' IJAZ-UL-HASSAN, J.--- Mumtaz alias Taj Muhammad, Jan Muhammad sons of Pir Khan, Bashir Khan, Gul Zeb sons of Muhammad Urfan and Lal Afsar son of Farid Khan, all residents of village Kasaki, District Abbottabad, were tried for the offences under sections 302/148/149, P.P.C. By the learned Additional Sessions Judge, Abbottabad and at the conclusion of trial having been found not guilty, they were acquitted vide judgment, dated 7-3-1994. The State has filed instant appeal under section 417, Cr.P.C. Challenging the acquittal of Mumtaz alias Taj Muhammad, Jan Muhammad and Bashir accused-respondents with the prayer that the impugned judgment be set aside and the above-named accused-respondents be convicted under the relevant provisions of law.
2. The crime in question, resulting into the murder of Fazal Dad, a retired A.S.-I. Police, is alleged to have taken place on 4-7-1990 at 12-30 hours in front of the house of P.W. Sher Muhammad, in village Kasaki, Abbottabad and the matter was reported to the police by the victim (then injured), the same day at 15-00 hours in the Emergency Ward Civil Hospital, Abbottabad. The Murasila Exh.P.A./1 was drafted by A.S.-I. Mir Dad P.W. And it was incorporated into F.I.R. Exh.P.A. By Muharrir Muhammad Ishaq P.W.
3. The prosecution story in brief is, that on the day of occurrence at 12-30 hours, Fazal Dad deceased sent his son Naseer Ahmad P.W. For distributing the sacrificial meat in the village. He heard noise followed by a report of the fire shot. The deceased alongwith his brother Azizur Rehman and nephew Tufail Muhammad P.Ws. Rushed to the spot and found Taj Muhammad, Jan Muhammad and Zaiba armed with pistols, Lal Afsar armed with 12 bore D.B. Shotgun and Bashir armed with .12 bore Bandooq. On seeing the deceased and his companions the accused started firing at the complainant party, as a result of which the deceased was hit on right side of his mouth, left and right side of his shoulder besides receiving butt blows on his right leg. However, the companions of the deceased escaped unhurt. The accused decamped from the spot. On raising hue and cry a large number of men and women of the village were attracted to the spot and most of them witnessed the incident. The victim was put on a cot and removed to Civil Hospital, Abbottabad for treatment. Some time prior to the episode, the deceased had insulted Mst. Khanum Jan mother of Taj Muhammad and Jan Muhammad accused on account of which they were nursing grudge against the deceased. This was stated to be the motive leading to the turmoil.
4. Unfortunately, Fazal Dad succumbed to his injuries and expired in the hospital on 5-7-1990 and thus, the section of law was altered from 307, P.P.C. To 302, P.P.C.
5. A.S.-I. Sardar Muhammad Akram P.W. On receipt of copy of F.I.R., proceeded to the spot and on reaching there at 18-15 hours, prepared site plan Exh.P.B. At the instance of P.Ws. He took into possession some blood-stained earth (Exh.P.8), one spent bullet (.30 bore) Exh.P.9, 4 empties of .30 bore Exh.P.10, two empty cartridges, .12 bore Exh.P.11, one empty cartridge and .30 bore Exh.P.12 vide recovery memo.Exh.P.W.13/1 and sealed the same into separate parcels. He also took into possession one shirt Exh.P.1, one Shalwar Exh.P.2, one jacket Exh.P.3 brought by L.H.C: Firdoos Khan P.W., vide recovery memo. Exh.P.W.1/1, prepared by him in presence of the marginal witnesses.
Accused Mumtaz, Jan Muhammad, Bashir and Lal Afsar appeared before the S.H.O. Muhammad Sadiq P.W. On 6-7-1990 at Police Station Havelian. They were formally arrested. Accused Bashir produced a shotgun (.12 bore) Exh.P.6 alongwith copy of licence Exh.P.7 before the S.H.O. On 6-7- 1990. The same were taken into possession vide memo. Exh.P.8/2 in presence of marginal witnesses. After completion of the investigation in the manner described above, the complete challan was submitted in Court.
