This judgment will dispose of Criminal Appeal No, 101-J of 2004 filed by Muhammad Riaz, appellant, who was convicted and sentenced by learned Addl. Sessions Judge, Depalpur vide impugned judgment dated 12.03.2004 to undergo Imprisonment for life u/S. 302 (b), PPC with further direction to pay Rs,50,000/- as compensation to the legal heirs of the deceased or in default six months R.I with the benefit of Section 382 (b) Cr.P.C.
2. Brief facts of the case as narrated by complainant Allah Ditta son of Khushi Muhammad are that he alongwith his father Khushi Muhammad were employed with Rao Muhammad Aslam. On 17.8.2001 at 8/9.00 p.m. he alongwith his father Khushi Muhammad and PWs Allah Ditta son of Gulzar and Sharif were on their way to irrigate the maize crop. When they reached near chari crop owned by Muhammad Sharif at Mauza Jujj, accused Muhammad Sharif armed with pistol .30 bore and Riaz Ahmad having hatchet emerged from the crop. Muhammad Sharif raised lalkara that they would teach a lesson for abusing and slapping Shazia Bibi. Then Riaz Ahmad made a hatchet blow, which hit on left back side of head of Khushi Muhammad. His second blow hit back side of his right ear. Khushi Muhammad fell down on the ground. Then Muhammad Sharif accused made fire shot with pistol 30 bore which hit on his penis under the belly. Khushi Muhammad died at the spot.
The motive for the occurrence was that few days ago there was a quarrel between Mst. Shazia Bibi and Sharif accused and Mst. Rani Wife of complainant and Khushi Muhammad deceased had abused and slapped Shazia Bibi and due to that grudge the accused committed the murder of the deceased.
3. The investigation of this case was conducted by Mian Khan Inspector. On receiving the information about the occurrence he reached at the place of occurrence and Allah Ditta complainant got recorded his statement Ex.PA which was sent to the police station for recording of formal FIR. He inspected the spot, prepared injury statement Ex.PF, inquest report Ex.PG and sent the dead body to the mortuary for post mortem examination. He secured blood-stained earth from the place of occurrence vide memo Ex.PB. On 28.2.2002 accused Muhammad Sharif while in police custody led to the recovery of pistol 30 bore P.5, which was taken into possession vide memo Ex.PK and on the same day Riaz accused led to the recovery of hatchet 'P.6, which was taken into possession vide memo Ex.PL. However after completion of remaining formal investigation, the challan was sent to the trial Court.
4. At the trial, the prosecution in order to prove its case produced 11 witnesses in all, thereafter, learned DDA after tendering in evidence reports of Chemical Examiner Ex.PM and Ex.PN, reports of Serologist Ex.PM/1 and Ex.PN/1 and that of Forensic Science Laboratory Ex.PP closed the prosecution case, then, the statements of the accused u/S. 842 Cr.P.C. were recorded in which they pleaded innocence. However, after conclusion of the trial, appellant was convicted and sentenced as mentioned above while Sharif co-accused was acquitted by the learned trial Court.
5. After having read the entire prosecution evidence, statement of the appellant recorded u/S. 342 Cr.P.C. and other relevant material available on record, learned counsel for the appellant submits that it was an unseen occurrence; that there is a delay of about 12 hours in lodging the FIR; that there is conflict between medical evidence and ocular account and on the basis of same evidence Muhammad Sharif co-accused father of the appellant has been acquitted by the learned trial Court; that no case is made out against the appellant and he is entitled to acquittal.
6. On the other hand learned counsel for the complainant submits that PWs Allah Dit son of Khushi Muhammad and Allah Ditta son of Gulzar have supported the prosecution case; that recovery of weapon of offence is also proved; that head injuries were attributed to the present appellant; that motive is also proved against the appellant that the prosecution has proved its case against the appellant and the appeal filed by the appellant may be dismissed. Learned DPG opposes the submissions made by learned counsel for the appellant.
