This judgment will dispose of above captioned criminal appeal filed conjointly by Ihsan and Mst.
Kalsoom Akhtar appellants who were convicted by learned Addl. Sessions Judge, Narowal in Sessions Complaint Case No, 26 of 20012 titled Muhammad Nazam Vs. Ihsan etc. and in challan case FIR No, 122/2010 dated 13.3.2010 registered under Sections 302/148/149/404, PPC at Mice Station Zafarwal Distt. Narowal vide impugned judgment dated 30.7.2012 and sentenced as follows:--
(1) IHSAN.
(2) MST. KALSOOM (Appellants)
(i) Life imprisonment each u/S. 302 (b), PPC with fine of Rs, 1,00,000/- each and in default whereof to further undergo SI for six months. They were also directed to pay Rs,5,00,000/- each as compensation to the legal heirs of deceased and in default whereof to further undergo SI for six months each.
(a) MST. KALSOOM.
(1) Three years R.I. u/S. 404, PPC with fine of Rs, 50,000/- and in default whereof to further undergo SI for three months.
They were given the benefit of Section 382-B, Cr.P.C. However, sentence of appellant Kalsoom shall run concurrently.
Likewise Criminal Revision No, 983 of 2012 filed by Muhammad Nazam petitioner/complainant against the respondents/convicts namely Ihsan and Mst. Kalsoom Shakeel for enhancement of their quantum of sentences shall also be disposed of by this single judgment.
2. Initially case FIR No, 122/2010 Exh.CW-4/A was registered on the statement of Muhammad Nazam vide Exh.PB on 13:03.2010 at P.S. Zafarwal, Distt. Narowal. During investigation, accused person namely Eisen was exonerated while accused Amjad was declared P.O. Feeling dis- satisfied/aggrieved with the said investigation, the complainant instituted the instant private complaint and the proceedings were carried out in it.
3. Briefly the facts as disclosed by Muhammad Nazar: complainant (PW.2) in private complaint Exh.PA are that on 13.3.2010 he got recorded his statement before police of P.S. Zafarwal to the effect that on 12.3.2010 at 7.30 p.m., his brother Usman Ali deceased war called by Ihsan and Amjad Ali by cell phone No, 0342-6468312 who by taking motorcycle No, STM-6654 from his brother Muhammad Kashif went away and did not return tilt late night so complainant went to the houses of Ihsan and Amjad to inquire about his missing brother but they were found absent from their houses. During the course of search, he met with Shehbaz resident of Deli/village who informed him (complainant) that Ihsan and Amjad accused alongwith 4/5 unknown persons were taking away his brother Usman in a vehide/Ca.rry Dibba, he, alongwith Abaidullah witnessed them at about 8.00 p.m. In the meanwhile, he received information about the occurrence whereupon he alongwith Shehbaz Ahmad went at the place of occurrence and identified the dead body of his brother. His brother Usman was brutally murdered with dagger and Chhurri blows by Ihsan Ahmad, Amjad Ali alontgwith 4/5 unknown persons. The motive behind the occurrence was that accused persons had suspicion that brother of the complainant had relations with the sister of accused Ihsan.
He further alleged that on his above statement, above said case was registered against respondents/accused persons No, 1 & 2. After registration of FIR, on the same day i,e, 13.3.2010 the complainant moved an application before SHO P.S. Zafarwal to the effect that at the time of registration of above said FIR, on account of perplexing; he could not get recorded accurate statement. He further alleged in the said application that accused Amjad Ali and Ihsan alongwith Mst. Kalsoom Akhtar and Muhammad Jameel also murdered his brother Usman and threw his dead body in the ditch of peter Engine and after murder of deceased, accused persons removed one Seiko wrist watch, one golden ring and from purse cash Rs,35,000/-. He further alleged in the said application, that unknown accused persons who have been nominated be also arrested in this ease.
After registration of FIR, accused Ihaan was taken into custody by the police but later on he was released by taking perks. He further alleged in the said application that Amjad Ali be also arrested and when report u/S. 173, Cr.P.C. was prepared, then he came to know that accused Ihsan and Amjad were not challaned by the police. Hence, instant private complaint.
4. Learned trial summoned appellants alongwith their co-accused in this private criminal complaint.
5. Learned trial Court after observing all the pre-trial codal formalities, indicted the appellants to which they did not plead guilty and claimed trial. Thereafter, the prosecution was directed to lead its evidence in order to substantiate the charge.
6. At the trial, the prosecution in order to prove its case produced 10 witnesses in all, out of them 05 witnesses were examined as PWs while 05 were examined as CWs.
Dr. Saadat Ali Khan, M.O(PW. 1) deposed that on 13.3.2010 he conducted post mortem examination on the dead body of Muhammad Usman deceased and observed infra: INJURIES
(i) An incised wound 2.5 cm x-1 cm bone exposed on right eye brow, outer side bone and eye intact.
(ii) An incised wound 6 x 1.5 cm deep up to muscles on left side of neck in upper most part just below the ear. On dissection carotid artery was cut the side of its entry into skull cavity.
(iii) An incised wound 3 x 1 cm on front of left side of head, bone was exposed on dissection, not fractured.
(iv) An incised wound 6 x 1 cm on left side of head bone dead, bone was not fractured.
(v) An incised wound I x 1 cm bone deep, bone was intact on back of right side of head just close to right ear.
(vi) An incised wound 7 x 1.5 cm on middle of back of head, deep up to bone, bone healthy and intact.
(vii) ........................
