' IJAZ AHMAD CHAUDHRY, J.---Mst. Farzana Bibi daughter of Muhammad Boota, Mst. Fatima Bibi wife of Muhammad Boota and Saifullah son of Muhammad, appellants have preferred this Criminal Appeal against their conviction and sentence who, along with Muhammad Boota and Afzaal, were tried in a private complaint filed under sections 302/364/147/149, P.P.C. And on conclusion of the trial, vide judgment dated 7-10-2004 passed by Rana Abdul Hafeez, the learned Additional Sessions Judge, Sheikhupura Mst. Farzana Bibi appellant was convicted under section 308/34, P.P.C. And sentenced to pay Rs,3,00,000 as Diyat to the legal heirs of the deceased. She was also convicted under section 311/34, P.P.C. And sentenced to imprisonment for 1,0 years' R.I. However, Mst. Fatima Bibi and Muhammad Afzaal, appellants were convicted under sections 302(b)/34, P.P.C. And sentenced to imprisonment for life each along with direction for payment of Rs,5,00,000 each as compensation to the legal heirs of the deceased or in default of payment of thereof to further undergo six montfls' R.I. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
However, through the same judgment Muhammad Boota and Afzaal co-accused of the appellants were acquitted of the charge while extending them the benefit of doubt.
2. The occurrence in the present case was alleged to have taken place on 19-2-2003 near about 11- 00 a.m., when Safdar Ali deceased was found lying in the fields in unconscious condition, who was escorted to the hospital where he died on 20-2-2003 at 5-30 p.m. Thereafter, the matter was reported by Muhammad Ashraf (P.W.4) to the police at 7-30 p.m. Through statement (Exh.C.W.2/A) recorded by Ali Raza S.-I., (C.W.2), on the basis of which formal F.I.R. No,36 dated 20-2-2003 (Exh.P.A.) was recorded at Police Station Saddar Sangla Hill at 7-45 a.m.
3. The complainant being not satisfied with the conduct of the investigation by the police preferred to file the private complaint on 16-9-2003 and after usual procedure the appellant along with Muhammad Boota and Afzaal co-accused were summoned to face the trial.
4. Concisely the facts of the case set up in the private complaint (Exh.P.B.) are that complainant's brother Safdar Ali (deceased) was married with Mst. Farzana Bibi daughter of Muhammad Boota (acquitted accused), six months ago at Pindi Boota Singh. On 17-2-2003, the complainant along with his brother Akhtar came to the house of Safdar Ali (deceased). Safdar Ali (deceased) and his wife Mst. Farzana Bibi were found quarrelling with each other. They refrained them and the matter was patched up. At about 11-00 a.m. From the in-laws of Safdar Ali (deceased), Muhammad Boota, Mst.Fatima Bibi, father and mother-in-law of the deceased respectively, Saifullah son of Muhammad and Afzaal son of. Muhammad Hussain, came to the house of Safdar deceased. Mst.
Farzana Bibi told to her mother Mst. Fatima Bibi and her father Muhammad Boota about the quarrel whereupon Muhammad Boota asked his daughter Mst. Farzana and complainant's brother Safdar Ali to accompany them to Pindi Boota Singh. On 29-2-2003 at 1-00 p.m., Ijaz Ahmad son of Mukhtar Ahmed (P.W.7) resident of village Chak No,121/RB, went to the fields for cutting fodder where he found Safdar Ali was lying in unconscious condition at "Dhab Sarootay" and his face was towards' down side. He raised alarm. On listening the alarm complainant and his brother Akhtar and others namely Abdur Rauf son of Abdul Hameed, Ashfaq son of Talib Hussian, along with other many persons reached there. Complainant and his brother Akhtar took his brother to the hospital at Sangla Hill. On 20-2-2003, at 6-30 a.m. He died. Complainant's brother Safdar Ali was murdered by Muhammad Boota, Mst. Fatima Bibi, Mst. Farzana Bibi, Saifullah and Afzaal with their common intention due to the grudge of quarrel by giving him fist and blows as well as administering some poison. Complainant while leaving behind his brother Akhtar at hospital for guarding the dead body himself had come to report the matter to the police station and on his statement case F.I.R.
