Anwaarul Haq Pannun, J. Through the titled appeal u/s 410 Cr.P.C., the appellant Muhammad Amin has challenged the vires of judgment dated 25.03.2009 passed by learned Addl. Sessions Judge, Burewala, District Vehari, on the conclusion of trial, in case FIR No.309/2007, for offence under Sections 302/324 PPC, registered at Police Station Fateh Shah, District Vehari whereby he has been convicted and sentenced as under:- Under Section 302(b) PPC Imprisonment for life and fine of Rs.1,00,000/- and in case of default, to undergo further for six months S.I.
Under Section 324 PPC Rigorous imprisonment for seven years with fine of Rs.50,000/- and in case of default, further undergo for three months S.I.
Under Sections 337A(i), 337F(iii) and 337F(v) PPC Liable to pay Rs.25,000/- as Daman for each of the injuries to injured Falak Sher .
Benefit of Section 382-B Cr .P.C was directed to be extended to the appellant.
2. The prosecution's story unfolded through FIR (Ex.PC) lodged on written complaint (Exh.PH) of Ghulam Farid, the complainant (PW-10) is to the effect that Mst. Muniran Bibi (deceased), his sister , was married to the appellant Muhammad Amin about 13/14 years back but she remained issueless. On 29.11.2007, he alongwith Falak Sher, Mumtaz and Muhammad Iqbal went to the house of Muhammad Amin accused to exhort him that he should mend his behavior as his sister was being subjected to torture by him. At about 4.00 p.m., when they reached at the house of the appellant, he out of his provocation gave iron pipe blows on the head, arm and legs of Mst. Muniran Bibi. He also extended iron pipe blows on the right arm and legs of Falak Sher injured.
Thereafter appellant/accused fled way from the place of occurrence. Falak Sher injured was shifted to the hospital by Muhammad Iqbal whereas Mst. Muniran Bibi succumbed to her injuries at about 04:00 a.m. i.e. next morning. He reported the occurrence to the police vide Ex.PH which is signed by him.
3. Registration of the case, after its usual investigation encapsulated into a report under Section 173 Cr.P.C which was duly submitted before the learned trial court, the appellant, after supplying him with the copies of incriminating material under Section 265(c) Cr.P.C, was charged sheeted to which he denied and pleaded not guilty , while professing his innocence and claiming trial, the prosecution was directed to produce evidence.
4. The prosecution has produced as many as eleven witnesses beside tendering, in evidence, report of SHO (Mark-A) as well as report of Moharrir of Police Station (Mark-B) regarding report of Chemical Examiner .
5. The medical evidence has been furnished by Dr. Ambreen Fatima WMO, THQ Hospital, Burewala (PW-6) and Dr. Fayyaz Saleem M.O T.H.Q Hospital, Burewala (PW-8). PW-6 stated that on 01.12.2007, she conducted post- mortem examination on the dead body of Mst. Muniran Bibi and observed the following injuries:- i. A lacerated wound 3cm x 1.5cm with swelling into 8cm x 4 cm on right temporal. ii. A swelling about 4 cm x 2-1/2cm on the left temporal region of head. iii. A lacerated wound % cm x % cm with swelling 14 cm on the front and inner side of right leg. iv. A lacerated wound % cm x % cm on the front of left leg with bruises all over left leg and thigh.
Opinion In her opinion, death was occurred due to injury No.1 because of intra cerebral hemorrhage. This injury was sufficient to cause death in ordinary course of nature and was anti mortem. The probable time between injury and death was in between 6 to 24 hours while between death and post-mortem was about 35 hours.
Dr. Fayyaz Saleem, M.O. THQ Hospital, Burewala, (PW-8) conducted medical examination of injured Falak Sher on 30.1 1.2007 who was brought by Muhammad Nawaz 85/C and noted the following injuries:- i. A swelling measuring 6 x 3 cm with ecchymosis on right eye. ii. A swelling 7 cm x 4 cm with ecchymosis on left eye. iii. A swelling 6 cm x 3 cm on right side of head 6 cm from right ear . iv. A lacerated wound measuring 2 cm x 0.5 cm on back of right arm. v. A lacerated wound 1 cm x 0.5 cm with swelling measuring 18 cm x 10 cm oin front of right leg.
