2003 PLP 2921 (YLR)

3. Briefly stated the facts of the case are that during the night between 11/12th of February, 1999, Zafar Ali complainant alongwith his inmates was sleeping in his house. At about mid‑night due to noise of barking dogs, the complainant woke up and came out of the room where he saw Irshad armed with .30 bore pistol, Riaz armed with .30 bore pistol and Pappa armed with iron bar standing inside the Haveli near the door of the room. They were seen in the light of lantern. The accused aimed their arms on the complainant and asked to hand over the cash and ornaments. Meanwhile, Mst. Zainab Bibi, his wife Mst. Raqia Zainab, Muhammad Mohsin Nadeem and Habib Ullah also woke up and reached there. Mst. Raqia raised hue and cry upon which Riaz accused fired at her followed by another fire shot by Irshad alias Arshad accused and both the fires hit her. Complainant overpowered Irshad alias Arshad accused upon which Riaz accused in order to get him released fired two pistol shots on the complainant but the said shots instead hit Irshad alias Arshad who sustained the injury and fell down. He was overpowered by his mother‑in‑law, father‑in -law with brother‑in‑law. Pappa accused in order to get Irshad alias Arshad accused released, caused injuries to Mst. Zainab Khatoon, Habib Ullah and Muhammad Mohsin Nadeem with the iron bar. Complainant then overpowered Pappa accused and snatched iron bar from him. Firing noise and other hue and cries attracted the inhabitants of the nearby Abadi and on seeing them Riaz and Pappa accused persons fled away from the spot, while accused Irshad alias Arshad was overpowered by them at the spot. When Mst. Raqia was attended, she was found dead. Pistol of Irshad accused which had fallen on the ground and Sarya snatched from Pappa accused were also taken into possession by the complainant.

4. After registration of the formal F.I.R. Exh.P.A/1, Liaqat Ali, S.‑I./S.H.O. P.W. proceeded to the spot, examined the dead body of Mst. Raqia Zainab prepared injury statement Exh.P.F., inquest report Exh.P.F., collected blood‑stained earth vide memo. Exh.P.O., six crime empties P.5 to P.10 were taken into possession vide memo. Exh. P. P. Pistol P.11 produced by the complainant was taken into possession vide memo. Exh.P.Q. iron bar P.12 too was taken into possession vide memo. Exh.P.R., prepared injuries statements of injured P.Ws., namely, Habib Ullah, Moshin, Nadeem and Mst. Zainab Exh.P.G. Exh.P.H. and Exh.P.J. respectively. Complainant party also produced Irshad accused, before him in an injured condition, he prepared his injury statement Exh.P.L. and also sent him to the hospital for his examination. On 18‑2‑1999 he arrested Irshad accused when he was discharged from the hospital. Accused Abdul Razzaq alias Pappa and Muhammad Riaz were not arrested, therefore, he got initiated proceedings against them and got them declared as P.Os. Muhammad Zakir, A.S.‑I. on 13‑3‑2001 while he was posted as S.‑I. at Police Station Saddar, Jalalpur Pirwala made formal arrest of Abdul Razzaq alias Pappa and sent him to Jail. Muhammad Ashraf, S.‑I. P.W.10 on 28‑6‑1996 arrested Muhammad Riaz accused, who (Riaz) on 8‑7‑1999 while in police custody led to the recovery of pistol P.4 which was taken into possession vide memo. Exh.P.M. After completion of the investigation, the accused was challaned to face the trial.

5. At the trial, prosecution in order to prove its case produced 12 witnesses in all, thereafter, learned Public Prosecutor tendered in evidence report of Chemical Examiner Exh.P.S. and that of Bacteriologist Exh.P.T. and that of Forensic Science Laboratory Exh.P.U. and closed the prosecution evidence then the statements of the accused were recorded under section 342, Cr.P.C. Muhammad Akram, S.‑I. and Haji Muhammad, A.S.‑I. were examined as C.W.1 and C.W.2 respectively.

6. After having read the entire prosecution evidence, statements of the accused recorded under section 342, Cr.P.C. and other relevant material available on record, learned counsel for the appellants submits that it is a case of delayed F.I.R. and the same was recorded after due deliberation and consultation by the complainant in connivance with the local police that medical examinations of all the injured P.Ws. were also delayed that story of the prosecution was that present appellants had criminally trespassed into the house of the complainant in order to commit the "dacoity" but nothing was robbed from that house, that no identification parade of Abdul Razzaq alias Pappa accused was got conducted by the police after his arrest, that Abdul Razaq, accused is not known as Pappa, that on the other hand, story of the appellants in their statements recorded under section 342, Cr.P.C. and in the written statement of one of the appellants, namely, Muhammad Riaz filed under section 265‑F(5), Cr.P.C. seems to be more plausible, natural and convincing one, that it was a case of two versions and version of the appellants is nearer to truth.

