FAZAL-UR-REHMAN, J.-Being aggrieved with the judgment dated 27-3-2000 passed by the learned Additional Sessions Judge, Sibi convicting the appellants for the offence under section 302(b), P.P.C. And sentencing them to imprisonment for life. The benefit of section 382-B, Cr.P.C. Was also extended to them. The appellants have filed this appeal under section 410, Cr.P.C. With the prayer that the judgment recorded against them be set aside.
2. The occurrence is stated to have taken place on 8-10-1998 at about 8-00 p.m. In Mouza Soomer Siraj Kot Ghulam Ali Tehsil Bhag. Complainant Safar (P.W.1) reported the incident to Tehsildar, Bhag vide report Exh.P/1-A and the same was incorporated in the F.I.R. Being Crime No,48 of 1998 Levies Thana Tehsil Bhag District Bolan under sections 337, A.D.F., 427, 147, 148 and 149, as many as 10 persons were nominated in the report . It was alleged that the accused persons caused hatchet injuries to Tota son of Miran Bakhsh when the accused persons were prohibited from cutting trees.
The injured was taken to Civil Hospital, Bhag where he was provided first aid and then referred to Civil Hospital, Dera Murad Jamali. He was then taken to Sandeman Provincial Hospital, Quetta on 9- 10-1998 where he succumbed to injuries in Sandeman Provincial Hospital, Quetta on 12-10-1998 at about 3-00 a.m. The offence under section 337, A.D.F. Was then substituted for section 302, Qisas and Diyat Ordinance/P.P.C.
3. P.W.9 Ghulam Sarwar, Naib-Tehsildar after recording F.I.R. Exh.P/1-B took the investigation in hand.
He went to the place of occurrence where, the site plan was prepared vide Exh.P/9-A. During investigation, the appellants were arrested. It is stated that one blood-stained hatchet being weapon of offence was recovered from the house of accused/appellant Bachal alias Bacha son of Sher Muhammad on his pointation and taken into possession vide recovery memo. Exh. P/9-B. After obtaining medical certificates and usual investigation the appellants were sent up to face their trial before learned Sessions Judge, Sibi to whom the case was forwarded by the learned Judicial Magistrate in terms of section 190, Cr.P.C. The case was made over to learned Additional Sessions Judge, Sibi for trial.
4. On 6-5-1999 charge under sections 302/147/148/149; P.P.C. Was framed by the learned Additional Sessions Judge, Sibi against the accused/appellants to which they pleaded not guilty and claimed trial.
5. In support of its case, the prosecution examined P.W.1 Safar, P.W.2 Soba, P.W.3 Ali Murad, P.W.4 Konda, P.W.5 Dr. Ellahi Bakhsh, P.W.6 Dr. Shabir Ahmed, P.W.7 Qadir Bakhsh, P.W.8 Hamza Khan and P.W.9 Ghulam Sarwar. In their statements recorded under section 342, Cr.P.C. The accused/appellant disputed the case of prosecution and pleaded their innocence. They also made their statements as per provisions contained under section 340, Cr.P.C. On oath..
Accused/appellants took plea of alibi and according to them they have not participated in the occurrence and have falsely been implicated with the commission of alleged offence. They produce D.W.1 Zabar Khan, Gailly Khan in their defence.
6. On the basis of evidence the learned trial Court formulated the following points for determination:--
(i) Whether deceased namely Tota son of Miran Bakhsh died an unnatural death caused by means of sharp-weapon?
(ii) Whether the present accused persons are responsible for causing injuries to the said deceased with sharp-weapon i,e, Hatchets?
(iii) What offence is made out? The points for consideration and determination have been answered as under:--
(i) In affirmative.
(ii) There is evidence against the present accused persons.
(iii) Proof required for offence under section 302(b), P.P.C. (as amended) read with section(s) 34, P.P.C. Is available.
7. The learned trial Judge after assessment of evidence believed the prosecution evidence except Qadir Bux and Hamza who are stated to have joined hands with the accused persons. According to learned trial Judge the criminal act had been done by all the accused persons in furtherance of their common intention, the irregularity in the investigation, discrepancies and improvement in the statements of witnesses were treated minor one and considered to be not fatal to the prosecution case and did not believe the defence version and termed the same to be a changing version.
According to trial Court there was exchange of harsh words between the accused persons and the deceased at the time of occurrence and the same was considered to be mitigating circumstances for awarding lesser punishment. The learned Additional Sessions Judge, Sibi found the appellants guilty for the offence under section 302(b), P.P.C. And convicted and sentenced them, imprisonment for life with the benefit of section 382-B, Cr.P.C.
