ABDULLAH BALOCH, J.---This judgment disposes of Criminal Appeal No,262 of 2015 filed by the appellant Hidayatullah son of Abdul Shakoor, against the judgment dated 20th August, 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge Pishin (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 316, P.P.C. and sentenced to suffer twenty (20) years' R.I. and to pay Diyat amount of Rs,10,00,000/- to the legal heirs of deceased, with the benefit of section 382-B, Cr.P.C.
2. Facts of the case are that on 19th October, 2012 the complainant Muhammad Azeem son of Muhammad Jan Kakar lodged FIR No,26/2012 at Levies Station Barshore district Pishin under section 302, P.P.C. stating therein that about one year and nine months back, the second marriage of accused-appellant was solemnized with Mst. Zarina; that Mst. Zarina with permission of her husband (accused/appellant) came to her parents' house, but spent a night more in her parents' house, hence on her return the accused-appellant beaten her with stick/pipe on the pretext as to why she spent a night more in her parents' house, due to which she died; that at the time of giving bath to deceased by Bibi Maryam, Bakht Bibi, Moura and Bibi Feroza, they found injuries on the head of deceased. It is further averred that even at the time of funeral/burial Muhammad Yousaf Naik Muhammad, Niaz Muhammad, Abdullah, Muhammad Naeem had seen blood stains on the head side of Kafan. The uncle of deceased had also fought with the brother of accused Hidayatullah at the time of funeral/burial of deceased, but they were removed by Mehmood and Niaz Muhammad.
3. In pursuance of above FIR, investigation was entrusted to PW-12 Hameedullah, Naib Risaldar, who during investigation inspected the site and prepared site map; recorded the statements of witnesses under section 161, Cr.P.C.; arrested the accused Hidayatullah on 23rd October, 2012; exhumed the dead body of deceased from grave under the supervision of Judicial Magistrate and got conducted post mortem of deceased; obtained post mortem report; got recorded the confessional statement of appellant under section 164, Cr.P.C. and on completion of investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced seven (15) witnesses. The appellant was examined under section 342, Cr.P.C. The appellant also recorded his statement on oath under section 340(2), Cr.P.C., but has not produced any witness in his defence. On conclusion of the trial, the trial Court convicted and sentenced the appellant as mentioned in para-1 above, whereafter instant appeal has been filed.
5. Learned counsel for appellant stated that the FIR has been lodged after delay of 25-days without any plausible or justifiable reasons; that the appellant has been involved in the case on the basis of mere assumptions and presumptions and no direct evidence is available on record connecting the appellant with the commission of crime; that the retracted confessional statement of the appellant was recorded after 13-days of his arrest and even the required legal formalities were not observed whilst recording the same, thus the same has lost its evidentiary value; that the prosecution has failed to effect the recovery of crime weapon; that all the prosecution witnesses made contradictory statements to each-others and even made dishonest improvements to their earlier deposition; that the impugned judgment is result of misreading and mis-appreciation of material available on record.
6. On the other hand, the learned Additional P.G. while supporting the impugned judgment contended that the prosecution has proved the case against the appellant beyond any shadow of doubt; that the case of prosecution is supported by medical evidence along with ocular testimony and the confessional statement of the appellant; that the impugned judgment has been delivered after proper appraisal of material available on record and the same is not open for any interference by this Court.