(viii) 7 & 8, two incised wounds each 9 x 1 cm skin deep on right side of chin, lower part of chin deep upto muscle on dissection. _
(ix) .....................
(x) ...........................
(xi)9, 10 & 11. Incised parallel wounds on front of neck each 10 x 1 cm skin deep, deeper structure trachea and hyoid intact and healthy.
(xii) Multiple incised wounds on back of let hand all skin deep.
(xiii) Multiple incised wounds five in number in area of 7 x 6 cm all limited to skin in front of left shdulder.
(xiv) Abrasion on back of right shoulder in area 7x5 cm.
(xv) An incised wound 2 x .5 cm limited to skin on right lumber region near vertebrae.
(Remarks)
In his opinion, cause of death in this case was multiple sharp edged injuries sufficient to cause death in ordinary course of nature by haemorrhage and shock with aggregate effect. Injury No, 2 was sufficient to cause death alone. All injuries were antimortem and by sharp edged weapon.
Probable time that elapsed between injury and death was half an hour and between death and post-mortem was about 8 to 24 hours.
Exh.PA was the correct, carbon copy of post-mortem examination report and Exh.PA/1 was the pictorial diagrams showing the seat of injuries, the same bore his signatures.
7. Learned counsel for complainant vide his statement dated 12.4.2012 renounced PWs namely Muhammad Akmal and Shehbaz as being de trap whereas learned ADPP vide his statement dated 21.7.2012 on the application of the complainant renounced PWs namely Asghar Ali 10/C, Akhtar Ali 142/C and Ansar Mehmood 867/C as being de trap, thereafter closed the prosecution case.
8. The statements of the appellants were recorded under Section 342, Cr.P.C. wherein they gainsaid charges and claimed innocence. They did not opt to make statements on oath as required u/S. 340(2), Cr.P.C., however, opted to produce defence evidence and thereafter without producing it, closed the same.
The appellant Ihsan in answer to a question "why this case against you and why the PWs deposed against you" replied infra: "In the local Bodies Election my uncle Tufail who is also Lumberdar of the village Baddocheeda contested election for the seat of Naib Nazim against Muhammad Nazim Farooq complainant of this case who lost the said election due to which he nourished a grudge in his mind owing to dirty village politics. In fact it was a blind murder and some body informed the complainant about the presence of dead body in the area of village depokay, Due to the above said political rivalry in the village, I and my co-accused were involved in this case.' The complainant and PWs are closely related to the deceased so they have deposed falsely against me and my co-accused. I have no concern with the death of the deceased".
The appellant Mst. Kalsoom Akhtar also deposed in line with the above said appellant.
9. At the conclusion of the trial, appellants were convicted and sentenced as mentioned op-cit by the learned trial Court. Hence, instant appeal.
10. In support of instant appeal learned counsel for the appellants submits that there is delay of 12 hours in reporting the matter to the police; no direct or indirect evidence of commission of murder of Usman Ali exists on the file; the dead body of the deceased was not recovered on the pointing out of any of the appellants; except evidence of last seen which infect does not constitute the ingredients of last seen evidence has been fabricated against the appellants; false recovery of finger ring allegedly given to appellant Kalsoom Akhtar by the deceased has been planted and no evidence of extra judicial confession exists, in these circumstances, the prosecution has not been able to prove its case against the appellants and has thus craved for acceptance of instant appeal.
11. Learned DPG assisted by learned counsel for the complainant has opposed submissions on the grounds that statements of Nazam Farooq (PW.2), Abaidullah (PW,3) and Muhammad Asim (PW.4) are available on the file through which case has been proved by the prosecution and from the record no other inference is drawn except that appellants alongwith their P.Os have committed the murder of Usman deceased. Further submits that evidence of last seen is sufficient particularly, the same has not been broken through cross-examination for sustaining conviction and sentence of the appellants.
2. Hearkened and record perused.
13. The deceased Usman was called through a telephonic call, the number of the same has been mentioned in the FIRbut no evidence on the same has been produced by the prosecution. Allegedly the deceased left the house;at 7.30 p.m. on 12.3.2010 whereas his dead body was found to be present on the follow morning at about 7.30 p.m. No evidence of "Wajj Takkar" in the sense that immediate before death of the deceased, he might have been seen by any of the PWs or any other person exists on the file. So fat as evidence of last seen is concerned, the same hinges upon statements of PW.2 Nazim Farooq and PW.3 Abaidullah, the same does not fulfil the components of last seen evidence because proximity of time from the time of leaving house of the deceased upto the murder is a long span of time and where the deceased remained for about 12 hours, has not been explained by the prosecution, therefore, the same evidence cannot be termed as of last seen.
No eye-witness exists in this case. No evidence of extra judicial confession exists and so far as recovery from appellant Mit Kalsoom Akhtar i,e, finger ring that was provided to her by the deceased is concerned, in this respect, no specific mark of identifications have been proved that infact she was given to her by the deceased.
14. For what has been discussed op-cit, 'prosecution has not been able to prove its case against the appellants beyond any shadow of doubt, therefore, the instant appeal is allowed. Resultantly, conviction and sentence of both the appellants is set aside and they are acquitted of the charges levelled against them by extending benefit of doubt. They are in jail, directed to be affranchised in this case, in a trice, if are not required in any other case.
15. So far as Criminal Revision No, 983 of 2012 filed by Muhammad Nazam petitioner/eomplainant against the respondents/ convicts namely Ihsan and Met. Kalsoom Akhtar for enhancement of their quantum of sentences is concerned, the same for the reasons mentioned supra stands dismissed accordingly.