8. We have heard Messrs Salah-ud-Din Mengal and Nazir Ahmed Advocates, learned counsel for the appellants and Mr. Muhammad Sadiq Ghuman, Advocate for the State.
9. The main contentions put forth on behalf of the appellants are as under:--
(i) Complainant Safar is not an eye-witness of occurrence, who had nominated as many as ten persons in his unexplained delayed report without disclosing the source of information.
(ii) The alleged disclosure of the names by the injured cannot be relied upon as according to medical evidence the deceased had received three fatal injuries on vital parts of the body and after occurrence never came into senses.
(iii) P.Ws. Qadir Baldish and Ameer Hamza who have been declared hostile put a dent and the prosecution story regarding recovery of weapon of offence has become doubtful.
(iv) The complainant party has malafidely implicated ten persons as nominated accused Chutta son of Khaliqdad was discharged under section 169, Cr.P.C. While accused persons namely Gulzar and Lala son of Shero were discharged by the learned Judicial Magistrate/SDM, under section 63, Cr.P.C.
(v) There is no corroborative evidence available on record and the alleged crime weapon was neither blood-stained nor sent to chemical expert as to connect the appellants with the commission of alleged offence, nor any blood-stained earth, clothes have been secured and taken into possession.
(vi) No specific role has been attributed to the accused persons altogether the complainant party nominated as many as ten persons.
(vii) The recovery of one hatchet has been indicated which can implicate only one person and the credibility of the story needs strong corroboration. Reliance has been placed on 1988 SCM R 579.
(viii)The statement of prosecution witnesses are not confidence inspiring and the evidence which was favouring the accused/appellants has wrongly been discarded, although the same was produced by the prosecution itself.
(ix) No recovery has been effected from the possession or control of appellants as to implicate them with the commission of alleged offence.
(x) Accompanying the deceased to Civil Hospital, Quetta by P. Ws. Kunda and Ali Murad is highly doubtful as according to doctor the Tota (deceased) was brought to Civil Hospital, Quetta by his brother Gulab which negates the statements of prosecution witnesses.
(xi) Important question regarding cutting of trees was not put to accused persons in their examination under section 342 nor any seizure memo. Regarding tree has been shown by the prosecution.
(xii) In the dark night the identification of the assailants was not possible and the false implication of persons in the report cannot be ruled out.
(xiii)The occurrence took place on 8-10-1998 while the statements of the witnesses were recorded under section 161, Cr.P.C. By the Investigation Officer on 19-10-1998 without any explanation. Learned counsel in support of their contentions have relied upon the authorities reported in PLD 1964 Peshawar 288, PLD 1965 (W.P.) Karachi 286,'1991 SCM R 2270 and 1989 PCr.LJ 92.
10. Learned counsel 'representing the State has supported the impugned judgment by stating that there is evidence against the appellants and opposed the acceptance of appeal.
11. After hearing learned counsel for the parties and having gone through the relevant record of the case, we are of the view that the case of the prosecution is doubtful in nature. The evidence available on record is in no way sufficient to lead to a conclusion that the accused/appellants can be convicted of the offence alleged against them. The incident quite admittedly took place during dark night and the identification of the appellants during dark night from the distances and in the manner given by the P.Ws. In their delayed contradictory and improved statements was neither possible nor confidence inspiring. Admittedly the complainant Safar who reported the matter to Naib-Tehsildar on the next date had neither nominated any person to have witnessed the occurrence nor the source of his information. The perusal of report (Exh.P/1A) is suggestive of the fact that he nominated as many as ten persons in the report mainly for the reason that they had gone somewhere else after occurrence and leaving behind their children in their homes. The report also suggests that the occurrence was not witnessed by any witness as according to report, the people of Mouza Sumur Siraj hearing commotion went to the place of incident found the deceased in injured A condition and shifted him in Oxcart to his house and was unconscious. According to the complainant he himself went to the houses of some persons of the said Mouza in order to- ascertain as to who had caused injuries to Tota. The delayed statements of P.Ws. Ali Murad and Kunda recorded after ten days of occurrence without any explanation regarding witnessing the occurrence is doubtful, otherwise, the complainant should not have withheld their names to have witnessed the occurrence as according to them they had removed the injured from the place of occurrence and taken to his village. The recovery of alleged crime weapon inspires no confidence as both the independent witnesses Qadir Bakhsh and Hamza Khan who were examined by the Court on the request of prosecution made in application filed under section 540, Cr.P.C. Not supported the recovery and were subjected to cross-examination by the prosecutor and their evidence was discarded by the Court. It is pertinent to note that despite both the recovery witnesses had not supported the recovery of crime weapon and the same was neither sent to chemical examiner nor produced in Court as case property but the same has been considered as corroborative piece of evidence by the trial Court which conclusion is based on surmise and conjecture. The charge against the accused/appellants was that they had shared common intention with the absconding accused Yaroo, Ranjha, Hamza, Mumtaz and Shahoo but the same has not been established nor the charge has been altered subsequently. None of the prosecution witness has stated a word against the above named absconding accused persons, therefore, commission of offence in furtherance of common intention with absconding accused persons has not been established. The case of the present appellants is at par with that of Gulzar and Lala and to some extent with Chutta who have since been discharged and not put to trial nor summoned by the trial Court which make the prosecution case against the present appellants highly doubtful.
