1. ' AMANULLAH KHAN YASINZAI, J.--- Appellants Haji Nadir Khan, Sher Khan, Fateh Khan sons of Bahadur Khan and Muhammad Siddique alongwith acquitted accused Muhammad Karim and Muhammad Naeem sons of Haji Nadir Khan, were challaned before the learned Sessions Judge, Loralai, under sections 302/34, P.P.C. For causing murder of deceased Paio Gul on 19-6-2000. On conclusion of trial, the learned Sessions Judge, convicted appellants vide impugned judgment dated 22-2-2001, under section 302(b), P.P.C. And sentenced them to suffer R.I. For life imprisonment and to pay fine of Rs,20,000 each and in default to further suffer R.I. For two years, whereas accused Muhammad Karim and Muhammad Naeem were acquitted of the charge.
2. ' Appellants have filed instant appeal against their conviction, whereas petitioner Mst. Aram Bibi, mother of deceased, has filed Criminal Revision No,20 of 2001, for enhancement of sentence, awarded to appellants. This judgment shall dispose of both the matters.
3. ' It is the prosecution case that, P.W.1 Pukar Khan lodged report (Exh.P/1-A) with the Assistant Commissioner, Dukki on 19-6-2000, with the allegations that, deceased on the even date at 7-00 a.m., went to Village Murpani to buy cigarettes. On his way back to his house. Appellants Nadir Khan, Sher Khan, Fateh Khan and Muhammad Siddique attacked him with Dandas. Fateh Khan was armed with a Pistol, who fired three shots at the deceased, who succumbed to the injuries, at the spot. The dead body of the deceased was brought to his house by Nauroz Khan and Dr. Hamid Khan. It is further stated that, Syed Shah was present at the place of incident and there was no previous enmity between the parties.
4. ' On receiving the said report same was incorporated in F.I.R. No,7 of 2000, registered by Levies Thana, Dukki. After registration of case, P.W.6 Kumail Ali, Assistant Commissioner, initiated the investigation, as Naib Tehsildar was out of station. He went to the house of complainant, took into possession the dead body of deceased vide memo.. Exh.P/2-A, he also went to the place of incident and recovered one empty, besides securing blood stained earth vide memo.. Exh.P/2-B. He prepared site plan (Exh.P/6-A) and thereafter handed over the papers to P.W.7 Amanullah Khan, Naib-Tehsildar for furiher investigation, who arrested the accused persons and recovered a licensed Pistol, at the instance of appellant Fateh Khan vide Memo.. Exh.P.2/C, and a Danda at the instance of appellant Sher Khan vide Memo.. Exh.P/2-D. On completion of investigation, he submitted challan Exh.P/7-A, before th learned Sessions Judge, Loralai.
5. ' Learned Sessions Judge, framed charge against appellant and acquitted accused, who denied the same and claimed trial. To prove its case, prosecution led evidence of following witnesses:--
(1) P.W. 1 Pukar Khan. He submitted application Exh.P/1-A, on the basis of which, F.I.R. Was lodged. He reiterated the Contents of the complaint. However, further deposed that incident was witnessed by Mazar Khan (P.W.4) Nasrullah Khan (not produced) Sarwar Jan (P.W.5) and Mst. Sheeren, sister of deceased (not produced).
(2) P.W.2 Ali Khan, Levies Hawaldar, is the attesting witness to. Memo. Exh.P/2-A whereby the dead body of deceased was taken into possession by the Assistant Commissioner and Exh.P/2-B, being recovery memo. Of empty and blood-stained earth. He is also witness to Exh.P/2-C. Being the recovery memo. Of pistol, recovered at the instance of appellant Fateh. Khan and Exh.P/2-D, recovery memo. Of Danda, recovered on the pointation of appellant Sher Khan.
(3) P.W.3 Dr. Muhammad Hayat. He examined the dead body of deceased in the house of complainant (P.W.1) and noted following injuries on his body and issued certificate Exh.P/3-A:--
(a) Gun shot circular wound on the left side of scalp (entrance).
(c) Exit wound on the right side of the scalp.
(d) Gun shot circular wound on the mid of forehead (entrance) (no exit wound).
(e) Lacerated wound 1-1/2 x 1-1/2 and skin deep on the middle side of scalp (above).
(f) Abrasion on the backside of the right shoulder.
(g) Abrasion on the left side of the abdomen.
(h) Multiple bruises all over the back of chest and lumber region.
(i) Abrasion and bruises above the nose.
(j) Swelling on the nose.
6. ' Cause of death: Injury on vital organ (brain)."
