' FAROOQ ALI CHANNA , J.---The appellant has preferred his appeal from the judgment dated 10-3- 2011, passed by the IInd Additional Sessions Judge Karachi South in Sessions Case No,223 of 2010 corresponding to Crime No,51 of 2010 registered at Police Station Nabi Bux, offence under section 302/34 whereby the appellant was found guilty of offence under section 302, P.P.C. And was sentenced for imprisonment for life with fine of Rs,100,000 and in default thereof to suffer R.I. For six months.
2. Briefly the facts of the case are that on 10-3-2010 complainant Muhammad Rafiq lodged F.I.R. At Police Station Nabi Bux that on 21-10-2009 about five months prior to lodging of F.I.R., at about 4-30 p.m. His daughter informed him on telephone that his son Nabeel has been burnt and muhallah people have taken him to hospital. He went to hospital and saw his son Nabeel admitted in Burns Ward. The muhallah people, Rusutm Ali brother-in-law of complainant and friend Jaffar Ali were present there. They informed complainant that three boys Umair son of Aftab, Tabish son of Qamar and Talha alias Sunni son of Kala while joking threw petrol upon his son Nabeel and set him on fire.
Said three boys were also available at hospital. On 26-10-2009 Nabeel during treatment expired in Civil Hospital. The complainant instead of going to police station referred the matter to his Community Association (Salawat Jamat) for inquiry and justice. About 7 to 10 days after the death of deceased Nabeel, his friend Jaffar ali informed him that Nabeel .Had disclosed before him the names of Umair, Tabish and Talha alias Sunni and stated that they intentionally set him on fire by sprinkling petrol. He narrated the above fact to his Community Jamat, who promised for justice.
The police approached complainant but since he had referred the matter to Community Jamat, therefore, asked the police that he do not want to lodge F.I.R. As he was restrained by his Community Jamat. Since, the Community Association failed to decide the matter; he approached the police and lodged the F.I.R. Against Umair, Tabish and Talha alias Sunni.
3. During investigation, appellant Muhammad Umair was arrested whereas the remaining two accused Tabish and Talha alias Sunni could not be arrested, therefore, the I.O. Submitted the challan against Muhammad Umair showing the remaining two accused as absconders.
4. After initiating the proceedings under sections 87 and 88 Cr,P.C. And declaring the absconding accused to be proclaimed offenders, the trial Court proceeded with the case against the appellant and after recording the evidence of the prosecution witnesses and hearing both the sides, found the appellant guilty of an offence under section 302, P.P.C. And sentenced him as stated above vide judgment dated 10-3-2011, which is impugned in this appeal.
5. I have heard S. Khurrum Nizam Advocate for the appellant. Learned Advocate has contended that it is a case of absolutely no evidence as no person has claimed to be the eye-witness of the incident and the entire case hinges upon the hearsay evidence. Learned Advocate has further contended that there is delay of about five months in lodging of F.I.R. And the reasons of delay do not appeal the common sense as the person whose son was murdered, referred the matter to his Community Jammat instead of bringing the law into motion. This conduct on the part of the complainant shows that the complainant was feeling that it was not a murder case. Learned counsel has further contended that the Community Jammat of both the parties, at the request of complainant conducted the inquiry and constituted a committee comprising thirteen members, who unanimously came to the conclusion that it was not a murder case and decided to refer the matter to Ulma Committee but the complainant when smelled that the decision is going against him, he approached the Police and lodged the F.I.R. Mala fide. Learned Advocate has further contended that the evidence of the prosecution witnesses is full of contradictions and unreliable.
Learned Advocate has further contended that if for the sake of arguments it is taken into consideration that the deceased had disclosed the name of appellant and .Absconding accused before the prosecution witnesses but this fact is belied by the evidence of witness and the report of P.W-5 A.S.-I. Muhammad Afzal, who has categorically deposed that after receiving information regarding the arrival of injured Muhammad Nabeel at hospital he went there and made request in writing to MLO for recording the statement of injured but Dr. Izhar Ahmed did not allow him and made endorsement on his letter that the patient is not, fit for statement. Learned Advocate has further contended that except the evidence of three witnesses no other circumstantial evidence or the motive behind the incident has been brought on record as such absolutely there is no case against the appellant and he is entitled to be acquitted.
