' TALAT QAYUM QURESHI, J.---This appeal is directed against judgment of learned Sessions Judge, Abbottabad, dated 8-1-1992 whereby the accused-respondent was acquitted of the charges under section 302/307, P.P.C.
2. Shah Haneef, complainant was offering Khuftan-prayer in the village Mosque. He heard fire shots when he was offering last 'rakat'. He rushed towards his house and found his son Zia Jee lying injured in the courtyard of the house who died subsequently. On inquiry he came to know that his son Zia Jee and Muhammad Haroon was sitting on the roof top of house of Kala Baba when from behind Akmal Khan alias Sullah opened fire with fire-arm which hit the deceased on the left side back below the shoulder. Akmal Khan was seen in process of decamping by Muhammad Humayun, the brother of Muhammad Haroon. The deceased in his dying declaration told Syed Sabat Nabi Shah the brother of complainant that he was shot by Akmal Khan. The motive for the occurrence was not known to the complainant.
3. Challan of the case was put into the Court. The accused did not confess his guilt and claimed trial. The prosecution in order to prove its case examined as many as 10 witnesses but could not prove its case beyond reasonable doubt, hence the accused was acquitted by the learned Sessions Judge.
4. Mr. Muhammad Ayub the learned A.A.-G. Argued that the learned Sessions Judge did not believe the confessional statement made by the accused. The deceased in his dying declaration before Syed Sabat Nabi Shah, P.W.5 has stated that he was shot by Akmal Khan. This piece of evidence was also not believed by the learned trial Court. The prosecution had produced sufficient evidence to bring home the charge but the evidence produced by the prosecution was discarded on family grounds. Haroon P.W.6 had charged the accused in his statement but his statement too was not taken into consideration. In short the prosecution evidence was not appreciated in its true perspective.
5. On the other hand, while repelling the arguments of the learned A.A.-G. Mr.Ghulam Younas, Advocate, the learned counsel representing the accused argued that the occurrence took place at 9 p.m. Whereas the report was lodged at 24-00 hours, although Sadiq Hussain S.H.O., P.W.10, stated that if the conveyance is available it takes 30 to 40 minutes to reach police station but still there was delay of three hours in lodging the report which was not explained. In fact the delay was caused due to deliberations and consultations. No motive was given in the F.I.R.
6. It was further argued that it was astonishing to note that Muhammad Haroon who was at the relevant time allegedly sitting with deceased and was all the way present with the deceased till lodging of report in Police Station did not tell the complainant that accused had fired at deceased with revolver and that was the reason that revolver was not mentioned in the F.I.R. Statement of Haroon under section 161 was also not recorded though as mentioned above he was present in Police Station at the time of lodging of the F.I.R. His statement has been shown to have been recorded next day at 9 aim. Which shows that Haroon was not present at the spot at the time of occurrence and had not seen the occurrence.
7. It was further argued that medical evidence does not support the case of prosecution is that it was impossible to cover 180 feet in injured condition and to give dying declaration. No trail of blood was found from the place where the deceased was hit and where he fell down near the Mosque.
The house of Kala Baba was unoccupied and there was no light through which the accused could be identified. The occurrence was in fact unseen and accused could not be identified.
8. The learned counsel also argued that the confession of the accused was not voluntary and it was extracted after 8 days. It has no value in the eyes of law. The recovery/discovery of the crime weapon was also doubtful. It was made after 8 days of occurrence. Abdul Majeed A.S.I. (P.W. 1) stated that recovery on the potation of accused was affected between 9 a.m. To 10 p.m. Whereas Anwar Shah, P.W.3 stated that recovery was affected at asar vela'. Moreover, no independent witness from locality was associated at the time of discovery/ recovery. It was also argued that the case of the prosecution is full of doubts and infirmities; therefore, the learned Sessions Judge has rightly acquitted the accused.