7. On the other hand, learned counsel for the State assisted by learned counsel for the complainant submits that appellants were named in promptly lodged F.I.R., that specific roles were attributed to them, that one of the appellants, namely, Irshad alias Arshad was arrested at the spot, the ocular account in this case is corroborated by medical evidence; that there are three injured P.Ws.; amongst them, two have been produced, namely Mohsin and Zainab, who have fully supported the prosecution case, the pistol produced by Zafar Ali complainant which was allegedly snatched from one of the accused, namely Irshad alias Arshad matched with the crime empties which were six in number allegedly recovered from the spot; that there was no previous background of enmity between the parties; that it was not a case of false implication, that Irshad alias Arshad was apprehended at the spot. They both support the judgment of the learned trial Court.

8. We have heard the learned counsel for the parties and have also gone through the F.I.R., statements of the prosecution witnesses, version of the appellants recorded under section 342, Cr.P.C. and also a written statement of one of the appellants, namely, Muhammad Riaz submitted by him as required under section 265‑F(5), Cr.P.C. Occurrence in this case had taken place on the night between 11/12‑2‑1999 at mid‑night, although Police Station was at a distance of 10 Kms., while the matter was reported to the police on 12‑2‑1999 at 7‑30 a.m. and that was not at the police station but at Adda Khan Bela and the formal F.I.R. Exh.P.A. was recorded at 8‑00 a.m. We are of the considered opinion, that it is a case of delayed F.I.R. for the reason that Complainant Zafar Ali after concocting a story in connivance with the local police lodged the said complaint Exh.P.A/1 and in this regard, reliance is placed on titled as Mansab Khan v. The State 1974 PCr.LJ 416: "First Information Report Murder, case‑‑ Delay in lodging F.I.R. remaining unexplained‑‑‑Such unexplained delay renders investigation doubtful‑‑‑Conviction for culpable homicide on basis of such F.I.R.‑‑ Set aside by High Court", and titled as Kamir v. The State PLD 1962 (W.P.) Lahore

