P L D 2002 Quetta 97 (PLP)

P. W.7 Dr. Ghulam Sarwar Hashmi examined the deceased and issued medical certificate Exh.P/7‑A and also issued certificate Exh.P/7‑B that the deceased was not in a condition to give statement. He found the following injuries on the body of the deceased: "(1) Was serious, deep unconscious, vomiting 'positive ENT bleeding live. (2) Lacerated wound on right perital region of skull 5 c.m. x bone with bleeding. (3) Lacerated wound on occipital region of skull 2 x 1 c.m. with bleeding. P.W.8 Abdul Wahab, A.S.‑I. is the First Investigation Officer, as mentioned hereinabove. P.W.9 Basheer Ahmed was entrusted with the investigation of the case on 21‑9‑2000 on the day when deceased succumbed to the injuries. He prepared parcel of the blood‑stained clothes,' obtained death certificate on 26‑9‑2000 and collected F.S.L. report. Exh.P/9‑A and. prepared complete challan Exh.P/9‑B. The appellant was examined under section 342, Cr.P.C. but did not record his statement on oath nor led any evidence in his defence. On the conclusion of the trial, the learned Additional Sessions Judge‑III, Quetta convicted the appellant as mentioned above; hence the instant Criminal Appeal and Revision.

4. Mr. Kamran Murtaza, Advocate for the appellant contended that P.W.2 Shehzadi who is wife of the complainant and P.W.6 Lal Bibi, widow of the deceased were interested witnesses and their statements were recorded after 24 days of the incident; therefore, no implicit reliance can be placed on their testimony. Mr. Kamran Murtaza, Advocate further contended that P.W.2 Mst. Shehzadi wife of the complainant, and P.W.6 Lal Bibi wife of the deceased have been introduced by the prosecution at a very belated stage. The learned counsel pointed out that the first challan Exh. P/7‑B was submitted under section 337, A.D.F. On 26‑8‑2000, the said ladies were not cited as witnesses. Moreover, material improvements have been made by the prosecution witnesses and they have contradicted each other. The statement of the said ocular witnesses is also in conflict with the medical evidence. The learned counsel further pointed out that Abdul Sattar who was present at the scene of occurrence has not been produced; therefore, the prosecution has suppressed the material facts. He contended that the prosecution case lacks independent corroboration. The recovery of the' Danda cannot also be attributed to the appellant.

5. Mr. Ghulam Mustafa Mengal, learned Assistant Advocate‑General, argued that the presence of the witnesses have been established at the place of incident, thus delay in recording their statement is not fatal for the prosecution case and further recovery of the Danda is very much attributed to the appellant and statement of the witnesses is in conformity with the medical evidence, therefore, no ground for interference in conviction is made out. In support of Criminal Revision he stated that no mitigating circumstances exist in favour of the appellant for lesser punishment; therefore, the sentence is liable to be enhanced to capital punishment.

6. We have heard the arguments of the learned counsel for the patties and have also minutely perused the record of the case with their assistance.

7. It is worth‑mentioning that on 21,9‑2000, deceased succumbed to, the injuries and the case was fixed in routine on 22‑9‑2000 and the Court was informed about his death. Order‑sheet dated 22‑9-2000, reveals that directions were given to the A.D.A. to get the challan submitted alongwith the medical certificate. Perusal of the attire‑cited record further reveals that the statements of the afore‑cited two witnesses were recorded on 21‑9‑2000, i.e. after the death of the deceased. It may be pointed out that P.W.8 Abdul Wahab, A.S.‑I. in his statement has stated that appellant Qadir Bakhsh was sent to judicial custody on 26‑8‑2000 and he handed over papers to the S.H.O. for submission of challan. He further stated that he 'recorded statements of Mst. Lal Bibi and Shehzadi. It is surprising to note that after the death of deceased, further investigation was entrusted to Basheer Ahmed. A.S.‑I. but he has not recorded the statements of the said witness. The contention of Mr. Kamran Murtaza learned counsel for the appellant has substance that the said ladies were introduced at a belated stage without giving any plausible reason for such delay.

8. It is noted that initially when report was lodged on 13‑8‑2000 the complainant has not mentioned the presence of both the female P.Ws. in the Suzuki Van, in which deceased was taken to hospital by Abdul Sattar but in his statement before the Court he stated when Abdul Sattar informed him about the incident both the ladies were also present in the Suzuki Van. It is worth‑mentioning that the said ladies were introduced as witnesses after the death of the deceased: The complainant could not give any satisfactory explanation as to why the names of both the ladies were not mentioned in the Farad‑e‑Bayan.

9. It may be observed that statements of witnesses recorded by the police at a belated stage would not be fatal but where the delay is unexplained and names of the said witnesses has been introduced at a later stage; purposely manoeuvred to implicate the accused, such delay would adversely affect the prosecution case and no explicit reliance can be placed on the testimony of such witnesses. In this regard reference is made to the following cases:‑‑ (1) Asfandyar Wali v. The State, PLD 1978 Peshawar 38 wherein the following observations were made‑‑‑ "In law, the police is duty bound to record the statement of a witness no sooner he appeared before them in a criminal case. It is not disputed that they were star witnesses of the prosecution who could not be said to have been prevaricating in any manner. It is a matter of record that their statements were recorded few days after the occurrence and thus an adverse inference can be drawn against the prosecution that the witnesses had made their statements in line with what was suggested to them by the investigating agency. It may here be observed that once it comes on record that in a criminal case, the witness had appeared before the police on the first available opportunity but his statement under section. 161, Cr.P.C. was delayed, his evidence should not be given that sanctity as is generally given to the evidence of a witness whose statement had been recorded no sooner he had appeared before the police. " (2) Abdul Khaliq v. The State 1996 SCMR 1553 wherein the following observations were made:‑‑ "He admitted that all the eye‑witnesses were examine at the instance of the complainant. There is no explanation furnished by the prosecution for examination of Mir Qalam after 20 days of the incident and for examination of Abdul Jabbar and Muhammad Shah after one month and three days of the incident. It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nill unless there is plausible explanation for such delay."

