1. TARIQ PERVEZ, J.---Appellant Inayatur Rehman s/o Muhammad Hayat aged 53/54 of village Lassan, Police Station, Nara, District Abbottabad is convicted and sentenced by the learned Sessions Judge Abbottabad vide judgment dated 3-5-1994 for committing the murder of Muhammad Riaz aged 25/26 son of Muhammad Ayub his co-villager. On conviction under section 302/34, P.P.C. he was sentenced to imprisonment for life with a fine of 10,000 and in default of payment of fine 2.years S.I. The fine if recovered was ordered to be paid as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased. He has been further convicted and sentenced under section 307/34, P.P.C. one year R.I. with a fine of Rs,1,000 and in default of payment of fine to undergo 2 months S.I. Benefit of section 382-B, Cr.P.C. has been extended to the appellant.
2. The said judgment of conviction and sentence has been assailed in this appeal. There is also a revision No.28 of 1994 for the enhancement of sentence of the appellant both under sections 302/34 and 307/34, P.P.C.
3. 2.The brief facts of the prosecution case were unfolded by Muhammad Imtiaz P.W.13 (first cousin of the deceased) in his report which was recorded on the spot in the shape of 'Murasila'. The occurrence has taken place at 1300 hours on 2-9-1990 and the report was made at 1530 hours on the same day. The contents of the F.I.R. are given below as given by the complainant.
4. I alongwith Muhammad Riaz alias Kala and Muhammad Shahzad sons of Muhammad Ayub cast Jugal, residents of village Lassan (cousins' of the complainant) had left our village for going to Rawalpindi. Having reached Lora Road near Baitkah Bari-amam which is a Bus stop, were waiting for the arrival of the Bus, that at 1300 hours a Suzuki pickup driven by Anwar Pir of village Jabri came there. Accused appellant Inayatur Rehman and Gul Muhammad alighted from the Suzuki both armed with .12 bore shot-gun. Suzuki left the spot. Inayatur Rehman fired a shot at Muhammad Riaz from some distance hitting him on the abdomen as a result of which Muhammad Riaz fell down. I and Muhammad Shehzad tried to catch-hold of Inayatur Rehman but Inayatur Rehman gave me butt blow on the head. Gul Muhammad came near Muhammad Riaz who had fallen down and fired a shot which again hit Muhammad Riaz on the abdomen. The deceased died on the spot. The accused decampe from the spot. The motive for the offence is that my mother had betrothed Mst. Fazak Jan (my sister) with Zaifur Rehman s/o Inayatur Rehman. The said engagement was not acceptable to the relatives of the complainant side therefore on 1-9-1990 Nikah of Mst. Fazak Jan was performed with Muhammad Riaz deceased.
5. 3.Altaf Hussain IHC (P.W.14) scribe of Murasila Exh.P.A./1, stated that on 2-9-1990 while he was proceeding to Masah Gojri on official duty, on Lora Road near Baithek Bari-Amam one Imtiaz met him and reported the occurrence. He recorded the report in the shape of Murasila (Exh.P.A./1) and sent the same to police station for registration of the case. After recording the report he has prepared injury sheet Exh.P.W. 6/6 of Imtiaz injured and inquest report and injury sheet of deceased Muhammad Riaz Exh.P.W.6/3 and Exh.P.W.6/4 respectively and despatched the dead body to the mortuary. He also prepared the site plan Exh.P.B. Vide recovery memo. Exh.P.W.5/1 during the spot inspection he took into possession blood-stained earth and pebbles. He has also prepared memo.
6. Exh.P.W.2/1 in respect of clothes of the deceased consisting of shirt P.1, 'Shalwar' P.2 both blood stained with corresponding cut marks and has also received bottle Exh.P.3 sent by the doctor.
4. Dr. Shafiq ur Rehman Medical Officer Incharge RHC Havelian on 2-9-1990 at 5.45. p.m. conducted autopsy on the dead body of Muhammad Riaz deceased and on external examination found the following:-- (1)An entry wound 1" x 1" placed on the medial side right buttock near the midline 2" above the ractum.
7. (2)Three exit wounds each 1/2" x 1/4" of an inch over an area of 2"x 1" on the lateral side of left buttock 2" below the left alliac crest. (Pellets recovered from this side).
8. (3)Three entry wounds each 1/4" x 1/4" of an inch over an area 2" x 2" on the lateral side right thigh, 8" below the anterior superior illiac spine.
9. (4)Multiple exit wound 11 in number over an area of 5" by 3" placed on the right side of abdomen 2" above the pubic symphysis and 1" from the umblicus.
10. (3 mettalic pieces recovered from this side. Total 7 mettalic pieces recovered from the dead body).
11. On internal examination abdomen walls, peritonium, Small and large intestines, Spinal card, blood vessels and thorax were found injured. The death in his opinion was due to injuries to vital organs with shock and haemorrhage. Duration between the death and post-mortem examination was 4 to 7 hours while the probable time that elapsed between injuries and death was half hour to one hour.
