' SHAKEEL AHMED BALOCH, J.---This common judgment disposes of Criminal Appeal No.191 of 2014 filed by the appellant Wali Muhammad son of Subedar Rehmatullah and Maqsood Ahmed son of Mirza Khan against the judgments dated 26th June 2014 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge, Noushki (hereinafter referred as "the trial Court"), whereby the appellants were convicted through separate judgments under section 302(c), P.P.C. And sentenced to twenty five years S.I. And to pay Diyat to the legal heirs of deceased Idrees Ahmed as per value, with benefit of section 382-B, Cr.P.C. It is necessary to add here that since the appellant Maqsood Ahmed was juvenile, hence he was tried separately under Juvenile Murder case No.01/2013, whereas the appellant Wali Muhammad was tried separately under Murder case No.17/2013. The Criminal Revision Petition No.33/2014 has been filed by the complainant/petitioner Ghulam Sarwar for enhancement of the sentence awarded to the convict/appellant Wali Muhammad.
2. Facts of the case are that on 31st July, 2013 at 5:00 p.m. The complainant/petitioner Ghulam Sarwar son of Qaim Khan lodged FIR No.70/2013 at Police Station Noushki District Noushki under Section 302 Qisas and Diyat Ordinance read with section 34, P.P.C., stating therein that on 28th July 2013 his son namely Idress Ahmed made a telephone call to him that convict/appellant Wali Muhammad has threatened him for dire consequences and is also sending text messages of harassm ents, but be did not pay any heed on the ground that there might be a minor dispute, which would he tackled later on. Thereafter at the time of sunset/ Maghrib his son was found dead, but due to grief and sudden demise of death of his sop, he neither reported the matter to the police in time nor got conducted postmortem of his deceased son. Today he came to know that on 28th July 2013 his son was seen with the convict/appellants Wali Muhammad and Maqsood in an unoccupied/vacant house situated at Qazi Abad, therefore, he is sure that his son has been killed by them. The mobile data of his son has been deleted so as to conceal the murder. He has given the mobile numbers of the convicts/appellants and the deceased and requested that on the basis of their mobile data from 27th to 29th July 2013 investigation may be conducted.
3. In pursuance of the above FIR, the investigation of the case was entrusted to Naseer Ahmed, S.I.
Who prepared site sketch; took photographs of place of incident; took into possession the mobile phone of deceased etc. And prepared parcel Nos.1, 2 and 3; recorded the statements of witnesses under section 161, Cr.P.C.; inspected the graveyard and prepared site sketch; on 2nd August, 2013 requested for exhumation of dead body; issued a letter to the high-ups for obtaining the mobile data; on 4th August, 2013 arrested the co-accused Maqsood Ahmed; sent the blood stained clothes etc. To FSL; recorded the statements of mother of deceased and witness Qaim Khan under section 161, Cr.P.C.; on 16th August 2013 exhumation was carried out and thereafter post-mortem was conducted by the police surgeon; non-bailable warrants of arrest of convict Wali Muhammad were obtained from the Court; the accused Maqsood Ahmed was shifted to judicial lock-up; incomplete Challan was prepared and submitted before the Court; on 19th August, 2013 the I.O.
Arrested convict/appellant Wali Muhammad: recorded the statement of witness Shabir Ahmed; took into possession a memory card from witness Abdul Latif, prepared parcel No.4; on 26th August, 2013 he received mobile data, FSL and post-mortem reports; on 23rd August, 2013 the investigation was transferred to the Crimes Branch, Quetta; the convict/appellant. Wali Muhammad was shifted to judicial lock-up; submitted incomplete Challan to the Court and on the basis of orders of I.G. Police dated 6th September, 2013 and DIG Crimes Branch dated 16th September, 2013, the investigation was entrusted to P.W.16 Muhammad Iqbal, ASI Crimes Branch.
Quetta, who obtained the mobile data; recorded the statements of witnesses under section 161, Cr.P.C. And on completion of investigation submitted the challan before the Court.
4. At the trial, the prosecution produced seventeen (17) witnesses in Murder Case No.17/2013 and fourteen (14) witnesses in Juvenile Murder Case No.1/2013, whereafter the convict/ appellants were examined under section 342, Cr.P.C. They neither recorded their statements on oath under section 340(2), Cr.P.C. Nor produced any witness in defence. On conclusion of trial, after hearing the arguments, the trial Court convicted and sentenced the appellants through separate judgments as mentioned above. Whereafter the appellant Wali Muhammad filed Criminal Appeal No.191 of 2014, whereas appellant Maqsood Ahmed filed Criminal Appeal No.183 of 2014 while the complainant filed Criminal Revision No.33 of 2014 for enhancement of sentence of appellant Wali Muhammad.
5. Learned counsel for appellants stated that the impugned judgment is result of misreading and mis-appreciation of material available on record; that the conviction has been awarded to the appellants on the basis of surmises and conjectures; that the prosecution has failed to produce any iota of evidence connecting the appellants with the commission of alleged crime; that the FIR has been lodged after unexplained delay of four days; that the medical evidence is in conflict with the ocular testimony; that different stories have been narrated by each of the PWs; that the prosecution has miserably failed to substantiate the charge against the appellant.
