' This judgment will dispose of Cr1. Appeal No.263 of 2002 directed against the judgment dated 1-2- 2002 passed by the learned Additional Sessions Judge, Sheikhupura, whereby he convicted the appellants under section 302(b)/34, P.P.C. And sentenced them to undergo life imprisonment with fine of Rs.1,00,000 (one lac) each as compensation required under section 544-A, Cr.P.C. Or in default six months S.-I. Each. Benefit of section 382-B, Cr.P.C. Was also granted to them.
2. The facts of the instant case in brief as narrated by the complainaiit Mushtaq Jamal Pasha in the F.I.R. Are that on the day of occurrence i.e. 11-9-2000 at 11-00 a.m. He along with ' Zulfiqar, Maqbool Hussain and Haji Muhammad Khalil (Khalique) went to his house for taking brief to go to Lahore.
After covering staircase they came in the T.V. Loung of his house and saw that Nadeem and Ijaz accused had strangulated Nadira, the wife of the complainant. On seeing them Ijaz took pistol and threatened them and fled away through the staircase. After removing the cloth from the neck of Nadira, she was carried to Civil Hospital, Sheikhupura where she was checked by Dr. Babar Amin and he declared her dead. The motive behind this occurrence was a dispute over possession of a market.
3. After getting information about the occurrence the local police completed all the necessary formalities. Thereafter Farzand Ali, S.-I. Proceeded to the spot. He prepared the inquest report Exh.P.G. And injury statement Exh.P.E. Last worn clothes were also received by him vide memo.
Exh.P.L. On 16-9-2000 he arrested Nadeem Jamal Pasha and Ijaz appellants. On 23-9-2000 Ijaz accused while in police custody got recovered pistol vide memo. Exh.P.A. He also got recovered Phanda/piece of cloth vide memo. Exh.P.K. Ultimately he completed the investigation and challaned the accused/ appellants.
4. Prosecution in order to prove its case has produced as many as 14 witnesses including Doctor, I.O., eye-witnesses and other formal witnesses. After tendering in evidence report of Chemical Examiner Exh.P.N. Learned A.D.A. Closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. After taking into consideration every aspect of the case and hearing the arguments advanced by both the parties learned trial Court convicted and sentenced the appellants as mentioned above. Hence this appeal.
5. Learned counsel for the appellants in support of this appeal submits that it was an unwitnessed occurrence, thavthe conduct of the complainant is most unnatural at the time of occurrence, that the presence of the complainant at the spot is not established for the reason that he is practicing lawyer and in ordinary course of nature he should have been in the Court and not at his house particularly, when according to his own statement before the learned trial Court his 4/5 cases were pending before the Court. Moreover, he had not filed any application for adjournment about his cases. That no specific names were cited either to the I.O. During the investigation by the complainant or the complainant himself in the F.I.R. That of which party's brief he wanted to take from his house. Learned counsel submits that in the F.I.R. Complainant had mentioned that he had removed the clothe from the neck of Mst. Nadira deceased then thereafter there was no question to recovery the same by the police on .The pointation of the appellants, that presence of cloth around the neck of the deceased also contradicts the stand point of the complainant which excludes the chances of his presence at the spot. At the relevant time of occurrence the conduct of the eye-witnesses is most unnatural. The learned counsel submits that story of the complainant that after the occurrence he took the deceased Nadra the Hospital is not confirmed from any document whatsoever. Learned counsel has also referred to the statement of the Doctor who had conducted the post-mortem examination on the dead body of the deceased that the death of the deceased was immediate and in case of immediate death there was no occasion on the part of the complainant,to have taken Nadira deceased in an injured condition to the Hospital when she had.Already died. Credibility of the eyewitnesses suffered from the material counts. Learned counsel submits that complainant had no legal right and authority but he had filed a collusive suit on behalf of Nadra Begum against himself.
6. Learned counsel for the appellants submits that investigation of the instant ease is dishonest one and all the relevant documents were prepared by a retired Police Officer. Learned counsel submits that complainant's stance was that after declaration of the Doctor about the death of Nadira, he took the dead body of Nadira to his house but the dead body was found in the Hospital by the I.O. And he prepared the inquest report there. Learned counsel has referred to injury statement and the documents regarding docket that the dead body was lying in the Hospital, also contradicts the complainant's instance. Learned counsel submits. That recoveries are fake in this case pistol was never used in the occurrence by Ijaz accused. He submits that no case is made out and both the appellants are entitled to acquittal.
7. On the other hand learned counsel for the State submits that Mushtaq Jamal Pasha, Advocate, complainant is the real father of Nadeem Jamal Pasha appellant while Ijaz appellant is first cousin of Nadeem Jamal Pasha. He submits that no real father would involve his son in a murder case. He submits that presence of all the eye-witnesses is most natural. He further argues that due to threat extended by Ijaz appellant nobody tried to apprehend any of the appellant at the time of occurrence, that ocular account is corroborated by medical evidence, that recovery of pistol and cloth with which the deceased was killed was also recovered on the pointation of both the appellants, that all the witnesses are independent and that the prosecution has provied its case to its hilt. He supports the judgment of the learned trial Court.
8. I have heard the learned counsel for the parties at a very great length and have also gone through the evidence recorded by the learned trial Court particularly, evidence of Mushtaq Jamal Pasha, complainant. The occurrence in the instant case had taken place on 11-9-2000 at 11-00 a.m.
