This judgment will dispose of above captioned Criminal Appeal filed by Fareed Bakhsh and Mureed Hussain appellants who were convicted by learned Addl. Sessions Judge, Jampur, Distt. Rajanpur in private Sessions Complaint No, 68/2004 under Sections 302/109/34, PPC of Police Station Jampur Distt. Rajanpur vide impugned judgment dated 01.3.2007 and sentenced as follows:-- (1)FAREED BAKHSH (2)MUREED HUSSAIN, APPELLANTS.
(i) Fourteen years R.I. each as Tazir u/S. 316, PPC with direction that each one of the two convicts shall be liable to pay Diyat to the legal heirs of the deceased.
They were also extended the benefit of Section 382-B, Cr.P.C.
Criminal Revision Petition No, 117 of 2007 filed by Hafiz Talib Hussain petitioner/complainant for enhancement of quantum of sentence of Respondents No, 2 & 3 namely Fareed Bakhsh and Mureed Hussain respectively shall also be disposed of by this single judgment Like-wise PSLA 11 of 2007 filed by Hafiz Talib Hussain petitioner/complainant against acquittal of Respondent No, 2/accused Shamla shall also be disposed of by this single judgment.
2. Initially case FIR No, 303/2004 dated 5.7.2004 was registered on the statement of complainant Hafiz Talib Hussain at P.S. Jampur, Distt. Rajanpur under Sections 302/109/34, PPC. During investigation the police after having connived with Farid Bakhsh and Shamla omitted their names and submitted the challan against Mureed Hussain and a minor Muhammad Ibrahim s/o of Ghulam Farid who was not the actual culprit. Feeling dis-satisfied/aggrieved with the investigation, the complainant has instituted the instant private complaint and the proceedings were carried out in it.
3. The facts in brief as disclosed by complainant Hafiz Talib Hussain (PW.01) in private complaint (Exh.PA) are that his son Muhammad Ashfaq deceased was student of F.Sc in Govt. Degree College, Jampur who used to go to D.G. Khan for tuition. On 17.2.2004 Muhammad Ashfaq came to house for dinner and thereafter went to the Baithick. The complainant also went to Baithick after some time in order to exchange views about studies. In the meanwhile, Farid Bakhsh and Murid Hussain who were friends of Muhammad Ashfaq also came there and all of them started having chit chat with each other. Soon thereafter, Muhammad Nadeem also came there and all the four persons started playing cards. The complainant came back to his house and went to sleep after some time.
However, when the complainant went to Baithick again in the morning in order to awake his son Muhammad Ashfaq, he found his son dead. Nevertheless, at the time of ablution of the dead body of the deceased, Muhammad Ashfaq, some blue marks were observed on his neck and the complainant expressed his doubt before his brotherly that his son was killed by Farid Bakhsh and Mureed Hussain by strangulation because Farid Bakhsh was having doubt that his daughter Mst.
Nadeem Mai was having illicit relations with Muhammad Ashfaq deceased but the brotherly did not agree with the complainant and the deceased was buried in a haste. As the complainant was not satisfied about the cause of death of the deceased Muhammad Ashfaq to be a natural cause, hence, he kept on looking for the real cause of death of his son. Ultimately after passing of a week, Muhammad Nadeem met the complainant who was quite upset who told the complainant that on the night of occurrence at about mid night when they had finished with the cards, both Farid Bakhsh and Mureed Hussain overpowered Muhammad Ashfaq and laid him down on the bed.
Mureed Hussain caught hold of Muhammad Ashfaq from his hands while Farid Bakhsh mounted on the chest of Muhammad Ashfaq and strangulated his neck, as a result of which Muhammad Ashfaq died. When Muhammad Nadeem tried to interfere, both the accused threatened him with death and told that as Muhammad Ashfaq was their "Kala" so he was not spared by the accused persons. After getting the correct information of the occurrence from Muhammad Nadeem PW, the complainant at once went to the Police Station alongwith Muhammad Nadeem and requested for lodgment of FIR but the police kept the complaint in doldrums and ultimately the complainant was advised by the police to get the exhumation of his deceased son Muhammad Ashfaq which was ultimately allowed by the Court of learned Addl. Sessions Jude, Jampur on 2.4.2004 and then on 7.4.2004, post-mortem examination of the dead body of the deceased was conducted through a Medical Board.
