2018 PLP 91 (YLRN)

MALIK HAQ NAWAZ, J.

Complainant Amir Yahya, a real brother of deceased Amir Zada lodged FIR No. 17/2013, wherein he did not raise his figure on anybody. After registration of FIR PW-1 Usman Ali proceeded to the place of occurrence, where he completed the legal formalities. He took dead body of deceased into his possession, prepared inquest report Exh. PW1/D and besides other codal formalities he took into his possession 5 crime of empties of 7.62 mm rifle from the place of occurrence and prepared recovery memo Exh. PW-1/H. Site plan of the occurrence was prepared which was exhibited in the trial Court as Exh. PW/J and he also recorded the statements of the PWs under section 161 Cr.P.C. The present respondent was arrested by the I.O. on 05.05.2013 and weapon of offence was recovered on his pointation on 13.05.2013 vide recovery memo Exh. PW-1/K. The I.O. prepared site plan of recovery and got it exhibited during trial as Exh. PW-1/L. The crime weapon was unlicensed, therefore, a separate case under section 13 A.O. was also registered against the respondent vide FIR No. 18/2013 of Police Station Darel.

2. The accused was committed to judicial custody after completion of investigation and challan of the case was submitted to the learned trial Court, where the case was entered in the relevant register as Sessions case No. 188/2014.

3. In order to prove the case the prosecution examined 7 P.Ws and on 19.11.2015, the learned District Public Prosecutor closed the prosecution case.

4. The respondent/accused was examined under section 342, Cr.P.C., on 03.12.2015, wherein he denied all the allegations leveled against him. In reply to question No. 3 the respondent/accused stated the reasons of his false implication. Q.No. 3 and its answer is re-produced as under: Q.No.

3. Why PW Furqan son of Mian Gul stated against you? Ans. PW Furqan has falsely deposed against me due to the reason that one of the cousin of PW Furqan namely Mst. Noshehrah was defamed with my brother Siraj Alam. The said Mst. Noshehrah was murdered subsequently at Chilas and later on my brother Siraj Alam was also murdered. PW Furqan has given a false statement against me to take a revenge for the above said conflict of illicit relations between Mst. Noshehrah and Siraj Alam.

5. However the accused did not examine himself on Oath under section 340(2), Cr.P.C., nor he opted to produce any D.Ws. in his defence.

6. The learned trial Court vide judgment/order dated 12.12.2015 announced the verdict of acquittal in favour of the respondent, which has been impugned by the complainant through the instant appeal. However, the State has not filed any appeal against the acquittal of the respondent and the complainant arrayed the State as respondent No. 2.

7. The learned counsel for the complainant/appellant submitted at bar that the judgment/order of the learned trial Court is perverse, arbitrary and not sustainable in the eyes of law. There is complete unison in the statements of eye-witness namely Furqan and the complainant, which has been ignored by the learned trial Court. The weapon of offence was also recovered from the possession of the respondent/accused and a separate case was registered against him. The case was of a single accused and there was no chance of substitution. The learned counsel further contended that the acquittal of the respondent/accused has been recorded on some minor discrepancies and contradictions, which are very trivial in nature and should have been ignored by the trial Court. Lastly the learned counsel prays that the order of acquittal be set aside and the respondent be convicted in accordance with law.

8. The learned Dy. Advocate General adopted the arguments advanced by the learned counsel for the complainant. The learned counsel for respondent submitted that there are material contradictions in the statements of prosecution witnesses. The statement of sole eye-witness namely Furqan (P.W.4) runs counter to the statement of complainant Amir Yahya (P.W.3). The learned counsel submitted that neither the accused nor the names of P.Ws are mentioned in the FIR, which cast a serious doubt about the veracity and authenticity of the statements of the prosecution story. Postmortem was not conducted to ascertain the cause of death and crime weapons/crime empties were not sent to Forensic Science Expert for expert opinion and there is no corroboratory evidence in support of the false and fabricated statements of PW-4 Furgan and PW-5 Sher Zada. Lastly that the order of acquittal is a well reasoned and has been delivered after due application of mind and be maintained as there is no worth reliance evidence on record.

9. We heard the parties at a considerable length and examined the entire evidence available on record with their able assistance.

10. It is an admitted fact that the respondent/accused is not nominated in the FIR. The accused was arrested on 5.5.2013. P.W. 3 Amir Yahya, who is also complainant of the instant case has stated that he reached at the place of occurrence within 20 minutes of the occurrence as he was present in the house of one master Ghazi at Gumari and this P.W categorically stated that has no knowledge about the culprits. At the same time the statement of PW-4, on whose statement much stress was laid by the learned counsel for the complainant is also no avail to the prosecution for multiple defects and irreparable dents i.e. PW-4 claims to have been the first person, who reached at the place of occurrence as his house is quite adjacent to the place of occurrence. Strange enough that he did not reported the matter to the police, when the police station was only at a distance of about 4 furlong. The statement of PW-4 Furqan son of Mian Gul was recorded two days after the occurrence. The PW. made an attempt to justify late recording of his statement by the local police on the plea that he has gone to Chilas for his medical treatment. This P.W. claims to have seen the accused Syed Alam at the place of occurrence but strange enough that he did not inform the complainant P.W. 3 Amir Yahya. P.W. 3 Amir Yahya (complainant) has also not mentioned the presence of P.W. 4 Furqan at the place of occurrence and likewise PW-4 has not stated a single word about the arrival of PW-3 Amir Yahya at the place of occurrence. There is another very material contradiction in the statement of I.O. and the sole eye-witness i.e. PW. 4 Furqan, I.O. stated that he recorded the statements of all the PWs on the day of occurrence, whereas PW-4 Furqan stated that his statements under section 161, Cr.P.C, was recorded by the police 2 days after the occurrence, such a glaring and apparent contradiction cannot be reconciled in any manner. There is another very material contradiction wherein PW-4 stated that he removed the dead body of deceased into the house of one Rehmat Khan and half an hour was consumed in this whole process. If the statement of PW-3 Amir Yahya is accepted correct then he reached at the place of occurrence within 20 minutes and must have met PW-4 Furqan, and if met PW-Furqan might have in normal circumstances must have informed him about the assailant. The non-mentioning of the name of assailant in the FIR, which clearly reflects that the complainant lodged the FIR after removal of dead body to his house and then lodged the FIR against some unknown assailants. Names of any PW/eye-witness are not mentioned in the FIR. The statement of sole eye-witness namely Furqan and statement of complainant runs counter to each other and are such a variance, which could not be reconciled in any manner. The statement of PW-5 Sher Zada is also not of any use for the prosecution as the statement has been recorded on 5.5.2013. Late recording of statement is always seen with suspicion when the names of the witnesses are not mentioned in the FIR and if their statements are also recorded with delay and without any plausible explanation are to be excluded from the consideration.

11. The postmortem on the dead body of deceased was not conducted, which has left a lacuna in the prosecution case. None conducting of postmortem is not fatal if the ocular evidence is consistent and reliable, which is not in the case in hand. The ocular evidence is so sketchy and doubtful, which cannot be accepted by a prudent mind.

12. The weapon used in the commission of offence has also not been sent to expert for expert opinion. The evidence of recovery is also of no avail to the prosecution. We looked all around but found nothing in favour of prosecution. The learned counsel for the complainant and the learned Dy.A.G. failed to convince the Court from record to upset the judgment/order of acquittal passed by the learned trial Court.

13. As a result of above discussion the Cr. Appeal bearing No. 02/2016 is dismissed being meritless. JK/219/GB Appeal dismissed.