AMAN-UL-ALLAH KHAN, J.---Appellant Abdul Qadir was tried by learned Additional Sessions.
Judge-III, Quetta under section 302/34, P.P.C. For causing murder of deceased Abdul Ghaffar in furtherance of common intention with absconding accused Yar Muhammad, Lak Mir and Muhammad Ibrahim, convicted vide judgment dated 12-6-2001 under section 302, P.P.C. To suffer R.I. For life and also to pay Rs,1,00,000 as Diyat, being aggrieved from the same, appellant has filed Criminal Appeal No,150 of 2001 whereas State through Advocate-General has filed Criminal Revision No,71 of 2001 for enhancement of the sentence from life to death.
2. This judgment will dispose of both the cases. The background of the case is that on 13-8-2000, P.W.1 Muhammad Karim complainant lodged report with New Sariab Police Station vide Fard-e- Bayan Exh.1-A on the basis of which F.I.R. Was lodged. It is worth-mentioning that on 6-9-2000, a Subsequent statement (/,-CC)1.; ) was also recorded by the complainant, wherein Abdul Hameed was also implicated in the commission of the offence. It was averred in the original Fard-e-Bayan that on the day of incident, he (the complainant) Was present in front of Sariab Mill and was busy in his work when Abdul Sattar came at about 10-20 a.m. In a Suzuki Pick-up and informed him that he is taking his nephew Abdul Ghaffar (hereinafter referred to as the deceased) to the hospital as he was injured in a fight. The deceased was unconscious in the Suzuki Pick-up due.To injuries on his head. It is further stated that he came to know that Qadir Bakhsh, Yar Muhammad, Lak Mir and Muhammad Ibrahim were closing the way of the house of the deceased, he restrained them, due to which they became furious and attacked him, he received serious injuries. A case under section 337, A.D.F. Was registered against the appellant and absconding accused vide F.I.R. No,45 of 2000.
3. Investigation of the case was handed over to P.W.8 Abdul Wahab, A.S.-I. Who recorded statements of the witnesses, went to the place of incident and prepared site plan on the pointation of the complainant, 'took a Danda from the place of incident vide memo. Exh.5-A and arrested the accused. He remanded the appellant to judicial custody on 26-8-2000, and after completion of investigation handed over the documents to the S.H.O. For submission of challan Exh.8-B. On 6-9- 2000 he took the blood-stained clothes of the deceased into possession and also recorded statements of other witnesses. It may be mentioned here that on 21-9-2000, the deceased succumbed to the injuries in the hospital. On 22-9-2000, the case came up for hearing before the learned trial Court, on coming to know about the death of the deceased. The learned trial Court directed the A.D.A. To give instructions to the Investigation Officer to submit complete challan along with medical certificate. Thereafter subsequent challanExh.P/9-B was submitted and charge was altered from 337, A.D.F. To 302, P.P.C. The charge was denied, by the appellant. To prove its case the prosecution produced the following witnesses:-- ' P.W. I .Complainant Muhammad Karim reiterated the contents of the Fard-e-Bayan Exh.P/1-A and stated that he was busy in his work on 13-8-2000 at about 10-20 a.m., Abdul. Sattar came in a Pick- up and informed him that his nephew has been injured and he is taking him to the hospital. He further stated that three ladies were sitting in the Pick-up. He nominated the appellant alongwith other absconding accused in the commission of the offence and further added that on 6-9-2000, he recorded his subsequent statement wherein he implicated Abdul Hameed as he learnt about his involvement, later. P.W.2Shehzadi is wife of complainant Muhammad Karim. She stated that she was present in her house situated at Mengal Abad, Sariab Road, Quetta and accused Abdul Qadir alongwith other persons were closing the way of the deceased's house and he restrained them and came inside the house. Abdul Qadir alongwith Yar Muhammad, Lak Mir, Muhammad Ibrahim and Abdul Hameed followed the deceased and attacked him with Dandas and spades. He became unconscious and fell down. Thereafter he was taken to the hospital. P.W.3 Bilal Ahmed, S.