2004 P Cr (PLP)

FAZAL-UR-REHMAN, J.

This criminal appeal under section 410, Cr.P.C. has been directed against the judgment, dated 20-12-2002 passed by the learned Sessions Judge, Khuzdar by which, he convicted the appellant Muhammad Sharif son of Pehri under section 302(b), P.P.C. and sentenced to suffer imprisonment for life and to pay compensation amounting to Rs.50,000 to the legal heirs of deceased under section 544-A, Cr.P.C. and in default of payment of compensation, the appellant was ordered to suffer S.I. for a period of 6 months. The benefit of section 382-B, Cr.P.C. was also extended in favour of the accused/appellant. The case file was ordered to be kept in dormant in respect of absconding accused persons namely Allah Bakhsh son of Pehri, Lal Muhammad son of Pehri and Saifullah son of Allah Bakhsh.

2. The occurrence is stated to have taken place on 9-8-2002 at about 2-00 a.m. in Mir Gul Karkh stated to be located at a distance of 35 Kms. from Levies Thana, Karkh. Complainant Khuda Bakhsh (P.W.1) reported the incident to Naib Tehsildar Sub-Tehsil, Karkh vide report Exh.P./1A and F.I.R. being Crime No.3/2002 Levies Thana Karkh under section 302/34, P.P.C. was lodged by him. In the report as many as four persons were suspected as according to the complainant they had been extending threat. It was alleged that the accused persons made firing on the preceding night upon the daughter of complainant namely Mst. Khair Bibi and killed her. P.W.6 Lal Muhammad who at the relevant time was posted as Naib Teltsildar, Karkh, after recording F.I.R. took the investigation in hand: He went to the place of occurrence where the site plan was prepared vide Exh.P./1D. He secured two empties of kalashnikov from the place of occurrence, one piece of mat stated to be stained with blood also taken into possession. The dead body of Mst. Khair Bibi without conducting post-mortem examination was handed over to the heirs of deceased after obtaining receipt. During the course of investigation, the appellant was arrested. According to Investigating Officer, the statements of the witnesses were recorded under section 161, Cr.P.C. and on the completion of investigation, incomplete challan was submitted vide Exh.P./6-A. After usual investigation, the appellant was sent up to face his trial while the names of absconding accused were shown in Column No.3 of the challan in red ink as absconding accused persons.

3. On 25-9-2002 charge under section 302/34, P.P.C. was framed by the learned Sessions Judge, Khuzdar against the appellant to which he pleaded not guilty and claimed trial.

4. In support of its case, the prosecution examined P.W.1 Khuda Bakhsh (complainant), P.W.2 Muhammad Ramzan, P.W.3 Dr. Muhammad Sharif, P.W.4 Mst. Rahima, P.W.5 Mir Muhammad and P.W.6 Lal Muhammad, Tehsildar/I.O.

5. In his statement recorded under section 342, Cr.P.C. the appellant has disputed the case of the prosecution and pleaded his innocence. Neither he made his statement on oath as per provisions contained under section 340(2), Cr.P.C nor led any evidence in his defence.

6. The learned trial Court formulated the following points for determination:-- (1) Whether accused facing trial alongwith other absconding accused persons, in furtherance of their common intention had committed the Qatl-e-Amd of Mst. Khair Bibi for firing at her? (2) What offence if any has been made out?

7. The learned trial Judge after assessment of evidence believed the prosecution evidence. The learned trial Court also believed the statements of P.Ws. Muhammad Ramzan and Mst. Rahima regarding dying declaration stated to have been made by Mst. Khair Bibi. The learned trial Judge also believed P.W. Mir Muhammad regarding motive for the occurrence stated to be over a matrimonial dispute. Regarding delay in reporting the matter to Levies has been considered to be not fatal. The learned trial Judge found the appellant guilty for the offence under section 302(b P.P.C. and convicted and sentenced him imprisonment for life.

