' HASNAT AHMAD KHAN, J.---Muhammad Nawaz and Nazir Ahmed, the appellants, along with three others were tried by a learned Additional Sessions Judge, Gujranwala, in case F.I.R. No, 195/1992, dated 30-6-2002, registered with Police Station Sadar Kamoke, District Gujranwala, for offences under sections 302/148 and 149, P.P.C. After the conclusion of the trial the said learned Addl.
Sessions Judge found the appellants guilty of murdering Muhammad Saleem, the son of the complainant. Consequently, the appellants were convicted and sentenced under section 302(b)/34, P.P.C. To life imprisonment along with a fine of Rs,100,000 each, or in default of payment thereof, they were ordered to undergo six months' S.I. Each. Benefit of section 382-B, Cr.P.C. Was also granted to: the appellants. The learned trial Court, however, acquitted Ilyas, Niaz and Mushtaq, co-accused of the appellants of the charge of murder.
2. Feeling aggrieved by the judgment of the learned trial Court, the appellants challenged their conviction and sentence through the instant appeal.
3. Pithily, the prosecution's story, as narrated by the complainant Mst. Naziran Bibi through her statement (Exh.PK), which later on culminated into F.I.R, was/is to the effect that on 26-6-2002, her son Muhammad Saleem was present in the house; Muhammad Ilyas (acquitted accused) came there, called Muhammad Saleem out and took him along to the house of his in-laws, where Muhammad Mushtaq and Niaz Muhammad (acquitted accused), Nazir Ahmed and Muhammad Nawaz, the appellants, were already present; on seeing Muhammad Saleem (deceased), Muhammad Nawaz- appellant bawled out that Muhammad Saleem be not spared and on his lalkara, all the accused started hitting him with their respective batons; the complainant along with her son Munir Ahmed, Faryad Ali (P.W.7) and Abdul Hameed followed Muhammad Saleem and went to the house of Ghulam Muhammad Immediately and witnessed the occurrence; on seeing them the accused fled from the spot leaving Muhammad Saleem in injured condition, who was rushed to the hospital.
4. The motivating factor behind the occurrence is stated to be that in-laws of Muhammad Saleem (deceased) were pressing him hard to divorce Mst. Nazia, real sister of Nawaz appellant.
4-A. After completing the investigation, the Investigating Officer found the appellant guilty and submitted a report under section 173, Cr.P.C. Against them. Their co-accused were discharged by the police but, in due course, they were also summoned to face the trial. All the accused including the appellants denied the charges and claimed to be tried.
5. During the trial, the prosecution, in support of its case, produced as many as 12-witnesses, out of whom Mst. Naziran complainant entered into the witness box as PW.6 and with a little variation reiterated the statement which was made by her while lodging the F.I.R. Faryad Ali appeared as PW.7 and corroborated the complainant's version. Nasir khan, A.S.-I. Gohar Abbas, A.S.-I. And Azhar Saeed, Inspector, who had conducted the investigation, appeared as P.Ws. 5, 8 and 11, respectively and gave the detail of the investigation conducted by each of them. Dr. Sahibzada Farid Zulfiqar, who had conducted the autopsy on the dead body of the deceased, came forward as PW.3 and furnished the detail of the injures observed by him on the corpse of the deceased, as under:-
(1) A bruised swelling 20 cm x 10 cm around left lower thigh extending to the knee joint. Blush black in colour.
(2) A bruised swelling, bluished black in colour, 22 x 10 cm all around the left leg. The skin was peeling off.
(3) A bruised swelling 16 x 16 cm around the left ankle joint and the dorsum of left foot.
(4) A bruised swelling bluished black, 15 x 10 cm around the right ankle and dorsum of right foot.
(5) A bruised swelling bluished black 22 x 10 cm on the right leg. The skin was peeling off.
(6) A bruised swelling 15 & 15 c.m. Around the right knee joint bluish black in colour.
(7) A lacerated wound 2.5 x 1 c.m. Into the bone deep on the front of left lower leg.
(8) A bruised swelling bluish black 9 x 7 cm on the dorsum of left hand.