-I. Is a marginal witness of recovery of blood-stained clothes of the deceased, which were taken into possession on 21-9-2000 vide memo. Exh.P/3-A. He further stated that said clothes had also been taken earlier on 6-9-2000 vide Mark P.1 under section 337, A.D.F. And when the deceased died thereafter under section 302, P.P.C., the clothes were again taken into possession on 21-9-2000. P.W.4 Muhammad Sharif is witness to the recovery memo. Mark P.1 when initially the blood-stained clothes of the deceased were taken into possession on 6-9-2000. P.W.5Ghulam Mustafa, Constable is witness to recovery of Dandas vide Exh.P/5-A. He stated that the Investigation Officer in his presence secured Danda from the place of incident on 13-8-2000. P.W.6LalBibi has given ocular account of the case. She also supported P.W.2 Shehzadi, and stated that on the day of incident she was present in her house and her husband Abdul Ghaffar deceased was also present. Their neighborYar Muhammad was closing the way of their house. Her husband forbade him from doing so. Thereafter Yar Muhammad called upon his companions and entered their house. The accused personswere Abdul Hameed, Ibrahim, QadirBakhsh, Lak Mir and Yar Muhammad. They attacked the deceased who fell down and sustained injuries. Thereafter he became unconscious. P.W.7 Dr. Ghulam Sarwar Hashmi examined the deceased and issued medical certificate Exh.P/7-A and also issued certificate Exh.P/7-B that the deceased was not in a condition to give statement.
He found the following injuries on the body of the deceased: "(1) Was serious, deep unconscious, vomiting positive ENT bleeding ive.
(2) Lacerated wound on right perital region of skull 5 c.m. x bone with bleeding.
(3) Lacerated wound on occipital region of skull 2 x I c.m. With bleeding.
P.W.8 Abdul Walla), A.S.-I. Is the First Investigation Officer as mentioned hereinabove. P.W.9 Basheer Ahmed was entrusted with the investigation of the case on 21-9-2000 on the day when deceased succumbed to the injuries. He prepared parcel of the blood-stained clothes, obtained death certificate on 26-9-2000 and collected F.S.L. Report Exh.P/9-A and prepared complete challan Exh.P/9-B. The appellant was examined under section 342, Cr.P.C. But did not record his statement on oath nor led any evidence in his defence. On the conclusion of the trial, the learned Additional Sessions Judge-III, Quetta convicted the appellant as mentioned above: hence the instant Criminal Appeal and Revision.
4. Mr. Kamran Murtaza, Advocate for the appellant contended that P.W.2 Shehzadi who is wife of the complainant, and P.W.6 LalBibi, widow of the deceased were interested witnesses and their statements were recorded after 24 days of the incident; therefore, no implicit reliance can be placed on their testimony. Mr. Kamran Murtaza, Advocate further contended that P.W.2 Mst.
Shehzadi wife of the complainant, and P.W.6 LalBibi wife of the deceased have been introduced by the prosecution at a very belated stage. The learned counsel pointed out that the first challanExh.P/7-B was submitted under section 337, A.D.F. On 26-8-2000, the said ladies were not cited as witnesses. Moreover, material improvements have been made by the prosecution witnesses and they have contradicted each other. The statement of the said ocular witnesses is also in conflict with the medical evidence. The learned counsel further pointed out that Abdul Sattar who was present at the scene of occurrence has not been produced; therefore, the prosecution has suppressed the material facts. He contended that the prosecution case lacks independent corroboration. The recovery of the Danda cannot also be attributed to the appellant.
5. Mr. Ghulam Mustafa Mengal, learned Assistant Advocate-General, argued that the presence of the witnesses have been established at the place of incident, thus delay in recording their statement is not fatal for the prosecution case and further recovery of the Danda is very much attributed to the appellant and statement of the witnesses is in conformity with the medical evidence, therefore, no ground for interference in conviction is made out. In support of Criminal Revision he stated that no mitigating circumstances exist in favour of the appellant for lesser punishment; therefore, the sentence is liable to be enhanced to capital punishment.