5. After the completion of investigation the case was sent up for trial to the Court of Sessions Judge Abbottabad where accused-appellant was charged along with his absconding co-accused on two counts one for causing death of Muhammad Riaz and the other for causing injuries on the person of Imtiaz complainant. The prosecution led the evidence by producing Malik Aman A.S.I.
12. (P.W.1) who on receipt of Murasila Exh.P.A./1 had registered the case in the police Station vide F.I.R.
13. Exh.P.W.1/1.
14. Muhammad Shafiq (P.W.2) is marginal witness of recovery memo. Exh.P.W.2/1 in respect of clothes of the deceased and pellets recovered from the dead body.
15. Muhammad Imtiaz F.C.(P.W.3) escorted the dead body of Muhammad Riaz deceased to the hospital.
16. Muhammad Shafi (P.W.4) is resident of village Lassan and is the identifier of the dead body.
17. Muhammad Zahoor (P.W.5) is a witness of recovery memo. Exh.P.W.5/1 prepared in respect of blood stained pebbles and blood recovered from the spot.
18. Maulvi Muhammad Ramzan (P.W.7) appeared in proof of performance of Nikah of Muhammad Riaz deceased with Mst. Fazak Jan on 1-9-1990.
19. The next witness namely, Ali Mardan (P.W.8) was present with the Investigating Officer and has signed memo. Exh.P.W.8/1 as marginal witness which memo. is in respect of taking into possession the passport of Inayatur Rehman appellant.
20. Muhammad Tazhar (P.W.9) has deposed about the pointation memo. Exh.P.W.9/1 prepared on the pointation of accused-appellant while in custody. Muhammad Fareed IHC (P.W.10) is also witness to the same memo. and also to memo. Exh.P.W.1/2 through which a shot-gun Exh.P.1 was taken into possession which was produced to the Investigating Officer by the accused while in custody after having led the police to his house.
21. Ch. Muhammad Asghar (P.W.11) is witness to memo. Exh.P.W.11/1 in respect of taking into possession Suzuki Pick up allegedly used in the crime.
22. Mian Javed S.I. (P.W.12) has submitted complete challan against the accused-appellant and the absconding co-accused on 7-10-1990. This witness also prepared the memos. Exhs.P.Ws.9/1 and 10/1 and 10/2 subject matter of which has already been given above.
23. Imtiaz the complainant appeared as P.W.13 and Iltaf Hussain (P.W.14) has conducted the investigation on the spot while Ghulam Mehdi S.I. (P.W.15) partially investigated the case and taken into possession the Suzuki. He has also obtained warrants under section 204, Cr.P.C. and later proclamation notice against the accused-appellant and the absconder. He has also filed challan under section 512, Cr.P.C.
24. The next witness of the prosecution is Jehanzeb (P.W.16). He was entrusted to execute warrants under section 204, Cr.P.C. and proclamation notices.
25. P.W.17 Muzaffar Khan S.I. has arrested accused-appellant Inayatur Rehman on 19-5-1992 at Islamabad Air port on his return from Saudi Arabia. The prosecution then closed its case and the trial Court examined Inayatur Rehman accused-appellant under section 342, Cr.P.C. and after hearing the parties passed the judgment impugned.
26. On 18-11-1996 this Court ordered that Muhammad Shehzad the second eye witness who was abandoned by the prosecution at the trial be examined as Court witness whose statement was accordingly recorded on 23-4-1997 by this Court whereafter additional questions were put to accused-appellant who was also present at the time of the recording of the statement of the C.W.
27. Muhammad Shahzad.
28. 6.Learned counsel appearing for the appellant argued that it is unwitnessed crime, there is delay in making the report, investigation is dishonest, the medical evidence totally belies the ocular account, the injuries on the person of Imtiaz are not a proof of truthfulness, motive though set up has not been proved, the abscondance, in the absence of cogent evidence cannot be treated as corroboration and also argued that the witnesses being closely related to the deceased with back ground of enmity their evidence requires close scrutiny. He also submitted that the report was made on the spot and possibility cannot be excluded that the investigation preceded the recording of the report. In support of his arguments in respect of dishonest investigation reliance was placed on 1975 PCr.LJ page 750. To support the arguments that F.I.R. was made on the spot and inference is to be drawn that the same was recorded after investigation PLD 1967 Peshawar page 169 and 1992 PCr.LJ page 110 were referred. About the injured witness reliance was placed on 1981 SCMR page 795 and PLD 1986 Peshawar page 188. To establish that when the ocular evidence is totally belied by medical evidnece and the accused is entitled to benefit of doubt reliance was placed on 1980 SCMR page 889, PLD 1978 Peshawar page 670, 1991 PCr.LJ 2188. To dislodge the corroborative evidence of abscondance reliance was placed on 1986 SCMR page 823 and PLD 1986 Peshawar pages 141 and 150.