The finding of the trial Court is not based on any valid evidence and moral conviction by a Judge about guilt of accused could not form the basis of his conviction. It would not be safe to place explicit reliance on this evidence without corroboration from an independent source. Reliance can be placed on the authority reported in 2000 SCM R 1038.
12. Admittedly no post-mortem examination has been carried out of Tota Khan son of Miran Bux nor the prosecution has produced any evidence of the Neuro Surgery Ward where he stated to have been expired. There is also no valid evidence to indicate as to whether the injuries, which were observed on his person, were in the ordinary course of nature sufficient to cause the death.
According to record the deceased was taken to Sandeman Provincial Hospital, Quetta by one Gulab brother of the deceased but he has not been produced by the prosecution as to whether during the period the deceased remained admitted in the hospital, gained senses or otherwise, nor record from the ward concerned was produced as P.W.6. After examination of stitched wounds referred the deceased to Neuro Surgery Ward on 9-10-1998. The perusal of record also makes the statements of witnesses doubtful to the extent that deceased before his expiry had disclosed the names of the assailants who had attacked upon him.
13. The learned trial Judge did not believe the defence version as correct but in-view of what has been laid down in Zaheer-ud-Din v. State 1993 SCM R 1628 "fact that accused failed to prove his plea raised in defence can neither reduce the burden of the prosecution to prove the case against him beyond reasonable doubt nor can it be taken into consideration as proved in support of the prosecution case".
14. Perusal of record also indicates that the statements of appellants under section 342. Cr.P.C.
Have not been recorded in accordance with law. Questions to be put to the accused should be definite and specific. The trial Court is bound to ask such questions from an accused under section 342, Cr.P.C. Which related to root of prosecution evidence and based for conviction. Questions have been put to the appellants for sharing of common intention with the absconding accused although there was absolutely no such evidence available on record and even the complainant has not supported the F.I.R. Regarding implication of absconding accused persons. Statements under section 342, Cr.P.C. Of the appellants on the face of it show that the same have not been recorded in accordance with law. The trial Court has also failed to give requisite certificate under his hand.
No doubt there are appended certificates but the same are in the handwriting of someone else and cannot be treated as certificate under the hand of Judge. It is well-settled that when the law provides the procedure for doing a thing in particular manner then that should be done in the prescribed manner and in no other manner or should not be done at all.
15. The Hon'ble Supreme Court in the case of Munawar Hussain v. State reported in 1996 SCMR 1601 has observed that as a result of omission to put incriminating piece of evidence against the petitioner while recorded his statement under section 342, Cr.P.C. By the trial, the same cannot be considered to be a piece of evidence against him and in such circumstances conviction cannot be maintained.
16. As stated earlier there was no sufficient evidence, which could have been based for conviction of the appellants in the circumstances of the case. The case has been dealt with by the trial Court in a very cursory manner, which resulted in miscarriage of justice. The eye-witnesses account in this case through witnesses whose statements were recorded after ten days of the occurrence without corroboration cannot be relied upon. No valid evidence has come on record, which can establish recovery and disclosure of the names of the assailants by Tota when he was in injured condition. The statements of P.Ws. Ali Murad, Kunda, Soba and the cross-examination of Investigating Officer make the prosecution case doubtful against the present appellants. It would be unsafe to rely on the delayed ocular evidence which has been moulded, changed and improved and delayed lodging of the F.I.R. In the circumstances of present case in respect of present appellants. The prosecution has failed to established its case against the present appellants. The principles laid down in the authority reported in 1999 SCMR 1228 is applicable to the case in hand.
17. Having regard to the abovementioned factors, circumstances of the case and authorities, we feel inclined to hold that the prosecution has failed to prove its case beyond reasonable doubt against the present appellants and they are entitled to acquittal. We, therefore, allow this appeal set aside the convictions and sentences of the appellants by extending the benefit of doubt and they are accordingly acquitted of the charge. The appellants shall be released from the custody, in case they are not wanted in any other case.