MRS. IRSHAD QAISER, J.---This jail appeal under section 410 of Criminal Procedure Code, 1898 is directed against the conviction and sentence awarded to Nazar Hussain son of Mir Alam, resident of Village Khutwal, Tehsil and District Abbottabad, by the learned Additional Sessions Judge-II, Abbottabad vide judgment dated 28-2-2011, in case FIR No,322 dated 27-7-2009 registered under section 302, P.P.C. Police Station 'Nawanshehr. On the charges of 'galli-amd' Muhammad Akhtar son of Ghulam Nabi, whereby, the appellant was convicted under section 302(b), P.P.C., and sentenced to suffer life imprisonment and to pay Rs,100,000 as compensation in terms of section 544-A, Cr.P.C.
And benefit of section 382-B, Cr.P.C. Was also extended to the appellant.
2. The facts of the case as narrated in 'Murasila' (Exh.PAR) are that complainant Muhammad Amjad (P.W.4) son of Ghulam Nabi, Caste Awan, resident of village Khutvval on 26-7-2009 at 23:05 hours reported to Khurshid IHC, Police Station, Nawanshehr (P.W.10), near I.T.C. Of Combined Military Hospital, Abbottabad (CMH), where he reached on receipt of information about shifting of a burnt injured person.
The complainant alleged that he was serving in Army Signal Centre, Islamabad and on receipt of information about the burning of his brother Muhammad Akhtar, aged about 24 years, and his shifting to Hospital for treatment, he reached CMH, Abbottabad; where he met with his brother, who told him that at about "Maghrab Wella" he was present in his house and his uncle Nazar Hussain after sprinkling kerosene oil set him on fire, as a result, he burnt on different parts of his body; that he himself along with inmates of the house extinguished the fire. The motive for the offence was petty domestic dispute. The occurrence was stated to have seen by the inmates of the house and inhabitants of 'Mohallah'. The 'Murasila' was sent to the Police Station through Nasir FC No,5236 and consequently the case was registered vide FIR (Exh.PA) under section, 324, P.P.C. Against the present appellant. Muhammad Khurshid IHC (P.W.10) also prepared the injury sheet (Exh.P.W.10/1) of the then injured Muhammad Akhtar and he was sent to Ayub Teaching Hospital for medical examination and treatment under the escort of constable Babar No.1067.
3. After registration of the case, the investigation was entrusted to Abdul Rasheed ASI (P.W.9). On 27-7-2009, he visited the CMH, where Muhammad Akhtar injured was admitted, and recorded his statement (Exh.P.W.9/1) under section 161, Cr.P.C. On the same date, the I.O. Visited the spot and prepared site plan (Exh.PB) on the pointation of Mst. Khursheed Bibi and Mst. Fozia. During spot inspection, he also took into possession empty plastic bottle Exh.P-1, one `sots' (stick) of `Diyar'
(Deodar) Exh.P-2 and a `Sokhta' (an apparatus for ignition made with cloth) Exh.P-3, `shalwar'
Exh.P-4, white colour cap Exh.P-5 of the deceased vide recovery memo. (Exh.P.W.2/1). The deceased then injured was admitted in Burn Unit of CMH, Kharian had expired on 1-8-2009, and section 324, P.P.C. Was converted into section. 302, P.P.C. The dead body of deceased Muhammad Akhtar was brought to Ayub Teaching Hospital, Abbottabad for postmortem examination. He prepared injury sheet (Exh.P.W.9/3) and inquest report (Exh.P.W.9/4) of the deceased and sent the dead body to the mortuary for P.M. Examination. He arrested the appellant on 4-8-2009, produced by his son Tahir and issued card of arrest (Exh.P.W.9/6). He recorded the statements of the P.Ws. Under section 161, Cr.P.C. And after completion of investigation handed over the case file to the SHO for submission of complete challan.
4. The, medical evidence was furnished by Dr. Muhammad Jameel, CMO, Ayub Teaching Hospital, Abbottabad (P.W.11). The statement of the said Medical Officer, reads as under:-- "On 27-7-2009 at 12-30 a.m., I examined Muhammad Akhtar son of Ghulam Nabi caste Awan, aged about 28 years, resident of Kuthwal Tehsil and District Abbottabad brought by Babar No.1067 of PS Nawanshehr. After examination, I found the following:-- Burn injury Complete left upper limb Complete right upper limb Complete anterior abdomen Complete back Complete left thigh All the burnt area covered with dressing. Total burnt area approximately 35%.
Nature of injury: Burn injury Probable duration of injury: within 36 hours Kind of weapon: Burn injury.
I have seen my report today in the Court which is Exh.P.W.11/1 and correctly bears my signature. I also made endorsement on the injury sheet which is Exh.P.W.11/2 and correctly bears my signature."