6. Learned counsel for complainant stated that brutal murder of the deceased committed by the convict/appellant does not warrant any leniency; that once the trial court reached to the conclusion that offence was made out against the convict/appellant, then there was no occasion for the trial Court to award lesser punishment without having mitigating circumstance; that the offence entails capital punishment as the case is also proved on all counts; that the convict/appellant is liable to be sentenced for capital punishment.
7. Learned Deputy Prosecutor General appearing for the State has strongly opposed the Criminal Appeals filed by the convicts and adopted the arguments of the learned counsel for the complainant for enhancement of sentence of the convicts.
8. Heard the learned counsel and perused the available record. Perusal of record reveals that the alleged incident took place on 28th July, 2013 before the Maghrib prayer, but the FIR was lodged on the fourth day of incident i.e. 31st July, 2013 without any plausible explanation. The complainant while recording his statement brought on record that he has a shop near Police Station Noushki and he used to offer his prayers in the mosque of Police Station. P.W.1 further admitted that the distance between the police station and hospital is about 20 spaces. P.W.1 has given explanation with regard to delay in lodging the FIR that he along with his family members were shocked and were in grief and could not lodge the FIR promptly. The explanation so offered by the complainant does not appeal to the logic and same is not reasonable. It has come on record that the death of complainant's deceased son was reported in daily newspapers as suicide. The suggestion put by the defence upon the PWs that the appellants had also participated in the funeral ceremony of deceased was not denied by them in specific terms.
9. All the above circumstances are suggestive of the fact that the complainant was not sure as to whether the death of his son was suicidal or homicidal and it was the reason that he could not lodge the FIR promptly, particularly when the police station was approachable being located at the distance of hardly 500 meters from the place of occurrence. It appears that after consultation, consideration and deliberation, the complainant has, on the basis of presumptions and assumptions, interlinked different stories and has lodged the FIR. The main purpose of lodging FIR is to set criminal law in motion and to bring on record firsthand information about the occurrence of a crime. Thus the main object of recording FIR promptly is to provide a sound basis for carrying out investigation in the right direction, excluding the possibility of fabrication of any false story, whereas in the case in hand there is a delay for three days in lodging the FIR without any justifiable explanation. In view of the circumstances of present case, delay in lodging FIR cannot be taken lightly and it casts serious doubt in the case of the prosecution. It is. a settled principle of law that delay in lodging the FIR can only be condoned when such delay has been adequately explained but in the instant case, there is no explanation for inordinate delay in holding FIR.
10. To substantiate the charge, the prosecution has produced the evidence of seventeen witnesses.
P.W.1 being the complaint and father of deceased mentioned in the fard-e-bayan Exh.P/1-A that on the day of occurrence i.e. 28th July, 2013 at about 4.00 p.m. His deceased son phoned him that the appellant is extending threats to kill him and also sending illicit text messages. However, the complainant took the matter lightly on the pretext that the matter is light in nature and subsequently he will talk to him in detail later on, but at the Maghrib time after sunset his son was found dead and that in the adjacent unoccupied/vacant house the accused Wali Muhammad and Maqsood were present with his son and he is sure that his son was murdered by the accused persons. Whereas, to the contrary the complainant while appearing as P.W.1 in his Court statement made dishonest improvements and stated that on receiving phone from his son, he told him that by that time he was keeping fast and after Iftari he would go to the house of appellant and will take-up the matter. P.W.1 in his statement mentioned that both the accused were present in the said house but he has failed to mention that till what time they remained in the said house.
Admittedly, the complainant suspected, that his son has been murdered by the accused as he himself had not seen both the accused present in the said house. According to P.W.6 he was present in the shop of complainant when the deceased phoned his father that the accused had extended threats to him. P.W.2 is the owner of the house in question from which the dead body of deceased was recovered. P.W.2 admitted that at the time of alleged occurrence he was present in Quetta, thus the evidence of P.W.2 is not helpful to the case of prosecution. P.W.3 is the witness to the inspection memo of house as well as the witness to the recovery of clothes of deceased. P.W.4 is the brother of deceased, who in his statement stated that on the day of occurrence at about 4.30 p.m. He was present in his house, whereas the accused Wali and Maqsood along with his brother remained present in the said house of his relative, whereafter the witness had gone to Bazar and was informed about the incident when he along with his father returned back. P.W.5 is the relative of complainant, who mentioned in his statement that on hearing of hue and cries of womenfolk of the deceased's family, he reached to the place of occurrence and found the dead body of the deceased hanging. He got down the dead body by cutting the rope with knife. In his examination in chief P.W.5 mentioned that at the time of giving bath to the deceased, he observed swelling. Near the anus of the deceased, but the postmortem report' is silent in this regard. P.W.8 has narrated his conversation with the appellant Wali Muhammad, who was aggressive with regard to illicit relation of deceased and appellant Maqsood. P.W.9 produced the said memory Card as Exh.P/9. P.W.10 brought on record that on the day of occurrence at about 11.00 a.m. Altercation took place between the deceased and the appellant Wali Muhammad, whereafter they went to the house of deceased.