7. Heard the learned counsel and perused the available record. Record reveals that the case has been registered on the complaint of PW-1 Muhammad Azeem, who is the father of deceased Bibi Zarina. According to the complainant, his daughter had come to his house for attending marriage ceremony for four days, but spent five days and thereafter returned to her house. On 23rd September, 2012 at about 11.00 a.m. he received an information that his daughter Zarina has died, hence on such information he proceeded to the house of appellant, where the appellant himself disclosed that since his daughter had spent a day more to his house, therefore, he killed her by hitting on her head with Danda/stick and pipe, due to which she received injuries on her head. PW-1 further stated that he saw his daughter and found injuries on her head as well as on different parts of body. PW-1 stated that the deceased was given bath by PW-4 Bibi Maryam, PW-10 Bakht Bibi and A PW15 Bibi Feroza. The ladies appeared in the Court and affirmed the statements of PW-1 with regard to presence of injuries on the person of deceased Zarina. PW-1 in his fard-e-bayan mentioned the names of persons, who allegedly seen blood stains on the head of deceased namely PW-2 Muhammad Yousaf, PW-3 Naik Muhammad, PW-7 Niaz Muhammad, PW-8 Abdullah, and PW-13 Muhammad Naeem. All the witnesses appeared in the Court and stated about the injuries received by the deceased and the quarrel took place in graveyard in between the brother of appellant and the uncle of deceased. PW-1 further stated that the uncle of deceased quarreled with the brother of appellant Janan in graveyard, but the inhabitants namely PW-7 Niaz Muhammad and Mehmood intervened and it was agreed that at the first instance to bury the deceased and thereafter the matter will be decided during Fateha.
8. The statements of all the above referred witnesses including the statement of complainant has established the fact that none of them had directly witnessed the crime rather they only saw injuries on the person of deceased and presumed that the deceased was murdered. Furthermore, according to prosecution story on the day of occurrence i,e, 23rd September, 2012 the complainant/PW-1 and his relatives were well aware of the fact of unnatural death of deceased and the injuries so received on the person of deceased, but despite such fact not only the complainant being the father of deceased kept mum, but all the above referred remaining witnesses being closely related to the complainant party also kept complete silence till 18th October, 2012 and the matter was reported to the police after delay of about 25-days of the occurrence, when the deceased had already buried without medical examination or post-mortem.
The conduct of the complainant being father of the deceased and his relatives for not reporting the matter to the police in time has not only delayed the registration of FIR for 25-days, but also the criminal law has not been set in motion in conducting the investigation of the case properly as 25- days is sufficient enough time for a culprit to eliminate the evidences. Due to delay so occasioned in reporting the matter, the investigating agency could not collect any incriminatory piece of evidence from the place of occurrence i,e, blood stained earth; blood stained clothes of deceased and even no recovery of crime weapon was effected due to fault of the complainant party. Besides, no proceeding under section 174, Cr.P.C. could be carried out and the deceased was also not examined by the Medical Officer soon after the occurrence. Hence, the possibilities of consultation and deliberation for nominating the appellant in the crime by the relatives during the intervening period is not ruled out of consideration. The element of delay in registering the FIR is treated with caution and care as there are chances to involve the innocent persons in the crime. The Hon'ble Federal Shariat Court in case titled Mst. Shehnaz alias Asma alias Rani and another v. State, reported in 2010 PCr.LJ 231, has held as under: "23. It is, therefore, clear that registration of crime report precedes initiation of investigation. In other words registration of first information report is a condition precedent to the launching of the investigation. Such a measure would rule out the possibility of deliberation, consultation and enquiry, before furnishing the information. The element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval.
The longer the intermission the greater are the chances of false implication. Investigation that follows the registration of a crime report has more value than the investigation which precedes registration of FIR. It, therefore, means that ordinarily there can be no investigation in a cognizable case without first registering the crime report. Having registered the case the police officer can proceed with the investigation without a formal permission from the Court which has the territorial jurisdiction to try that case."
9. Furthermore, the conduct of the complainant being father of the deceased is unnatural, it is not appealable to a prudent mind that once innocent daughter has been murdered in brutal manner and the murderer himself disclosing the fact of murder, but the complainant/PW-1 has not reacted to the same and simply he along with the murderer of his daughter and other relatives have buried the deceased without even making any hue and cries or pointing finger upon the appellant. The naming of the appellant in the fard-e-bayan along with the names of witnesses who had given bath to the deceased or that laid the deceased in grave is absolutely doubtful. The narration of fard-e-bayan itself is suggestive of the fact that the same has been prepared after due consultation and deliberation. Hence, no implicit reliance could either be placed on the statements of complainant or the remaining witnesses, who are closely related to each other.