The distance between P.S. And the place of occurrence was 2 furlongs. Four eye-witnesses are mentioned in the F.I.R. Including the complainant, none of them went to the P.S. After the occurrence or even after taking the dead body back to the house of the complainant by the complainant himself. Only the I.O. After getting the information from somebody reaches at the spot/house of the complainant and recorded the statement of Mushtaq Jamal Pasha, which is Exh.P.J., at 3-30 p.m. This inordinate delay in lodging the F.I.R. Coupled with the fact that the matter was not reported at the P.S. But outside the police station cast doubts on the veracity of the prosecution. In my opinion the F.I.R. Was recorded after due A deliberation and consultation. The version of the complainant that after the occurrence he took Nadra to the Hospital for medical aid where Dr. Babar Amin declared her dead. No document from the Hospital was either produced during the course of investigation or before the learned trial Court that Nadira was ever taken to the Hospital for medical treatment or medical aid. No doctor was also produced by the prosecution to prove this fact that who had declared Nadra as dead when she was brought by the complainant in the Hospital. The story of the complainant was that after her death he took Nadra to her house but according to the injury statement Exh.P.E. The dead body was present in the Civil Hospital. Same is the position of Exh.P.F. The most relevant document is the inquest report Exh.P.G., particularly its Column No.1 where it has been written that dead body was lying in the Hospital. I may also mention here that in Column No.3 of the inquest report no time of death has been given by the I.O. When he received the information about the death of theAeceased couple with the fact that according to the post-mortem report in the column of death no time of death has been mentioned. The story of the complainant that he had gone along with his two clerks and two other witnesses Dr. Khalil Ahmad and Dr. Zareef to his house to take a brief in order to go to Lahore, is not established on the record 'from the circumstances of the case, that there was no necessity on the part of the complainant who was a practicing Advocate having 4/5 cases on the day of occurrence in different Courts, to go himself along with three persons in order to get brief from his house. He could have sent one of his clerk and it has also come on record that beside that Maqbool Hussain and Zulfiqar Ali who are clerks of the complainant and eye-witnesses in this case, there was another clerk namely Shehzad. So this story of taking the brief from his house at the relevant time of occurrence seems to be unnatural and improbable. Even conduct of the complainant and eye-witnesses at the relevant time of occurrence also seems to be most unnatural. They were four in number including the complainant. According to the prosecution case Nadeem Jamal Pasha was empty-handed while Ijaz was having a. Pistol. There was only one staircase which led to the house of the deceased. It seems also to be unnatural that nobody tried to apprehend any of the accused specially Nadeem Jamal Pasha who was not having any fire- arm or any other weapon of offence. At the time of occurrence the complainant party must have raised noise and that is the reason that neither anybody was attracted to the spot nor anybody had seen the occurrence from the neighbourhood, although Bungalow of Zulfiqar Bhatti was adjacent to the southern side of the house of the deceased. There is no evidence on the record that anybody had seen both the appellants coming into the house- and going out of the house immediately after the occurrence and before the occurrence. According to the F.I.R. Which was lodged by the complainant after the occurrence the complainant had removed the cloth which was tied around the neck of Nadira deceased. God knows better that how later on i.e. 12 days after the occurrence on 23-9-2000 the said cloth was got recovered by the appellant Nadeem Jamal Pasha. This version of the prosecution also casts doubt on the complainant story.
9. According to the F.I.R. The allegation against both the appellants were that they had tied the cloth around the neck of the deceased Nadra and were dragging her from either side but according to the post-mortem report conducted by Dr. Fauqia Asif P.W.8 on 11-9-2000, she found other injuries also on the person of the deceased which have not been explained by the prosecution specially Injuries Nos.3, 4 and 5. Moreover, the time between injury and the death given by the Doctor is immediate, while between death and postmortem is 12 to 14 hours which also does not fit in with the prosecution time of occurrence i.e. 11-00 a.m. Doctor had not finalized his opinion about -the death of the deceased immediately after the post-mortem examination but deferred till receipt of the report of the Chemical Examiner. According to the report of Chemical Examiner, no poison was detected but the swa bs which were taken by the Doctor were found to be stained with semen. It is correct that she was married lady but this report of the Chemical Examiner also casts doubt in the prosecution case, i.e. That some body might had illicit intercourse with Nadra deceased and during the. Resistance she was given injuries on different parts of her body including the asphixia.
10. As far as investigation in this case is concerned, the I.O. Had admitted that not a single document was prepared by him including the case diaries. All the documents were prepared by one Karamat, S.-I. If this is the position how can any reliance be placed on the investigation conducted by P.W.14, I.O., namely Farzand Ali, S.-I. Although,- a question is pinching the mind of this Court that how a `real father would involve his son falsely along with his cousin in the instant case but on the other hand the fact remains that the presence of the eye-witnesses as mentioned above is not established on the record. Two of the eye-witnesses are clerks of the complainant and one was his friend. Moreover in my considered opinion it was completely an unseen occurrence and names of the appellants were given as accused in this case merely on suspicion. The capital sentence on such-like evidence cannot be maintained. In this view of the matter, while disbelieving the presence of the eyewitnesses at the spot and extending benefit of doubt this appeal is accepted, the conviction and sentence awarded to the appellants is set aside. They shall be released forthwith if they are not required in any other case.