' This appeal impugns the judgment dated 20th September, 1999, passed by the learned VIIth Additional Sessions Judge, Karachi, East, whereby the appellant was convicted and sentenced to suffer life imprisonment under section 302 as well as five years' R.I. Under section 452, P.P.C.
Alongwith fine of Rs,5,000 in default whereof he was to suffer an additional period of two months'
R.I:
2. Brjefly stated the prosecution case per F.I.R. No,128 of 1990 lodged at Police Station Malir Extension on 8-9-1990 is that there was some firing in the area where the complainant resided alongwith his family members viz. Grandfather Abdullah, mother Munawar Jehan, aunt Ainy and grandmother Hajra. Due to said firing some persons (Katchies) were injured. This happened at about 2-15 or 2-30 p.m. When one boy named Hussaini started firing in the area and then he entered into the complainant's house and fired at the complainant's grandfather who fell down. The complainant's aunt Mumtaz Begum put him in a vehicle and took him to Jinnah Hospital where he died. Accused Hussaini ran away from the same. The appellant alongwith co-accused Abdul Ghani was arrested by the police and were sent up for trial.
3. A charge was framed against both the accused under sections 302/307/445 read with section 34, P.P.C. To which both the accused pleaded not guilty and claimed their trial.
4. In support of its case the prosecution examined P.W.1 Sohail Ghani, the complainant, who produced the- F.I.R. As Exh.30, P.W.2 Mumtaz Begum, P.W.3 Munawar Jehan, P.W.4 Alam Din, P.W.5 Javed and P.W.6 Islamuddin who produced the inquest report and memo. Of inspection of the dead body as Exh.20, P.W.7 Muhammad Tahir, P.W.8 Kausar Parveen, P;W.9 Muhammad Saleem, P.W.10 Muhammad Ali, P.W.11 Dr. Akbar Hussain who produced the medical certificate as Exh.39 and P.W.12 Malik Rab Nawaz, S.H.O., who produced Exhs.44 to 48.
5. The statements of the accused were recorded under section 342, Cr.P.C. In which both the accused claimed to be innocent saying that they have been falsely implicated. Additionally the appellant/accused Muhammad Hussain stated that in the same incident his brother Haneef Ishaque was killed and another brother Siddique had sustained injuries alongwith other Muhallah people for which a counter-F.I.R. Had also been lodged.
6. After hearing the learned counsel for the accused and the learned D.D.A. For the State the learned trial Court convicted the appellant/ accused as aforesaid and acquitted co-accused Abdul Ghani.
7. On the basis of the foregoing facts and circumstances, Mr. Muhammad Farooque learned counsel for the accused/appellant has firstly submitted that there is a delay in lodging the F.I.R. Viz. No,128 of 1990 inasmuch as admittedly the incident took place at 14-30 hours whereas the report was lodged at 20-20 hours on 8-9-1990 after a delay B of six hours, which has gone totally unexplained and hence should be construed in favor of the appellant. Per learned counsel this would have given a chance to the complainant party to consult each other, seek instructions and file the report in a calculated manner. In support of this proposition, learned counsel has cited Mehmood and others v. The State 1995 SCM R 127, Ghulam Nabi Shah v. The State 1969 SCM R 629, Nooran v. The State PLD 1966 (W.P.) Lah. 383, Muhammad v. The State PLD 1979 Kar.
583. Continuing in this vein learned counsel has also submitted that there has been a delay of 5 to 7 days in recording the police statement of the prosecution witnesses including the eye-witnesses.
As this delay has again gone unexplained it renders the evidence of the said witnesses valueless in the eyes of law. In this respect he has referred to the cross-examination of P.W.3 Mst. Munawar Jahan who has admitted that her police statement was recorded after 5 days of the incident. P.W.2 Mst. Mumtaz Begum has also made a similar admission. For this proposition; learned counsel has cited Abdul Khaliq v. The State 1996 SCM R 1553, Buxal and another v. The State 1990 PCr.LJ 2001; Iftikhar Ali v. The State 1998 PCr.LJ 2022, Dilshad v. The State 1995 PCr.LJ 248.