585. None of the injured P.Ws. who were injured during the occurrence as alleged by the first informant were taken to. the hospital for medical examination till the lodging of the complaint, they were medically examined at 9‑00 a.m. on 12‑2‑1999 through police. This delay in medical examination after nine hours also costs doubt on the prosecution version. Mst. Zainab the mother‑in‑law of the complainant was medically examined at 1‑00 p.m. on the next day. This also casts doubt on the prosecution version. One Irshad alias Arshad accused received two grievous fire arm injuries on his chest, he was taken to the police station in an injured condition and he was also taken to the hospital by the complainant. The version of the complainant was that he had held Irshad alias Arshad appellant in his "Jhapa" when Riaz accused appellant fired two shots. The injuries on the person of Irshad alias Arshad are on his chest. It does not seem probable that when complainant was holding Irshad alias Arshad appellant in his clasp, may be from any side of his body, he did not receive a single scratch v. his person but both the injuries were received by Irshad alias Arshad during the whole of the occurrence, complainant Zafar Ali also never received a single scratch on his body by any of the appellants. This also shows that version which Zafar Ali complainant had adopted before the police has no legs to stand and is concocted one. One of the injuries, i.e. injury No. 1 on the person of Irshad alias Arshad was having blackening and burning around the wound, it proves that this injury was caused from a very, very close range. The story of the prosecution that the same was caused by Muhammad Riaz from a distance, also belies the same. No identification parade of Abdul Razzaq was, got conducted by the police, he was not named in the F. I. R. but name of the accused has. given as Pappa son of unknown, injuries on the person of Mohsin are abrasions, although according to the prosecution he was given Sarya blow by Abdul Razzaq which has been allegedly recovered was having 16‑1/2 feet length and its thickness was 3‑3/4 inches, the injuries of Mohsin P.W. cannot be caused with such type of weapon of offence which had been taken into possession by the police, even clothes of Zafar Ali complainant were not stained with human blood, because he had alleged that he took Irshad alias Arshad accused appellant in his clasp and Muhammad Riaz accused‑appellant fired two shots, his clothes should have been smeared with blood. According to the prosecution version, four fires were shot at the spot, as stated by Zafar Ali complainant in the F.I.R., but six crime empties were recovered from the spot. The said pistol was itself produced by Zafar Ali complainant before the police and all these crime empties matched with the said pistol. Habib Ullah P.W. was never produced before the learned trial Court. It was stated in the F.I.R. that all the accused except Abdul Razzaq were known to the complainant and they had criminally trespassed into the house of the complainant in order to commit "dacoity". Natural conduct of the accused of such‑like nature should have been to muffle their faces so that they could not have been identified by the inmates of the house who were known to them. Moreover nothing was robbed from the house of the complainant party. On the other hand, the version of the appellant, namely Irshad alias Arshad has been mentioned in his statement recorded under section 342, Cr.P.C. While replying to the question "why this case against you and why the P.Ws. deposed against you" his answer is reproduced below:‑‑ "I am tailor master and P.W. Mohsin Nadeem runs a cloth shop. I used to work as tailor master at his shop and off and on used to stay at the house of Mohsin Nadeem. Mst. Raqia Zainab deceased was married with different persons at different timing, but due to her bad character all of them divorced her. Lastly, she was married to Zafar Ali complainant who is already married is permanently resident of Rohillanwali, District Muzaffargarh. Zafar Ali insisted his wife to live with him at Rohillanwali but she declined to do so. On account of their strained relations she used to live with her parents against the wishes of her husband. It was restrained by Zafar Ali complainant to visit the house of his in‑laws because he had developed a suspicion of illicit liaison amongst Raqia Zainab and myself. Though it is incorrect. " On the night of occurrence I had stayed with Mohsin Nadeem at his residence when suddenly Zafar Ali complainant came there and seeing me he stood provoked and leveled false allegations against his wife. She protested against the said allegations whereafter under the heat of passions the complainant took out his pistol and fired at her and myself as well Mst. Raqia Zainab was seriously injured and succumbed to the same while I was seriously injured but luckily I was survived. This fact gets corroboration from the recovery of pistol from the possession of Zafar Ali complainant. Since I was badly injured and was at the mercy of the complainant who in connivance with the local police got registered instant false case against me and my co accused in order to save himself and his in‑laws as I was injured in their house. Projectile was recovered from my body by the doctor while second is still in my body. I was discharged from Nishtar Hospital, Multan on 18‑2‑1999. My discharge slip and recovered projectile were handed over to the Investigating Officer on the same day while the crime empty and the alleged weapon of offence were sent to the F.S.L. on 19‑2‑1999. The projectile recovered from my body was not sent alongwith the abovesaid articles for the reasons best known to the police which show mala fide on part of the police otherwise if it would have been sent that may have matched with the pistol, therefore, the prosecution has miserably failed to connect me with the alleged weapon of offence. None of the co‑accused injured me nor they were present there. No pistol was recovered from me nor I made firing from the same at Mst. Raqia Zainab deceased. The local police did not record my first version rightly. The Investigating Officer falsely pretended me that he had registered the case on my behalf against Zafar Ali complainant and he also gave me false assurance and did not arrest me till my discharge from the hospital. He falsely challaned me in this case as I am a poor person having no means and was in police custody and due to this reason I failed to move the high ups for conducting fair investigation of this case. No offence of dacoity was committed. Nothing has been shown to be robbed by my other co‑accused. The evidence reveals that Mst. Raqia Zainab had not taken any active part in the occurrence therefore, there was no reason for justification of firing upon her. The evidence further reveals that Zafar Ali complainant extended a lot of resistance but the same is silent as to why he remained untouched and even his clothes were never stained with blood. All the P.Ws. are inter se related and deposed falsely against me and my co accused. Their statements are self contradictory and do not inspire." We have carefully gone through the above answer and also the written statement of Muhammad Riaz appellant which is submitted under section 265‑F(5), Cr.P.C. After having gone through both the versions and after putting both the versions in juxtaposition, the version of the appellant seems to be more plausible and convincing. The possibility of the version of the appellants to be true or nearer to truth cannot be ruled out. In this view of the matter, the upshot of the above discussion is that all the appeals filed by the appellants succeed and accepted. The conviction and sentence recorded against the appellants by the learned trial Court is set aside. Death sentence awarded to Muhammad Riaz and Irshad alias Arshad Pappa appellants is not confirmed. All the three appellants are in jail and they shall be released forthwith, if not required to be detained in any other case. Death sentence awarded to Muhammad Riaz and Irshad alias Arshad is not confirmed. H.B.T./M‑2060/L Appeal accepted.