(4) P.W.4 Mazar Khan.
(5) P.W.5 Sarwar Jan.
(6) Statements of both the witnesses are identical. Both of them deposed that on the day of incident, they were going towards Bus Adda and when they reached at the lands of Bismillah, where Nasrullah was present, Mst. Shereen, sister of deceased came and informed them that a fight is going on between Piao Gul and accused party. They further deposed that, when they reached the place of incident, they saw the deceased lying injured and appellants decamped from the place of incident.
(7) P.W.6 Kumail Ali, Assistant Commissioner, who investigated the matter and thereafter handed over the papers to P.W.7 Amanullah, Naib Tehsildar, who completed the investigation and submitted challan.
(8) P.W.7 Amanullah Khan, Naib Tehsildar, is the second Investigating Officer who arrested the accused persons and after completion of investigation submitted challan Exh. P/7-A .
7. ' Appellants and acquitted accused were examined under section 342, Cr.P.C. Wherein they denied the prosecution case and pleaded innocence. However, they did not opt to give statement on oath, nor produced any defence.
8. ' On the conclusion of trial, learned Sessions Judge, vide impugned judgment, convicted and sentenced the appellants, whereas acquitted accused Muhammad Karim and Muhammad Naeem.
9. ' We have heard Mr. Muhammad Aslam Chishti, learned counsel for appellants, Mr. M. Zafar, learned counsel for petitioner in criminal revision and Mr. Sultan Mehmood, learned A.A.-G. For the State.
10. ' Learned counsel for appellants contended that;--
(A) P.W.1 Pukar Khan was not an eye-witness, he has not disclosed the source of his information, while lodging the report.
(B) As per the contents of report, Syed Shah was cited to have witnessed the incident, but he was not produced.
(C) Names of P.W.4 Mazar Khan, and P.W.5 Sarwar Jan were introduced after 4 to 5 days of the incident and their statements under section 161, Cr.P.C. Were also recorded after six days of the incident. Besides the conduct of said witnesses was also very improbable. Thus, it can be safely inferred that, their presence at the place of incident was doubtful. Additionally they were related to the deceased, therefore, they were interested witnesses.
(D) Mst. Shereen, sister of deceased, who as per showing of P.Ws. 4 and 5 had informed them about the fight between the deceased and appellants, has not been produced.
(E) P.W.2 Ali Khan, who is attesting witness to the recovery memo. Of pistol, had not supported the same. Besides the pistol was also not sent to Ballistic Expert, for opinion.
11. ' Mr. M. Zafar, learned counsel for petitioner argued that presence of witnesses was proved and they being independent witnesses, had also explained the delay in recording of their statements under section 161, Cr.P.C. As such, their statements were rightly believed by the trial Court.
12. ' Learned A.A.-G. Also opposed the appeal. However, he did not support the criminal revision, filed by complainant.
13. ' Before dilating upon the arguments of learned counsel for parties, it may be pointed out that, prosecution case, mainly rests on the statements of P.Ws.4 and 5, who are stated to be the eye- witnesses of the incident. The recovery of pistol and an empty from the place of incident cannot be used as corroborative piece of evidence, as both the articles were not sent to Ballistic Expert for report. Besides the attesting witness P.W.2, has also not supported the recovery, which will be discussed at a later stage.
14. ' Adverting to the first limb of argument of Mr. Muhammad Aslam Chishti, learned counsel, that complainant had lodged the report, without mentioning the source. Admittedly the complainant P.W.1 Pukar Khan, had not witnessed the incident. He did not disclose, as to who informed him about the incident and further as per his own showing, the dead body of deceased was brought to his house by Naruoz Khan and Dr. Hamid Khan, who have not been examined, for the reasons best known to prosecution. Besides, it is noted that, in the F.I.R., only Syed Shah has been shown as an eye-witness, but he has also not been examined.