According to his opinion, all the injuries were with blunt weapon, injuries No.1 and 2 were kept under observation for Eye Surgeon opinion. Injuries No.3 to 5 were kept under observation for x-ray. He issued MLR No.330/07, carbon copy of the same which is available on file as Ex.PG which is in his hand and signed by him.
6. The ocular account in this case has been furnished by Mumtaz Ahmad (PW-7) and Falak Sher (PW-9) and the complainant Ghulam Farid (PW-10). Muhammad Aslam S.I, the investigating officer has appeared as PW-8. Abdul Sattar I.O. was examined as PW -11.
When examined under Section 342 Cr.P.C., the appellant denied every bit of incriminating material so produced.
While replying the question that as to why this case against him and why the prosecution witnesses had deposed against him, he replied as follows:- "Mst. Muniran Bibi deceased was living a deserted life. Her brother had nourished grudge against me. Therefore, he has implicated me in this false case with fake recovery ."
7. The appellant neither opted to appear under section 340(2) Cr .P.C nor has produced any defence evidence.
8. Learned trial court, on conclusion of the trial, proceeded to convict the appellant as aforesaid. Hence, the titled appeal.
9. Arguments heard. Record perused.
10. Before undertaking exercise of appreciation of evidence of the prosecution, it will be appropriate to enumerate broadly stating the bare facts of the case. According to the prosecution's case, the occurrence has taken place at about 4.00 p.m. on 29.11.2007 in the house of the appellant situated within the abadi of Mauza Handala Khas, Basti Baghla, Police Station Fateh Shah. It is alleged that the appellant while armed with iron pipe had inflicted injuries on the persons of the deceased Mst. Muniran Bibi, his wife as well as on the person of Falak Sher. The complainant Ghulam Farid (PW-10) and Mumtaz Ahmad (PW-7) are inter-se real brothers. The deceased was their real sister whereas Falak Sher injured (PW-9) is their "Khalazad" i.e. son of sister of the mother of the complainant and the deceased. Ghulam Farid, complainant (PW-10) and Mumtaz Ahmad (PW-7) are the residents of a distant village/abadi named Basti Ghulam Farid Khan Aaloka, Tehsil Chishtian, District Bahawalnagar, which is situated at about 4/5 K.M from the place of occurrence. Falak Sher, injured (PW-9) is resident of Dullah Aakooka, Police Station Shehr Farid, Tehsil Chishtian, district Bahawalnagar. As stated above, the alleged occurrence took place at 4.00 p.m. on 29.11.2007, whereas the FIR has been lodged at about 5.35 p.m. on 30.11.2007 with the delay of about 25 hours and 35 minutes. The post mortem examination over the dead body of the deceased Mst. Muniran Bibi was conducted by PW-1 Dr. Ambreen Fatima (M.O) Ex.W.M.O, THQ Hospital Burewala on 01.12.2007 who noted certain injuries, the description whereof has already been given in the preceding paragraph. She has noted the time which elapsed in between injury and death was in between 6 to 24 hours and in between death and post mortem was about 35 hours". The injured PW Falak Sher (PW-9) was medically examined by PW-8 Dr. Fiyyaz Saleem, Medical Officer, RHC Sahuka at 8.00 p.m. on 30.11.2007, after the delay of about 28 hours, the description of his injuries has also been mentioned in the preceding paragraph.
The site plan Exh.PD/1-3 was prepared by Muhammad Arshad Rehman, Civil Draftsman (PW-5), after his inspection of the place of occurrence on 27.12.2007, it was handed over to the Investigating Officer on 28.12.2007. The said site plan indicates that the alleged incident took place inside a room of house of the appellant. The investigation of this case has been conducted by PW-11 Abdul Sattar S.I. Although his evidence shall be discussed little later but at this point, it will be appropriate to mentioned that when quizzed by the defence, he stated that "The place of occurrence is situated on the outer side of Basti Baghla in western side.