6. The prosecution in order to prove its case produced 14 witnesses and abandoned Ghulam Rasool, Ali Afsar, Muhammad Tufail and Saleem F.C. As unnecessary.
7. Dr. Ali Fawad, Medical Officer, D.H.Q. Hospital Abbottabad, examined Fazal Dad (then injured) on 4-7-1990 at 3 p.m. And found the following:--
(1) Entry wound 1/2" diameter at angle of right mendable with exit wound, i,e, a charred wound increasingly tenjeture below right maxilla.
(2) A tengila charred mark superior laterally on left side of forehead 4" x 1/2".
(3) Entry wound a hole of 1/2" diameter at the tip of right shoulder joint advised X-Ray.
(4) Entry wound a hole of 1/2" diameter. 2" center of the right clavical. Advised X-Ray.
(5) Entry wound another hole of equal diameter 1" superior lateral to entry wound No,4 in supera clavicular fosa 3" lateral to the left side of the neck.
(6) Entry wound a hole of 1/2" diameter at the back of chest, 4" above the medial axillary wall on left side. Advised X-Ray.
(7) Entry wound a hole 1/2" diameter, 5" medial axillary fold (that is the wall) at the level of thoraxic vertebrae No,6 on the back of chest on left side.
(8) Entry wound at level of thoraxic vertebrae No,4, a hole of 1/2" diameter 4" left to the spine.
(9) A mark of charred tengental wound 4" x 1/2" (near) superior lateral to entry wound No,8.
(10) Entry wound 1/2" diameter hole on medial aspect of the right thigh 8" above the knee joint with an exit wound, i,e,, a charred 1-1/2" hole at the back of thigh in line with the entry wound. Advised X- Ray.
8. The injured, as stated above, breathed his last on the following day of the incident. Dr. Fawad P.W.
Conducted post-mortem examination of the deceased at 9 a.m., on 5-7-1990 and noted the abovementioned injuries on the corpse of the deceased. The cause of death was found to be circulatory collapse because of shock produced by excessive internal haemorrhage due to injury No,1 caught to right lung and injury No,2 i,e,, fracture of right fumer.
9. Muhammad Parvez, Firdoos Khan, Mir Dad, Mushtaq Ahmad, Muhammad Ishaq, Sardar Muhammad Akram and Muhammad Siddique are formal witnesses. They appeared in Court and admitted having carried out the investigation.
10. Sher Muhammad P.W.5 stated that on the day of occurrence he was busy in slaughtering sacrifical animals when he heard some noise. When he reached the spot he found the relatives of Fazal Dad weeping. He also found the victim lying on a cot. On inquiry the victim told him that he was fired at by Bashir, Jan Muhammad, Taj Muhammad and others. He also found relatives of the victim and co-villagers around the cot of injured Fazal Dad.
11. Ali Dad P.W.6 stated that he was busy alongwith Sher Muhammad P.W. In slaughtering animals at the house of Khan Muhammad when they were attracted to the site of occurrence where they found the deceased lying on a cot in injured condition. They took him to the hospital. He (injured) did not talk to them. Many people from the locality were present on the spot.
12. Gohar Rehman P.W.9 stated that on the day of occurrence he was attracted to the spot and when he reached there he found the deceased lying on a cot in an injured condition. On inquiry the injured told him that he was attacked and fired at by Jan Muhammad, Taj Muhammad, Bashir Khan, Gul Zeb and Lal Khan with pistols and rifles. He (witness) found Azizur Rehman (brother) Mst.
Bibi Jan (wife), Tufail (nephew) and another son of the deceased at the spot. The injured was then taken to the police station.
13. Azizur Rehman and Naseer P.Ws. Supported the prosecution version and claimed to have witnessed the incident.
14. The learned trial Judge did not find the prosecution evidence sufficient to prove the guilt of the accused persons. Resultantly, the benefit of doubt was extended to the accused and they were acquitted of the charges through the impugned judgment.