9. We have heard the learned counsel for the parties and perused the record.
10. We do not feel ourselves persuaded to interfere with the findings of the learned Sessions Judge with regard to the acquittal of the accused for the reasons; firstly, there is delay of 3 hours in lodging the F.I.R. The occurrence allegedly took place at 9 p.m. Whereas the report was lodged at 24-00 hours. Sadiq Hussain, S.H.O., P.W.10 who investigated the case in his statement recorded before the Court admitted that if conveyance is available it takes 30 to 40 minutes to reach the Police Station but in this case no explanation for delay of 3 hours was given by the prosecution. The delay in lodging the F.I.R. Was due to consultations and deliberations. The delay in lodging the F.I.R has totally destroyed the prosecution case. Reliance is placed on "Abdul Hamid v. The State" PLD 1980 Peshawar 25.
11. Secondly, the occurrence is stated to have taken place at the roof of the house of Kala Baba in which nobody was living during the days of occurrence. There was no light on the roof top of the house. The occurrence took place at 9 p.m. The accused is alleged to be identified in the moon light from distance of 25 feet. The accused has been stated to have emerged from behind. It is un- understandable as to how he was identified in moonlight from 25 feet and now the weapon of offence could be identified as revolver from a distance. Although the Investigating Officer has stated that there existed a light bulb but the same was not referred in site plan Exh. P.W.10/3. So, the identity of the accused as well as the weapon of offence is doubtful and cannot be safely relied upon.
12. Thirdly, the weapon of offence was not mentioned in the F.I.R. Muhammad Haroon was allegedly sitting on the roof top with the deceased at the relevant time. Had he seen the accused armed with revolver he would have narrated this fact to the complainant and the use of revolver must have been mentioned in the F.I.R. The use of revolver, was not mentioned in the F.I.R. By the complainant, in column No,12 of inquest report Exh. P.W.10/2 "fire-arm" has been mentioned and revolver in particular has not been mentioned in the inquest report. Revolver was introduced at a later stage in order to support the case of prosecution. It is worth mentioning that no empty was found from the spot. So, the possibility cannot be ruled out that the revolver was introduced at later stage to fill up the lacuna of the prosecution case. The introduction of revolver at subsequent stage creates doubt in the prosecution case.
13. Fourthly, the occurrence as mentioned above, is stated to have taken place at the roof top of the house of Kala Baba. Neither any blood was found on the spot nor any empty was found from the place of occurrence nor any trail of blood from point No,1 to point No,5 where deceased fell down was found. It is astonishing to note that no blood was found from point No,5 where the injured fell down and where he allegedly made dying declaration before his uncle Syed Sabat Nabi Shah.
Injury sheet Exh. P.W.10/1 shows that blood was oozing out of the wound. Likewise in column No,10 of inquest report Exh. P.W.10/2 blood is mentioned to be running at the time when the dead body was examined by Investigating Officer. Column No,11 of the inquest report also shows that .Blood was this and not clotted. The post-mortem examination report Exh. P.W.11/1 on internal examination shows:- "Thorax walls, ribs and cartilages injured, pleurae injured. Trachea injured. Right lung and left lung injured. Pericardium and heart injured, blood vessels ruptured in the thoracic cavity."
14. Fifthly, the site plan Exh. P.W.10/3 does not support the case of prosecution fully. The injured had been shown to have fallen at point No,5 in front of the Mosque. His pair of chaplet was allegedly recovered from point No, 5 vide recovery memo. Exh.P.W.1/2. Point No,5 was not the spot of occurrence. The chapples which were not identified to be the chapples of Zia See, the deceased, were shown to have been recovered from point No,5. Although Investigating Officer had stated that a bulb was lit near the place of occurrence but in the site plan no point has been indicated showing where the bulb was lit at the relevant time. It is in the F.I.R. That Shah Haneef while offering last rakat of Khuftan prayers heard report of fire shots and simultaneously therewith heard the noise from the direction of his own house but the actual place of occurrence is quite opposite in direction from the house of the complainant. This also creates sufficient doubts.
15. Moreover, the discovery of the weapon of offence is also doubtful. Such discovery was made after 8 days of arrest of accused from the limits at village Batala from the bushes in dry well. A. 32 bore revolver with two empties was recovered. Anwar Shah P.W.3 is the witness to the recovery of the revolver. He stated that the discovery was made at asar wella' whereas Abdul Majeed, A.S.I.
