MUHAMMAD QASIM KHAN, J. - Tariq accused/appellant alongwith Muhammad Asghar, Ghulam Rasool and his father Jindwada was tried by learned Additional Sessions Judge, Sadiq Abad in case F.I.R. No. 339, dated 6.7.2006 under Sections 302/34, PPC Police Station City Sadiqabad and on conclusion of the trial the remaining do-accused were acquitted of the charge, whereas, vide judgment dated 30.10.2008 Tariq accused/appellant was convicted and sentenced to death with a fine of Rs. 25,000/- in. Default to suffer rigorous imprisonment for two years. Challenging his above conviction and sentence the appellant has filed Criminal Appeal No. 256/2008, whereas, Murder Reference No. 27/2008 has been sent by the learned Trial Court seeking confirmation or otherwise of the death sentence, both these matters are being decided by this single judgment.
2. Briefly the facts of the case are that on 6.7.2006 at 3.15 a.m. F.I.R. No. 339/2006 was got lodged by Sajjad Ahmad complainant to the effected that on 5.7.2006 he (the complainant) alongwith Rahim Bakhsh and Sharif to meet Sadiq Hussain deceased at Mazdoor Colony. At about 7/8.00 p.m.
Arslan, nephew of the complainant, went to make some purchases and after a while, they heard the noise of his weeping. The complainant and Sadiq Hussain came out of the house and saw that Jindwada was giving fist and slaps to Arslan. Sadiq Hussain tried to refrain Jindwada whereupon he started hurling abuses and on hearing the noise Tariq (accused/appellant) armed with sota, Ghulam Rasool and Muhammad Asghar came there, Muhammad Tariq gave a1 sota blow on the head of Sadiq Hussain. Ghulam Rasool and Asghar shouted not to spare Sadiq Hussain. Rahim Bakhsh and Sharif also witnessed the occurrence. The complainant brought his injured brother Sadiq Hussain to Civil Hospital at Sadiq Abad, wherefrom he was referred to Sheikh Zayed Hospital but . The injured succumbed to the injuries.
3. Nizam-ud-Din, Sub-Inspector on receiving information reached Sheikh Zayed Hospital where above statement was made by the complainant and was reduced into formal F.I.R. Nizam-ud-Din, S I. PW.13 went to the place of occurrence, inspected the site and prepared rough site plan Ex.PG, collected blood-stained Khais Ex.PC. Dr. Mushtaq Ahmad PW.1 conducted post-mortem over the dead-body of Sadiq Hussain and found the following injuries:--
(1) A lacerated wound on the right side of head on parietal area 10 c m. Above the pinna of right ear measuring 0.5 c.m. x .5 c.m. A bluish area around the stated injury measuring 5x5 c.m. Present.
Scalp haematoma present on the effected area. Bone of parietal area was fractured at multiple sites. Multiple pieces of bone were depressed into the brain matter, tearing the brain membranes.
Lot of clotted blood was present under the membranes and into the brain matter. Brain matter was severally lacerated at right parietal area.
(2) Right eye was also black. Bleeding from nose was evidence through the clotted blood. Base of skull was also fractured at cribriform plate.
(3) Bleeding from both ears due to the fracture or skull bone was present.
Tariq accused was arrested on 2.8.2006 who led to the recovery of sota P.2 (Ex:PD). As, said Nizam- ud-Din was transferred, the investigation was taken oyer by Muhammad Aslam, ASI PW.10 who declared th||p of the co-accused of the appellant as innocent; which investigation was endorsed by ASP. Thereafter, finally Nasir Ali, Inspector PW.9 prepared the challan against Tariq accused/appellant.
4. On submission of challan, Tariq appellant was charge-sheeted who claimed to be tried, whereupon, trial commenced and prosecution produced (13) witnesses and produced report of Chemical Examiner Ex.PL. On close of prosecution evidence, the accused was examined under Section 342, Cr.P.C. And on conclusion of the trial the above conviction. And sentence was recorded against the accused/appellant.