8. Next, learned counsel has submitted that this is a case of two versions inasmuch as prior to lodging of the F.I.R. In question viz. No,128 of 1990 another F.I.R. No,127 of 1990 was lodged by co- accused Abdul Ghani. This was lodged at 15-15 hours on the same date regarding the same incident, which had occurred at 14-30 hours. However, the police had malafidely not investigated this F.I.R. And put it on the dormant file. In this connection, learned counsel has referred to the cross-examination of the Investigating Officer P.W.12 Malik Rab Nawaz wherein he has admitted that he had firstly gone to the place of incident in response to F.I.R. No,127 of 1990 at about 2-30 or 2-45 p.m. On the fateful day. He has also admitted that per Crime No,127 of 1990 two persons namely Muhammad Haneef and Muhammad Ishaque were killed.
9. Next learned counsel has submitted that there are only three eyewitnesses who have supported the prosecution case viz. P.W.1 Sohail Ghani who is the complainant and the grandson of the deceased, P.W.2 Mst. Mumtaz Begum who is a daughter of the deceased and P.W.3 Mst. Munawar Jahan who is a daughter-in-law of the deceased and mother of the complainant. The other prosecution witnesses viz. P.W.4 Alam Din is not an eye-witness as he only saw the appellant/accused coming out of the deceased's house with a pistol. Similarly, P.W.5 Javed and P.W.7 Tahir were declared hostile and cross-examined by the prosecution wherein they have denied that they ever saw the appellant or co-accused Abdul Ghani firing in the area. P.W.5 has also stated that he received an injury due to firing from some person riding on a scooter and not by the accused. Similarly, P.W.6 Islamuddin in his examination-in-chief has stated that he had no first hand knowledge of the incident and only came to know about this incident when he went to his house at 8-00 or 8-20 p.m. When he was informed that his father Nizamuddin had received an injury etc. Similarly, P.W.8 Kausar Parveen also came to know that her uncle, Nizamuddin, had received an injury but she had never seen the person who had caused him that injury, in the circumstances, learned counsel has submitted that admittedly the incident occurred in a thickly populated area and also that other inmates of the house were present besides the prosecution witnesses, hence the failure of the prosecution to examine these eye-witnesses has caused a shadow of doubt on the prosecution version. Consequently, as the eye-witnesses who have been examined were related to each other their evidence could not be accepted at face value. In this regard learned counsel has referred Abdul Majeed v. The State 2001 M LD 1200, The State v.
Tassawar Hussain NLR 1999 SD 751 and Sher Khan v. The State 1976 PCr.LJ 68.
10. For all the foregoing facts and reasons learned counsel has prayed that the appeal be allowed.
11. In rebuttal Mr. Habibur Rasheed for the State has submitted that the delay in lodging of the F.I.R.
Can be explained since firstly the victims were sent to the hospital from where the F.I.R. Was dispatched to the police station. Secondly, as regards the eye-witness account learned counsel has submitted that the inhabitants of the deceased's house were the natural witnesses and since the incident occurred in the courtyard of the house the outsiders could not be expected to know as to what was going on inside. Finally; as regards the issue of two versions learned counsel has submitted that the three eye-witnesses corroborate each other and the crime in question relates to only one F.I.R. Viz. 128 of 1990, hence F.I.R. 127 of 1990 has no relevance at all as that crime after being investigated by the police was put on the dormant file. Consequently, learned State Counsel has supported the impugned judgment and prayed that the appeal be dismissed.
12. I have heard the learned counsel and my conclusions are as follows:--
13. It would be seen that the incident had occurred in the day time and was witnessed by at least three persons who were members of the same family viz. P.W.1 Sohail Ghani who is a grandson of the deceased. P.W.2 Mumtaz Begum who is a daughter of the deceased who had taken him to the hospital and P.W.3 Mst. Munawar Jahan who is a daughter-in-law of the deceased. All these three eye-witnesses have steadfastly testified that the appellant/accused had entered their house and shot dead the deceased and their testimony could not be shaken under cross-examination.
