MEHTA K.N. KOHLI, J.- This appeal has been filed against Order of conviction passed by the Sessions Judge/Juvenile Court, Nasirabad at Dera Murad Jamali whereby the against has been directed to be sentenced under Juvenile Justice System Ordinance, 2000 to undergo life imprisonment with fine of Rs. 50,000/- to be paid to the heirs of deceased and in default thereof to further undergo 6 months Benefit of Section 382-B, Cr.P.C, has also been -extended to the appellant.
2. Facts of the case are that a report was lodged (but no F.I.R, was produced during trial) by the father of deceased Fateh Ali namely Abdul Haq son of Muhammad Bakhsh, stating therein that he used to visit Quetta during season of summer along with his children. He had come to Quetta in summer season leaving behind his son Fateh Ali aged about 17/18 years to look after the house. He was living with his uncles (brothers of the father of deceased) namely Soba Khan and Gulab Khan at Dera Murad Jamali. On 7 7 2003 during night hours at about 10 p.m. He received a telephonic call from his brother Gulab Khan that his son was found dead near Aziz Chowk, Dera Murad Jamali. On receipt of said information it is stated that he reached along with his family to Dera Murad Jamali and the dead- body of his son was lying in his house. Apart from his brothers other relatives were also present, It was stated that at spot he could not come to know how his death was caused and after burial of his son, for three days he was receiving his Fatiha. It was further stated that he was inquiring about cause of death of his son; about two days back Himayatullah son of Misri Khan caste Badozai and Hasil Khan son of Abdul Samad, residents of Dera Murad Jamali told that his son was murdered by Ahmed Jan son of Muhammad Hassan and Noor Hassan son of Eid Muhammad, It was further stated that they had caused injuries on the neck of deceased and by turning around had fractured his neck It was further stated that the said witnesses had seen the accused causing injuries on his neck by themselves It was case of the complainant that he had contacted Dr Abdul Qadir Mengal, who had conducted postmortem and having admitted that his sons neck was turned around and was fractured resulting his death. On the basis of the above report an incomplete challan was submitted and during course of trial initially the accused/appellant was not arrested, who was taken into custody subsequently and the matter was challaned before the Trial Court. The charge was read over to accused, which was denied, who claimed trial.
Subsequently on application made by the accused/applicant the trial was conducted under Juvenile Justice System Ordinance, 2000. On the basis of above allegations the prosecution produced following witnesses:- PW-1 Abdul Haq, father of deceased appeared, who stated that he had received telephonic call about death of his son Fateh Ali. On receipt of the said call he had reached Dera Murad Jamali. The dead-body of deceased was lying in his house It was stated that he remained on Fatiha Khuwani for three days. After 5/6 days Hadayatullah and Hasil Khan came and informed that Fateh Ali was murdered by Ahmed Jan and Noor Hassan by pressing and turning around his neck and causing injury, It has been further stated that they had seen the incident by themselves. On the basis of above facts report was lodged, which is Ex P/IA In cross- examination it has been admitted by the complainant, father ot the deceased, that Hadayatullah and Hasil Khan are of his caste fellow and also neighboured, It was stated that there were no injuries on the other part of his body. He has admitted that he had not lodged any report about fact that his son Irfan Ali was beaten by the accused. He had denied that Hidayatullah and Hasil Khan were not present during Fatiha Khuwani and other ceremonies of burial of his son. He has admitted that Hidayatullah and Hasil Khan knew them very well. Suggestions made that he was not told about the commotion by Hasil Khan and Hidayatullah were denied.
PW-2 Hasil Khan son of Abdul Samad stated that 11 months ago on the day of incident at 8 45 p.m.