About 8/10 persons were present there at the spot when he visited it. It is correct that persons who joined the investigation namely Mumtaz, Ghulam Farid and Mumtaz are residents of Basti Dulla Aakooka Tehsil Chishtian whereas Farid and Ashiq are residents of Chak No.48/KB, Ashraf, Yaseen, Nawab Ali and Talib Hussain are r/o Chak No.47/KB. It is correct that the person who joined the investigation were not residents of Basti Baghla where the alleged occurrence took place." He has not examined during his investigation any person belonging to the locality where the occurrence has allegedly taken place. All the persons named above are the residents of the places situated distantly.
11. The appellant was arrested on 17.12.2007. The weapon of offence i.e. iron pipe was allegedly recovered on his pointing out underneath the cot lying in his residential room, vide recovery memo Exh.PB. The iron pipe was not stained with blood, thus no corresponding report of Chemical Examiner , could have been procured to fortify the recovery of weapon of of fence.
12. After going through the prosecution' s evidence, it is observed that allegedly the occurrence took place at 4.00 p.m. on 29.11.2007 at Mauza Handala Khas, Basti Bhagla, Police Station Fateh Shah, in the house of the appellant, in which both the deceased as well as Falak Sher (PW-9) had received injuries with blunt weapon. The FIR was lodged on 30.11.2007 at about 5.35 p.m by Ghulam Farid (PW-10), the real brother of the deceased, after an unexplained delay of about 25 hours and 35 minutes of the occurrence, therefore, on part of the complainant party , the possibility of consultation and deliberation for cooking up a besuiting story cannot be ruled out. It has been held by the apex Court in case titled "Mehmood Ahmad and 3 others Vs. The State and another" (1995 SCMR 127 ) that:- "Delay of two hours in lodging the F.I.R. in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculated ly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate."
Reliance may also be placed upon case titled "Muhammad Rafique Vs. The State"(2014 SCMR 1698).
Undisputedly, the post-mortem examination over the dead body of the deceased was conducted by PW-1 Dr. Ambreen Fatima (M.O) on 01.12.2007, vide Exh.P.A, whereas the medical examination of the injured Falak Sher (PW-9) was conducted on 30.11.2007 at about 8.00 p.m. by PW-8 Dr. Fiyyaz Saleem, M.O. vide Exh.PG. The post mortem examination as per statement of the PW-6 Dr. Ambreen Fatima M.O., was conducted after the delay of about 35 hours of the occurrence. The delay in conducting medical examination of the injured PW Falak Sher and post mortem examination over the dead body of the deceased has exorbitantly caused serious suspicion about the correctness and veracity of the prosecution's version. Reliance in this regard is also placed upon the case titled "Muhammad Rafique Vs. The State"(2014 SCMR 1698) wherein their lordships have been pleased to observe as under:- "the F.I.R had been lodged with a noticeable delay and post mortem examination of the deadbody had also been conducted with significant delay in the following afternoon. All these factors had pointed towards a real possibility that the murder in issue had remained unwitnessed and time had been consumed by the local police in procuring and planting eye witnesses and in cooking up a story for the prosecution."
13. Admittedly, the complainant Ghulam Farid (PW-10) and Mumtaz Ahmad (PW-7) are real brothers of the deceased. Their presence at the relevant time at the place of occurrence is also doubtful. Admittedly they are residents of a different place i.e. Basti Ghulam Farid Khan Aakooka, Tehsil Chishtian, District Bahawalnagar whereas the place of occurrence, the house of the appellant, is situated in Mauza Handala Khas, Basti Baghla, Police Station Fateh Shah, Tehsil Burewala. As per Mumtaz Ahmad (PW-7), his Basti is at a distance of about 04 K.M from Baghla (place of occurrence).