5. It is argued by learned counsel that occurrence took place on 5.7.2006 at 7/8.00 p.m., and F.I.R.
Was lodged on 6.7.2006 at 3.15 p m., with a delay of eighteen hours and the explanation allegedly offered by the complainant does not seem to be probable and reasonable. It is argued that occurrence took place during dark hours of night but complainant party in collusion with police stretched the same short after Maghrib prayer in order to establish identification of the appellant and his co-accused. It is contended that motive has not been proved because Arslan, nephew of the complainant, who was quarreling with co-accused Jindwada, since acquitted, has not been produced by the prosecutior and in this way the motive remains shrouded in mystery; withholding of best possible evidence motive shows the guilty conscience of the complainant. The learned counsel further argued that complainant admitted during cross- examination that he made two statements, one before the I.O. Before the death of the deceased and then second after the death of the deceased in the Hospital but the first statement made by him is not available on record. It is contended by learned defence counsel that co-accused namely Jindwada, Ghulam Rasool and Muhammad Asghar were found innocent during the investigation and they have also been acquitted by the learned Trial Court on the basis of same evidence in which Muhammad Tariq appellant has been convicted and sentenced. The learned counsel referred to the statement of the appellant recorded under Section 342, Cr.P.C. To an answer given against Question No. 8 i.e. "The complainant is real brother of Sadiq Hussain deceased who is resident of Mohallah Ghafoor Abad.
There was a dispute of a plot owned by Mst. Sakina Bibi (real ant/paternal) which is situated between our house and the house of deceased Sadiq Hussain. All the residents of Mazdoor Colony are the illegal occupants of the Railway land. Sadiq Hussain deceased wanted to occupy said plot upon which this false case get registered against me by the complainant". Learned counsel at the last submitted that the prosecution has miserably failed to prove its case, as such the appeal may be allowed.
6. Learned D.P.G. Argued that appellant is the sole perpetrator for causing the death of Sadiq Hussain deceased and on the basis of niceties he is not entitled for acquittal.
7. We have heard the arguments of learned counsel for the parties and perused the record.
8. The occurrence in this case took place on 5.7.2006 at 7/8.00 p.m., the complaint was recorded by the Investigating Officer at Hospital on 6.7.2006 at 2.00 p.m. And the same was sent to Police Station whereupon F.I.R. Was lodged on the same day at 3,15 p.m. By this way there is delay of eighteen hours in lodging, of the F.I.R. And the, alleged explanation of delay in reporting the matter to the police is not believable because the. Complainant had the source to inform the police prior to the alleged date and time. It is pertinent to mention here that during cross-examination the complainant has categorically admitted that when the deceased arrived in the Civil Hospital his statement was recorded by the I.O. The same was thumb marked by him and injured being in precarious condition was removed to Sheikh Zayed Hospital where the deceased succumbed to the injuries and the complainant made second statement before the Investigating Officer which has been exhibited as Ex.PB. The file has been gone through but we have failed to locate the said statement. Withholding of Arslan who is star witness of the motive and misplacement of the first statement of the complainant recorded by the Investigation Officer in the life-time of the deceased give rise to an inference that the complainant has twisted the real facts of the case, meaning thereby either he did not see the occurrence or he has concocted the story in connivance with the police at belated stage.
9. PW.7 Muhammad Sharif is related to the: deceased as well as the complainant, therefore, the ocular account of the prosecution case hinges upon the statements of interested witnesses, which have not been corroborated by any other independent source. Co-accused have been acquitted in this case, the motive has not been proved arid the story of the prosecution as mentioned above appears to be highly improbable and doubtful, thus, this appeal is allowed, conviction and sentence of the appellant is set aside and he is acquitted of the charge against him. He shall be released forthwith if not required in any other case. The case property, if any, be disposed of in accordance with law and the record of the learned Trial Court be sent back immediately.
Murder reference is answered in the negative. Sentence of death is not confirmed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.