6. I have also heard Muhammad Tamas Khan, Advocate for the complainant. Learned Advocate has contended that the prosecution case based upon the statement of deceased Muhammad Nabeel before his father and three other independent persons amounts to dying declaration which is strong piece of evidence in the eye of Law. All the said persons have fully supported the prosecution case on this point and there appears no major contradiction in their evidence. Learned Advocate has further contended that the contradictions, if any, appear in their evidence are natural as their evidence was recorded after more than one year of the incident. He has further contended that the appellant has also failed to bring on record any reason of his false implication by the prosecution witnesses. Learned Advocate has further contended that there is no doubt about the unnatural death of the deceased due to burn. He has further contended that since the matter was pending with the Community Association of both the parties, therefore, the complainant did not lodge the F.I.R. Promptly and due to this delay no other circumstantial evidence could be collected.
7. Muhammad Iqbal Awan, A.P.-G. Has adopted the arguments advanced by the Advocate for the complainant adding further that as soon as the matter was reported to the police they came into motion and conducted the investigation properly and from the evidence recorded by the I.0 the appellant and other accused were found involved in this case, therefore, the challan was submitted against them. Learned A.P.G. Further added that all the prosecution witnesses have fully supported the prosecution case and the trial Court has correctly found the appellant guilty of offence.
8. I have considered the arguments and perused the record. First of all I would like to mention that it was an unwitnessed incident as no person has come forward to claim that he had seen the accused persons setting the deceased Nabeel on fire by sprinkling petrol. However, the trial Court while recording the conviction has reliqd upon the ocular testimony of P.Ws, complainant Muhammad Rafiq, Jaffar Ali; Rustum Ali and Noman. The trial Court found the evidence of above named witnesses reliable and inspiring confidence and recorded the conviction without discussing or taking into consideration the other aspects of the case, which cogently were in favour of the accused, same cannot be ignored lightly.
9. The pesual of the evidence of above witnesses reveal that the same is full B of contradictions rather of multiple versions. The first version taken by the complainant in F.I.R. Was that about seven or ten days after the death of Muhammad Nabeel and the matter was referred to Salawat Jamat, his friend Jaffar Ali informed him that Nabeel disclosed before him that Umair, Tabish and Talha alias Sunni after sprinkling the petrol set him on fire intentionally but in the evidence before trial Court he has given another version that when he went to see his son in Burns Ward, on inquiry his deceased son informed him that three persons burnt him in presence of Jaffar, Rustum, Noman and Shoaib. This version of complainant in his examinationin-chief shows that the incident had taken place in presence of Jaffar, Rustum, Noman and Shoaib but none of them in their evidence have stated so. P.W. Jaffar in his evidence has deposed that on the day of incident he was present in muhallah when he came to know that Nabeel was burnt by Umair, Tabish and Talha alias Sunni, it means he had knowledge about the names of the accused before he met deceased who according to the prosecution case disclosed the names of above accused before him in presence of complainant. P.W Rustum has also not claimed that the incident had taken place in his presence as deposed by the complainant in his examination-in-chief. The P.W. Rustum Ali has deposed that on the day of incident he was on his duty and when came back he was informed by muhallah people that his nephew has been burnt. He went to hospital where Nabeel disclosed about the incident to him in presence of complainant. P.W. Noman who is the brother of deceased has also not claimed to be the eye-witness of the incident. He in his evidence has deposed that on the day of incident after lunch he had gone to purchase "CHALIA" when he received a call of his elder brother Shoaib , that Nabeel was in hospital. He also went there and deceased disclosed in presence of his father, brother Shoaib and Jaffar Ali that he was burnt by appellant and absconding accused. Beside, the different version of prosecution witnesses in their evidence, from the version as set in the F.I.R., all the witnesses have deposed that they were informed by deceased Nabeel who made disclosure the names of the appellants and narrated the incident but their version is totally belied by P.W.10. A.S.