14. It is also noticeable that according to the prosecution' s version, the marriage of the deceased with the appellant took place 13/14 years before. Although they were issue-less but there is nothing on the record to suggest that they were leading a dog and cat life or prior to the alleged occurrence any other unpleasant incident had taken place, necessitating or compelling the real brothers of the deceased, to come forward for beseeching their sister and exhorting the appellant to live an amicable life by way of mending his ways. Neither complaint of torture has statedly been made by the deceased to her above named brothers i.e. the complainant Ghulam Farid (PW-10) and Mumtaz Ahmad (PW-7), prior to the occurrence, nor it has been asserted anywhere in the evidence by them.
Hence, in such circumstances, the acclaimed presence of these PWs at the place of occurrence, without any particular or tangible cause or object has created a serious doubt in mind of the Court for accepting their presence at the spot. It is also astonishing to note that none out of the two PWs has made any effort either to save the deceased or the injured PW Falak Sher (PW-9) from the alleged assault of the appellant, when he was not armed with any conventional weapon of offence rather he had inflicted the injuries only with an iron pipe. The perusal of post mortem examination report (Exh.PA) and the medico legal certificate (Exh.PG) of injured PW Falak Sher and evidence of the PW-6 and PW-8 respectively indicate that the deceased has received as many as four injuries i.e. three lacerated wounds and one mark of swelling on its temporal region. The injured PW Falak Sher had received as many as five blunt weapon injuries on his person. The above description of injuries allegedly caused by blunt weapon, according to the prosecution's case, on the body of the injured Falak Sher(PW-9) and the deceased has stirred up my judicious anxiety requiring to determine, whether the appellant could have inflicted these injuries on the persons of the deceased and the injured (PW-9) in presence of aforesaid PW-7 and PW-10, particularly when he was not armed with any conventional weapon of offence.
Record reveals that none out of these PWs either tried to intervene or make any tangible effort to overpower the appellant in order to save the deceased and the injured PW-9 from the assault of the appellant, thus their unnatural conduct and behavior hereinabove, cast serious doubt about their presence at the spot. Hade these two PWs (PW-7 and PW-10), real brothers of the deceased, been present at the spot, their blood must have stimulated and propelled them to intervene with immediate effect, without considering the result, for an appropriate action in order to save the life of their deceased sister. Moreover, the PWs were greater in number as compared to the appellant, who was alone. They could have easily overpowered him. But as observed earlier , their statute like behavior seriously has questioned their presence at the spot. The entire occurrence as stated by the prosecution, if seen through the prism of extra-ordinary delay in lodging the FIR, conducting the medical examination of injured PW-9 through medico legal certificate (Exh.PG) and the belated post-mortem examination over the dead body of the deceased vide report (Exh.P A) has further thickens the doubt about their presence.
15. After doubting the presence of PW-7 and PW-8, at the place of occurrence at the relevant time, there remains the only evidence of Falak Sher, injured (PW-9) available with the prosecution who has rendered the ocular account. According to the evidence of PW-6 Dr. Ambreen Fatima who had conducted the post mortem examination over the dead body , the deceased was about 30 years of age, which she noted at the time of her post mortem examination. The age of this PW Falak Sher according to his own statement, he made, while appearing as PW-9 in this case was about 28 years. His eviden ce has been scanned by me quizzingly . According to his deposition, "he alongwith Ghulam Farid, Mumtaz and Iqbal went to his house for asking him not to torture his wife Mst. Muniran Bibi deceased, who was d/o sister of his mother . But Muhammad Amin accused got provoked and inflicted an iron pipe on the head, legs, right arm, chest or Mst. Muniran bibi deceased. He also inflicted injuries with iron pipe on his forehead, right arm, on both legs, in result of which his right leg was fractured". In cross-examination, he deposed that "he resides at a distance of 7/8 k.m. from the house of Muhammad Amin accused. Whereas Ghulam Farid complainant and his brother Mumtaz reside at a distance of 05 k.m. from his house". He further admitted that "there are three rooms in the house of Muhammad