' RAHMAT HUSSAIN JAFFERI, J.---The petitioner Muhammad Ibrahim, father of the deceased Saifullah, has filed the present petition to challenge the judgment of the learned High Court of Sindh, Circuit Court Hyderabad by which a learned Division Bench of the High Court set aside the conviction awarded by the learned Additional Sessions Judge, Mirpurkhas whereby the respondents Nos.1 to 3 (hereinafter referred to as 'the respondent') were convicted for offence punishable under section 302, P.P.C. And sentenced to suffer imprisonment for life and fine of Rs,20,000 each or in default thereof to undergo R.I. For six months whereas the co-accused Muhammad Waris and Munir Ahmed were acquitted.
2. Brief facts of the case are that the petitioner was present in Mirpurkhas when in between the night of 29/30th August, 1995 at 3-00 a.m. P.W.4 Asghar Ali came and informed him that the respondents and acquitted accused had killed his son Saifullah at about 11-00 p.m. In the Government land and the incident was witnessed by him (Asghar Ali, P.W.4), Shaukat Ali (P.W.3) and Muhammad Boota (P.W.5). The complainant then went to the Police Station at Kot Ghulam Muhammad and lodged the F.I.R. At 5-30 a.m.
3. At the trial, the prosecution examined 7 witnesses including the complainant, three eye- witnesses, the Medical Officer and the Investigation Officer. The respondents denied all the allegations of the prosecution and claimed to be innocent but neither they examined themselves on oath nor led any evidence in their defence.
4. We have heard the learned counsel for the petitioner and perused the record with his assistance.
We find that the incident took place during night time at about 11-00 p.m. In the Government land but the prosecution did not state anything about the source of light. In this background the question arises as to whether the witnesses were able to identify the culprits or they were present at the scene of occurrence to witness the incident. The evidence of the eye-witnesses reveals that nearby the place of incident a Tractor was working and they were present in the Government land (which was allegedly occupied by the deceased) when they saw the respondents, armed with hatchets and Lathis, inquiring from the deceased as to why he had occupied the Government land and asked him to vacate the same but the deceased refused to do so, therefore, they gave hatchet and Lathi blows to the deceased. The P. Ws. Tried to intervene but they were threaten, therefore, they left the place of incident but the accused took away the dead body to the house of respondent Liaqat Ali. P.W.4 Asghar Ali went to Mirpurkhas to inform the incident to the petitioner who came and lodged the report. The Police and the complainant reached the place of occurrence. They found that the dead body was lying in the house of respondent Liaqat. The Investigation Officer prepared memo of dead body and inquest report etc. However, the independent evidence produced by the prosecution does not support the above police investigation and lying of the dead body in the house of the respondent Liaqat.
5. The Medical Officer Dr. Dildar Hussain (P.W.2) who is an independent and disinterested witness stated that he received the dead body from the police at about 3/4 a.m. In the nighttime. When the dead body was in the Hospital even before lodging the F.I.R., then how the witnesses and Investigation Officer deposed that it was lying in the house of Liaqat and how the Investigation Officer prepared above-mentioned document. This clearly shows that from the very beginning the Investigation Officer manipulated investigation and prepared false documents. Thus the investigation started malafidely. The P.W.2 categorically stated that on 30-8-2008 at 3 or 4 a.m. He received the dead body from A.S.-I. Muhammad Iqbal of Police Station Kot Ghulam Muhammad.
Thus the police were already informed who reached the place of incident and took away the dead body. The prosecution has not denied or disputed the evidence of Doctor or examined A.S.-I.
Muhammad Iqbal to confront his evidence. If the P.Ws. Had witnessed the incident and would have been present then their presence should have been shown by the Police Officer who took away the dead body. Further when the police reached the place where the dead body was lying then it must have alarmed the people of the locality and the village, who must have assembled there but it is surprising to note that none of the eyewitnesses was present or accompanied the dead body to the Taluka Hospital Kot Ghulam Muhammad with the police. Even the dead body was not identified by any of the P.Ws. As it was identified by Mushtaq and Ghulam Nabi relatives of the deceased as per P.W.2 Thus the absence of the P.Ws. Speaks volumes about their presence and witnessing the incident. The record is completely silent as to from which place the dead body of Saifullah was taken away by the police of Kot Ghulam Muhammad and that too before lodging the F.I.R.
6. Be that as it may, the fact remains that before lodging the F.I.R. The police started investigation by reaching the place where the dead body was present and removed the same. It is not known as to how the police came to know about the dead body and who informed the police. The P.Ws.
Deposed that P.W. Muhammad Mushtaq informed the police about the occurrence on telephone but the Investigation Officer P. W.7 categorically stated in the cross-examination that said Mushtaq did not inform the police about the incident. P.W.4 Asghar Ali stated that he had also seen the incident but he himself falsified his own statement by admitting in cross-examination that he reached the scene of incident after 15/20 minutes of the incident. The said fact has been supported by Shaukat Ali (P.W.3) and Muhammad Boota (P.W.5). Thus it appears that P.W. Asghar Ali reached the place of incident after the occurrence.
7. As regards P.Ws. Shaukat Ali and Muhammad Boota, they stated that the incident took place at about 11.00 p.m. But according to the Medical Officer, who conducted the post-mortem examination, time between the death and injuries was about 10 minutes whereas the time between the post-mortem and death was about 24 hours. In the cross-examination he admitted that time of death could not be less than 23 hours. Thus, this time of death does not commensurate with the time given by the P.Ws. As such there is a conflict between the medical and oral evidence on this point. According to the ocular testimony the deceased had died about 8 hours prior to post- mortem examination but as per the Medical Officer the deceased had died 23 hours before the postmortem examination. A margin of 3/4 hours can be given but in this case there is a margin of 15 hours, therefore, in such a situation when there is a conflict between the medical and oral evidence, preference is to be given to medical evidence than to oral evidence. Reliance is placed on Mardan Ali v. Gulistan 1980 SCM R 889.
8. The above discussion reveals that the case of the prosecution is not free from doubt. The learned High Court has examined and assessed the evidence in its true perspective and reached a right conclusion.
9. After scrutinizing the evidence available on record, we are of the considered view that the prosecution has failed to prove the case against the respondents beyond reasonable doubt, therefore, they have rightly been acquitted. The petition is without merits; hence stands dismissed and leave to appeal is refused.