The injured died on 1-8-2009 and Dr. Sabir Ullah Exh.CMO, Ayub Teaching Hospital, Abbottabad conducted autopsy on his dead body at about 5-00 p.m. On the same day. Dr. Sabir Ullah while appearing as (P.W.12) in the witness box has deposed regarding his findings in respect of postmortem examination of deceased Muhammad Akhtar, as under:-- "On 1-8-2009 at about 5-00 p.m. 1 examined the dead body of Muhammad Akhtar son of Ghulam Nabi, Caste Awan resident of Kutwal Tehsil and District Abbottabad. Dead body was brought by police of PS Nawanshehr and identified by Mukhtiar Ahmed son of Muhammad Irfan and Muhammad Riaz son of Sheikh Fareed both residents of Kutwal. After the examination I found the following:- External appearance.
A young built man lying supine on the PM table with the bandage over all of the body.
Injuries.
(1) Complete burn left upper arm.
(2) Complete burn right upper limb.
(3) Complete burn anterior abdomen.
(4) Complete back.
(5) Complete left thigh.
All the burns were skin deep.
Abdomen Stomach and its contents: Some semi digested food.
Small intestines and their contents: Some semi digested food found.
Large intestines and their contents: Faecal matter.
Bladder: 200 cc urine was present in the bladder.
Muscles, bones, joints. Burn all over the body.
In my opinion, death of this young man occurred due to extensive burn leading to complication and ultimately death.
Probable time between injury and death: 27-7-2009 to 1-8-2009. Probable time between death and postmortem: About six hours.
I have seen my report consisting of six pages along with pictorial Exh.PM which is in my handwriting and correctly bears my signature. I also endorsed injury sheet which is Exh. PM/1 which correctly my signature."
5. After completing the investigation, the challan was put in court against the appellant, who on denying the charge pleaded his innocence and demanded a trial, which thus followed. The prosecution produced twelve witnesses to prove guilt of the present appellant. Muhammad Amjad (P.W.4), complainant has deposed about lodging of report to Muhammad Khurshid IHC (P.W.10) while, Mst. Khurshid Bibi (P.W.6) and Mst. Fozia (P.W.7) furnished their testimony being eye- witnesses of the occurrence. Besides Hafiz Janis SHO (P.W.1), Muhammad Tariq son of Muhammad Irfan (P.W.2), Muhammad Arshad son of Ghulam Nabi (P.W.3), Muhammad Riaz son of Sheikh Fareed (P.W.5) and Muhammad Zubair Additional Moharrar (P.W.8) were produced as formal witnesses in the case.
6. Nazar Hussain, the present appellant was examined under section 342, Cr.P.C., who pleaded innocence and false implication in the case. However, he did not want to produce defence evidence.
7. Valuable arguments of the learned counsel of the parties heard and the record of the case thoroughly perused.
8. Admittedly, the parties were closely related to each other. The present appellant is real paternal uncle of deceased Muhammad Akhtar, P.W. Muhammad Arshad (P.W.3), complainant Muhammad Amjad (P.W.4), and brother-in-law and father-in-law of alleged eye-witnesses Mst. Khursheed Bibi (P.W.6) and Mst. Fozia (P.W.7), respectively. There was delay of about five hours in reporting the incident to the police and that too in the military hospital, where Muhammad Khurshid, H-IC (P.W.10) himself reached on receipt of information about shifting B of injured. The report was lodged by Muhammad Amjad (P.W.4). He was not an eye-witness of the occurrence but 'he was informed on phone about the incident and shifting of his brother Muhammad Akhtar, then injured to CMH, Abbottabad, as he was serving in Pakistan Army. He stated that he inquired about the incident from his brother, who narrated him the facts in this regard. The I.O. Abdul Rashid SI (P.W.9) allegedly recorded the statement (Exh.P.W.9/5) of Muhammad Akhtar, then injured under section 161, Cr.P.C.
On the following i,e, 27-7-2009 in ITC, CMH, Abbottabad. Although the prosecution has relied upon the said statement as 'dying declaration' of the deceased Muhammad Akhtar but the learned trial Court has discarded the said statement C because it, does not fulfil the basic requirement to be declared a dying declaration.
Thus, the learned trial Court while convicting the present appellant has relied on the ocular account furnished by Mst. Khurshid Bibi, mother and Mst. Fozia, sister-in-law of deceased. However, this Court has to ascertain the veracity and truthfulness of the testimony of the said alleged eye- witnesses because of the peculiar facts and circumstances of the present case. Before we proceed further to discuss the evidence, we should keep in mind the general rule for appreciation of evidence described in Haroon alias Harooni v. The State and another (1995 SCMR 1627), where in, the honourable Supreme Court of Pakistan has observed that:-- "The general rule, however, is that the statement of a witness must be in consonance with the probabilities, fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements are present, then the statement of worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought."
The delay in the present case is of much significance. The prosecution has failed to bring on record any record/document pertaining to the treatment of the deceased, them injured in the ITC of Combined Military Hospital, Abbottabad or CMH, Kharian. It was not established on record as to when and who brought the injured in CMH, Abbottabad for treatment. Dr. Muhammad Jameel, (P.W.11), who examined the injured on 27-7-2009 at 12-30 a.m. Has described the probable duration of injury as 36 hours, which means that the occurrence might have taken place on 25-5-2009 at 12-30 p.m. According to report and statements of the P. Ws. The occurrence was stated to have occurred at 'Maghrab wella' i,e, at about 7-30 p.m. On 26-6-2009. The said medical officer admitted during cross-examination that "I have given the duration of injury on the nature of wound." Thus, the exact time of alleged occurrence was not established beyond reasonable doubt.
