' MUHAMMAD AKRAM QURESHI, J.---Sher Ali and Pervez appellants were tried by the learned Additional Sessions Judge, Hafizabad in case F.I.R. No, 326, dated 29-5-2004 registered under section 302/201/34 P.P.C. At Police Station City, District Hafizabad for committing Qatl-i-amd of Muhammad Ashraf deceased. Learned trial Judge vide judgment dated 27-5-2007 convicted the appellants under section 302(b) read with 34, P.P.C. And sentenced them to suffer imprisonment for life. They were further directed to pay Rs,50,000 each as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C, in default where, each of them was ordered to further undergo simple imprisonment for six months. Both the appellants were also given benefit of section 382-B, Cr.P.C.
2. Brief facts of the case as contained in F.I.R. Ex-PB are that on 28-5-2004 at about 7.00 p.m., complainant along with his sons Akbar Ali, Muhammad Ashraf (deceased) and Muhammad Aslam were present at his house situated in Mohallah Rehmatabad, Hafizabad when accused Pervez, Irfan, Sheri and Bilal along with an unknown person came to his house and called Muhammad Ashraf. Complainant asked them that where they are going upon which Pervez etc. Told that they were going to settle a money dispute and that they will come back soon. Muhammad Ashraf did not return home during the night. On 29-5-2004 at about 10-00 a.m. Muhammad Ashraf, Taj Din met the complainant and told that last night at 11.00 p.m. They saw Pervez, Irfan, Sheri and Bilal along with one unknown accused beating Muhammad Ashraf deceased by iron rods. They tried to intervene upon which, the accused threatened them. On this information, they started searching Muhammad Ashraf deceased. When they reached near the Dera of Muhammad Hanif Toor, they found the dead-body of Muhammad Ashraf in the southern room of the said Dera.
' Motive for the occurrence was that Muhammad Ashraf deceased had taken loan from accused Pervez etc. And he could not repay the same. For which the accused nourished grudge and all the accused in furtherance of their common intention committed the Qatl-i-amd of Muhammad Ashraf.
3. After usual investigation, the accused were challaned. Formal charge was framed against them to which they pleaded not guilty and claimed trial. The prosecution examined as many as 10 P.Ws.
In support of the allegations and also produced the documentary evidence.
4. The accused got recorded their statements under section 342, Cr.P.C. However, they did not opt to appear as their own witness as provided under section 340(2) Cr. P.C.
5. Learned trial Court convicted and sentenced the appellant as mentioned above, hence, the present appeal. Complainant also filed Criminal Revision No, 620 of 2005 for enhancement of sentence awarded to the respondents. I intend to dispose both these appeals with this single judgment.
6. Learned counsel for the appellants contends that the very registration of case is highly doubtful, that the complainant lodged F.I.R. Exh. PB before the police after deliberation, consultation and concoction and that there is delay of about 28 hours in lodging the F.I.R.; that as per contents of F.I.R., the deceased was taken from his house on 28-5-2004 at 7.00 p.m., in the presence of Muhammad Hussain and Akbar Ali P.Ws.; that despite the lapse of 28 hours, the matter was not reported to the police and delay in lodging the F.I.R. Creates sufficient doubt in the prosecution case, that it is the prosecution case that the deceased was taken from his house in the presence of the complainant and other P.Ws.; that the deceased never returned home during the night falling between 28-5-2004 and 29-5-2004, that the complainant did not make any effort to search his son during this night or approach the police that his son was taken away by the appellants are responsible for his disappearance, that as a matter of fact, the story of taking away the deceased from his house was concocted by the complainant and that he failed to substantiate these allegations on record, that the second part of the prosecution case is the information imparted by P.W.6 Taj Din and Muhammad Arshad (given up P.W.). As per information conveyed by these two P.Ws., the deceased was tortured by the appellants with the help of iron rods. The information was statedly conveyed to the complainant by the said witnesses at 10-00 a.m. On 29-5-2004, that despite receiving this information, the complainant never approached the police to impart this information to the police that his son has disappeared and Muhammad Arshad and Taj Din P.Ws.