Later-on, the complainant also came to know that Qatl-e-Amd of his son was abetted by Haji Shamla, the co-accused (since acquitted). It was also disclosed to the complainant subsequently that both the accused namely Farid Bakhsh and Mureed Hussain had made an extra judicial confession before one Hafiz Ghulam Hussain brother of the complainant in presence of one Sadiq and requested that a prayer for their forgiveness/pardon be made to the complainant.
When after getting correct information and sufficient evidence against the accused persons, the complainant again went to the Police Station for lodgment of FIR, his request was not accepted once again, upon which complainant had to move the Court of learned Sessions Judge, Rajanpur for registration of a criminal case, on the order of which op-cit FIR was registered but some of the accused were exonerated. Hence, instant private complaint.
4. After recording preliminary/cursory evidence of the complainant party the appellant as well as his co-accused were summoned by the learned trial Court to face trial vide order dated 4.2.2005.
5. Learned trial Court after observing codal formalities, indicted the appellants and their co- accused to which they pleaded not guilty and claimed trial. Thus the prosecution is directed to produce evidence in order to substantiate its charge.
6. At the trial, the prosecution in order to prove its case produced 07 witnesses in all.
Dr. Muhammad Younas (PW.7) deposed that on 7.4.2004 he was posted as M.O. T.H.Q, Hospital, Jampur and on receipt of order of Mian Shahid Mehmood, learned Magistrate Section-30, Jampur dated 1.4.2004 a Medical board was constituted. The dead body was taken out from the gave at about 11'.45 AM. (Remarks)
No final opinion was given, at the time of post-mortem examination and it was reserved till the receipt of report of Chemical Examiner. The probable time elapsed between injury and death was about two months.
Exh.PB was the correct carbon copy of post-mortem examination which bore his as well as Dr. Faizullah and Dr. Muhammad Asadullah. Their final opinion in this regard was dated 1.7.2004 according to which on the basis of exhumation report and in view of the report of the Chemical Examiner we were not able to ascertain any cause of death in this case.
Complainant vide his statement dated 26.7.2006 closed his case.
7. The statements of the appellants were recorded under Section 342, Cr.P.C. wherein they refuted the charge and claimed their innocence, they neither opted to produce defence evidence nor opted to make statements on oath as required u/S. 340(2), Cr.P.C. in disproof of allegations levelled against them.
The appellant Fareed Bakhsh in reply to question "why this case against him and why the PWs deposed against him? answered as follows: "I am innocent. The story of the complainant is concocted one. Infact the complainant Talib Hussain and his brother Ghulam Hussain declared me Kala with Mst. Mukhtiar Mai who was wife of said Ghulam Hussain. No doubt, I satisfied them regarding my innocence but even then they had a grudge against me and for the said reasons they involved me and my brother in law Shamla and his son Mureed Hussain in this false case. It is pertinent to note that my co-accused have been falsely involved in this case so that they may not help me in the instant case as they are my close relatives. I and my co-accused Mureed Hussain and Shamla have been involved in this case falsely and we are innocent. They PWs are closely related inter se and with the deceased and being inimical towards us have falsely deposed against us."
The appellant Mureed Hussain in reply to question "why this case against him and why the PWs deposed against him? answered as follows: "I am innocent. The complainant concocted a false story against me, my father Shamla and Farid Bakhsh co-accused. Infact the complainant party had a doubt of illicit relations of Farid Bakhsh with the wife of Ghulam Hussain namely Mukhtar Mai. Said Ghulam Hussain is brother of the complainant Talib Hussain and they have involved me and my father falsely in this case so that we may not help Fareed Bakhsh in the proceedings of instant case. Murder of Ashfaq is a blind one.