Admits of having reached the spot of discovery at 9. p.m. He stated that the discovery was made from 9 a.m. To 9 p.m. There is nothing available on record to explain as to what police officials were doing for such a long time between 9 a.m. To 9 p.m. Abdul Majeed, A.S.I. P.W. Admits that the police had vehicles with them but Anwar Shah, P.W.3 stated that the police and no vehicle at all. Anwar Ali Shah, P.W.3 also admitted that he was not even on speaking terms with accused and his father. It is surprising to note as to why out of all people Anwar Shah was picked up as witness to the recovery, who was inimical towards the accused. So, it would not be safe to rely upon his evidence so far as discovery of crime weapon is concerned. Reliance is placed on "Muhammad Ashraf and two others v. The State" 1998 SCMR 279.
16. Sixthly, the medico-legal report also does not support the case of the prosecution. The case of the prosecution is that the deceased was hit at point No,1 wherefrom he reached point No,5 in running condition. Though no trail of blood is available from point No,1 to point No,5 but it is also not convincing that the injured could cover distance of 100 feet in injured condition. It is in the post- mortem examination report that his left lung was injured, right lung was also injured, pleurae, trachea injured, pericardium as well as heart was injured. Having such injuries it cannot be imagined as to how the deceased could run from such a long distance and could make dying declaration also. The post-mortem report belies the story of prosecution that the deceased in injured condition had run from point No,l. To point No,5 and then after falling down at point No,5 made dying declaration. The dying declaration allegedly made to Syed Sabat Nabi Shah (P.W.5) is also doubtful in the circumstances. The occurrence did not taken place in the manner put forward by the prosecution.
17. Seventhly, so far as the confessional statement Exh. P.w.9/3 made by the accused is concerned it was recorded on 14-6-1990, i,e,, after 8 days of his arrest as disclosed by Azizullah Khan Magistrate 1st Class (P.W.9). The stance of the prosecution is that the accused confessed his guilt because he was Hafiz-Qur'an and wanted to be truthful. First thing which touches our mind is that if the accused was truthful being Hafiz-Quran then why did he not on the very first day confessed his guilt and secondly this "truthful man" retracted the confession in his statement recorded under section 342, Cr.P.C. If the entire confessional statement is taken into consideration, it totally negatives the case of prosecution. In his alleged confessional statement he stated:--- "He had friendship with Haroon who told him that Zia Jee (deceased) had committed sodomy with Haroon on which he (accused) was annoyed. On 5-6-1990 in the night of Tuesday he along with Haroon went to the house" of Zia Jee at about 9 p.m. Haroon called Zia Jee on which Zia Jee came out of his house. On whom (Zia Jee) he (accused) fired three shots with his 30 bore pistol with which he was hit and fell on the ground. He decamped from the spot and afterwards police arrested him. Again stated that he went to Police Station at his own. During the police custody the police took him to a place known as Batala where police officials put a pistol in bushes and asked him to pick up the same and he was asked to make a statement that with the said pistol he had committed murder of Zia Jee, the weapon of offence with which he committed offence, he had thrown in a lake. The recovered pistol was not the same with which he had committed the offence."
18. The plain reading of the above statement shows that place of occurrence is not the house top of Kala Baba but the occurrence took place in front of the house of the deceased. Likewise the deceased did not run from point No,1 to point No, 5 and did not make any dying declaration before Syed Sabat Nabi Shah, the discovery of the weapon of offence has also been negated. So, the confessional statement of the accused would not help the prosecution case at all and it was rightly not taken into consideration by the learned Sessions Judge.
19. It is well-settled principle of law that in criminal cases the burden of proof rests upon the prosecution. It is for this reason that the prosecution is duty bound to prove its case against the accused beyond reasonable doubt and this duty does not change or vary even in case in which no I defence plea is taken by the accused. In Hakim Ali's case (1971 SCMR 432) it was held by their Lordships of the Hon'ble Supreme Court: "In the 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."
20. It, therefore, follows that anything which goes in favour of the accused must be taken into consideration and the benefit of the same, if any, be extended to him not as a matter of grace but as a matter of right. Reliance is placed on "Barat Ali v. The State" 1997 Monthly Law Digest, 1228.
21. Due to the abovementioned reasons we dismiss the appeal in hand.