7. I have heard learned counsel for the parties. The occurrence had taken place on 17.8.2001 at 8/9 p.m., matter was reported to the police on 18.8.2001 at 12.30 p.m. by Allah Ditta son of Khushi Muhammad and the FIR was recorded on the same day at 12.55 p.m. although the distance between place of occurrence and the police station was 8 kiloir eters. The appellant was arrested on 15.2.2002 and hatchet P.6 was recovered from him on 28.2.2002 which was taken into possession vide memo Ex.PL. Two eye-witnesses namely Allah Ditta son of Khushi Muhammad complainant son of the deceased PW. 1 and Allah Ditta son of Gulzar PW.2 not related to any party were produced by the prosecution in the instant case. The statement of Dr. Nisar Ahmad PW.6 who conducted the post mortem examination on the dead body of the deceased is very essential for the just decision of this case because according to FIR two injuries with hatchet were caused by Riaz appellant, one on the back side of head and other near right ear of the deceased. Muhammad Sharif acquitted accused father of the appellant was attributed injury with pistol on the abdomen near the penis of the deceased. I would like to mention below all the injuries received by the deceased:--
1. Lacerated wound 6 cm x 1.5 cm x bone deep, located on left side of the head 10 cm above left ear.
Bleeding from left ear was present.
2. Lacerated wound 1.5 x 1.5 cm on upper most part of left ear pinna.
3.Contusion 5 x 5 cm el outer side of right eye.
4.Contusion 3 x 3 cm on right half of lower lip.
On dissection of scalp, there was depressed fracture 5 x 5 cm just below Injury No,
1. There was 10 cm fracture line on left partial bore, extending from, depressed fracture side. Membranes were injured and subdural heumatioma was present.
5. Contusion 8 x 10 cm on left side of face just below left ear.
6.Contusion 10 x 10 cm on outer and interior side of upper part of right thigh.
7.Lacerated wound 3/4 x 1/4 cm x skin deep located on pubic region just above the penis.
8. Contusion 5 x 5 cm on left side of the reek.
8. A bare perusal of the injuries show that there were eight injuries and were caused with blunt weapon. It was alleged in the FIR and the eyewitnesses in their statements that hatchet was used but there is not a single injury with sharp edged weapon on the person of the deceased. It was never stated in the FIR by the complainant that hatchet was used from its wrong side. There is no injury with firearm. There is big conflict-between ocular account and medical evidence, which cannot be reconciled without a pinch of salt. Then there is delay of 16 hours in lodging the FIR. The occurrence took place on 17.8.2001 at 8/9 p.m., matter was reported to the police even out side the police station at 12.30 p.m. on 18.8.2001 although the distance between the place of occurrence and police station was eight kilometers. I am fully convinced that eyewitnesses were not present at the spot at the time of occurrence. They are false witnesses and they had falsely involved the appellant and his father. It is sad to mention her that occurrence took place in year 2001 and appellant was convicted in year 2004 and the appeal was filed in 2004. Now we are going in August 2009 and appellant has unfortunately undergone eight years of sentence without any fault on his part.
8-A. After having heard learned counsel for the parties, going through the evidence on record I am fully satisfied that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. The result of above discussion is that the appeal filed by the appellant is accepted and the conviction and sentence recorded against him by the learned trial Court vide impugned judgment is set aside. He is in jail and he shall be released forthwith if not required to be detained in any other case.
9. However, let a notice be issued to Allah Ditta son of Khushi Muhammad caste Dindar r/o Mazhar Abad, Tehsil Depalpur, District Okara and Allah Ditta son of Gulzar caste Dindar r/o Farid Kot Tehsil Depalpur District Okara who have given false evidence against the appellant who was convicted and his father Muhammad Sharif was acquitted by learned Addl: Sessions Judge because appellant had undergone 8 years imprisonment without any fault on his part. It is also noted here that learned trial Court awarded the sentence to the appellant without any plausible evidence against the appellant. Learned DPG shall direct DPO Okara to produce both the above said PWs before this Court on 27.8.2009. A show cause notice shall also be issued to them that why they should not be convicted and sentenced under Section 194 PPC. Office is directed to prepare a separate file in this regard.