' SYED HUSSAIN MAZHAR KALEEM, J.-The above titled appeal is directed against the judgment passed by District Court of Criminal Jurisdiction, Mirpur, dated 31-5-2006 whereby the appellant was convicted and sentenced 20 years' R.I. Under section 302, A.P.C.
2. Brief facts leading to the background of the appeal are that a case under section 324, A.P.C. Was registered against Abbas alias Basu and others at Police Station, Dadyal on the complaint of Rehmat Ali. It was reported that complainant was resident of Ratta. On 19-3-2001 at 10-30 p.m.
Ubaid son of Lai Khan* told him that Abbas alias Basu and others gave beatings to his nephew Muhammad Ali with sticks, upon this he came at the place of occurrence and saw the victim lying unconscious. The complainant noticed injuries at his head, back and other parts of the body and carried him to hospital.
3. Later on the injured was shifted to District Headquarter Hospital Mirpur but due to critical position he was referred to Pakistan Institute of Medical Sciences, Islamabad where he succumbed to the injures on 30-3-2001. The offences of sections 302/34, A.P.C. Were added. After investigation, the challan was submitted against Mubarak Ali, Muhammad Hanif, Muhammad Mushtaq and Muhammad Abbas before District Court of Criminal Jurisdiction, Mirpur. During trial, Muhammad Abbas absconded and was proceeded under section 512, Cr.P.C. On conclusion of the- trial, the Court acquitted Mubarak Ali and Muhammad Mushtaq while Muhammad Hanif was convicted and sentenced 20 years' rigorous imprisonment through the impugned judgment. Hence this appeal.
4. Learned counsel for the appellant submitted that the occurrence took place during dark hours of the night. F.I.R. Was lodged after considerable delay and no explanation was given. The convict appellant was not nominated in the. F.I.R. And there was no eye-witness. Origin of fight and manner of occurrence were shrouded in mystery. In fact the occurrence was not witnessed by anybody.
P.W. Wali Dad was planted to be a witness. The complainant concocted a story to rope the convict appellant in a false case on account of enmity. Important prosecution witnesses were not produced duripg trial. The statement of P.W. Walidad was full of contradictions and was not supported by any independent corroborative material. He pointed out that recovery of weapon of offence was not proved as the attesters were not produced during trial. He further argued that the prosecution failed to prove the alleged motive and also failed to establish the place of occurrence.
F.I.R. Was fabricated and it was lodged after a considerable delay. The statement of P.W. Walidad under section 161, Cr.P.C. Was recorded 12 days after the occurrence and no explanation was given by the witnesses or the Investigating Officer. The trial Court failed to appreciate that the prosecution story being highly doubtful was not worth consideration, therefore, by accepting the appeal, the convict may be acquitted of the charge.
5. On the other hand, it was argued by Additional Advocate-General that P.W. Wali Dad had given true account of the occurrence. His deposition was supported by P.Ws. Shafia Begum and Ubaid.
Postmortem report and recovery of weapon of offence also lend support to the ocular version. He further argued that because of suspicion of illicit relations between the deceased and daughter of Mubarak Ali, the accused person nourished a grudge against the victim due to which on 19-3-2001 at 10-30 p.m. They accused stick injuries resulting into his death. The victim came at the house of Sajid and told P.W. Ubaid that Abbas, Mushtaq and Haniff had beaten him who informed the complainant about the occurrence. They took the victim to Tehsil Headquarter Hospital, Dadyal from where he was shifted to District Headquarter Hospital, Mirpur but due to critical condition he was referred to Pakistan Institute of Medical Sciences, Islamabad where he succumbed to the injuries. According to the learned counsel P.W. Wali Dad witnessed the occurrence and gave true account of the incident. The prosecution story was further supported by recovery of weapon of offence at instance of the convict appellant and strong corroborative material in shape of postmortem report was also brought on record. He further argued that the witnesses were neither related to the deceased nor inimical towards the convict appellant. Their statements were confidence-inspiring and it was proved by the prosecution that the deceased died of injuries caused by the convict appellant with iron rod in presence of P.W. Wali Dad. He submitted that the trial Court appreciated the evidence in a judicial fashion and arrived at correct conclusion. The impugned judgment being correct and''in accordance with law needs no interference, therefore, the appeal may be dismissed.
6. I have heard the learned counsel for the parties and gone through the record of the case.
7. The prosecution story as it appears from the record that on 19-3-2001 at about 10-30 p.m.
Muhammad Ali who was injured came to the house of Sajid and told P.W. Ubaid that Abbas, Hanif and Mushtaq had beaten him. Upon this the P.W. Informed his mother and uncle. They came at the place of occurrence and took him to Tehsil Headquarter Hospital, Dadyal. In the meantime a police patrol party came there and the complainant reported the matter to them. It is important to note that according to report Exh.PA P.W. Ubaid told the complainant at 10-30 p.m. While the report was lodged at 1-15 p.m. On 20-3-2001.
