SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Kh. Riaz alias Kaka son of Kh. Perwaiz, appellant through the instant criminal appeal has called in question the vires of the impugned judgment dated 19-2- 2004, passed by learned Additional Sessions Judge, Lahore wherein the learned trial Court had convicted the appellant under sections 302(b), 34, P.P.C., and sentenced to imprisonment for life as Tazir with direction to pay compensation of Rs,50,000 to the legal heirs of deceased in terms of section 544-A, Cr.P.C. in default whereof six months S.I. The appellant was also convicted under section 324/34, P.P.C. and sentenced to 10 years' R.I with fine of Rs,20,000 in default thereto three months S.I. The appellant was further convicted under section 337(i), P.P.C., and sentenced to one year's R.I with tine of Rs,2,000 in default of payment of the same the appellant was to further undergo one month's S.I. Benefit of section 382-B, Cr.P.C, was also extended to the appellant.
Moreover, all the sentences were ordered to run concurrently.
2, Precisely, the facts of the case as per prosecution case are that the appellant along with co- accused had made dagger blows on Gul Muhammad, son of complainant, which landed on his stomach towards right side and the right side of his chest. The injured succumbed to the injuries.
Accordingly the F.I.R. was lodged.
3. The appellant/convict having been found guilty by the Investigating Officer was asked to face trial_ Charge was framed by the learned trial Court under sections 302, 324, 337(i), 34, P.P.C., to which the appellant pleaded not guilty and claimed trial. The prosecution was asked to adduce evidence. Accordingly, as many as sixteen prosecution witnesses were produced. After completing all the codal formalities of trial and hearing the arguments from both sides, the learned trial Court convicted the appellant/convict in the above terms. Being aggrieved of the judgment impugned, the appellant/convict impugned the same by filing appeal before this Court through the instant criminal appeal.
4. Learned counsel for the appellant contends that the judgment passed by the learned trial Court is against the law and facts of the case, which is based on misreading and non-reading of material evidence available on the record and that there is lack of cogent, overwhelming and reliable evidence on file to connect the appellant/convict with the commission of offence. Learned counsel also contended that there is an unexplained delay of 4-1/2 hours in lodging the F.I.R. although police station is only at a distance of 1 KM. It is also argued that the P.Ws. were chance witnesses. Moreover, as per complainant he himself transported the deceased to the hospital, whereas, the doctor mentioned that one of the friends of the deceased, had shifted him to the hospital. It is also contended that the deceased was a habitual offender who was involved in so many criminal cases and there is 'possibility that he was done to death by any of his enemies. In the end learned counsel has contended that as the prosecution had failed to substantiate its case qua the appellant, therefore, he is entitled to be acquitted of the charge.
5. On the other hand, learned D.P.-G. has vehemently opposed this petition with the averments that the learned trial Court passed a well-reasoned judgment while evaluating the prosecution evidence in its true perspective. It is also contended that the appellant is nominated in the F.I.R. with a specific role, recovery was also effected from him; therefore, he is not entitled to any leniency.
6. Arguments advanced pro and contra have been heard. I have gone through the record available on file with the able assistance of learned counsel for the appellant as well as learned D.P.-G.
7. The judgment of the learned trial Court impugned herein has also been gone through. The most pivotal point in this case is delay in the F.I.R. There is no denial to the fact that the occurrence as alleged in the F.I.R. had taken place on 18-7-2002 at 9-00 p.m, whereas the matter was reported to the police on the same night at 12-40 a.m. (mid-night), although inter se distance between the place of occurrence and the Police Station is only 1-KM. The delay in lodging the F.I.R. has not been explained, which if taken into isolation is fatal to the prosecution case.