Similarly, it is also not the case of the defence that these witnesses were inimical towards the accused, which rules out the possibility of false implication. It would also be seen that P.W.4 Alam Deen who is an independent witness as stated that the deceased had fired a shot at him on the day of incident when he went inside a bakery.
' Thereafter, when he again came out on the street he saw that the accused was coming out from the deceased's house with a pistol in his hand and when this witness went inside that house he saw the dead body of the deceased lying there. This witness has also not been shaken under cross- examination. The medical evidence on record also corroborates the ocular account as P. W.11 Dr. Akbar Hussain has testified that the deceased had suffered one bullet injury due to which he had died. For all the foregoing reasons, I am of the opinion that the prosecution has been able to prove its case against the appellant/accused.
14. As far as the learned counsel's contention regarding delay in lodging of the F.I.R. As well as recording of the police statements of the witnesses is concerned, there is no cavil with the proposition that in appropriate case where such delay cannot be explained this renders the case against the accused doubtful in nature as there could be an opportunity for consultation etc. Before the F.I.R. Is lodged. In the present case, the F.I.R. Was lodged at 20-20 hours regarding the incident which took place on the same day at 14-30 hours. It is the prosecution case that there was indiscriminate firing in the area as a result of which, a number of people had been injured and some of them had also died, which is readily borne out from the deposition of the Medical Officer P.W.9 Muhammad Saleem. Per deposition of the Investigating Officer Malik Rab Nawaz when he reached the place of incident at about 2-30 p.m. He was informed that the injured persons had been removed to Jinnah Hospital. He accordingly proceeded to the hospital and recorded the statements of the injured persons namely; Mst. Bushra, Javed, Jamil, Muhammad Irfan and Nizamuddin but by that time injured Abdullah had died and so also later on Nizamuddin succumbed to his injuries. Hence, the delay can be explained as the Investigating Officer was busy in recording the statements of the injured at the hospital on the day of the incident: The Investigating Officer has also explained that the delay in recording the police statements of the prosecution witnesses was due to the fact that these witnesses were not available at their houses due to the unrest prevailing in the area. In my view this is a plausible explanation for such delay as admittedly there was intense political rivalry amongst different factions of various political parties in the area where the incident took place. Hence, it is quite possible that the Investigating Officer could not easily locate the prosecution witnesses during those days. For the foregoing reasons, in my view, the cases cited by the learned counsel regarding delay in lodging of the F.I.R. As well as the police statements can be distinguished as far as the present case is concerned because in those cases the delay had gone unexplained and hence the benefit of doubt was given to the accused. As far as the lodging of the F.I.R. No,127 of 1990 is concerned, the Investigating Officer has stated in his deposition that he had investigated the same thoroughly but had no option except to put it on the dormant file as no witnesses were forth coming to testify on behalf of the complainant party. This F.I.R. Had been lodged by co-accused Abdul Ghani at 15-15 hours on the day of incident to the effect that while he alongwith his younger brothers, Muhammad Haneef, Muhammad Siddique, Muhammad Ishaque and other persons were sitting on the side of the road, two young boys belonging to Afaq Hussain group came on a black Honda C.D. 70 Motorcycle and started firing with kalashnikovs as a result of which both the complainant's brothers and other Mohallah people were injured and were removed to hospital. Out of these two accused one was recognized as Akhter while the other one could be recognized if produced before the complainant. This F.I.R. Is, however, not corroborated by the medical evidence on the record since P.W.11 Dr. Akhter Hussain has not stated any thing regarding the aforesaid injured persons having been received by him at Jinnah Hospital on the said date. Investigating Officer Malik Rab Nawaz has stood the test of cross- examination as far as F.I.R. 127 of 1990 is concerned and has stated in unequivocal terms that since no one came forward to support the complainant he had no option but to shelve the same.
15. The net result of the foregoing discussion is that this appeal is dismissed and the impugned judgment is maintained.