Amin accused. His parents, sisters and brothers are also residing in the same house. It is correc t that Mst. Kamoon is the step mother of Amin accused. Although she resides in a separate IHATA but on the same THARA". He further deposed that "he received injuries in the hands of Muhammad Amin when he was inflicting injuries to Mst. Muniran Bibi inside the room." The above excerpts from the statement of Falak Sher (PW-9) indicate (since I have already disbelieved the presence of Ghulam Farid, PW- 10 and Mumtaz Ahmad, PW-7, the alleged eye witnesses of the occurrence.) that he is resident of 7/8 K.M away from the place of occurrence. He had no ostensible reason or business for his "legitimate presence" in the house of Muhammad Amin, appellant. It is a legal adage that sometimes telling a lie by a person is nullified by the circumstances. The pretended object and justification for his presence by Falak Sher at the place of occurrence is belied by the circumstances. Falak Sher (PW-9) has claimed that in-fact out of infuriation/provocation, the appellant started giving blows on the person of the deceased and when he tried to save her, the appellant also inflicted injuries on his person. Had there been one injury on the person of Falak Sher (PW-9), his claim could have been justifiable but according to the MLC (Exh.PG) and the deposition of PW-8 Dr. Fiyyaz Saleem, M.O, who medically examined him, Falak Sher had received as many as four injuries including a fracture. The number and gravity of injuries indicate that Falak Sher (PW-9) has not received the injuries, incidentally. It appears that this PW-9 has not received injuries on his person during the wake of his effort to save the deceased from the assault of the appellant, rather it shows that he had been inflicted injuries by the appellant out of some retaliation/reaction due to some extra ordinary reasons/circumstances. Had Falak Sher (PW-9) genuinely been making effort to save the deceased from the physical assault of the appellant, as claimed by him, the number of injuries on his person would have definitely been lesser than the injuries available on his person, therefore, it appears that the deceased as well as this PW-9 were "sailing in the same boat" at the time of receiving of injuries on their person at the hands of the appellant. It is trite law that the stamps of injuries on the person of a witness may establish his presence at the relevant time at a particular place of occurrence but the injuries itself are not the proof that whatever the witness is telling is the truth. It has been held in case titled "Shahid Ullah Vs. Eid Marjan and 2 others"(2014 PCr.LJ 1684) that:- "Mere stamp of injuries on the person of a witness would not be a proof of the fact that, wheatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise."
Reliance can also be placed upon case titled "Amin Ali and another Vs. The State "(2011 SCMR 323 ) that:-
12. Certainly , the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they are truthful witnesses or otherwise, because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses. It has been held in the case of Said Ahmed supra as under:- "It is correct that the two eye-witnesses are injured and the injuries on their persons do indicate that they were not self-suf fered. But that by itself would not show that they had, in view of the aforeno ted circumstances, told the truth in the Court about the occurrence; particularly , also the role of the deceased and the eye-witnesses. It cannot be ignored that these two witnesses are closely related to the deceased, while the two other eye witnesses mentioned in the F.I.R namely , Abdur Rashid and Riasat were not examined at the trial. This further shows that the injured eye-witnesses wanted to withhold the material aspects of the case from the Court and the prosecution was apprehensive that if independent witnesses are examined, their depositions might support the plea of the accused."
In the case of Mehmood Hayat supra at page 1417, it has been observed as under:- "10. There is no cavil with the proposition laid down in the case of Zaab Din and another V. the State (PLD 1986 Peshawar 188) that merely because the P.Ws. had stamp of firearm injuries on their person was not per se tantamount to a stamp of credence on their testimony . "
In the case of Mehmood Ahmed supra, this Court at page 7 observed as under:- "For an injured witness whose presence at the occurrence is not disputed it can safely be concluded that he had witnessed the incident. But the facts he narrates are not to be implicitly accepted merely because he is an injured witness. His testimony is to be tested and appraised on the principles applied for appreciation of any other prosecution witness."