As such, the testimony of the alleged eye-witnesses on this particular fact could not be believed without any independent corroboration. The other intriguing aspect of the matter was that the complainant alleged that the FIR was lodged by him after he had made query from his injured brother about the incident, who told him that he was set on fire by his uncle Nazar Hussain, the present appellant. It was proved on the record without any stretch of imagination that injured was not capable of making any statement at the time of medical examination by the doctor. When he was unable to talk due to his critical condition, then how he could tell the complainant about the 'modus operandi' of the occurrence. Thus, the facts mentioned in the FIR, which was the basic document upon which the law set on motion were not true. The names of the eye-witnesses were not recorded in the FIR. The names of the eye-witnesses for the first time find mentioned in the alleged 'dying declaration' of deceased Muhammad Akhtar (Exh.P.W.9/5), allegedly recorded on the following day of occurrence, which was not believed even by the trial Court due to lack of certain legal pre-requisites. It was a mala fide' attempt on the part of the I.O. To have attributed the said statement to the deceased without completing the legal requirement. It was mentioned in the FIR that the then injured himself along with other inmates of the house had extinguished the fire.
This fact was not mentioned in the statements of the eye-witnesses that the deceased himself or they had extinguished the fire. Both hands of the deceased were not found injured by the Medical Officer. Mst. Khurshid Bibi (P.W.6) during cross-examination admitted that "Apart from the neighbourer of my house other co-villagers also saw the accused running away from the spot.
They all entered in my house and my son was then alive and was talking and he also disclosed all those present persons that he has been set on fire by accused Nazar Hussain." However, the prosecution has failed to produce anyone of those independent persons to prove this very important aspect of the matter. The empty bottle and the stick allegedly recovered from the spot were also not sent to the laboratory for chemical analysis to determine the use of kerosene oil.
Moreover, the said recovery of empty bottle and stick was also not proved through any independent witness. The delay in lodging the report was not explained in the FIR as well as in the statements of the witnesses before the Court. The prosecution has also failed to prove the motive.
No oral or documentary evidence has been produced to prove the factum of joint ownership of the house in question.
9. We also note that the investigation has not been conducted in accordance with the procedure required under section 174-A of Cr.P.C., wherein, it is envisaged that:-- "174-A. Grievous injury by burns.---(1) Where a person, grievously injured by burns through fire, kerosene oil, acid, chemical or by any other way, is brought to a Medical Officer on duty designated by the Provincial Government for this purpose, or, such incident is reported to the Officer-in-Charge of a Police Station; shall immediately give intimation thereof to the nearest Magistrate. Simultaneously, the Medical Officer on duty shall record the statement of the injured person immediately on arrival so as to ascertain the circumstances and cause of the burn injuries.
The statement shall also be recorded by the Magistrate in case the injured person is still in a position to make the statement.
(2) The Medical Officer on duty, or, as the case may be, the Magistrate, before recording the, statement under subsection (1), shall satisfy himself that the injured person is not under any threat or duress. The statement so recorded shall be forwarded to the Sessions Judge and also to the District Superintendent of Police and Officer-in-charge of the Police Station for such action as may be necessary under this Code.
(3) If the injured person is unable, for any reason, to make the statement, before the Magistrate, his statement recorded by the Medical Officer on duty under subsection (1) shall be sent in sealed cover to the Magistrate or the trial Court if it is other than the Magistrate and may be accepted in evidence as a dying declaration if the injured person expires."
10. Surely, non-compliance of the said procedure by the police leads to draw obvious inference that the investigation was not conducted diligently, honestly and a Head Constable was sent to the hospital for recording the report/statement of the injured, who was not competent to do so and no reason has been furnished by the prosecution for not associating the Officer-in-Charge of the Police Station.
In such state of affairs, the credence of the said crucial, star witnesses of the prosecution is highly doubtful. It leads to a definite conclusion that the occurrence had not taken place in the mode and manner as alleged by the complainant in the FIR and later narrated in their Court statements, which creates serious doubt in the prosecution case, the benefit of which should have been given to the appellant. Thus, we hold that since the ocular account furnished by P.W.6 and P.W.7 was inconsistent, contradictory and not confidence inspiring, therefore, no reliance could be placed thereupon. Hence, the learned trial Court while convicting the present appellant has wrongly and illegally appreciated the facts and the law on the subject.
11. These are the detailed reasons for allowing all the instant Criminal appeals vide short order dated 12-2-2014 and setting aside conviction and sentences recorded by the learned Additional Sessions Judge-II, Abbottabad vide impugned judgment dated 28-2-2011 and acquitting the appellant of all the charges, levelled against him and directing the appellant to be set free forthwith, if not required in any other case.
12. Consequently, in view of acquittal of appellant, the connected Criminal Revision Petition No,18-A of 2011 filed by petitioner-complainant Muhammad Amjad for enhancement of sentence awarded to the appellant has become infructuous, which is dismissed accordingly.