-I. Muhammad Afzal, who in his evidence has deposed that on 21-10-2009 during his duty hours, he received information from the police control about the arrival of a burnt person at Civil Hospital. He made such entry in Roznamcha and proceeded to Civil Hospital where he met MLO and gave him letter for recording the statement of injured but the MLO did not allow him and made endorsement on his letter that the injured was not fit for statement. He has also produced the letter addressed to MLO, bearing the endorsement of Doctor regarding the unfitness of patient for recording his statement. No doubt such statement of Nabeel about the circumstances of his death is relevant and vital evidence in this case, but the Doctor who had immediately seen the deceased on arrival in ward has certified that the injured Nabeel was unfit for recording his statement, such statement of Doctor reduces evidentiary value of implication made .By complainant and other P. Ws that Nabeel had disclosed the names of the accused. In heinous type of offences, there .Should be cogent evidence for conviction, otherwise innocent persons would be presumed to be offenders. Apart from above another prosecution witness Muhammad Yameen has not supported the prosecution case and was declared hostile witness by the prosecution and was cross-examined but nothing came on record favourable to the prosecution. The prosecution has also examined three other witnesses namely Muhammad Bilal, Akash and. Dani Bux Baloch said to be the neighbourers having their business adjacent to place of incident but none of them have implicated the appellant to be the accused of this incident. The report of Committee constituted by the Salawat Jamat at the request of complainant for holding the inquiry in the matter has also been brought on record the prosecution at Exh.16-F, wherein, it is stated that all the members, of the Committee have given due consideration to the letter of Noman, the brother of deceased and discussed the same thoroughly and come to the conclusion that from the statements recorded in inquiry it is not proved that the deceased was set on fire intentionally, and murdered. The opinion of the Committee cannot be alleged to be hearsay. In fact the Committee being elders Committee of Salawat Community had special knowledge of knowing the matter. Normally in the circumstances Of the case, its findings deserve credence. The evidence of the I.O. Of this case is very important, who in his examination-in-chief has deposed whatever he conducted during the investigation but during cross-examination he has admitted that no neighbour person implicated the present accused in this case in their 161 Cr.'P.C. Statements. He has also admitted that amongst all the prosecution witnesses none was the eye-witness of the incident. He has also admitted that there was no motive behind the incident nor any enmity was alleged against the accused.
10. From the discussion above I am of the view that, neither the credibility of the prosecution witnesses is up to the mark and trustworthy' for believing nor inspiring confidence for recording the conviction. The trial Court has also not considered and discussed the delay in lodging of F.I.R. As in murder cases the matter is to be referred to the police with no delay which the complainant failed and he approached the Community Association for inquiry and justice which reveals that the complainant himself was not satisfied/confident that what actual had happened. The trial Court has also believed the version of the prosecution's witnesses that they were informed by deceased Nabeel about the incident and the names of accused persons but the trial Court has failed to consider the evidence of A.S.-I. Muhammad Azeem and the endorsement of the doctor on the letter of A.S.-I. Azeem, that the deceased was not fit for statement, as has been stated above.
11. The importance of essence of time in lodging F.I.R. Cannot be ignored. In this case, the offence was cognizable, Police was required to 'register the F.I.R. On behalf of State,' by all means Police has demonstrated an act of inefficiency and their conduct seems to be highly objectionable as when- they received information about the arrival of a burnt person at Hospital, who expired subsequently due to injuries, it was the duty/responsibility of the S.H.O. To lodge the F.I.R. Irrespective of consent of the legal heirs of the deceased to probe into the matter and find out the factual position and truth as to whether unnatural death of the deceased was a murder or resulted from accident or it was a suicide case but the police has failed to perform their duty.
12. For the reasons discussed above it appears that the prosecution case is not free from doubt. I, therefore, set aside the sentence awarded to the appellant by impugned judgment dated 10-3-2011 and acquit the appellant by extending him benefit of doubt. Let writ be issued for release of appellant forthwith if he is not required in any other case.