1. The present appeal is directed against the judgment dated 28-9-2000 passed by the learned V Additional Sessions Judge, Shikarpur in Sessions Case No, 229 of 1996 State v. Bhutto and others by which the learned Judge had convicted the appellants under sections 302(b), 149, P.P.C. and sentenced each of them to suffer imprisonment for life. They were also convicted under section 148, P.P.C. and sentenced each of them to undergo imprisonment for one year with benefit of section 382-B, Cr.P.C. and direction to run the sentences concurrently. The brief facts of the prosecution case, as disclosed in the F.I.R. are that on 16-8-1996 the complainant, P.W. Muhammad Bux and Dosan were going to Makan of Bahar Fakir by foot. When they reached the Makan of Bahar Fakir at 3-00 p.m., they saw the dead body of his nephew Ali Bux lying under a tree with its head missing. The complainant leaving the P.Ws. at the Vardat went to his Nekmard Muhammad Bux Kakepoto and informed him about the incident who directed him to lodge the report therefore, he went to the police station and lodged the report. The motive assigned in the F.I.R. is that the appellants Gul Hassan and Bhutto who were residing in village Muhammad Siddiq Wasan had restrained the deceased from visiting their village otherwise he will be killed. The complainant had shown suspicion against the appellants for committing the murder because of the above enmity.
2. The case of the prosecution further reveals that after 2/3 days of the incident the complainant took Holy Qur'an and went to villages with a request that if any body knew about the incident he should be informed. In pursuance of the said request, P.Ws. Muhammad Azeem and Muhammad Ramzan disclosed the facts to the complainant that on the day of incident at about 3-00 p.m. they both were going to village Muhammad Umar when at about 3-00 p.m. they reached at graveyard of Bahar Fakir, they heard cries, they went there where they found the present appellants slaughtering the deceased; that appellants threatened them not to come near them and thereafter they took away the head of the deceased. After hearing the said fact, the complainant narrated the above facts to the police who recorded the statement of witnesses on 27-9-1996 after more than one month.
3. On the statement of the said witnesses, the appellants were arrested. The police after completing usual investigation challaned them in the Court of law where they were tried and convicted as mentioned above under the impugned judgment.
4. The appellants were dissatisfied with the said judgment therefore, they have preferred the appeal.
5. I have heard advocate for the appellant learned Assistant A.-G. and perused the record of this case with their help.
6. Learned advocate for the appellant has argued that prosecution had examined 10 witnesses but out of them the evidence of two witnesses viz. Muhammad Azeem and Ramzan is relevant for the decision of the case as they claimed to be the eye-witnesses. He has further stated that their evidence is unreliable and untrustworthy because their statements were recorded after more than one month without furnishing any explanation as to why they kept quiet for such a long time. He has further stated that though the complainant had stated that he was informed about the incident by the two P.Ws. after two days of the incident but his statement is neither supported or corroborated by other pieces of evidence as P.W. Ramzan had stated that they disclosed the said fact to the complainant after 10 days whereas S.H.O. had stated that he had recorded the statements of witnesses on 27-9-1996. He has further stated that P.W. Muhammad Azeem had even denied his relationship with his brother Dosan though it was admitted by complainant and P.W. Muhammad Bux. He has further stated that if the evidence of both these witnesses is taken out of consideration then there is no evidence to connect the appellant with the commission of this crime therefore, he has prayed for the acquittal of the appellant.
7. On the other hand, learned State Counsel has stated that the entire case is based upon the evidence of eye-witnesses viz. Muhammad Azeem and Ramzan am. their evidence is sufficient to connect the appellants with' the commission of this crime. He has further stated that mere delay in recording the statements of the P.Ws. would not make their statements untrustworthy which is otherwise supported and corroborated by medical evidence. He has admitted that there is no other evidence connecting the appellants with the commission of this crime except the statements of above two witnesses and the evidence of both these eye-witnesses is sufficient to convict the appellants therefore, he has supported the impugned judgment.
8. I have given due consideration to the arguments and find that the death of the deceased, on the above date, time and place is an admitted fact which was found lying headless. The complainant, P.W. Muhammad Bux and Dost Muhammad are not the eyewitnesses as they saw the dead body lying at the Vardat and then report was lodged. It has come in the evidence of complainant that after 2/3 days of the incident he took Holy Qur'an to different persons, to obtain information about the culprits who committed the murder of the deceased Ali Bux. On his enquiries, P.Ws. Muhammad Azeem and Muhammad Ramzan told him the above facts and involvement of the appellants. From the statement of complainant it is clear that he received the information about the persons who committed the offence after 2 or 3 days of incident. But P.W. Ramzan stated that they disclosed the said facts after 10 days of the incident whereas P.W. Muhammad Azeem supported the version of the complainant. Both the witnesses have admitted that the police had recorded their statements.
9. But the S.-I.P. Asad Nabi who investigated the case categorically stated that on 27-9-1996, he left the police station for investigation of this case when P.W. Muhammad Azeem and Muhammad Ramzan met him and he recorded their statements. From the statement of Investigating Officer it is clear that both the witnesses had narrated the incident to the police on 27-9-1996. This fact has further been confirmed from the statement of Investigating Officer that thereafter he arrested the appellants on 29-9-1996. This can only be done when Investigating Officer came to know about the names of the culprits. Thus there is delay .in recording the statements of eye-witnesses.