The PWs are closely related inter se and with the deceased and being inimical towards us have falsely deposed against us."
8. At the conclusion of the trial, appellants were convicted and sentenced as mentioned op-cit while their co-accused namely Shamla was acquitted, Hence, instant appeal.
9. In support of this appeal, learned counsel for the appellants contends that alleged incident had taken place on 17.2.2004; matter was reported to the police on 5.7.2004 by the delay of 4-3/4 months without its perspicuity; dead body of deceased Muhammad Ashfaq aged about 20 years was buried and thereafter on an application of the complainant, his dead body was exhumed, then post-mortem examination was carried out. Further submitted that had any doubt existed in the mind of the complainant then why the dead body was laid to rest after completing all formalities such as ablution to the dead body, shrouding of dead body in Kuffan and all others i,e, putting of earth on his face, then how later on impulse the complainant for all to prosecute the appellants and his co-accused (since acquitted). Further submitted that the police after thorough investigation opined that case was false and being dissatisfied with the outcome of investigation took shield u/S. 200, Cr.P.C. and proceedings of trial were culminated in the complaint case and in absence of statement of investigating officer, impugned judgment was handed down which is absolutely illegal. The other main stay of the arguments of the learned counsel is that the doctor who conducted postmortem examination on the dead body of deceased while appearing as PW.7 has not declared cause of death of the deceased. In this way, prosecution has miserably failed to prove its case against the appellants and has prayed for acceptance of instant appeal.
10.Conversely, learned DPG has relied upon the impugned judgment.
11.Due attention to the facts and circumstances of the case as well as arguments raised at the bar has been given by reverence.
12.It has been noticed that incident was reported to the police by a delay of 4-3/4 months. The dead body was laid to rest and thereafter on the application of the complainant exhumation was made, postmortem was carried out, case was registered and investigation commenced and concluded in falsity of accusations and thereafter the complainant by virtue of Section 200 of, Cr.P.C. filed a private complaint wherein he did not opt to examine I.O. of the case. Neither Court itself nor the Public Prosecutor attached to the trial Court did not make any effort to examine the I.O. so that documents pertaining to the case may be proved rather exhibited. This hiatus cannot be taken as just lapse. Another important and decisive piece of evidence is the statement of doctor PW.7. No doubt while conducting post-mortem examination by the Medical Board constituted on the application of the complainant of which doctor Muhammad Younas M.O. P.W.7 was one of the member remained fail to ascertain the cause of death of the deceased and in the cross- examination he has explicitly admitted that no fracture was found on the hyoid bone and thyroid cartilage, therefore, in his opinion, strangulation was not the cause of death of the deceased. In this way, the complainant has miserably failed to prove the death of the deceased by violence under the principle of culpable homicide amounting to murder. In these circumstances, it has been deemed expendable to dilate upon other facts of the case.
13. Sequel of the above discussion is that prosecution has miserably failed to prove its case against the appellants beyond any shadow of reasonable doubts. Hence, instant appeal is allowed. Consequently, conviction and sentence of the appellants is set aside and they are acquitted of the charge by extending them benefit of doubt. They are in jail, directed to be set at liberty, in a trice, if not required in any other case.
14.So far as Criminal Revision Petition No, 117 of 2007 filed by Hafiz Talib Hussain petitioner/complainant for enhancement of quantum of sentence of Respondent No, 2 & 3 namely Fareed Bakhsh and Mureed Hussain respectively is concerned, as the same has not yet been admitted for regular hearing and the appeal has been decided in acquittal of the respondents/appellants, therefore, the instant revision petition has lost its relevance and is disposed of as being infructuous.
15.As far as PSLA No, 11 of 2007 filed by Hafiz Talib Hussain petitioner/complainant against acquittal of Respondent No, 2/accused Shamla is concerned, I am of the considered view that learned trial Court acquitted the respondent/accused. In such like circumstances, I do not want to grant leave to the petitioner/complainant against the acquittal of afore-said respondents/accused. This petition having no merits is dismissed and the leave is refused.