He was present at Levies Chowk Dera Murad Jamali. He further stated that along with him Hidayatullah was also present. He heard the commission and saw that accused Ahmed Jan and Noor Hassan were blowing fists on the neck of the deceased Fateh Ali. Fateh Ali fell town and the accused persons ran away and thereafter Fateh Ali died, It was further stated that he had told his father Abdul Haq that his son was murdered by Ahmed Jan and Noor Hassan. It was stated that he had seen the incident by himself. He also produced Fard of inspection as Ex.P/2A and identified his signatures, In cross-examination the witness has admitted that he is resident of same street, It was stated by him that after incident he along with his wife had gone to Quetta, who was ailing and was taken to Quetta for treatment. Hidayatullah stated to have been accompanied him. He denied that he was not present at the place of incident. He has also admitted that Bazar were open and there are shops in the place at the place of incident. He has also admitted that Bazar were open and there are shops in the place at incident.
PW-3 Dr. Abdul Qadir, Medical Officer, Civil Hospital Dera Murad Jamali appeared and supported the factum that the neck of the deceased was freely moving to all directions thus all movements were abnormal, It was further stated that the neck of the deceased was fractured. He produced Medical Certificate, which is stated to be dated 9.7.2003 and the body appears to have been examined on 8.7.2003 at 8.00 a.m. The cause of death in Medical Certificate is of sudden jerk or blow on head.
PW-4 Jan Muhammad, Sub-Inspector appeared and stated that on 15.7.2003 he was S.H.O. Dera Murad Jamali. It was stated that at the instance of complainant Abdul Haq case was registered and the investigation was handed over to him. During investigation he had claimed to have examined the place of incident and prepared plan of the place, which was produced as Ex.yP/4A, which bears his signature, It was further stated that he had recorded statement of eye-witnesses, It was stated that he had examined dead-body of deceased Fateh Ali and had prepared the report of MARG on 7.7.2003, which was produced as Ex. P/4B. It was stated that accused could hot be arrested as such incomplete challan was submitted before the Court and on 21.2.2004 accused was arrested, It has been admitted in cross-examination that intimation with regard to incident was given by the uncle of the deceased Gulab Khan. He has admitted that F.I.R, was not lodged as uncle of deceased had stated that after receipt of the Medical Report F.I.R, would be lodged. He has admitted that he had inspected the place of incident on 7.7.2003 and at that time shops were open. He had not associated the shopkeepers as witnesses. The complainant had stated the names of the witnesses in the complaint, whose statement were recorded. Both witnesses stated to be resident of Dera Murad Jamali. He has admitted that neck of the deceased was moving freely.
He has denied that he has not investigated the case properly.
3. It is worthwhile to point out that in the report of MARG prepared on 7.7.2003 the persons, who have identified deceased, are Hidayatullah son of Misri Khan and Hasil Khan son of Abdul Samad. It is not known as to why the police officer having found that cognizable offence has been committed within his jurisdiction has failed to register case inspite of the fact of report of MARG and kept num without, any further proceedings.
4. The accused denied charge under Section 342, Cr.P.C, and no defence was led nor any statement under Section 340(2), Cr.P.C, was recorded by the accused. The learned Sessions Judge convicted the accused relying on the statement of PW-2 Hasil Khan and sentenced accused/appellant to undergo life imprisonment with fine of Rs. 50,000/- to be paid to the legal heirs if recovered and on failure to make payment of the amount to further undergo 6 months.
5. Mr. Mithal Khan, Advocate, learned counsel for the appellant submitted that there is an un- explained delay in lodging F.I.R. The alleged offence stated to have been committed in a thickly populated area at time when shops were admittedly open; thus the appellant have been falsely implicated in the commission of offence. The learned counsel for the appellant further stated that report of MARG (Ex. P/4B was prepared on 7.7.2003 by the S.H.O. Investigating Officer and the dead- body was identified by Hidayatullah son of Misri Khan and Hasil Khan son of Abdul Samad. Hasil Khan appearing on behalf of prosecution has failed to disclose any justifiable reason in not disclosing the factum of dispute and causing injury by the appellant on the neck of deceased. He had also not disclosed the fact as to why he did not disclose the alleged cause of death and names of accused same to the Police Officer. Moreover, when Police Officer had come to know that deceased has not died on account of natural death but has been murdered or has died on account of injuries on his neck whereby fracture was made and thus cognizable was offence committed within his jurisdiction has failed to register case and also failed to investigate and interrogate in the matter is that as to who are the culprit. The other way of examining the matter the Police Officer might be in league with the actual culprits having caused fracture.