6. We have heard the arguments of the learned counsel for the parties and have also minutely perused the record of the case with their assistance.
7. It is worth-mentioning that on 21-9-2000, deceased succumbed to the injuries and the case was fixed in routine on 22-9-2000 and the Court was informed about his death. Order-sheet dated 22- 9-2000, reveals that directions were given to the A.D.A. To get the challan submitted alongwith the medical certificate. Perusal of the afore-cited record further reveals that the statements of the afore-cited two witnesses were recorded on 21-9-2000, i,e, after the death of the deceased. It may be pointed out that P.W.8 Abdul Wahab, A.S.-I. In his statement has stated that appellant QadirBakhsh was sent to judicial custody on 26-8-2000 and he handed over papers to the S.H.O.
For submission of challan. He further stated that he -recorded statements of Mst. LalBibi and Shehzadi. It is surprising to note that after the death of deceased, further investigation was entrusted to Basheer Ahmed, A.S.-I. But he has not recorded the statements of the said witness. The contention of Mr. Kamran Murtaza learned counsel for the appellant has substance that the said ladies were introduced at a belated stage without giving any plausible reason for such delay.
8. It is noted that initially when report was lodged on 13-8-2000 the complainant has not mentioned the presence of both the female P.Ws. In the Suzuki Van, in which deceased was taken to hospital by Abdul Sattar but in his statement before the Court he stated when Abdul Sattar informed him, about the incident both the ladies were also present in the Suzuki Van. It is worth- mentioning that the said ladies were introduced as witnesses after the death of the deceased. The complainant could not give any satisfactory explanation as to why the names of both the ladies were not mentioned in the Farad-e-Bayan.
9. It may be observed that statements of witnesses recorded by the police at a belated stage would not be fatal but where the delay is unexplained and names of the said witnesses has been introduced at a later stage; purposely maneuvered to implicate the accused, such delay would adversely affect the prosecution case and no explicit reliance can be placed on the testimony of such witnesses. In this regard reference is made to the following cases:--
(1) Asfandyar Wali v. The State, PLD 1978 Peshawar 38 wherein the following observations were made:-- "In law, the police is duty bound to record the statement of a witness no sooner he appeared before them in a criminal case. It is not disputed that they were star witnesses of the prosecution who could not be said to have been prevaricating in any manner. It is a matter of record that their statements were recorded few days after the occurrence and thus an adverse inference can be drawn against the prosecution that the witnesses had made their statements in line with what was suggested to them by the investigating agency. It may here be observed that once it comes on record that in a criminal case, the witness had appeared before the police on the first available opportunity but his statement under section 161, Cr.P.C. Was delayed, his evidence should not be given that sanctity as is generally given to the evidence of a witness whose statement had been recorded no sooner he had appeared before the police."
(2) Abdul Khaliq v. The State 1996 SCM R 1553 wherein the following observations were made:- "He admitted that all the eye-witnesses were examined at the instance of the complainant., There is no explanation furnished by the prosecution for examination of Mir Qalam after 20 days of the incident and for examination of Abdul Jabbar and Muhammad Shah after one month and three days of the incident. It is a settled position of law' that late recording of 161, Cr.P.C. Statement of a prosecution witness reduces its value to fill unless there is plausible explanation for such delay."
10. Mr. Kamran Murtaza, Advocate further argued with vehemence that though the statements of the witnesses were recorded after a considerable delay, yet no reliance can be placed on the same as their statements are in conflict with the medical evidence and further material improvements have been made by both the ladies and the complainant.