15. We have re-examined the entire evidence and tested the reasons which prevailed with the learned trial Judge in passing the order of acquittal and we find ourselves in agreement with Mr. Muhammad Ayub Tanoli, Advocate who appeared on behalf of the accused-respondents that the evidence produced by the prosecution, consisting of the statement of Fazal Dad deceased, eye- witness account of the incident furnished by Azizur Rehman and Naseer Ahmad, medical evidence, evidence on the point of motive and the evidence regarding recoveries, was discrepant and pregnant with serious infirmities and contradictions and not at all sufficient to bring guilt home to the accused-respondents and as such the learned trial Judge had good reasons to discard the same and pass a finding of acquittal in favour of the accused-respondents.
16. In criminal case, the burden of proving its case rests entirely on the prosecution. The prosecution is duty-bound to prove the case against the accused beyond reasonable doubt and this duty does not change or vary in the case in which no defence plea is taken by the accused. The defence plea is always to be considered in juxtaposition with prosecution case and in the final analysis if the defence plea is proved or accepted then the prosecution case would stand discredited. However, if the defence plea is substantiated to the extent of creating doubt in the credibility of the prosecution case, then in that case it would be enough. It may be mentioned here that in case it is not established at all, no benefit would accrue to the prosecution on that account and its duty to prove its case beyond reasonable doubt would not diminish even if the defence plea is not proved or is found to be false. Ashiq Hussain v. The State reported as 1993 SCM R 417. Similarly, it was held in Hakam Ali and others v. The State 1971 SCM R 432 that in 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.
17. In the instant case all the accused persons when examined under section 342, Cr.P.C. Denied their involvement in the affair and claimed trial. However, one of them namely Jan Muhammad, in answer to a question as to "what is your statement and why are you charged" stated that on the day of occurrence he was on his way to his house when he was waylaid by Fazal Dad, Azizur Rehman. Raza Muhammad, Nasir and Tufail. They started firing at him as a result of which he was hit with the bullet fired by Azizur Rehman, brother of the deceased. In retaliation he also fired with his "pistol. Subsequently, he came to know that the deceased was hit with his fire shot.
It has come in evidence that Jan Muhammad sustained fire-arm injuries on his leg and he was medically examined and a case under sections 307/148/149, P.P.C. Was registered against the complainant party vide F.I.R. No,273. Preliminary investigation was conducted in this case and subsequently the same having been found false was cancelled. The prosecution has not disclosed the factum of cross-case which reflects on the prosecution version. The prosecution does not seem to have come to the. Court with clean hands.
18. Much stress has been laid on the statement of Fazal Dad victim and it is submitted that the statement of the victim should have been given due credence and made basis of the conviction of the accused person. The submission has not impressed us. It has come in the cross-examination of Dr. Ali Fawad P.W. That when the deceased (then injured) was brought to the hospital, the injured was in critical condition and had 12 injuries on the vital parts of the body. The patient was referred for X-Ray examination so that if possible, an operation may also be carried out. In the circumstances, we feel that the patient was not in enjoyment of senses at the crucial time.
19. The eye-witness account of the incident has been furnished by P.Ws. Azizur Rehman and Naseer.
The former is the brother whereas the later is the son of the deceased. It is true that mere relationship of the eye-witnesses with the deceased is no ground to disbelieve their testimony provided it rings true and gains strength from an independent source but it is equally true that the evidence given by the mentioned witnesses does not inspire confidence and has rightly been disbelieved by the learned trial Judge. P.W. Naseer is claimed to have been sent to the village for the distribution of sacrificial meat. He remained at the spot till arrival of the Investigating Officer. It is significant to note that neither the meat nor the tray containing the meat has been recovered from the spot which makes the presence of the witness at the spot at the time of occurrence highly doubtful. On raising hue and cry large number of men and women from the locality are stated to have been attracted to the venue of occurrence. Some of them are shown to have seen the accused-respondents running away from the spot. Strangely enough no independent and impartial witness has been produced by the prosecution except two close relatives of the deceased. The testimony of P.Ws. Gohar Rehman, Ghulam Nabi and Sher Muhammad also does not inspire confidence. The deposition made by them, in the absence of independent corroboration, has been rightly ignored.
20. For the aforesaid reasons, we find no force in this appeal. We dismiss the same and maintain the order of the learned trial Judge.
N.H.Q./383/P .