2020 PLP 1267 (MLD)

ABDUL HAMEED BALOCH, J.

The learned Sessions Judge Sibi Division Sibi (the "trial Court") vide judgment dated 12.01.2018 (the "impugned judgment") passed in Sessions Case No.35 of 2017 convicted the appellant Abdul Kabeer son of Arbab as under: Under Section 302(b) of the Pakistan Penal Code, 1860 (P.P.C.) to suffer life imprisonment as Tazeer and to pay compensation amounting to Rs.2,00,000/- (two lac) to the legal heirs of deceased as per provisions contained under section 544-A, Cr.P.C, or in default whereof to further undergo S.I. for six (06) months. Under Section 148, P.P.C. to suffer two (2) years' R.I. and to pay fine of Rs.2000/-, in default whereof to further undergo two months' S.I. Under Section 149, P.P.C. to suffer two (02) years' R.I. and to pay fine of Rs.2000/- in default whereof to further undergo two months' S.I. All the sentences were directed to be run concurrently. The benefit of Section 382-B of the Criminal Procedure Code, 1898 ("Cr.P.C.") was also extended in favour of the appellant. The appellant has preferred Criminal Appeal No(s).09 of 2018 for his acquittal, while the complainant has preferred the Criminal Revision Petition No(s).18 of 2018 for enhancement of the sentence of the appellant. Since both the cases are arising out of the same judgment, therefore same are being disposed of by means of this common judgment.

2. The brief facts of the case, as alleged in the FIR No. 07/2017 registered on 24th May, 2017 by complainant Hafeezullah that on 23rd May, 2017 at about 7:00 p.m. he along with his brother Allah Dad went for taking bath in water channel of Koshi and Ishaqzai. His brother was taking bath meanwhile appellant along with other nominated accused persons came there, out of whom accused Waheed-ur-Rehman and Muhammad Nawaz started firing at his brother, resultantly his brother received bullet injuries, while Abdul Aziz and Faizullah aimed pistol at him (complainant) and warned him for not coming forward. The accused persons took his brother out from the water and set him at fire, due to which his brother died at the spot. The motive behind the incident is old enmity.

3. After completion of investigation challan was submitted before the trial court. The charge was framed and read over to the appellant to which he did not plead guilty and claimed trial.

4. In order to establish guilt of the accused, the prosecution examined the following witnesses: PW-1 Hafeezullah son of Allah Dina (complainant). He produced his Fard-e-Bayan as Ex.P/1-A. PW-2 Muhammad Arif. He is eyewitness of the occurrence. PW-3 Amir Khan son of Haji Mitha Khan. He is also eyewitness of the occurrence. PW-4. Zafarullah son of Muhammad Usman (recovery witness). He produced site inspection note Ex-P/4-A, recovery memo of six empty cartridges Ex-P/4-B, parcel No.1 as Article P/1, six empties as Article P/2, sample of seal as Article P/3, recovery memo of blood stained earth as Ex-P/4-C, parcel No.2 as Article P/4, sample of seal as Article P/5, blood stained earth as Article P/6, recovery memo of plastic bottle as Article P/8 and sample of seal as Article P/9, recovery memo of blood stained earth, clothes and burnt handkerchief as Ex-P/4-E, parcel No.3 as Article P/10, shalwar, Qamiz, handkerchief as Article P/11 and sample of seal as Article P/12. PW-5 Dr. Muhammad lqbal. Medico-Legal Officer. He produced MLC of deceased Barat Khan as Ex-P/5-A. PW-6 Ghulam Murtaza, Naib Tehsildar Sibi (Investigating Officer). He produced Inquest Report as Ex-P/6-A, FIR as Ex-P/6-B, site map as Ex-P/6-C and incomplete challan as Ex-P, list of legal heirs of deceased as Ex-P/8-D and challan Ex-P/5-E respectively.

5. After close of the prosecution evidence the statement of the appellant was recorded under section 342, Cr.P.C. He denied the allegations and professed his innocence. He did not opt to record his statement on oath as envisaged under Section 340(2), Cr.P.C, however he produced DW-1 Iftakhar Ahmed in his defence. On conclusion of trial the appellant was convicted and sentenced in the above terms.

6. Learned counsel for the appellant contended that the impugned judgment suffers from misreading and non-reading of evidence; that the FIR was lodged with unexplained delay; that no role of firing has been attributed to the appellant; that there is contradiction amongst the statements of the prosecution witnesses; that there are material irregularities and illegalities in the impugned judgment, which is liable to be set-aside. He lastly urged for acquittal of the appellant.

7. Conversely, the learned counsel for the complainant vehemently opposed this appeal and contended that the trial court believed the direct evidence produced by the prosecution and found no mitigating circumstances, he therefore urged for dismissal of the appeal and prayed for enhancement of the sentences.

8. Learned Deputy Prosecutor General adopted the arguments advanced by the learned counsel for the complainant and urged for dismissal of the appeal.

9. Heard. Record perused. The prosecution case rests on ocular account, recovery of five empties of TT, one 9 MM, blood stained earth, blood stained shirt of deceased and MLC. It is an admitted fact that the FIR was lodged with delay of one day. The distance of place of occurrence is 1/2 kilometer from the levies station, but the prosecution has failed to explain the delay. The rule of prudence demands that the FIR should be lodged as early as possible. Delay in lodging of FIR creates suspicion on its creditability, as such consultation and deliberation on the part of the complainant cannot be ruled out. Reliance is placed on the case of Akhtar Ali v. State 2008 SCMR 6.