10.It has come on record that the deceased was not medically examined soon after her alleged murder rather she was buried and after 45-days of her burial her dead body was exhumed in presence of Judicial Magistrate and thereafter she was examined by PW-5 Dr. Aisha Faiz and PW-6 Dr. Ghulam Haider. According to statements of both the witnesses the dead body of deceased was putrefied. The immediate medical examination of the deceased was necessary to corroborate the medical evidence with the ocular testimony of witnesses, who allegedly seen injuries on the person of the deceased at the time of giving bath to her, but this has not been done so rather the post mortem of deceased was conducted after 45-days of her alleged murder and in this manner after lapse of considerable long period and due to petrification the most of the wounds were not visible, hence the medical testimony is absolutely in conflict with the ocular evidence.
11. Now adverting to the confessional statement of the appellant under section 164, Cr.P.C., perusal of which disclose the fact that the same was recorded after 13-days of the arrest of the appellant.
Admittedly, the longer the police custody of an accused, lesser is the evidentiary value of his confession. Even otherwise, it has come on record that PW-11 Asma Mushtaq, Judicial Magistrate, has not turned out all the persons from the Court Room at the time of recording the confessional statement rather one Naseebullah, Reader, was present in the Court Room, whereas the defence has alleged that the said person was the close relative of the complainant party. Even otherwise, the contents of such statement do not corroborate with other piece of evidence. Reliance is placed to the case of Azeem Khan V. Mujahid Khan, 2016 SCM R 274. Relevant portion thereof reads as under: "15. Keeping in view the High Court Rules, laying down a binding procedure for taking required precautions and observing the requirements of the provision of section 364 read with section 164, Cr.P.C. by now it has become a trite law that before recording confession and that too in crimes entailing capital punishment, the Recording Magistrate has to essentially observe all these mandatory precautions. The fundamental logic behind the same is that, all signs of fear inculcated by the Investigating Agency in the mind of the accused are to be shedded out and he is to be provided full assurance that in case he is not guilty or is not making a confession voluntarily then in that case, he would not be handed over back to the police. Thereafter, sufficient time for reflection is to be given after the first warning is administered. At the expiry of that time, Recording Magistrate has to administer the second warning and the accused shall be assured that now he was in the safe hands. All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the Court and beyond the view of the accused. After observing all these legal requirements if the accused person is willing to confess, then all required questions formulated by the High Court Rules should be put to him and the answers given, be recorded in the words spoken by him. The statement of accused be recorded by the Magistrate with his own hand and in case there is a genuine compelling reason then, a special note is to be given that the same was dictated to a responsible official of the Court like Stenographer or Reader and oath shall also be administered to such official that he would correctly type or write the true and correct version, the accused stated and dictated by the Magistrate. In case, the accused is illiterate, the confession he makes, if recorded in another language i,e, Urdu or English then, after its completion, the same be read-over and explained to him in the language, the accused fully understand and thereafter a certificate, as required under section 364, Cr.P.C. with regard to these proceedings be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he is Naib Court wearing police uniform, or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused."
12. The reappraisal of the evidence reveals of infirmities and discrepancies in the case of prosecution. The perusal of impugned judgment reflects that the same is result of mis-reading and mis-appreciation of evidence available on record. The facts and circumstances of the case have created doubts in the case of the prosecution. The prosecution has miserably failed to prove the charge against the appellant beyond any shadow of doubt.
For the above reasons, the appeal is accepted. The impugned judgment dated 20th August, 2015 passed by the Sessions Judge Pishim is set aside and the appellant Hidayatullah son of Abdul Shakoor, is acquitted of the charge under section 302(b), P.P.C. in FIR No. 26/2012 at Levies Station Barshore district Pishim. The appellant being in custody, is ordered to be released forthwith, if not required in any other case.