11. Besides delay there is yet another factor for disbelieving the said two eye-witnesses. Their testimony is at variance and in conflict with the medical evidence. In their deposition they stated that the appellant alongwith the absconding accused entered the house and attacked the deceased due to which he fell down. Admittedly, according to medical certificate the deceased only sustained two injuries on his head which proved fatal but as per their version deceased was attacked by the appellant alongwith the absconding accused who were six in number_ Both the witnesses did not know as to how many injuries were received by the deceased. No specific injury has been attributed to the appellant and general allegations have been made that they attacked the appellant. The case as set up by the prosecution is very improbable. The motive for the fight was that Yar Muhammad along with other absconding accused were blocking the way of the house of deceased and on his restraint, the appellant along with the absconding accused attacked .Him. Perusal of the site plan does not support this fact. It may be mentioned here that in the site plan, the way which was being blocked has been shown within the courtyard of the deceased; names and the houses of the appellant and other absconding accused have not been shown. It is not understandable as to how the appellant and other accused were blocking the way of the house of the deceased within his own courtyard. Further the version that the appellant alongwith absconding accused entered inside, the house of the appellant and attacked him seems to be very improbable. It is the version of both the ladies that the deceased restrained the appellant and the absconding accused outside the house from blocking his way and thereafter he entered the house and then the appellant alongwith other absconding accused came inside the house and attacked upon him. The said version does not appeal to a rational mind, as to why the accused entered the house of the deceased as he simply asked the accused not to block his way and entered his house. The said version does not get support from the site plan either. Hence it can be safely concluded that the prosecution has suppressed material facts and has not come with the whole truth which, is likely to adversely affect its own case. Even it is hard to believe that the incident took place in the house of the deceased as no blood-stained earth was collected which makes the prosecution case more doubtful. In this regard reliance can be placed on the following cases:--
1. Saeed Muhammad Shah v. The State 1993 SCM R 550 wherein was held as under:- "Secondly, statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance. It is held in the case of Amir Zairian v. Mehboob and others (1985 SCM R 685) that testimony of witnesses .Containing material improvements are not believable. Reference can also be made to the cases of Haji Bakhsh v. The State (PLD 1963 Kar. 805), Qaim Din and others v.The State (1971 PCr.L.1 229) and Fazla and another v.The State (PLD 1960 Lah. 373).
2. Muhammad Anwar v. The State, 1999 SCM R 729 wherein it was held as under:-- "Since both the dead bodies were unidentifiable, it cannot be said with certainty that those were of Shaukat Ali and Mst. Irshad Bibi deceased. There is a serious doubt about the place of occurrence also. If the deceased has been given sharp-edged weapon injuries in the house of the accused, blood-stained earth or any trace of it must have been found there but no such thing was noticed.
Even the dead bodies were not recovered from the house of the accused. It would also be worthwhile to point out that except for Mahanda no other witness was examined to prove the recoveries of the dead bodies which were admittedly not at the instance of the appellants and were recovered from places far away from the scene of occurrence. No incriminating material like any -article of dowry given to Mst. Parveen P.W. On the occasion of her marriage/Rukhsati was recovered from the house' of the accused. The genesis of occurrence is shrouded in mystery and nothing can be said with certainty as to how, where and under what circumstances it happened."
It has come on recoils the it Abdul Sattar who took the deceased in Suzuki Pick-up informed the complainant about the said incident: Abdul Sattar is a very material and important witness but he has not been examined which further creates a dent in the prosecution case and the presumption would be that had he appeared, he would not have supported the prosecution version. Therefore, on this score also the prosecution case becomes doubtful. Reliance in this regard can be placed on Anmed Yar and others v. The State, 1998 SCM R 715 Wherein the following observations were made:-- "In other words, prosecution has not come out with the whole truth. Its hands are not clean to say the least. It is certainly a case of suppression of material far on the part of the prosecution. It has been shown that Muhammad Zaman was present at the spot and he was particularly asked by the complainant party to fire at the assailants. He was, thus, aery important witness but the prosecution in its wisdom failed to produce him in support of its story. His non-production" has created doubt in the prosecution version. The presumption is that in case he had appeared. He would not have supported the prosecution. On the contrary, he would have favoured the defence plea. The prosecution case may be seen from this angle as well that as many as six accused mentioned above were acquitted of the murder charge while discarding the prosecution evidence as whole."
12. Thus in view of the above discussion, in our considered opinion the prosecution has failed to prove its case beyond any shadow of doubt against the appellant. Giving him benefit of doubt.He is acquitted of the charge. He be released fort with if not required in any other case. Appeal is accepted and Criminal Revision is dismissed.