This judgment will dispose of above captioned criminal appeal filed by Abbas alias Kali appellant who was convicted by Addl. Sessions Judge, Sahiwal in case vide FIR No,270/05 dated 06.6.2005 under Section 302 PPC registered at P.S. Harrapa, Distt. Sahiwal vide impugned judgment dated 18.2.2006 and sentenced infra:-- ABBAS ALIAS KALI, APPELLANT.
Life imprisonment u/S. 302(b) PPC. as Tazir.
He was also extended the benefit of Section 382-B Cr.P.C.
2. The rueful story as divulged by complainant Muhammad Zaman (PW.4) in complaint Exh.PE is that six months ago, appellant Abbas alias Kali abducted his sister Mst. Fauzia. He tried to return her but the appellant contracted marriage with Mst. Fauzia. On 6.6.2005 at about 12.45 p.m. Allah Wasaya s/o Zawar informed to the complainant that Abbas alias Kali appellant murdered Mst.
Fauzia alongwith two unknown persons at Burji No,397 near Chak No, 190/9L at the bank of canal LBDC. On information, the complainant alongwith Muhammad Aslam and Imdad reached at the place of occurrence where the dead body of sister of the complainant was lying in pool of blood.
The motive behind this occurrence was that after contracting marriage Mst. Fauzia deceased felt guilty that she committed a great mistake after eloping with the appellant Abbas and contracted marriage with him. She now demanded that she does not want to live there, either to took her to your parents or else where. Now, she is also in a way to compromise with her family. Due to this reason, the appellant committed the murder of Mst. Fauzia.
Hence this case.
3. Nisar Ahmad SI (PW.09) deposed that on 6.6.2005 he was posted at P.S. Harrapa, as in charge investigation. He after receipt of information about the occurrence visited the place of occurrence, prepared injury sheet Exh.PB and sent the dead body of Mst. Fauzia to DHQ Hospital Sahiwal for post-mortem through Abdul Waheed 32/C. He recorded the statements of the PWs u/S. 161 Cr.P.C.
He prepared inquest report Exh.PC. He also prepared rough site-plan of the place of occurrence Exh.PH. On 7.6.2005 he took into possession last worn clothes of the deceased viz: Shalwar P-2, Kameez P-3 and Dopatta P-4' (all blood stained) vide me memo Exh.PG attested by the PWs. On 18.6.2005, he conducted a raid at Harrapa Station, arrested appellant Abbas alias Kali and on his personal search, pistol .30 bore P-1 alongwith three live bullets P1/1-3 were recovered from his possession, the same were took into possession vide recovery memo Exh.PF attested by the PWs.
On 19.6.2005, the appellant was sent to Judicial Lock Up. On 21.6.2005, draftsman handed over to him scaled site-plan Exh.PD and Exh.PD/1. He recorded the statements of the PWs step-wise. He handed over the case property to the Moharrar for its safe custody in the Maalkhana. After completion of investigation challan was submitted in the Court.
4. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellant to which he did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead evidence in order to substantiate the charge.
5. The prosecution in order to prove its case produced 09 PWs in all.
6. Dr. Uzma Ashraf, WMO (PW.1) deposed that on 07.6.2005 at about 7.00 a.m., she conducted post- mortem examination on the dead body of Mst. Fauzia deceased and observed as under:-- INJURIES:
1. (a) Fire-arm entry wound 1 cm x 1 cm x deep going with inverted margins with burning 6 cm x 5 cm x all around the would on right lower middle part of anterior chest near sternum. Bullet entered through anterior inter costal space between 9th and 10th rib on right side.
(b) Fire-arm exit wound 1/2 cm x 1-1/2 cm x deep going with everted margins on back lower, part of left side of chest 2 cm from vertebral column between intercostals posterior and left space of 10th rib. Bullet not recovered.
OPINION.
In her opinion, Injury No, 1(a) and 1 (b) are sufficient to cause death in ordinary course of nature.
Injuries are anti-mortem and caused by fire-arm.
Exh.PA was the correct carbon copy of post-mortem report and Exh.PA/1 was, the pictorial diagram of injuries, the same bore his signatures.
7. Learned SPP renounced PWs namely Imdad and Aslam as being de-trop and thereafter he by tendering in evidence report of Chemical Examiner Exh.PK and report of Forensic Science Laboratory Exh.PJ, closed the prosecution case.
8. Thereafter statement of the appellant was recorded u/S. 342 Cr.P.C. wherein he gainsaid the charges and claimed his innocence. He neither opted to make statement on oath as required u/S. 340(2) Cr.P.C. nor opted to produce defence evidence.
He while answering to a question "why this case against you and why the PWs have deposed against you replied infra:-- "The case has been registered against me due to enmity and the PWs have also deposed against me due to enmity".
9. On conclusion of trial the appellant was convicted and sentenced as mentioned op-cit. Hence, Instant appeal.
10.Learned counsel for the appellant submits that no positive evidence of motive has been brought on record against the appellant; PW.4 Muhammad Zaman, the complainant and PW.5 Ibrar Hussain did not see the incident, therefore, their statements are worthless. Further submits that PW.6 Allah Wasaya claims to have seen occurrence but his statement has not been corroborated by any independent evidence; maintains that he is real uncle of the complainant whereas Ibrar Hussain PW.5 and Imdad (given up) PW are his real brothers; no reason exists as to why he did not report the matter to the police and the most important other aspect has been highlighted that post-mortem examination on the dead body was carried out on the follow day i,e, 7.6.2005 and the lady doctor PW.1 has said that duration between the death and post-mortem examination was about 18 years, in this way, post-mortem is delayed one without any justifiable reasons and this fact alone is sufficient to doubt the presence of PW.6 Allah Wasya. Learned counsel has, lastly, submitted that' evidence of recovery is not believable as substantial piece of evidence is worthless. Learned counsel has relied upon 1995 SCM R 1789, 2003 YLR 2513 and 2005 P.Cr.L.J. 337 to strengthen his arguments that in this case in the circumstances of the case, sole statement cannot be safely relied upon and has thus craved for acceptance of instant appeal.
11. Learned DPG has opposed the submissions in an exquisite manner and submitted that solitary statement of Allah Wasaya PW.6 duly corroborated by medical evidence and recovery is sufficient to sustain the conviction and sentence and mere relationing of the PW with the complainant and the deceased would not by itself make his evidence doubtful; delayed post-mortem examination by itself does not make any hiatus in the prosecution version and has thus made entreaty for dismissal of appeal.
12. Hearkened and record perused.
13. By brief to describe that PW.4 Muhammad Zaman and PW.5 Ibrar Hussain did not see the occurrence. In the field, evidence of PW.6 Allah Wasaya remains but at the same time he has been found having propinquity with the complainant and deceased but did not of his own rush to the police station for laying information and this fact makes serious doubt in his evidence. It has been noticed that on the following day post-mortem examination was conducted and doctor (PW.1) has categorically admitted duration between death and post mortem was about 18 hours. No reason has been explored by this court as to why the post-mortem was delayed. Of course, singular statement if found independent, rings true having intrinsic values can be believed but these elements lack in the statement of PW.6 Allah Wasaya. It would be piddling to dilate upon the evidence of recovery of crime weapon as ocular account is not believed in this case.
14. For what has been discussed above, prosecution has miserably failed to prove its case against the appellant beyond any shadow of reasonable doubt. Thus, instant appeal is allowed, resultantly, conviction and sentence of the appellant is set aside and he is acquitted of charges imputed against him by extending benefit of doubt. He is in bridewell, directed to be a franchised, in a trice, if not required in any other case.