' In his opinion the cause of death in this case was due to crushing effects of injuries Nos.1 to 8, which led to haemorrhage and vital organs failure (kidneys) due to anemia and toxaemia.
' The prosecution gave up P.Ws. Muhammad Ashraf, 1982/C, Nasrullah, 844/C, Sh. Bashir Ahmed, DSP being unnecessary witnesses. Rest of 4he witnesses being formal in nature need not be discussed here.
6. After tendering into evidence the reports of Chemical Examiner (Exh.) and that of Serologist (Exh.), the learned DDA closed the prosecution's evidence.
7. The appellants made their statements under section 342, Cr.P.C, while responding to question No,5 both the appellants stated as under :-- "The complainant got registered false case to get money from us. In fact the deceased Muhammad Saleern entered in a house of Mohallah to commit offence in a naked condition and he was injured due to the jumping from the roof and I am innocent. "
' The appellants, however, did not opt to appear as their own witnesses under section 340(2), Cr.P.C.
8. After the conclusion of the trial the appellants were convicted and sentenced as mentioned above.
9. In support of this appeal learned counsel for the appellants has contended that there is an inordinate and unexplained delay of three days in lodging the F.I.R; that the occurrence did not take place in the manner, as alleged by the prosecution; that Saleem-deceased was shifted to hospital in an injured condition by the police themselves, a fact which outrightly contradicts the claim of the complainant that after having seen the occurrence, Muhammad Saleern was carted off to the hospital by the complainant and the eyewitnesses; that during the trial the complainant and the other witnesses made dishonest improvements to bring their evidence in line with the attending circumstances; that Mst. Naziran Bibi the complainant, is mother of the deceased whereas Faryad (PW.7) is his brother in law, therefore, their evidence cannot be relied upon for maintaining the conviction and sentence awarded to the appellant.
10. Conversely, learned DPG has opposed this appeal by contending that prosecution has proved its case beyond any shred of doubt by producing the two eyewitnesses who had no reason to falsely implicate the appellant in this case and that simply due to their relationship with the deceased, die eye-witnesses cannot be termed and dubbed as interested witnesses.
11. I have gone through the evidence with the able assistance of the respective learned counsel for the parties. Having done so, I find that basically it is a case of two versions, inasmuch as according to Mst. Naziran Bibi (PW.6), the complainant who is the real mother of Muhammad Saleem- deceased- he was given severe blunt weapon injuries in the very presence of the witnesses whereafter he was shifted to the hospital but he could not survive due to accumulative effect of the blunt weapon injuries caused on his body, whereas according to the defence, Muhammad Saleem-deceased was thrashed by the occupants of the house wherein he had entered in a stark naked condition. Since initially it is the prosecution's duty to stand on its legs, therefore, firstly I have examined the prosecution's evidence in order to see its worth against the appellants. The said exercise leads me to conclude that the prosecution's case rests upon ocular evidence, the motive, medical evidence and recovery of batons from the appellants.
12. Insofar as the motive is concerned at the time of lodging the F.I.R, the complainant claimed that Muhammad Saleern was injured by his in-laws, who were asking Muhammad Saleern deceased to divorce his wife, who is Nawaz- appellant's real sister, whereas during the trial both the eye- witnesses took a somersault and claimed that Muhammad Saleern, the deceased, had divorced Mst. Nazia, the real sister of Nawaz, the appellant, which became the cause of the murder. The said two versions do not quite marry up, rather it shows that during the trial the prosecution made dishonest improvement in order to ensure the conviction of the appellants. Besides, no proof was furnished during the trial to show that Mst. Nazia the wife of Muhammad Saleern, the deceased, had indeed been divorced by him. Therefore, I am not inclined to accept the prosecution's version qua the motive.
13. Insofar as the alleged recovery of stuff at the instance of Muhammad Nawaz, the appellant, is concerned, admittedly, there is no report of Chemical Examiner to show that the said stuff was indeed stained with human blood, therefore, the said recovery is useless for the prosecution purposes. As far as Nazir-appellant is concerned, the Sota which was allegedly recovered from his possession, was not bloodstained, therefore, the same is also worthless and cannot furnish any corroboration to the prosecution's version.