10. As per PW-2 and PW-3 after the occurrence the levies official reached at the spot and recorded the statement of witnesses including complainant. The PW-1 (complainant) during cross-examination stated that: While PW-3 during cross-examination stated that: Whereas PW-9 (Investigating Officer) stated that on 23.05.2019 at about 6:45 p.m. he visited the site and on the next day i.e. 24.5.2019 at 7:00 p.m., prepared Ex-P/6-C, recorded the statements of' the witnesses under section 161, Cr.P.C. Here question arises as to who recorded the statement of the witnesses on the date of occurrence i.e. 23.5.2017. If both the above versions are taken into juxtaposition and one is disbelieved it means the witness did not narrate the whole truth and if the version of ocular account has to be considered then it reveals that PW-6 being Investigating Officer initiated investigation prior to lodging of FIR. The law does not permit the investigation of the cognizable offence prior to lodging of FIR. The law enforcement hierarchy is bound to act according to law when the thing is required to be done on particular manner it should be done on that manner otherwise not done at all. The statement of PW-1 and PW-2 transpire that the statement of ocular witnesses under Section 161, Cr.P.C. was recorded prior to registration of FIR, which is not permissible under the Law. Reliance is placed on the case of Iftikhar Hussain v. State 2004 SCMR 1185.

11. As per Ex-P/1-A the motive behind the incident was old enmity, but the complainant failed to produce any court record in order to establish his version. Even otherwise the motive is double edged weapon it can cut both sides. The witnesses are inter se related to the complainant, and there exist enmity between the parties, under such circumstances it is not safe to rely on the statement of interested, inimical witnesses without independent corroboration. Reliance is placed on the case of Rab Nawaz v. Sikandar Zulqarnain 1998 SCMR 25.

12. PW-3 (eye-witness of the occurrence) stated that his statement under Section 161, Cr.P.C. was recorded on the same day at the place of occurrence, but the record transpires that his statement was recorded on 2.6.2017 after twelve (12) days of the occurrence without any justifications, despite the fact that he was alleged to accompany with the complainant. It is well settled law that if a witness lies on one point, his testimony lost its credibility, could be ruled out from consideration.

13. Now adverting to the version of PWs-2 and 3, whether they were present at the time of occurrence or not. The statement of PW-2 revealed that he was playing football when heard the noise of firing and saw the accused were firing on deceased, whereupon he immediately reached at the spot and he along with Abdul Ghafoor tried to extinguish the fire, meanwhile Amir also came there. It is astonishing that the complainant kept silent, did not try to extinguish the fire and waited for other PWs to rescue his brother. The conduct of the complainant is unnatural. The record reveals that PW-2 and PW-3 were not accompanying the deceased and complainant. It is astonishing that the PW-2 was playing football in playground and on hearing fire no other player except PW-2 rushed to rescue the deceased. PW-2 and PW-3 are chance witnesses related to complainant failed to explain their presence at the spot.

14. As per prosecution firing was made by three accused including appellant, but the empties were not dispatched to the FSL for examination whether the same were fired from one weapon or more weapons. No recovery was effected from the appellant nor the blood-stained clothes were sent to FSL whether same is human blood or otherwise.

15. According to PW-6 he received information of occurrence on 23.05.2017 at 6:45 p.m., whereupon he reached at the spot at 7:00 p.m. and took the corpse to the hospital, while Ex-P/6-B transpires that the occurrence had taken place at 7:00 p.m. It is astonishing that the occurrence had taken place at about 7:00 p.m. while the PW-6 had received the information prior to occurrence. While contrary to above, as per Ex-P/5-A the deceased was brought to Hospital at 9:30 p.m. The prosecution produced recovery memo of empties which shows that the prosecution had secured six (06) empties, while Ex-P.5-A shows that the deceased had received eleven bullet injuries. Such omissions. discrepancies and contradictions on the part of the prosecution cannot lightly be ignored. The credibility of witnesses cannot be divided, one to be believed and other is disbelieved. Reliance is placed on the case of Muhammad Darvaish v. State 2019 PCr.L.J 1086.

16. It is established principle of criminal administration of justice that the entire burden of proof lies on the prosecution and the prosecution cannot be absolved from the duty of proving the case on the basis of its own evidence. If any doubt arises from the statements of the prosecution witnesses its benefit goes to accused as matter of right and not as a grace. Reliance in this regard is placed on the case of Wajahat Ahmed v. State 2016 SCMR 2073.

17. Similarly, in the case of Ayub Masih v. The State (PLD 2002 SC 1048), the Hon'ble Apex Court has held that rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. This view is also of important value under Islamic Law in the light of saying of Holy Prophet (P.B.U.H.) that the 'mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent'. In view of above, the prosecution has failed to prove its case with cogent. confidence inspiring evidence, as such the appeal is accepted, the impugned judgment dated 12.01.2018, passed by learned Sessions Judge, Sibi Division Sibi is set aside and while extending benefit of doubt the appellant Abdul Kabeer son of Arbab is acquitted of the charge under Section 302(b), 148 and 149, P.P.C. in FIR No 07 of 2017. The appellant being in custody is ordered to be released forthwith if not required in any other case. Consequent to the above the Criminal Revision Petition No(s).18 of 2018 is dismissed. JK/135/Bal. Appeal allowed.