P.W.11 is the mother of deceased, who confirmed the presence of deceased and the accused persons/appellants in the said house. P.W.12 also confirmed their presence in the said house.
11. Careful perusal of statements of all the above witnesses reveals that none of the witness has seen the occurrence; their statements reveal that there seems to have a dispute between the deceased and the appellants. However, the statements of said witnesses do not indicate that the dispute was of such a serious nature, which could result into murder of the deceased. Under the circumstances, in order to prove the charge the prosecution had to prove the motive behind the occurrence, but it has even failed to allege any motive for the occurrence.
12. The report of the Chemical expert (Exh.P/14-D) reveals that the Shalwar of the deceased was stained with human semen, but there is no explanation for the same by the prosecution.
13. In absence of any direct evidence, the prosecution case is based on circumstantial evidence. To prove such like cases, chains of circumstances must be interlinked and not a single link of the chain be missing and if any link of the chain is missing, it would create a serious doubt and the benefit of the same must go to the accused. In the present case, there was no nexus of any link with the other, and it did not make the complete chain for the conviction of accused. Reliance in this regard is placed on the case of Naheed Akhtar v. The State, 2015 YLR 1279. The relevant portion is reproduced below:- "It is established by now that in order to prove the case on the basis of circumstantial evidence, there should have been the full chain of circumstances of the case and chain should be such that there should have not been missing even a single knot of the chain and should be linked with each other so that it may form such a continuous chain that its one end should be so linked with the other that the first touches the ,dead body and the other ropes the neck of the accused. But if any link of the chain is missing, it would create a serious doubt and the benefit of the same is to go to the accused person. In this regard, the guidance has been sought from the Judgments of the Hon'ble apex Court of Pakistan reported as "Ch. Barkat Ali v. Major Karam Illahi Zia and another"
(1992 SCMR 1047), "Asadullah and another v. The State (1999 SCMR 1034) and "Sarfraz Khan v. The State (1996 SCMR 188)". In the case of Ch. Barkat Ali (supra), the Hon'ble Supreme Court of Pakistan observed as under:-- "Law relating to the circumstantial evidence that proved circumstances must be incompatible with any reasonable hypothesis of the innocence of the accused. Siraj v. The Crown (PLD 1956 FC 123). In a case of circumstantial evidence, the rule is that no link in the chain should be broken and that the circumstances should be such as cannot be explained away on any hypothesis other than the guilt of the accused."
14. Another important feature of the case is that after recovery of the dead body, the same was not taken to the hospital for medical examination rather the same was buried, whereas the circumstances of the case warranted immediate medical examination and post-mortem of deceased in order to confirm as to whether the death of deceased was homicidal or suicidal.
However, the dead body of the deceased was exhumed on 16th August, 2013 i.e. After 19-days of his burial. The same was examined by P.W.13, where after postmortem report Exh.P/13 was issued to the effect that the cause of death of the deceased was due to strangulation and was homicidal in nature. However, the medico legal evidence alone cannot be made a basis for conviction of the appellants when there is a conflict between the ocular and the medical evidence.
15. The statement of P.W.5, who had given bath to the dead body swelling near anus of the deceased and the report of Chemical Examiner about presence of human semen on the Shalwar of the deceased is suggestive of commission of unnatural offence with the deceased, which may be a cause of suicide by him.
16. On reappraisal of evidence, it is concluded that the occurrence is un witnessed; that the FIR was lodged with in ordinate delay without any plausible explanation; that the motive has not been established and has shrouded in mystery; that the recoveries effected are not incriminating the appellant: that the chain of circumstances is not interlinked; that the statements of witnesses are contradictory in material aspects; that the prosecution evidence is suffering from infirmities; that there exists sufficient doubts in the ease of the prosecution but the trial Court has failed to extend the benefits of doubt to the appellants that the impugned judgment is suffering from mis- appreciation of evidence available on record.
For the above reasons, the appeals are accepted the impugned judgments dated 26th June, 2014 passed in Murder Case No.17/2013 passed by the learned Sessions Judge, Noushki and judgment dated 26th June, 2014 passed by Sessions Judge Noushki/Juvenile Court Noushki in Juvenile Murder Case No.01/2013 are set aside and while extending benefit of doubt, the appellants Wali Muhammad son of Subedar Rehmatullah and Maqsood Ahmed son of Mirza Khan are acquitted of the charge under Section 302(b), P.P.C. The appellant Wali Muhammad being in custody, is ordered to be released forthwith, if not required in any other case, while the appellant Maqsood Ahmed is on bail; his bail bonds are discharged after lapse of appeal period.
' Consequent to the above, the Criminal Revision Petition No.33 of 2014 is dismissed accordingly.