No,36 of 2003 was registered under sections 302/147/149, P.P.C. At Police Station Sangla Hill, but the local police as in connivance with the accused as in spite of registering the case, the accused were not being arrested. Complainant produced the witnesses in support of his version but the police did not take care of it and neglected the complainant's version. It is also alleged that the complainant's story was fully supported by the report of the Chemical Examiner which shows that the deceased was beaten and poison was also administered to him. The complainant also appeared before the high-ups of the police but the police did not listen to him. Due to the said reasons, private complainant was filed.
5. The learned trial Court after filing of the private complaint framed the charge against the appellants and the acquitted accused on 17-12-2003, under sections 302/364/148/149, P.P.C., which was denied by them and they claimed to be tried.
6. The complainant in order to prove the guilt of the accused/appellants produced as many as seven witnesses. P.W.1 Muhammad Zafarullah, A.S.-I. Had recorded formal F.I.R. (Exh.P.A.); P.W.2 Khuda Bakhsh constable had escorted Safdar Hussain deceased in injured condition from the Police Station to the hospital; P.W.3 Muhammad Iqbal constable had escorted the dead body of Safdar Hussain for post-mortem examination; P.W.5 Muhammad Ashraf is complainant; P.W.6, Dr. Muhammad Naseer Ahmad had medically examined Safdar Hussain in injured condition on 19-2- 2003 at 2-30 p.m. P.W.6 Akhtar had supported the version of the complainant; and P.W.7 Ijaz had firstly found Safdar Hussain lying unconscious in the fields and informed the others. Thereafter Imtiaz Ahmad Malik DSP was examined as C.W.1, who had investigated the case and found all the accused as innocent. Ali Raza, S.-I., (C.W.2) had investigated the case at the initial stage, who had recorded statement of Muhammad Ashraf complainant (Exh.C.W.2/A), on the basis of which formal F.I.R. Was registered. He also performed the other formalities like preparation of injury statement, inquest report; sending of dead body to the mortuary for post-mortem examination; prepared rough site-plan; recorded statements of witnesses under section 161, Cr.P.C. Mirza Maqbool Baig, the then S.P. (Investigation) appeared as C.W.3, who after investigation had also found all the accused as innocent. Lastly Dr. Humayyun Azad Pasha, was examined as C.W.4, who had conducted the post-mortem examination on 20-2-2003.
7. After recording of the statements of the P.Ws. And C.Ws., the appellants along with the acquitted accused were examined under section 342, Cr.P.C., who denied the allegations levelled by the prosecution against them and professed their innocence. However, they did not opt to make statements on oath under section 340(2), Cr.P.C. Or produced any defence evidence.
8. After hearing the learned counsel for the parties, the learned trial Court passed the impugned judgment of conviction and sentence against the appellants which is being assailed through this appeal.
9. The learned counsel for the appellants contends that it was an unseen occurrence as nobody had witnessed causing of injury or administering poison to the deceased; that nothing was recovered from the appellants during the investigation and in fact it was a case of no evidence; that Muhammad Ashraf complainant (P.W.4) and Akhtar (P.W.6) are real brothers of the deceased, who had falsely implicated the appellants in the present case; that the only evidence against the appellant is that the quarrel had taken place between Safdar deceased and Mst. Farzana Bibi and both of them after patching up the said quarrel had gone in the company of the accused; that 'on the basis of the same evidence two co-accused of the appellants namely Muhammad Boota and Afzaal have been acquitted; that the death of the deceased had not occurred due to the violence and the police during the investigation had found all the accused as innocent; that the judgment is based on surmises and conjectures and may be set aside.
10. None has turned up on behalf of the complainant in spite of that this appeal was filed on 19-10- 2004 and thereafter notice was issued for appearance. The perusal of the file shows that no Wakalat Nama of any counsel has been filed by the complainant during the period of about one year and four months during the pendency of this appeal, which shows lack of interest on his part.
