with Danda by Faqir Muhammad and he fell down. It would mean that they again came back and gave Danda blow to Ishaque. The witness has not stated that on which part of his body, Danda blow was given by appellant Faqir Muhammad. Interestingly complainant Muhammad Ishaque stated that he became unconscious because he was attacked on his head, but according to Karim Bakhsh they had not removed him in a Suzuki to his house, as they took along with them only to Balach Khan and after leaving him at his home, they left for their homes. The witness has not disclosed the particulars of ladies, who informed them that accused persons had gone to Bazar to kill Balach Khan nor he has stated that from a village where good number of people including neighbourers are living, why they picked up to both of them only, simply for the reason that they were their elders. In cross-examination he admitted that they reached at Mission Chowk about ten to 2-00 p.m. Or 2-00 whereas as per the statement of complainant, the incident had taken place at 1-00 p.m. Then where was the occasion for the witness to see the incident. The presence of this witness also becomes doubtful, because in cross-examination, he stated that when he along with other witnesses reached at the place of occurrence, Balach Khan deceased was lying on the ground, whereas in his police statement, he stated that he was lying unconscious. He also stated that Ishaque, the son of Balach Khan, reached at the place of occurrence after them. It would mean that if his statement is believed that he went to the place of incident at about 2-00 p.m. Then Ishaque had also reached by that time, when incident had already taken place. The witness had further admitted in cross-examination that he himself had not seen accused persons attacking the deceased neither Zaman had seen them while deceased was attacked by them.
19. ' P.W.3 Zaman deposed that on receiving information from women-folk that persons have gone to attacked Balach Khan, they went to Almo Chowk by running and took a Rickshaw and reached Mission Chowk, where they saw deceased Balach Khan, who was in an injured condition. This sentence of his evidence suggest that before his reaching at the place of incident, deceased was already injured, whereas P.W.2 Karim Bakhsh stated that when they got down from Rickshaw accused after attacking the deceased were running away. This witness has not stated about the presence of accused when they reached there. He further stated that Ishaque also reached there after them and asked as to who attacked his father, but he was also attacked with a Danda by accused Faqir Muhammad and on this he fell down. This witness except taking the name of Faqir Muhammad has not shown the presence of other accused persons. He further deposed that they had taken both deceased Balach Khan and complainant Ishaque to their home and then they went to their home. Whereas former witness has stated that they only taken Balach Khan in Suzuki.
20. Surprisingly without saying that appellants attacked Balach Khan, the witness identified to them to be the persons who attacked deceased Balach Khan. In cross-examination, he stated that they met the women-folk who told them to go to Bazar for informing Balach Khan at about 1-20 p.m.
21. And they hired a Rickshaw from Almo Chowk at about 1-25 p.m. And reached Mission Chowk within ten minutes. In cross-examination he categorically admitted that he had not seen anyone else besides the injured Balach Khan, who was lying on the ground. He also affirmed that Ishaque reached at the place of occurrence after one or two minutes of their reaching.
22. ' The evidence furnished by this witness contradicts not only to the statement of P.W. Karim Bakhsh, but also to that of complainant. Therefore, the evidence furnished by them is not consistent nor confidence inspiring.
23. It is a cardinal principle of criminal administration of justice that c whenever there is contradictory evidence which suffers from material discrepancies, it is not to be believed for the purpose of sustaining conviction. In forming this view, we are fortified within the judgments reported in 1992 SCM R 545, 1993 SCM R 1602, 1994 SCM R 94 and 1995 SCM R 1735.
24. ' It is also an admitted fact that both the eye-witnesses got recorded their D statements with police after five days of incident, for which, no explanation has been offered by prosecution. In this behalf the Honorable Supreme Court in the case reported in 1993 SCM R 550, had held that if delay in recording statement of a witness is not explained satisfactorily by prosecution, it is not safe to place reliance on it. Therefore, in view of such principle of law, we have thoroughly gone through the evidence of Investigating Officer P.W. Muhammad Yakub, who had not stated a single word about non-recording the statements of witnesses promptly after the registration of case.
25. ' Mr. Amanullah Kanrani, learned counsel argued that all the prosecution witnesses were highly interested, because they belong to the tribe of complainant, as such, without independent corroboration, their testimony is not worthy of reliance. To substantiate his plea he placed reliance on 1996 SCM R 308.
26. P.W. Ishaque in his cross-examination, categorically admitted that Muhammad Zaman is maternal-cousin of his father, whereas Karim Bakhsh is also his relative. There is no hard and fast rule to disbelieve the statement of an interested witness. But for safe administration of justice, the Court is required to conduct close scrutiny of the evidence of such person and should also look forward for independent corroboration. Unfortunately in the case in hand, besides the contradictions and discrepancies which have been noted in evidence of both the eye-witnesses, viz-a-viz the complainant, there is no independent corroboration in support of their statement.
27. Thus, on this score as well, it is not safe to place reliance on their deposition.
28. ' It is also important to note that prosecution has failed to produce original medical record, relating to injury sustained by deceased Balach Khan. The record indicates that initially he was attended by Dr. Taj Muhammad Raisani, therefore, the prosecution was bound to produce him. Similarly the doctor who operated him being the Neuro Surgeon was also not produced. As far as Dr. Muhammad Amin Mental is concerned, he exhibited Medical Certificate (Exh.P./1-A), which was prepared by the doctor, who attended the patient on 28-6-1993, therefore, this witness had no knowledge about the injuries noted by the doctor in certificate. Thus, due to Jack of proper medical evidence, it is not ascertainable, whether cause of death of appellant was the injury which he sustained on the first day or some other development had taken place during process of operation, because the injured died after about 8/9 days of incident, during course whereof he was operated upon by Neuro Surgeon.
29. ' There is also another important aspect of the case relating to motive for commission of offence by appellant. Although motive is always known to the accused who commits the crime, but the attending circumstances leads the Court to draw inference that how crime has been committed.
30. Therefore, whenever a motive is set up in prosecution story, it becomes its duty to establish it. In the instant case, P.W. Ishaque had introduced motive concerning earlier altercation between him and Faqir Muhammad, due to the reason that minor cousin of complainant was playing with his Tanga on which, he abused her and on this they both entered into an altercation, but during trial neither minor cousin was produced nor any other person knowing about this fact was produced to complete the chain of evidence, which led finally in commission of offence. Therefore, from this angle as -well, if the prosecution case is viewed no other inference can be drawn, except that the prosecution has failed to bring on record, the true facts which led to the incident.
31. ' The overall discussion suggest us to believe that both the sides had withheld the real facts of the case as well as the manner in which, the offence was committed. However, we are confident that the story putforth by the prosecution does not fit in the circumstances of case. Actually the crime has been committed in a different manner. Therefore, we are convinced to hold that appellants have made out a case for their acquittal.
32. ' Thus, for the foregoing reasons, appeals are allowed. Impugned order, dated 31-10-1996, passed by Additional Sessions Judge-III, Quetta, is set aside and appellants are acquitted of the charge.
33. They be set at liberty, if not wanted in any other case.