2017 PLP 1808 (MLD)

NAZEER AHMED LANGOVE, J.

This Criminal Acquittal appeal has been filed against the judgment dated 24th June, 2016 (hereinafter referred to as the "impugned judgment") passed by Sessions Judge, Nasirabad at Dera Murad Jamali, (hereinafter referred to as the "trial court") whereby the respondents have been acquitted of the charge.

2. Brief facts of the case are that on 30th September, 2014 PW Jalal Khan(Complainant) lodged a written report at PS 'Manjhoo Shori', with the averments that on 29.09.2014 his son namely Zafarullah, aged about 15/16 years after taking grain on bicycle went to Qadir Abad for grinding the same but due to non-availability of electricity returned back to home. At about 02:00 PM his son again went to Qadir Abad for grinding grain, however, did not return back till night. They searched him everywhere but could not find any clue. He further stated that today at about 10.30 PM his relative namely Abdullah informed him on phone about the fact that the dead body of his son named above is lying at the bank of watercourse near Goth Noor Mohammad Mengal. On receiving such information complainant along with his relative Abdul Nabi went to Goth Noor Muhammad Mengal, where he found the dead body of his son lying in pool of blood. According to the complainant his neck was cut by sharp weapon besides injuries on his back and abdomen. Hence the registration of FIR No. 72/2014 with the PS 'Manjoo Shori', against the unknown accused.

3. On 30.08.2015, after lapse of about eleven (11) months, complainant recorded his second statement wherein he nominated the accused persons including the respondents on the basis whereof the accused were arrested, investigated and 'Challaned'.

4. On completion of investigation, `Challan' of the case was submitted, trial commenced, charge framed and denied by the accused facing trial.

5. To prove its case the prosecution examined as many as ten (10) witnesses.

6. On examination under section 342, Cr.P.C. the accused have disputed the case of prosecution and pleaded their innocence, with the submissions that they are innocent, have falsely been involved in a heinous case of murder. They prayed for their acquittal, however, neither opted to record their statements on oath as envisaged under section 340(2), Cr.P.C., nor produced any witness in their defence.

7. After hearing learned counsel for the parties and evaluating evidence, the learned trial court found the accused innocent as such, acquitted them of the charge as mentioned hereinabove.

8. Feeling aggrieved and dissatisfied from the judgment passed by the learned trial court appellant preferred instant appeal with the submissions that the judgment impugned passed by the trial court is contrary to law, facts and principles of natural justice. Ample evidence connecting the respondents with the commission of crime was available on record, particularly the statements of eye-witnesses PW-2 Khuda Baksh and PW-3 Abdul Ghani, were not considered on the ground of recording their statements with delay by ignoring the fact that delay had been explained by them properly while recording their statements. Similarly the crime weapon i.e. "Knife" was recovered on the pointation of respondent No. 1, but this important factor was also not considered which caused grave miscarriage of justice to the appellant.

9. On the other hand the learned D.P.G., vehemently opposed the appeal with the submissions that the judgment impugned passed by the trial court is based on appreciation of evidence. No misreading or non-reading of evidence could be pointed out by the appellant, therefore, the judgment impugned is not liable to be set aside.

10. We have heard the learned counsel for the parties and gone through the record with their assistance which reflects that the alleged incident took place between the night of 29th and 30th September, 2014. The FIR No.72 of 2014 without any delay was registered against the unknown culprits, however, on 30.08.2015 the complainant recorded his second statement wherein he nominated the accused persons including the respondents as culprits and responsible for unnatural death of his son, which too, by introducing PW-2 Khuda Baksh and PW-3 Abdul Ghani as eye-witnesses of incident which was rightly not believed by the learned trial court because if the above named PWs had witnessed the incident themselves, there was no occasion for them to keep quiet for eleven (11) months.

11. Brief narration of evidence put forth before the trial court is as under:-- PW-1 Jalal Khan is the complainant who reported the matter to the police on 30.09.2014 wherein he did not name any culprit vide written report Ex.P/1-A, however, after lapse of about eleven (11) months he had recorded his second statement wherein he nominated the accused persons with the version that his relatives Abdul Ghani and Khuda Baksh told him that the accused persons/respondents had committed the murder of his son. PW-2 Khuda Baksh, an alleged eye-witness, in his testimony stated that on 29.09.2014 he along with his relative Abdul Ghani were watering their 'paddy' crops. At about 08.30 PM they were attracted with hue and cry from the watercourse of 'Balan Shakh' side. They rushed there and found the accused persons/respondents Abdul Rauf, Muhammad Aslam, Abdul Karim and Muhammad Asif holding Zafarullah from his hands and legs, while Abdul Rauf was cutting his neck, after raising 'lalkara' by the witness and his fellow culprits left Zafarullah and fled away. Witness further deposed that he and Abdul Ghani decided that they would not inform the matter to any one because in case of doing so they would have to pay compensation to the opposite party as 'Balochi' custom and tradition, however, after lapse of about eleven (11) months, the father of deceased brought the 'Holy Quran' which was honored and witnesses came forward with the truth. PW-3 Abdul Ghani also narrated the same story. PW-4 Abdullah, found the dead body of deceased Zafarullah lying at the bank of watercourse and intimated the matter to PW Jalal Khan, the father of deceased. PW-5 Muhammad Ali, (constable) recovery witness of blood stained crime weapon sickle and bicycle lying there, taken into possession through memo, produced and articled in the court. PW-6 Haji Khan Domki SI/SHO, the Investigating Officer of this case appeared before the trial court and deposed that in pursuance of FIR No. 72/2014, (Ex.P/6-A) he started investigation of the matter, prepared memo. of inspection of the place of occurrence Ex.P/5-B, site plan Ex.P/6-B, inquest report Ex.P/6-C, recovery memos. Ex.P/5- B to Ex.P/5-D, memo. of blood stained clothes Ex.P/6-D and sealed them in parcels Art.P/8 to Art.P/9. PW-7 Saifullah (Constable) was also a formal recovery witness of blood stained clothes of deceased taken into possession through memo. Ex.P/6-A. PW-8 Dr. Mehmood Khan Umrani, ADHO, who examined the dead body of deceased and found following injuries:-- "History of "Incised wound", External Post Mortem Examination report. A Dead body lying Hate. Blood staining positive. Rigor mortis positive. INJURY:

1. An incised would 1" large lcm deep 1/4" wide of on the left side of the neck. Blood vessels of the neck were cut.

2. An incised wound on the Epigastric region of the abdomen.

3. An incised would on the back of the left side of the chest. Cause of Death:- Severe loss of blood due to damage of vital organs of Neck. Probable time of death: 12 hours before arrival at the RHC Manjhoo Shori. Kind of weapon: (Sharp Cutting) " PW-9 Abdul Raheem (constable) recovery witness of alleged crime weapon i.e. `Churri', (recovered on the pointation of respondent No. 1), taken into possession through memo. Ext.p/9-A and produced in the court as Art.P/12. PW-10 Ghulam Mustaf Meerali, SI/ 2nd I.O. of this case investigated the remaining part of investigation, sent blood stained clothes and earth to FSL and obtained report Ex.P/10-A, submitted the same through `Challan' Ex.P/10-B.

12. Admittedly, the unnatural death of deceased Zafarullah with sharp edged weapon is not a matter of dispute, however, the moot question is that who was/is responsible for the same. Deep appreciation and re-evaluating of evidence indicates that PW-2 and PW-3, star witnesses of the case for the first time were introduced as eye-witnesses after an unexplained delay of eleven (11) months, so inference can safely been drawn that the ocular evidence was managed and they were planted after due deliberations and consultations, therefore, the learned trial court rightly disbelieved their evidence. Conduct of above named witnesses was against the human nature because they came forward with the claim that they are close relatives of the deceased but at the time of incident neither they resisted the unnatural death of deceased at the hands of culprits, nor intimated the matter either to the police or complaint timely, nor even bothered to shift the dead body of deceased to the hospital, rather kept mum for about eleven months, which is against the human nature and not convincing to a man of common sense. 12(sic) Perusal of record indicates that it was even a blind murder with no evidence. The above named PWs were planted later on so, reliance on their testimony without strong independent and unimpeachable corroboration was not safe, rightly disbelieved by the trial court. In this regard reliance can be placed on judgment titled as Rahat Ali v. The State reported in 2010 SCMR

584. Relevant portion is reproduced as under:-- "

S. 161

Delayed examination of witnesses by police

Effect

Delay in recording the statement of a witness by police without furnishing any plausible explanation, is fatal to prosecution case and the statement of such witness is not to be relied upon. Muhammad Sadiq v. The State PLD 1960 SC 223; Sahib Gil v. Ziarat Gul 1976 SCMR 236; Muhammad lqbal v. State 1984 SCMR 930 and Syed Muhammad Shah v. State 1993 SCMR 550 ref." Similarly, reliance can also be placed on judgment titled as Mst. Shahnaz v. The State reported in 2015 YLR

771. Relevant portion whereof is reproduced as under:-- "This court has already held in 1993 SCMR 550 and 1995 SCMR 127 that if no plausible explanation is offerred by prosecution to record the statement of eye-witnesses immediately after the registration of the case then the evidence of such witnesses becomes incredible." Admittedly, the prosecution is always duty bound to prove its case against the accused beyond the shadow of any reasonable doubt and benefit of doubt, if any, should be extended in favour of the accused. Reliance can be placed on judgment titled as Adeel and another v. The State reported in 2016 YLR 2212. Relevant portion is reproduced as under:-- "It is known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case. In such situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whether accused are involved in the case or they are entitled to the benefit of doubt, the Court can conclude on considering agglomerated effect of the evidence available on record as held in the case of "Safdar Ali v. The Crown" (PLD 1953 FC 93) and "Muhammad Luqman v. The State" (PLD 1970 SC 10)." Reliance can also be placed on judgment titled as Fazal Maula v. The State through Additional Advocate General, Khyber PakhtunKhwa and another reported in 2016 MLD

42. Relevant portion is reproduced as under:-- "It is well settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and coherent evidence and if Court comes to the conclusion that the charge so leveled against the accused has not been proved beyond reasonable doubt, then the accused becomes entitled for his acquittal on getting benefit of doubt. In criminal case, where more than one possibility appears in the case, then the possibility in favour of accused is always to be preferred for simple reasons that benefit of doubt is never to be extended to the prosecution and is always given to the accused." Same principle was affirmed in another judgment reported in 2016 SCMR 1605.

13. In view of above we find no substance in the appeal, therefore, same is dismissed accordingly. JK/64/Bal Appeal dismissed.