10. The complainant and P.Ws. have not furnished any explanation as to why they kept quiet after seeing the incident or receiving the information from the P.Ws. for more than one month. The complainant had tried to explain this delay by stating that he came to know about the names of culprits after two days of the incident when he took the Holy Qur'an to persons. Out of them P.Ws.
11. Muhammad Azaeem and Muhammad Ramzan informed him about the incident and names of the appellants to be culprits. But this explanation has not been proved from the evidence of Muhammad Ramzan and Investigating Officer. Even if we taken that the complainant had received the information after 2 or 3 days of the incident then what prevented him from approaching the police from disclosing the facts of the case and names of the culprits to them. Even he could have taken the P.Ws. to the police officer for recording their statements. The complainant, no doubt has admitted that he had taken both the P.Ws. to the police station for recording their statements after receipt of such information but the Investigating Officer has categorically stated that it was on 27- 9-1996.
12. Thus the explanation even if furnished by the complainant has not been proved. Thus there is unexplained delay of one month and 10 days in recording the statements of both the P.Ws.
13. In such situation the law is very clear as it is well settled principle of law that the evidence of such witnesses are to be ruled out of consideration when there is no explanation or unproved explanation of delay in recording the statements of such witnesses. In this connection reference is invited to a case of Saeed Muhammad Shah v. State reported in 1993 SCM R 550 and at page 571, it has been observed as under:-- "In absence of satisfactory nature of explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. In this case unsatisfactory explanation which is not substantiated can be equated with no explanation. In the case of Sikandar v. The State PLD 1963 SC 17 there was controversy as to when police statement of eye-witness was recorded and in that regard there was choice between version of eyewitnesses and Investigating Officer. It was held that controversy is to be resolved on the basis of rule that benefit of doubt must be given to the accused hence evidence of that eyewitness was viewed with doubt. In the case of Ismail and others v. The State 1983 PCr.LJ 823 evidence of witnesses was ruled out of consideration on the ground that their police statements were recorded after 8 days and prosecution offered no explanation. In the case of Sirajuddin v. Kala and another P,LD 1964 SC 26; evidence of witness was held to be not reliable for the reason of patent doubt as to the time as he first appeared before the police for his statement."
14. In this case, it will be seen that the complainant and P.W. Muhammad Bux have stated that P.W.
15. Muhammad Azeem was brother of P.W. Dosan who was cousin of the complainant but this fact has been denied by P.W. Muhammad Azeem. Thus P.W. Muhammad Azeem has himself made his statement untrustworthy and unreliable. However, complainant Dhani Bux has admitted that P.W.
16. Muhammad Ramizan and Muhammad Azeem are distant cousin. Thus both the P.Ws. were related to the deceased and the complainant but in spite of the said fact they kept quiet and did not disclose the facts of incident and names of the culprits to any body till they informed the incident to the complainant when he took Holy Qur'an to them. This by itself make their statements untrustworthy and unreliable. In this connection reference is invited to a case of Muhammad Siddique v. Stite reported in PLD 1960 SC 223 and at page 226 it has been observed that the witness being a friend of deceased did not disclose to any one for nearly 4 hours that he had seen the murder, the evidence of such witness was found to be having least value. In a case of Sahib Gul v.
17. Ziarat Gul reported in 1976 SCM R 236, an eye-witness was running a shop near police station but his statement was recorded after 4 days of the occurrence, the evidence of such witness was found untrustworthy. In another case of Muhammad Iqbal v. State reported in 1984 SCM R 930 at page 934, it has been observed as under:-- "As for Baikat Masih, his statement was recorded on his own showing, after 15 or 20 days, therefore, his reliability as a witness is always questionable. He claims to be a neighbour of Mst. Talia Bibi and knowing that she was murdered and having seen the appellant before and after the occurrence, yet he failed to give this information to the Investigating Officer immediately after the occurrence.
18. As to why he did not appear earlier after the commission of the offence, he has not given any explanation. This throws a grave doubt on the reliability of his witness. The Courts below did not consider this feature while assessing his evidence."
19. The rule laid down in the above mentioned authorities is fully applicable in the circumstances of the present case as in the present case also there is no explanation or if explanation is furnished but the same has not been proved by the prosecution, for delay in recording the statements of witnesses therefore, statements of P.Ws. Muhammad Azeem and Muhammad Ramzan are untrustworthy and unreliable. The said defect has affected the veracity of these witnesses.
20. Therefore, the statements of both these witnesses cannot be safely relied upon for convicting the appellants.
21. If the statements of both these witnesses are taken out of consideration then there is no evidence to connect the appellants with the commission of this crime.
22. There are other material defects, in the statement of both the eye-witnesses with regard to denial of their relationship with the P.Ws. and material contradictions in their evidence.
23. After considering the material available on the record, I am of the considered view, that the prosecution have failed to prove the case against appellants beyond any reasonable doubt therefore, their conviction and sentence awarded under the impugned judgment are set aside. The appellants are acquitted and set at liberty. They may be released forthwith, if not required in any other custody case. The appeal is allowed.
24. Above are the reasons of my short order dated 23-2-2003.