6. Mr. Rahim Mengal, learned Assistant Advocate General appeared and controverted the allegations on the ground that the prosecution has brought the guilt at home by producing PW-2, who is an independent witness supported by medical evidence and thus the appellant has been rightly convicted.
7. We have heard the learned counsel for the appellant as well the learned Assistant Advocate General in the matter. The first question for determination is as to whether deceased died on account of natural death or on account of fracture sustained by him in his neck. The medical evidence shows that the fracture has been caused on the neck of deceased and a positive report has been given by Dr. Abdul Qadir Mengal, PW-3. Extract of the said Medical Report is reproduced as under:- "On examination the neck was freely moving to all directions. All movements were abnormal (unnatural). Bruise was seen on head right upper region. The neck of dead- body is clinically fractured."
The next question for determination is as to whether the prosecution has successfully proved the unexplained delay in not registering the case for a period of 8 days and all the persons kept num and quiet in the matter, It is to point out that PW-2 as well as complainant tried to explain the same by stating that PW-2 along with Hidayatullah had proceeded for treatment of her wife to Quetta and after coming they had informed the father of deceased that the offence has been committed; said factum is negated by the report of MARG prepared on 7.7 2003 by PW-4 Jan Muhammad, Sub- Inspector. MARG Report dearly show that the body was identified by above two eye-witnesses namely Hidayatullah son of Misri Khan and Hasil Khan son of Abdul Samad. In case in hand Hasil Khan has appeared while Hidayatullah has not appeared. Hasil Khan has also admitted to be neighbourer of deceased and also caste- fellow. The delay in lodging F.I.R, has not been satisfactorily explained by the complainant as well as the said witness and there is every possibility of false implication and deliberations in lodging the said case. The record shows that Sub- Inspector of Police, who had prepared Report of MARG had failed to perform his duties in the matter. The evidence produced by the prosecution and other circumstances of the case clearly create the balance of doubt in favour of the appellant. The delay in lodging F.I.R, may not be of much significance provided that there would had been a positive and trustworthy evidence produced by the prosecution explaining the delay referring MARG report which .Clearly shows that both the alleged witnesses; who had allegedly witnessed the incident had identified the body of deceased before the Sub-Inspector PW-4; if there would have been commission of offence they must have disclosed the same to the concerned police officer or the said police officer mala fidley failed to register the case end failed to perform his duties The answer of both questions are not available on record of the case and no explanation has either been offered by the prosecution witnesses or by the complainant himself as to why their names came in report of MARG and why the prosecution has failed to register the case timely when cognizable offence was allegedly committed. I am fortified with the view expressed by the Hon'ble Supreme Court of Pakistan in case reported in PLD 2002 Supreme Court page No. 1048 titled as Ayub Masih Vs. The State. The relevant observations are reproduced as under;-- "It is true that unexplained delay in lodging the F.I.R, is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused. In the present case the delay in lodging the F.I.R, has assumed great significance inasmuch as the prosecution story is doubtful from outset and the prosecution evidence is remarkable in weakness only."
8. There is yet another aspect of matter that the prosecution failed to produce independent evidence, It is alleged that at the time of commission of offence the shops were open-and may people witnessed the incident. PW-4, Sub-Inspector had gone to the place and also has examined the dead-body has failed to inquire the matter. This conduct of said Police Officers prima facie inhuman and unbecoming of Police employee.
9. In such view of the matter the prosecution has failed to bring the guilt at home successfully and extending the benefit of doubt, the appellant is acquitted of the charge and the impugned order of conviction dated 23.9.2004 is set aside. He be set at liberty if not required in any other case.
10. It is painfully note that Sub-Inspector Jan Muhammad, who had prepared the report of MARG had failed to perform his duties as cognizable offence having been committed and was brought to his notice has failed to register the case for ulterior motives. Copy of this judgment be sent to the Inspector General of Police for taking disciplinary proceedings against the said police officer. The final Order of disciplinary proceedings may be sent to the Registrar of this Court for our perusal in chamber. Accordingly the appeal is allowed and order of conviction is set aside.