8. Feeling aggrieved, the instant appeal has been filed under section 410, Cr.P.C. against the conviction and sentence recorded by the learned trial Judge.

9. We have heard Mr. Taj Muhammad Mengal, Advocate learned counsel for the appellant and Mr. Muhammad Jaffar Raza, Advocate learned counsel for the State.

10. After hearing the learned counsel for the parties and having gone through the relevant record of the case we are of the view that the case of the prosecution is doubtful in nature to the extent of appellant. The evidence available on record is in no way sufficient to lead to a conclusion that the present appellant be convicted of the offence alleged against him. The incident admittedly took place during dark night and the identification of the appellant during dark night in the manner given by the P.Ws. in their contradictory and improved statements was neither possible nor confidence inspiring. Complainant Khuda Bakhsh who is father of the deceased did appear before the trial Court as P.W.1 but he has not deposed about the dying declaration made by the deceased Mst. Khair Bibi about the names of assailants who made firing upon her. The A perusal of F.I.R. Exh.P./1B is suggestive of the fact that deceased did not make any statement and the accused persons were only suspected to have committed the offence by the complainant. The report Exh.P./1A stated to have been made by complainant contains an endorsement of the Naib-Tehsildar to the effect that formal F.I.R. would be lodged after reaching at the spot. F.I.R. Exh.P./1B is stated to have been lodged on 9-8-2002 at 10-30 and the same is stated to have been read over to the complainant and his thumb-impression was obtained. The complainant in his deposition before the trial Court made material improvements over his report Exh. P./1B None from the inmates from the house where the occurrence had taken place was cited as a witness nor produced before the Court. P.W.2 Muhammad Ramzan who is stated to have come to the place of occurrence after gunshot report from a distance of about half kilometer has deposed about the dying declaration stated to have been made by Mst. Khair Bibi. It is very surprising that P.W.1 Khuda Bakhsh who is father of the deceased and who was stated to be at a distance of 10 paces and came at the spot has not deposed about the so-called dying declaration disclosing the name of the present appellant. The statement of P.W. in the circumstances of the case cannot be relied upon. Similarly, the evidence of P.W. Mst. Rahima is also not believable to the extent of present appellant and the same has also been contradicted by the complainant regarding making of dying declaration by the deceased. She has also contradicted the medical evidence regarding the injuries stated to have been found on the person of deceased. The statement of P.W. Mirl Muhammad has been stated to have been recorded after a delay of about one week and there is no such explanation for this delay. Even otherwise, the motive as stated by Mir Muhammad has not been mentioned by the complainant in such a manner. Admittedly no post-mortem examination of Mst. Khair Bibi has been carried out. There is also no valid evidence to indicate as to whether the injuries which were observed on her person were in the ordinary course of nature sufficient to cause the death. There is also material conflict between medical evidence and the injuries stated to have been observed by P.Ws. Mst. Rahim and Khuda Bakhsh. According to P.W. Muhammad Ramzan, he reached at the spot in the first instance while according to Mst. Rahima, Ramzan cattle after her. Statements of the witnesses in the Court in which, improvements are made to strengthen the case of the prosecution are not worthy of reliance In the absence of satisfactory explanation normally rule is that statements recorded by police after delay and without explanation are to be ruled out of consideration. We do not feel inclined to rely upon these witnesses in respect of present appellant, we do not feel certain that these witnesses really came at the spot and deceased disclosed the names of assailants because had it been so such discrepancies and lapses would not have occurred as which are specifically mentioned above.

11. There are material contradictions in the statements of prosecution witnesses which have caused dent in-the case of the prosecution.

12. The upshot of the above discussion is that we are of the considered opinion that the prosecution has failed to prove its case beyond doubt against the appellant, therefore, we allow this appeal, set aside the impugned judgment to the extent of appellant and acquit him of the charge. He would be released from jail forthwith if not required in any other case. N.H.Q./30/Q Appeal allowed.