The appellant- Muhammad Azam son of Abdul Ghafoor , caste Arain, resident of Chak No. 2/D, Tehsil Depalpur , District Okara was involved in case F.I.R. No. 258 of 2012, dated 12.07.2012, offence under Section 302/34, P.P.C., registered at Police Station Hujra Shah Muqeem and was tried by the learned Addl. Sessions Judge, Depalpur , District Okara. The learned trial Court seized with the matter in terms of judgment dated 20.11.2015 convicted Muhammad Azam (the appellant) under Section 302(b), PPC for committing `Qatl-i-Amd' of Mst. Sakina Bibi- deceased and sentenced him to undergo imprisonment for life with the direction to pay Rs. 1,00,000/- as compensation to the legal heirs of the deceased and in case of default in paymen t thereof, to further undergo 06- months simple imprisonment. The benefit of Section 382-B, Cr .P.C. was also extended in favour of the appellant.
2. Feeling aggrieved by the judgment of the learned trial Court, Muhammad Azam, the appellant has assailed his conviction through filing instant jail appeal bearing Criminal Appeal No. 1 100-J of 2015.
3. The prosecution story as alleged in the F.I.R (Ex.P A/1) lodged on the statement (Ex.P A) of Ghulam Nabi (PW-1) is that his sister namely Sakina Bibi was got married with Muhammad Azam (the appellant) 14/15 years ago and out of their wedlock, four children were born. One month prior to the occurrence, Azam (the appellant) visited his (PW-1) residence and borrowed Rs.4,00,000/- with the request that he had to purchase agricultural land and had to make payment of said land. On 12.07.2012 at about 4:30 a.m, the complainant (PW-1) alongwith Muhammad Ishaq and Muhammad Ramzan visited the house of Azam (the appellant) situated at Chak No. 2/D for taking back the said borrowed amount. When they reached the door of the house of Muhammad Azam (the appellant), they heard hue and cry coming out of the house. They knocked the outer door but none opened the door. Upon that, they forcibly opened the door and saw that Mst. Sughran Bibi (co-accused since acquitte d) was holding his (PW-1) sister from after both arms and Azam ( the appellant) was pressing the throat of his sister with the help of rope.
They raised hue and cry. Muhammad Azam (the appellant) who was armed with pistol 30-bore alongwith his co- accused Mst. Sughran Bibi made his escape good from the place of occurrence while passing the threat of dire consequences.
4. The motive behind the occurrence was that Mst. Sakina Bibi (deceased) was insisting the accused to return the borrowed amount to the complainant.
5. After registration of case, the investigation of this case was entrusted to Waris Ali S.I. (PW-7), who having found the accused/appellant guilty , prepared report under Section 173, Cr.P.C. and sent the same to the Court of competent jurisdiction. On 22.10.2012, the learned trial Court formally charge sheeted the appellant to which he pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as nine (09) prosecution witnesses.
6. The learned trial Court after recording evidence and evaluating the evidence available on record in light of arguments advanced from both sides, found the prosecution version proved beyond any shadow of reasonable doubt, which resulted into conviction of the appellant in the afore stated terms.
7. Arguments advanced from all corners have been heard. I have also gone through the record available on the file with the able assistance of learned counsel for the appellant as well as the complainant and State.
8. In the instant case the occurrence had taken place on 12.07.2012 at about 4.30 a.m, whereas inter-se distance between the place of occurrence and the police station is 16 kilometers whereas in the instant case incident was not reported at Police Station rather Waris Ali, S.I. (PW-7) on receiving information about the incident at police station proceeded to the place of incident i.e village 2-D at the house of the accused, who recorded statement of Ghulam Nabi (PW-1)- the complainant (Ex.P A) endorsed the Police Karvai" at 12.15 p.m on 12.07.2012 and referred the same to the Police Station for lodging of formal F.I.R. The complainant has not reported incident soon after the occurrence and after seven hours and forth-five minutes the police itself reached the spot. Whereupon the complainant got recorded his oral statement. From the prosecution evidence it reveals that the complainant (PW-1) did not go to police station for reporting the incident to the police. Waris Ali S.I. (PW-7) deposed during cross- examination that:-- "As soon as I received the information about the occurrence at police station, I immediately proceeded to the place of occurrence. Accordingly to the column No. 4 of the FIR, the distance between police station Huira Shah Moqeem and the place of occurrence is 16- KM....According to the police proceedings (karwai police) on Ex.P A, I mentioned the time as 12:15 P.M. I visited the place of occurrence on official vehicle. I reached at the spot within 45-minutes. According to the police proceedings, I reached at the place of occurrence, after receiving the information about the occurrence. According to the police proceedings on Ex.P A, this information was not referred by Ghulam Nabi complainant."
So, there was inordinate delay of seven hours and forty-five minutes in lodging the F.I.R. Even the complainant had not given any explanation regarding delay in lodging the report and in his statement before the learned trial Court, therefore, in these circumstances chance of consultations and deliberations, on the part of the complainant, cannot be ruled out. It creates first dent in the prosecution case.
9. The ocular account has been furnished by Ghulam Nabi (PW-1)-the complainant and Muhammad Ishaq (PW-2).
It is in the evidence of Ghulam Nabi (PW-1)-the complainant, that he is brother And Muhammad Ishaq (PW-2) is brother-in-law (bahanoi) of Mst. Sakina Bibi-deceased. It is the prosecution version that the complainant as well as witnesses are not resident of village 2-D. The complainant Ghulam Nabi (PW-1) during course of cross- examination admits that his residence is at a distance of 35/40 kilometers from the place of the occurrence and Muhammad Ishaq (PW-2) resides at a distance of 15/16 kilometers. House is situated in village Mastuwal.