8. It will be worth mentioning that the complainant did not appear before the Court, however, P.W.
Shafia Begum was examined by the prosecution. She deposed that on 19-3-2001 at 10-30 p.m. P.W.
Ubaid confirmed her that Mushtaq, Muhammad Hanif and Mubarak Ali had beaten the victim with sticks and iron rod and he was lying injured in his P.C.O. He further told the witness that victim was sitting in a hotel. Hanif accused took him from there. He put chilli in his eyes and the accused persons gave beatings to him. It is important to note that the part of the story regarding taking the victim from the hotel, putting chilli in his eyes and beating him with sticks and iron rod was not narrated by P.W. Ubaid in his statement.
9. P.W. Wali Dad, a Chowkidar by profession was cited as eye-witness. According to him on 19-3- 2001 at 9-00 p.m. Due to hue and cry he came out of his house and when arrived in centre of the buildings of Habib Bank Limited and Muslim Commercial Bank Ratta, saw Mubarak Ali, Hanif, Mushtaq and Abbas beating the victim. Hanif was armed with iron rod while the others with sticks.
They were inflicting injuries at the head and face of the victim. He tried to stop them but was given threat because of which he left the place to inform others and when came back, the victim and the- assailants were not there. The witness was in police service. He tried on medical ground and his eyesight was weak. Being an ex-police man he was supposed, to be law knowing person but despite the claim of witnessing the occurrence neither he informed the police nor anybody else.
The police recorded his statement under section 161, Cr.P.C. On 31-3-2001. It may be mentioned here that the occurrence took place in a thickly- populated area. The P.W. Was residing at a distance of 1500 yards from the place of occurrence whereas the house of P.W. Ubaid and others were at a short distance. But surprisingly the hue and cry attracted the witness but not to P.W. Ubaid or any body else from the surrounding areas.
10. Another point which needs consideration that according to the statement of P.W. Wali Dad the occurrence took place at 9-00 p.m. While the victim told P.W. Ubaid at 10-30 p.m. That Abbas, Hanif and Mushtaq had beaten him. He informed the complainant and his sister. They came at the place and saw the victim lying unconscious. Thus it implies that P.W. Ubaid a close friend of the victim was the only person who had a chance to talk with him. According to the post-mortem report Exh.PH when brought in Tehsil Headquarter Hospital Dadyal, he was unconscious. A blunt injury causing depressed fracture of right temporal bone, leading to brain damage was found. Due to critical position, he was referred to District Headquarter, Mirpur. Keeping in view the number and nature of the injuries found at the person of victim, it Is difficult to believe that he remains cpnscious for one and half hour after sustaining the injuries and told the complainant about the occurrence.
11. According to the prosecution, case weapon of offence the iron rod was recovered at the instance of the convict appellant in presence of Rehmat Ali and Aurarigzeb. The prosecution failed to produce Rehmat Ali while Aurangzeb died during trial, thus no evidence to prove that the iron rod was recovered at the instance of convict appellant was brought on record.
12. A careful consideration of the prosecution evidence shows that the accused persons were suspecting the deceased for having illicit relations with the daughter of Mubarak Ali but the allegation was not proved during trial. The place of occurrence was also not established as the victim was found lying unconscious in P.C.O. Of P.W. Ubaid. The recovery of clothes of the deceased from the house of convict appellant through seizer memo. Exh.PM was mysterious as it was claimed by the prosecution that he was found naked after sustaining injuries particularly when another pair of clothes was seized by the police on 31-3-2001 through seizer memo. Exh.PL. The prosecution also failed to examine important witnesses such as the complainant and attesters of the recovery memos. Exh.PL, Exh.PM, Exh.PLN, Exh.PQ, Exh.PT and Exh.PTT.
13. It may be stated here that convict appellant, Mubarak Ali and Muhammad Mushtaq were alleged for inflicting injuries at the head of the deceased but during trial it was not ascertained that who was responsible for giving fatal blow. The prosecution evidence was not believed by the trial Court to the extent of Mubarak Ali and Muhammad Mushtaq and they were acquitted of the charge while the appellant was convicted by putting reliance on the same. The reasons given by the trial Court for recording acquittal in favour of Mubarak Ali and Muhammad Mushtaq were ignored without any legal justification while convicting the appellant. In my view the prosecution evidence was doubtful and the appellant was also entitled to its benefit.
14. The upshot of the above discussion is that the appeal is accepted and by extending benefit of doubt, the appellant is acquitted of the charge.