As such I feel it unnecessary to adjourn this appeal any more to procure attendance of the complainant.
11. However, the learned counsel appearing on behalf of the State opposes this appeal, who contends that Muhammad Ashraf complainant (P.W.4) and Akhtar (P.W.6) had no grudge or enmity to falsely implicate the appellants in the present case and they had seen the deceased lastly in the company of the appellants and the acquitted accused whereafter the deceased was found in an unconscious condition in the fields, who could not regain his sense and died; that opinion of the doctor is that he died due to organophosphorous compounds and the prosecution has succeeded in proving the case against the appellants beyond any shadow of doubt, who failed to adduce any evidence in defence.
12. I have heard the learned counsel for the parties and also perused the record with due care and caution.
13. After perusal of the whole evidence on the record both P.Ws. 4 and 6 do not appear to be trustworthy. They claimed to have witnessed Mst. Farzana appellant and Safdar Hussain deceased quarrelling with each other on 17-2-2003, when the matter was patched up. Thereafter, said Safdar Hussain had proceeded along with his wife and other in-laws to their house. On 19-2-2003, he was found lying unconscious in the fields at 1-00 p.m. P.W.1 Khuda Bakhsh constable stated that he had taken Safdar Hussain while in unconscious condition from the Police Station to the hospital. It shows that firstly he (deceased) was taken to the Police Station and the story put forth in the private complaint that the P.Ws. After receipt of news about lying of Safdar Hussain in injured condition in the fields had reached at the spot and took him to the hospital is belied. Had the complainant (P.W.4) and other P.Ws. Reached the spot and then took the deceased in unconscious condition, their first priority would be to take him to the hospital to save his life and not to the police station for registration of the case. Even if he was firstly taken to the police station and complainant was with him, how he did not immediately lodge the report there and then at the Police Station, which was reported only after death of Safdar Hussain in the hospital on the next day at 7-30 p.m.
All this clearly leads to draw an inference that someone while finding Safdar Hussain in unconscious condition had informed the police, which escorted him to the Police Station and then to the hospital, but none of P.Ws. 4 and 6 were present with him and evidence of last seen was concocted to implicate the appellants and acquitted accused who were in-laws of the deceased and Mst. Farzana Bibi appellant was his wife. It is strange that if there was any quarrel between Mst.
Farzana appellant and the deceased and thereafter parents of Mst. Farzana had reached to the house of the deceased, why the deceased had accompanied them despite the strained relations.
Furthermore, when all this was in the notice of P.Ws.4 and 6, who are real brothers of the deceased, why they had not approached him for two days to know about the matter. The prosecution evidence is silent that anyone had seen the deceased in the house of his in-laws along with the appellants after his departure with them and they had administered poison to him when and where and how he was brought to the place where he was found lying in unconscious condition.
14. I am of the considered view that the complainant has failed to produce any cogent evidence to connect the appellants with the commission of crime in any manner. Even of the evidence of P.Ws.4 and 6 is taken as true, the same cannot be made basis to maintain conviction of the appellants.
The evidence of last seen and the motive alone was not sufficient to bring home guilt to the appellants. It is astonishing to note that on the same evidence two co-accused were acquitted by the learned trial Court and there were no features to distinguish the case of the present appellants, but they have been convicted and sentenced in a case of no evidence.
15. For the foregoing reasons, I have no hesitation in holding that prosecution/complainant has miserably failed to bring home guilt to the appellants through any cogent piece of evidence.
Resultantly, this appeal is accepted, the impugned judgment of conviction and sentence is set aside and all the appellants are acquitted. They shall be released from jail forthwith, if are not required in any other criminal case.
16. Before parting from this judgment, I am constrained to direct the Member Inspection Team of this Court to place this matter before the learned Inspection Judge concerned, who may take notice of the judicial approach of Rana Abdul Hafeez, Additional Session Judge, Sheikhupura in the criminal cases of capital charge and how he is playing with the liberty and lives of the accused.
The learned Inspection Judge may pass appropriate orders.