10. Mr. Kamran Murtaza, Advocate further argued with vehemence that though the statements of the witnesses were recorded after a considerable delay, yet no reliance can be placed on the same as their statements are in conflict with the medical evidence and further mate ' improvements have been made by both the ladies and the complainant.

11. Besides delay there is yet another factor for disbelieving' the said two eye‑witnesses. Their testimony is at variance and in conflict with the medical evidence. In their deposition they stated that the appellant alongwith the absconding accused entered the house and attacked the deceased due to which he fell down. Admittedly, according to medical certificate the deceased only sustained two injuries on his head which proved fatal but as per their version deceased was attacked by the appellant alongwith the absconding accused who were six in number. Both the witnesses did not know as to how many injuries were received by the deceased No specific injury has been attributed to the appellant and general allegations have been made that they attacked the appellant. The case as set up by the prosecution is very improbable. The motive for the fight was that Yar Muhammad along with other absconding accused were blocking the way of the house of deceased and on his restraint, the appellant along with the absconding accused attacked him. Perusal of the site plan does not support this fact. It may be mentioned here that in the site plan, the way which was being blocked has been shown within the courtyard of the deceased; names and the houses of the appellant and other absconding accused have not been shown. It is not understandable as to how the appellant and other accused were blocking the way of the house of the deceased within his own courtyard. Further the version that the appellant alongwith absconding accused entered inside the house of the appellant and attacked him seems to be very improbable. It is the version of both the ladies that the deceased restrained the appellant and the absconding accused outside the house from blocking his way and thereafter he entered the house and then the appellant alongwith other absconding accused came inside the house and attacked upon him. The said version does not appeal to a rational mind, as to why the accused entered the house of the deceased as he simply asked the accused not to block his way and entered his house. The said version does not get support from the site plan either. Hence it can be safely concluded that the prosecution has suppressed material facts and has not come with the whole truth which is likely to adversely affect its own case. Even it is hard to believe that the incident took place in the house of the deceased as no blood‑stained earth was collected which makes the prosecution case more doubtful. In this regard reliance can be placed on the following cases:‑‑

1. Saeed Muhammad Shah v. The State 1993 SCMR 550 wherein was held as under:‑‑ "Secondly, statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance. It is held in the case, of Amir Zaman v. Mehboob and others (1985 SCMR 685) that testimony of witnesses containing material improvements are not believable. Reference can also be made to the cases of Haji Bakhsh v. The State (PLD 1963 Kar. 805), Qaim Din and others v. The State (1971 PCr.LJ 229) and Fazla and another v. The State (PLD 1960 Lah. 373).

2. Muhammad Anwar v. The State, 1999 SCMR 729 wherein it was held as under:‑‑ "Since both the dead bodies were unidentifiable, it cannot be said with certainty that those were of Shaukat Ali and Mst. Irshad Bibi deceased. There is a serious doubt about the place of occurrence also. If the deceased has been given sharp‑edged weapon injuries in the house of the accused, blood‑stained earth or any trace of it must have been found there, but no such thing was noticed. Even the dead bodies were not recovered from the house of the accused. It would also be worthwhile to point out that except for Mahanda no other witness was examined to prove the recoveries of the dead bodies which were admittedly not at the instance of the appellants and were recovered from places far away from the scene of occurrence. No incriminating material like any article of dowry given to Mst. Parveen P.W. on the occasion of her marriage/Rukhsati was recovered from the house of the accused. The genesis of occurrence is shrouded in mystery and nothing can he said with certainty as to how, where and under what circumstances it happened." It has come on record that Abdul Sattar who took the deceased in Suzuki Pick‑up informed the complainant about the said incident; Abdul Sattar is a very material and important witness but he has not been examined which further creates a dent in the prosecution case and the presumption would be that had he appeared, he would not have supported the prosecution version. Therefore, on this score also the prosecution case becomes doubtful. Reliance in this regard can be placed on Ahmed Yar and others v. The State, 1998 SCMR 715 Wherein the following observations were made:‑‑ "In other words, prosecution has not come out with the whole truth. Its hands are not clean to say the least. It is certainly a case of suppression of material fact. on the part of the prosecution. It has been shown that Muhammad Zaman was present at the spot and he was particularly asked by the complainant party to fire at the assailants. He was, thus, a very important witness but the prosecution in its wisdom failed to produce him in support of its story. His non‑production has created doubt in the prosecution version. The presumption is that in case he had appeared, he would not have supported the prosecution. On the contrary, he would have favoured the defence plea. The prosecution case may be seen from this angle as well that as many as six accused mentioned above, were acquitted of the murder charge while discarding the prosecution evidence as whole."

12. Thus in view of the above discussion, in our considered opinion the prosecution has failed to prove its case beyond any shadow of doubt against the appellant. Giving him benefit of doubt, he is acquitted of the charge. He be released forthwith if not required in any other case, Appeal is accepted and Criminal Revision is dismissed. S.A.K./123/Q Appeal accepted.