14. Insofar as the ocular account is concerned, the prosecution has produced Mst. Naziran Bibi (P.W.6), the mother of the deceased and Faryad Ali (P.W.7), brother-in-law (behnoi) of Saleem- deceased in order to prove its case. At the outset I have noticed that while lodging the F.I.R, the complainant did not give the time of occurrence. Despite the fact that according to the prosecution Muhammad Saleem- deceased was beaten up in the very presence of the witnesses, the occurrence was not reported to the police promptly, rather, the F.I.R, was lodged with an inordinate and unexplained delay of three days, a fact which leaves lot of questions unanswered.
Moreover, according to the Medico-Legal Certificate, dated 26-6-2002, he was transported to the hospital in an injured condition by the police themselves and none of his relatives or friends accompanied him at the said time. The Doctor, who had medically examined Muhammad Saleern before his death, categorically stated during the trial that when the injured was brought to the hospital, he was not accompanied by any of his relatives, rather, he was brought by police mobile.
On the other hand, the complainant claims that Muhammad Saleern was rushed to the hospital by the eyewitnesses, including herself. The said assertion is in direct conflict that the medical evidence, which as mentioned above, reveals that Muhammad Saleern was rushed to the hospital in an injured condition by the police themselves. Men can lie but the documents cannot do so.
Besides, I find that both the eye-witnesses made dishonest improvements to bring their evidence in line with the other evidence, for instance, while lodging the F.I.R, the complainant claimed that she had reached the place of occurrence during the course of flailing her son, i.e, the deceased, whereas in the witness-box, she claimed that she had reached the home of the accused party along with Muhammad Saleem-deceased, whereafter, the whole occurrence took place. Moreover, neither in the F.I.R, nor before the trial Court, while appearing in the witness box, the time of occurrence was given by the complainant. Further, the fact that Muhammad Saleem-deceased was not shifted to the hospital by the complainant or the relatives of Muhammad Saleem- deceased, coupled with the event that the F.I.R, was lodged with an inordinate delay of 3 days, reveals that it was an unseen occurrence or at least the same was not witnessed by the eye- witnesses relied upon by the prosecution. It is true that in absence of any enmity with the accused/appellants, the ocular account furnished by P.W.6 and P.W.7 cannot be discarded only due to their relationship with the slain. However, their statements cannot be accepted as a gospel truth only on the ground that they, had no deep-rooted enmity with the appellants, rather, it is the intrinsic value of the statements of the said witnesses, which indeed matters.
15. In the aforesaid circumstances, coupled with the fact that on the basis of same evidence three other co-accused have already been acquitted of the charge by the learned trial Court, the ocular evidence has not been found to be trustworthy, especially, when the statement of the eyewitnesses do not find corroboration from any other source. Contrarily, the version put forward by the appellants has been found to be plausible and believable, inasmuch as according to the complainant herself at the time of occurrence Muhammad Saleern deceased was in stark naked condition. Consequently, according to her, a parna/sheet of cloth which was lying nearby was used to cover his naked body. The said fact itself demonstrates that before receiving injuries Muhammad Saleem-deceased had indulged in some nefarious activity. Be that as it may, at the time of lodging the F.I.R, the complainant never claimed that her son was injured by the accused after stripping off his clothes. The fact that Muhammad Saleem-deceased did not receive any injury on his upper part of his body, rather his legs were targeted by causing blunt weapon injuries also shows that the culprits whoever they were, wanted to teach a good lesson to Muhammad Saleem-deceased but unfortunately he succumbed to the accumulative effect of all the injuries.
16. In the said backdrop I conclude that the prosecution has failed to prove its case beyond any doubt, rather doubts are floating on the surface of the case, the benefit of which, of course, cannot be given to the prosecution and in view of the established principles of criminal jurisprudence the accused are entitled to get the benefit of doubt. Consequently, the appeal in hand is allowed, conviction awarded to the appellants is set aside. They be released from jail immediately, if they are not involved in any other case.