In a similar case reported as Mehmood Ahmed and 2 others v. State 1995 SCM R 127 the Hon'ble Supreme Court of Pakistan took serious notice of delay in lodging the F.I.R. and held as under:-- "Although in some circumstances a delay of two hours may not be of much importance yet in the facts and circumstances of this particular case as they have happened, the delay has great significance. It can be attributed to consultation, taking Instructions and calculatedly preparing report keeping the names of accused open for roping in such Persons whom ultimately prosecution may wish to implicate. This does not mean that in any other case where the complainant does not mention the names of the accused an adverse inference has to be drawn but in cases where the facts show that in the normal circumstances the complainant could have known or obtained the names of the accused, it will be rather dangerous to rely upon such witnesses unless very strong piece of evidence is produced to substantiate the prosecution case. In the present case if the complainant would have reached the police station within 15 to 30 minutes of the incident, one could say that immediately after the incident the complainant having no interest in the matter had rushed to the police station to lodge information so that immediate steps may be taken by the police. Such is not the case here and as discussed above, the delay in particular circumstances of this case has not been explained."
8. The complainant while appearing before the learned trial Court had deposed that he himself transported the deceased in an injured condition to the hospital, which was belied by Dr. Maqbool Hussain (P.W.10), as according to him; the deceased was shifted to hospital by one of his friends namely Haider on 17-7-2002. This fact alone creates material dent in the prosecution version.
Moreover, the witnesses of the ocular account are only chance witnesses. As far as statement of Hamad Hanif (P.W.5) is concerned, he has miserably failed to show the reasonability of his presence at the place of occurrence at the relevant time. No doubt the prosecution has introduced him as injured P.W. but if the medico-legal report (Exh.Pk) of the injured P.W. is seen with naked eye, it is mentioned that he had sustained injuries at 2-30 p.m. on 17-7-2002, which fact alone is sufficient to discard his statement because according to prosecution, the occurrence had taken place at 9-00 p.m. while the deceased was taken to hospital on the same night at 10-55 p.m. If the prosecution story qua the, time of occurrence is taken to be correct, it is the opinion of P.W.10. (Dr. Maqbool Hussain) who conducted the postmortem examination that between injury and death in this case was 15 minutes. According to Dr. Muhammad Shehbaz (P.W.7), injured was brought to him at 10-55 p.m. and at that time he was alive though he was shown pulse-less, B.P.-less and his pupils were fixed, medical aid was duly given by the doctor and the death was pronounced subsequently and the injured expired when he was shifted to Surgical Unit-II. It is astonishing to note that the doctor has given finding that the ECG of the injured was flat then what was fun to shift him to Surgical Unit-II. Still the story of the prosecution is D belied by medical evidence in this regard. As far as the statement of P.W.5 is concerned it does not inspire confidence and the same is belied by the medical evidence too. Further P.W.5 himself admitted that he is involved in criminal cases such like case F.I.R. Nos.37/83, 368/86, 74 of 2002 and was not a man of, good credentials. As both the prosecution witnesses have failed to show their presence at the relevant time with reasonable explanation, therefore, their statements are discarded on this score alone. The recovery of dagger at a belated stage after fourteen days still stained with blood does not advance the prosecution case rather it also creates dent in the prosecution version.
10. There is also another material fact of the case that the occurrence stated to have taken place at 9-00 p.m. as such it is night occurrence. However, astonishingly no source of light was mentioned either in the F.I.R. or in the rough site plan prepared by the Investigating Officer. The P.Ws. have themselves admitted to be at a reasonable distance from the deceased, therefore, the occurrence as stated by the P.Ws. does not sound sense. As far as motive alleged in the F.I.R. is concerned, the learned trial Court had not believed the motive qua the appellant.
11. From the facts and circumstances narrated above, I am persuaded to hold that prosecution has badly failed to substantiate its case against Kh. Riaz alias Kaka. Resultantly Criminal Appeal No,425 of 2004 is ACCEPTED in toto. The sentence awarded by the learned Additional Sessions Judge vide judgment dated 19-2-2004 is set aside. The appellant is ordered to be released forthwith if not required in any other case.