29. 7.The learned counsel for the complainant submitted in support of judgment that the motive has gone unchallenged, that the delay has been explained by C.W. Muhammad Shehzad wherein he has stated that they waited for the arrival of vehicle. He also argued that wrong description of locale of injuries is not material for discrediting the complainant who himself is injured. He also argued that while under attack the capacity of observation is impaired. In this respect he relied on 1986 SCMR page 1027 (1031). He also referred to 1984 SCMR page 276 at page 281. He was of the view that the statement of Shehzad is convincing and is in conformity with medical evidence. He has gone to the extent that even if the statement of Imtiaz complainant is excluded the statement of Shehzad C.W. is sufficient for the conviction. He also argued that the witnesses are related to the deceased but have got no enmity to falsely charge the accused-appellant. Reliance was placed on 1985 SCMR page 625. In his view there was sufficient corroboration in the testimony of the witnesses and in this behalf referred to 1985 SCMR page 60 and 1995 MLD page 535. He also pressed into service the report of Chemical Examiner to be a piece of corroboration to the testimony of eye-witnesses as the blood was found to be human blood and so was the evidence in respect of blood recovered from the spot. Reliance was placed on PLJ 1985 Peshawar page 58.
30. 8.We have carefully gone through the evidence of prosecution including the statement of C.W.
31. Muhammad Shehzad and have heard the learned counsel for the parties.
32. 9.The case of the prosecution from the very beginning started with doubts. The occurrence allegedly took place at 1300 hours and report was made at 1530 hours, that too on the spot. This delay of 2-1/2 hours has not been explained, particularly when the complainant party was standing on a Bus stop meaning thereby that it was road frequented by vehicles. No attempt has been made by either of the two eye witnesses namely Imtiaz and Shehzad to proceed towards the police station for making the report.
33. 10.The two shots, one by the appellant and the other by the absconding accused Gul Muhammad, are stated to have landed on the abdomen of the deceased., whereas according to post-mortem examination report the deceased had one injury on his buttock while other on the lateral side of the right thigh which clearly belies the, very first version given in the report. P. W.13 the complainant has changed his version in his examination-in- C chief by saying that the shot fired by Inayatur Rehman hit the deceased on abdomen while that of Gul Muhammad absconding accused landed on his back. The same stand has been taken by Shehzad C.W. in his examination- in-chief as such there is glaring conflicts between the evidence of eye-witnesses and the doctor.
34. 11.According to P.W.13 at page 62 of the print book the police arrived after half an hour of the occurrence meaning thereby at 1.30 p.m. yet the time of report given is 15.30. P.W. Imtiaz stated that the deceased died instantaneously whereas C.W. Shehzad stated that he died after one hour of the receipt of injuries. In the site plan the two witnesses namely, Shehzad and Imtiaz have been shown at points Nos.5 and 6 respectively while deceased at point No. 1. According to C.W. Shehzad the deceased was standing with 'Shehzad' which is in contradiction with the position shown in the site plan.
35. 12.It is the case of the prosecution that the deceased and the witnesses had left their village for Rawalpindi. According to C.W. they left their village at 1230/1 p.m. and that place of occurrence is at a distance of one hour's walk meaning thereby that they would reach the spot at 1.30 or 2.00 p.m. which will make the time of occurrence doubtful. It is again in the statement of C.W. Shehzad that the accused arrived after about half hour of their arrival to the spot. All these timings when put together create doubts in the mind as to the time of occurrence and also about the time of report.
36. 13.There is another aspect of the case that according to C.W. Shehzad when they left their village they had not taken lunch. Two improbabilities follow from this statement one that if they were going to Rawalpindi they should have taken lunch while leaving their houses in the ordinary course and the second is that the doctor on internal examination found that the stomach of the deceased contained semi digested food.
37. 14.A reference is made to the statement of P.W.3 Imtiaz who has reached the spot alongwith the Investigating Officer at 3.00 p.m. He has denied to have accompanied the Investigating .Officer to RHC Havelian from the spot whereas according to Muhammad Shafiq (P.W.2) they had all left from the spot for hospital alongwith the dead body. In this context the statement of Investigating Officer (P.W.14) at page 66 of the print book disclosed that he has gone to the RHC Havelian after 2 hours from the spot. There is yet an unexplained phenomenon in this case i,e, according to the Investigating Officer namely P.W.14 report was made to him for unknown murder. Reference be made to page 66 of the print book to the cross-examination of this witness.
38. Mere fact that P.W. Imtiaz has sustained injuries which was only skin deep would not decisively prove his presence and even if his presence is assumed cannot be considered that what he stated was nothing but true.
39. 15.From the above discussion we are left with no doubt that the prosecution has miserably failed to prove their case against the accused-appellant. We accordingly accept this appeal and acquit him if not required in any other case.
40. 16.As we have accepted the appeal the revision would automatically fail.