15. ' Learned counsel Mr. Muhammad Aslam Chishti, argued with vehemence 'that, names of P.Ws. 4 and 5 were introduced on the fourth or fifth day of the incident and their statements under section 161, Cr.P.C. Were recorded on the sixth day of incident. It may be pointed out that, P.W. 6 Kumail Ali, Assistant Commissioner, after the incident went to the house of deceased alongwith Doctor and got the dead body examined in the house of P.W. Pukar Khan, and thereafter recovered an empty from the place of incident, secured blood-stained earth and prepared site plan. It is pertinent to point out here that in his cross-examination, he admitted that on the day of incident, no one claimed to be an eye-witness. Even he was confronted with the Daily Diaries after going through the same, he conceded that, case file was with him till 21st and none appeared before him claiming to be an eye-witness. P.W. 7 Amanullah Khan, Naib Tehsildar, who took over the investigation of case on 21-6-2000, deposed that till 24th, none came forward as an eyewitness of the incident. However, P.Ws. 4 and 5 as well as Mst. Shereen and Nasrullah, appeared before him and claimed to be the eye-witnesses of the incident and he recorded their statements. P.Ws. 4 and 5 admitted in their Court, that their statements were recorded on 24th June, 2000. They further admitted that from the day of incident till recording of their statements, they were very much present in the village. They did not bother to go to the Tehsildar for recording their statement. No explanation has come on record either from the Investigating Officer (P.W.7) or from P.Ws.4 and 5, as to why their statements were recorded after such a delay. For safe administration of criminal justice, considering the prosecution case in the light of above stated facts and circumstances, the prosecution witnesses cannot be relied upon. The source of information, not disclosed by the complainant, the eyewitness named in the report, not examined and the statements of P.Ws. 4 and 5 recorded after five days of the incident, without offering any explanation; such peculiar circumstances, renders the entire prosecution case doubtful and unreliable. It is settled that, statements under section 161, Cr.P.C. Recorded with delay, without giving any plausible explanation are to be ruled out of consideration. In this regard, reliance is placed on 1998 SCM R 570 Muhammad Khan v. Moula Bakhsh and another.
16. ' On minute scrutiny of the statements of P.Ws. 4 and 5, in our considered estimation, the conduct of the witnesses is improbable and unnatural. Both the witnesses deposed that, they witnessed the incident, but they did not intervene to save the deceased from the appellants, though they were closely related to deceased and further, after when the deceased was done to death, 'they did not even bother to take the dead body of deceased to his house. Inasmuch as, both the witnesses did not even care to see; whether the deceased was alive or dead, did not lodge the report. As per their own showing, they left the place of incident. Leaving the sister of deceased at the place of incident.
17. The statements do not inspire-confidence. It is very improbable and unnatural, at least after the fight was over, they could have taken the deceased to his house, but they, left him there and went away. Such attitude of the P.Ws. Does not appeal to a prudent mind. Thus keeping in view the principles of safe administration of criminal justice, their presence at the place of incident, is doubtful, making their veracity very unreliable.
18. ' Mr. Muhammad Aslam Chishti, learned counsel, further argued that P.Ws. 4 and 5 were only introduced, as they were related to the aeceased and had enmity with the appellant's party. It may be pointed out that, both the witnesses have not given any account of the incident in the manner, it took place. They deposed generally that deceased was attacked by appellants. There have not given a detail account of the F incident as to who attacked him first and many injuries were sustained by him. Both of them are silent about the bullet injury which further lends support to the argument of learned counsel, that presence of said witnesses at the place of incident is highly doubtful.
19. ' Learned counsel for appellants, also referred to material contradictions, in the statements of witnesses, such as, that P.W.5 stated that, when they reached at the place of incident, appellants had already fled away. Since we have not believed the statements of P.Ws. 4 and 5. Therefore, it would be of no use to further discuss the worth and credibility of their statements. In this regard, we are fortified by the dictum laid down in Din Muhammad v. The Crown 1969 SCMR 779, wherein following observations were made:-- "Further the evidence does not appear to have been appreciated by the learned Judges according to correct principles. To test the testimony of a witness, Courts should not consider, whether there is consistency in the narrative, but should also consider whether version is probable or not."
20. ' Coming to the last contention, regarding recovery of crime weapon at the instance of appellant Fateh Khan. Suffice it to observe that, we are inclined to disbelieve the recovery, as the same was not supported by the attesting witness (P.W.2 Ali Khan). He stated in cross- examination that, pistol was not recovered in his presence from the house of appellant. Besides the recovery of pistol, is of no use to prosecution, in absence of the report of Ballistic Expert.
21. ' Learned Trial Court, had erroneously relied upon the statements of P.Ws .4 and 5 and held that their statements, receive corroboration from the medical evidence and recovery. Suffice it to observe that violent death of deceased was not disputed by the defence and the appellants had only denied their involvement in the commission of offence.
22. ' In view of the above discussion, in our considered view, the prosecution has miserably failed to bring home the charge against appellants, thus by giving them benefit of doubt they are acquitted of the charge.
23. ' As a result, appeal filed by appellants is accepted and they are ordered to be released forthwith, if not required in any other case and the criminal revision filed by petitioner Mst. Aram Bibi, is rejected. #EndJudgment