Have told him that he was beaten by the appellants by inflicting blows by iron rods, that this sort of conduct of complainant also makes his stance highly doubtful, that had Muhammad Arshad and Taj Din P.Ws. Seen the appellants inflicting iron rods blows to the deceased, they could have approach the local police to impart this information. It is also important that both the witnesses have not disclosed the date and time when they saw the appellants inflicting iron rods blows, that the conduct of both the witnesses is highly suspicious and that despite this knowledge, they kept mum and waited for the next morning, that as a matter of fact, the incident of inflicting of iron rods blows never took place and that this part of the story was also concocted by the complainant, Muhammad Arshad and Taj Din P.Ws, that story narrated by these P.Ws. Was not affirmed by the medical evidence, that the complainant despite the above-mentioned two informations kept on searching his son and at last found the dead body of his son in the southern room of Dera of Muhammad Hanif Toor, that prosecution has not proved any link between said Muhammad Hanif Toor and the appellants and that the appellants have no contact with the said Muhammad Hanif Toor and factually, the complainants have wrongly impleaded the appellants for the alleged murder of Muhammad Ashraf deceased, that at the time of examination, the doctor never stated that he had noticed some symptoms leading to the conclusion that the deceased might have been done to death by causing hindrance to his breath at the level of his neck, that at the time of post-mortem examination, the doctor stated that he was not in a position to make any conclusion as to the cause of death, that the viscera of the body of the deceased were sent to the Chemical Examiner for analysis and after chemical examination, the report was submitted which was negative in nature and after going through the said report, the doctor changed his view and without any substance made a report that the deceased died due to asphyxia and that his breath was hindered at the level of neck; that perusal of the post-mortem report indicates that symptoms or signs of asphyxial death were not available on the body of the deceased, that as a matter of fact, the doctor had wrongly concluded and converted a natural death into homicidal death, that from the available material, the prosecution has failed to create link and chain, on the basis of which, the appellants may be convicted for capital charge that the investigation of the present case is dishonest. The Investigating Officer had been fabricating evidence to connect adds that the Investigating Officer has also been concocting the statements of the witnesses and that the evidence of such a dishonest police official may not be relied upon. Refers 1975 PCr.LJ 750 (Anwar v.
The State) and prays for the acquittal of the appellants.
7. Conversely learned DPG assisted by the learned counsel for the complainant had vehemently opposed this appeal stating that the complainant is a labourer. On the night of alleged incident, the appellants took away the deceased from his house in the presence of complainant and Akbar Ali P.W. That no enmity existed between the appellants and the complainant. Due to the lack of the sphere of animosity, there was hardly any occasion to falsely implicate the appellants and other co-accused in this case, that it was a reality that the appellants and other co-accused approached him and in his presence and in the presence of Akbar Ali P.W. Took away Muhammad Ashraf deceased from his residence with the plea that they have to settle the accounts with him that the evidence of both the P.Ws. Is consistent on this point and the appellants have failed to create any discrepancy between the two dispositions, that the evidence of both the P.Ws. Is also in line with the case narrated in Exh.PB, that a labourer usually occupies his bed in the early hours of the night and also gets up early in the morning. It was because of this reason that the complainant could not make search of his son during the night, that the complainant might have understood that Muhammad Ashraf deceased had come back to his house, that on the following morning when he found his son absent from his residence, he immediately started searching him and met Muhammad Arshad and Taj Din P.Ws. Who told him that they saw the appellants belabouring the deceased with iron bars, that marks of violence were found on the dead-body of the deceased but these marks of violence were not sufficient to cause the death, that the evidence of the complainant, Taj Din son of Muhammad Hanif P.W. Is also in line with the story narrated in the F.I.R, that they have corroborated each other in their depositions. Learned counsel for the prosecution while arguing their case ahead submit that viscera of the deceased were also sent to the office of Chemical Examiner and Bacteriologist and on the strength of the said reports, the doctor concluded that the death of the deceased was not natural. He was strahgulated and died because of asphyxia, that the appellants took away the deceased, he was lastly seen accompanying them and it was their duty to explain as to how the deceased met unnatural death, that in the absence of any such explanation, the appellants should be held liable for the Qatl-i-amd of deceased, that it is a case in which the prosecution has produced independent witnesses who have no enmity against the appellant or motive to falsely implicate in this case, that the evidence of the prosecution witnesses is free from any discrepancy of material improvements, that the evidence of independent and natural witness cannot be brushed aside on the mere ground that some delay occurred in recording their statements by the police, that in our society, the people are not aware of their civic duties and that lack of their knowledge may not be used against them, that it is a case of a poor labourer who was not aware of the complications of law, that the prosecution has established link and chain, which is leading towards the guilt of the appellants, that the Investigating Officer of this case has honestly investigated this case and that there is nothing on record on the basis of which it may be said that the Investigating Officer has fabricated or concocted any evidence or he acted in accordance with the wishes of the complainant, that the complainant of this case was a poor labourer and he was not in position to grease the palms of the Investigating Officer and that even otherwise, the appellant have not been able to establish any or grudge of the Investigating Officer against them and that the Investigating Officer was an independent and honest officer and that there is nothing on record on the strength of which it may be said that the evidence of the Investigating Officer is not worth reliance.