Muhammad Ishaq (PW-2) states during cross-examination that sun rises at 5 a.m. in the month of July. It is the prosecution's case that Ghulam Nabi (PW-1)-the complainant had reached the house of his sister in the earlier hours of the day at 4:30 a.m. before sunrise to ask his brother-in-law (Muhammad Azam-accused) to return his amount i.e. Rs.4,00,000/-, borrowed by him (Muhammad Azam-accused) before one month for purchase of land.
Then they saw the incident. It is astonishing to notice that at this point of time that for demanding borrowed amount Ghulam Nabi (PW-1)-the complainant traveled 35/40 kilometers and reached his sister's house at 4:3G a.m. What was the motive for such incident except alleging that deceased insisted to return borrowed amount. No casual or direct connection could be established by the prosecution between the motive and the incident. Waris Ali S.I. (PW- 7) deposed during cross-examination that: "Complainant has not produced any documentary roof about 4-lacs which he recorded to the motive portion of the FIR, nor any witness was produced during the course of investigation. During investigation complainant has not passed any information as to when and where the amount of Rs.4- Iacs was given to the accused, During investigation, complainant failed to aovide an substant ial roof about the payment of Rs.4-lacs."
In view of such facts, the presence of the complainant and the witness at the spot at the relevant time becomes doubtful. Admittedly , the incident took place at village 2-D and Ghulam Nabi (PW-1)-the complainant and Muhammad Ishaq (PW-2) could not justify their presence at the spot. In this background, presence of the alleged eye-witnesses on the spot seems to be doubtful, particularly in the circumstances that in the inquest report (Exh.PG) the names of Ghulam Nabi (PW-l)-the complainant and Muhammad Ishaq (PW-2) have not been mentioned. The inquest report (Exh.PG) is not signed by even Ghuldin Nabi (PW-1)-the complainant or Muhammad Ishaq (PW-2), although the investigating officer-W aris Ali S.I. (PW-7) has categorically asserted that he recorded statements of the complainant and witnesses at the spot. The absence of those details is indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR was recorded later on after due deliberations and consultations and was then ante timed to give it the color of a promptly lodged FIR. The second external check equally important is the sending of the copy of the FIR along with the dead body for post- mortem examination and its reference in the inquest report (Exh.PG). The absence of these details in the inquest report may be indicative that the FIR was not registered and the FIR was recorded later on after due deliberations and consultation. In the inquest report (Exh.PG) it was mentioned as under: {{URDU TEXT}} On account of the above said infirmities, the FIR has lost its value and authentici ty and it appears that the same has been ante timed and had not been recorded till the inquest proceeding was over at the place of occurrence by the investigating officer-W aris Ali S.I. (PW-7). It would seriously and adversely affect the prosecution story . This by itself is sufficient to create a serious doubt about the prosecution story that till the time of the inquest proceedings FIR was not in existence. So no reliance can be placed on such testimony to establish the guilt of the appellant, which would form the basis for conviction.
10. There is another aspect of the case, the post-mortem of the dead body of Sakina Bibi-the deceased was conducted on 12-07-2012 at 09:00 2 p.m. by Dr. Yasmin Manzoor (PW-6). This Court has also noted that post- mortem examination report (Exh.PD) reveals that probable time between death and post-mortem was 16 to 17 hours. There is no plausible explanation as to why post-mortem of the dead body was delayed for 16 to 17 hours.
This aspect of the matter is sufficient to cast doubt about the authenticity of the F.I.R. This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence.
Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought.
11. Another important fact of the case is that according to "Karwai Police" of the F.I.R. Exh.P A/1, it was mentioned by Waris Ali, S.I. (PW-7) that he recorde d statement of the complainant at the spot and sent the oral complaint (Ex.P A) to police S station through Muhammad Aslam 401/C (not cited as witness) for registration of formal F I R Whereas, Ghulam Nabi (PW -1)-the complainant deposed during cross-examination that: "I filed an application for registration of this case at 12:00 noon on the day of occurrence. I visited the police station after filing the above said application for 2/3 times. After registration of the case post- mortem was conducted on the dead body of my sister and then we proceeded to our village with the dead body of my sister ."
Similarly , Shaukat Ali, A.S.J. (PW -4) deposed *during cross-examination that "Stated that on 12.07.12 I was posted as Duty Officer , at P.S Huira Shah Maqeem. On the same day a written' application Ex.P A was handed over to me by Waris Ali, SI, through Muhammad Aslam 1401/C, on which I chalked FIR No. 528/12 Ex.P A/1 without any addition and omission on my part."
If deposition of Ghulam Nabi (PW-1)-the complainant and Shaukat Ali, A.S.I. (PW-4) is correct then said application for registration of case document was not brought on the record whereas statement of the investigating officer- Waris Ali S.I. (PW-7) is contrary to the statement of Ghulam Nabi (PW-1)-the complainant and Shaukat Ali, A.S.T .
(PW-4). This creates serious doubt about the genuineness of the prosecution story including presence of the complainant at the scene of occurrence.
12. After considering the facts and circumstances of the case and taking into consideration, the material on record and the evidence adduced in the trial, I am of the view that prosecution , has failed to bring true facts before the Court. The story of incident is highly doubtful, the witnesses are not trustworthy .
13. Resultantly Criminal Appeal No. 1100-J of 2015 is accepted Conviction and sentence recorded by the learned trial Court vide judgment dated 20.11.2015 is set aside as a consequence whereof, Muhammad Azam appellant is ordered to be acquitted of the charge in case F.I.R. No. 258 of 2012, dated 12.07.2012, offence under Section 302/34, P.P.C. registered at Police Station Hujra Shah Muqeem, District Okara and he is directed to be released forthwith, if not required in any criminal case.