13. From the above evidence of the P.Ws., they do not appear to be truthful witnesses; therefore, no implicit reliance can be placed on their evidence."
Moreover , the deceased and this PW-9, as observed, in the beginning of this paragraph, are almost of the same age grouping. It appears that they being "Khalazad" had something more than mere "acquaintance " with each- other , i.e. something moral and ugly, which unfortunately , the defence has not ably brought on the record. However , during the cross-examination over Falak Sher PW-9, the defence side, has put certain suggestions to this witness, though, he denied that he alongwith Mst. Muniran deceased was found in naked and compromising position in the area of Bhaini Farid Wali and thereupon, they both received injuries in result of torture of people of that vicinity ."
Keeping in view of the above, the injured PW Falak Sher had failed to furnish any "legitimate " explanation about his presence at the spot. Therefore, my judicial conscious does not permit me to act upon the sole testimony of Falak Sher (PW-9), who himself has compromised his moral integrity , thus reject his testimony being not reliable witness of the occurrence.
16. The Investigating Officer has also unfortunately not diligently conducted the investigation in this case. As noted above, he has failed to associate with the investigation any of the person from the locality to dig out the truth. Let me quote hereunder Rule 25(2) of the Police Rules 1934 which reads as under:- "25.2 Power of investigating officers.- (1) The powers and privileges of a police officer making an investigation are detailed in Sections 160 to 175, Criminal Procedure Code.
(2)
(3) It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.
The Investigating Officer undoubtedly is obliged to act fairly and honestly while collecting the evidence, always keeping in mind the avowed object of the criminal justice system, that "no guilty persons should go escort free" but at the same time, "no innocent person should also be punished ". Let me also express that keeping in view the mechanism/procedure and the empowerment of the Investigating Officer, under the law, he has a rare privilege and opportunity for having a visual touch with the scene of crime while investigating the case. He while recording the statements of PWs is not supposed to record their statements while acting as a "Stenographer " rather is obliged, as required under Section 161 Cr.P.C to "examine " the person whose evidence/statement he is going to record. But unfortunately , in the instant case, the Investigating Officer only had proceeded to join "the persons " in the investigation, who admittedly did not belong to the locality where the alleged occurrence has taken place.
17. So far as recovery of weapon of offence is concerned, according to prosecutio n's case, the weapon of offence i.e. iron pipe was allegedly recovered on pointing out of the appellant from underneath the cot lying in his residential room, vide recovery memo Exh.PB, which was not stained with blood. No corresponding report could have been procured to fortify the recovery i.e. weapon of offence. Since, I have disbelieved the peculiar account of the prosecution, therefore, the recovery of weapon of offence i.e. iron pipe, not stained with blood, loses its significance, cannot be relied upon. Even otherwise recovery is merely a corroborative piece of evidence to the ocular account, which has already been disbelieved.
18. A weak motive has been alleged/stated by the prosecution behind the offence allegedly committed by the appellant, which is not believable. It appears that the prosecution after groaping in the darkness had made a self- harm ef fort for putting forth a concocted motive which had nothing to do with the case.
19. The nutshell of the above discussion is that the prosecution 's case is not free of doubts, benefit of doubt has accrued in favour of the accused as the apex Court has held in case titled "Muhammad Khan and another Vs. State" (PLJ 2000 SC 1041) that it is axiomatic and universal recogniz ed principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in prosecution case must be resolved in favour of accused. Moreover it is cardinal principle of criminal jurisprudence that a single instance caus ing a reasonable doubt in the mind of Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right. Reliance is placed on case law reported as "Muhammad Akram versus The State" (2009 SCMR 230) and "Tariq Pervaiz Vs. The State "(1995 SCMR 1345 ).
Consequently , the instant appeal is allowed, the conviction and sentence awarded to the appellant by the learned trial Court, vide impugned judgment dated 25.3.2009 is set aside and the appellant is acquitted of the charge by extending him the benefit of doubt. The appellant is on bail. His surety is discha rged from the liability of his bail bonds.