8. I have heard the learned counsel for the parties and perused the record.
9. There is delay of 28 hours in holding the F.I.R, which remained unexplained during the investigation and even trial. The deceased was allegedly taken from his house on 28-5-2004 at 7- 00 p.m. In the presence of Muhammad Hussain and Akbar Ali P.Ws. The deceased did not return home during the night. The complainant did not feel worry from his absence. He did not make efforts for his recovery or approached the appellants to know the whereabouts of the deceased.
The conduct of the complainant and Akbar Ali P.W. Is indicative of the fact that the deceased was not taken from his house in their presence and the story of enticing away the deceased from his house was concocted later on. It is also the prosecution case that the appellants took away the deceased on the pretext that they have to settle the account with him. The P.Ws. Could not explain the nature of money dispute between the deceased and the appellants, therefore, like allegations are vague and doubtful in nature and thus a' doubtful event cannot be made basis for the conviction of the appellants.
10. The evidence furnished by P.W.6 Taj Din and Muhammad Arshad (given up P.W.) is also fabricated piece of evidence. As per prosecution case, both of them witnessed the appellants maltreating and torturing the deceased with iron rods. The iron rod is a hard and lethal instruments which, if used must have caused lacerated wound or confusions. The dead body of the deceased, when subjected to autopsy, did not find any lacerated wound or confusion. In this view of the matter, the story narrated by the above-said two P.Ws. Is belied by the medical evidence. There is another important aspect that the said P.Ws. Witnessed the stated incident which at night time but did not care to impart this information either to the complainant or to the police. Their silence for pretty long time indicates that they were not the truthful witnesses cooked up after the discovery of dead body and there evidence was fabricated. These witnesses are not worthy of reliance. It is important to note that despite the fact that the complainant was statedly carrying the information of above-mentioned two events. He did not approach the police to lodge any information rather kept on searching his son till his dead body was recovered from southern room of Dera of Muhammad Hanif Toor. There is nothing on record to prove any link between the appellants and above-said Muhammad Hanif Toor There is no witness who might have seen the appellants going in or coming out of the Dera of Muhammad Hanif Toor. The dead body of the deceased was discovered by the complainant himself and it was not found at the pointation of the appellants.
11. The dead body of Muhammad Arshad deceased was subjected to postmortem examination by the doctor who could not conclude that the mode of death of the deceased was asphyxia or that any hindrance was caused to his breath at the level of his neck. At the time of postmortem examination, the doctor never observed that such symptoms are existing but he is reserving his opinion till the receipt of the report of Chemical Examiner or Bacteriologist. After the receipt of the report from the Chemical Examiner and Bacteriologist, the doctor suddenly woke up and stated that the death of the deceased had occurred due to asphyxia. Such an opinion equipped with a belated thinking and devoid or reasoning cannot be relied upon. A detailed analysis of the postmortem report would indicate that the doctor has not advanced reasons as to how he concluded that the deceased died due to asphyxia. In his view of the matter, no reliance can be placed on the post-examination report.
12. In the light of the discussion have been made above, I am of the view that the prosecution has failed to set up link and chain of the events leading towards the guilt of the appellants. The prosecution evidence B is highly doubtful. I have already discarded the evidence of the P.Ws. In the above-mentioned substance. Declaring the prosecution case highly doubtful, I accept this appeal, set aside the conviction and sentence of the appellants. They are in custody, they be set at liberty if not required in any other case.
13. Criminal Revision No,620 of 2005 filed by the complainant for enhancement of sentence awarded to the appellants is without force and is dismissed.