AALIA NEELUM, J. The appellant-Muhammad Ali alias Muhammad son of Ali Hassan, caste Kamboh, resident of Gali No.4 Malik alias Malu Lone Wali, Mohalla Raitan Wala, District Gujranwala, was involved in case F.I.R. No.832 of 2010, dated 31.10.2010, offence under Section 302 P.P.C., registered at Police Station Model Town, District Gujranwala and was tried by the learned Sessions Judge, District Gujranwala. The learned trial court seized with the matter in terms of judgment dated 28.08.2012 convicted the appellant under section 316 PPC for committing 'Qatl-Shibhi-Amd of Muhammad Yousaf-deceased and sentenced to pay Diyat in the sum of Rs.2,532,073/- to the legal heirs of the deceased to their respective shares in inheritance. The appellant was also sentenced to undergo 10-years rigorous imprisonment as Tazeer . 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, the appellant has assailed his conviction through filing instant appeal bearing Criminal Appeal No.1607 of 2012.
3. The prosecution story as alleged in the F.I.R (Ex.P A/1) lodged on the statement of Mst. Surraya Bibi (PW-1)-the complainant is that on 31.10.2010 at about 05:00 p.m. Muhammad Yousaf, who was husband of complainant was coming to his house after doing his work and when he reached near the corner of street of his house, Muhammad Ali (the appellant) stopped him and demanded Rs.1200/- from him. On this, an altercation took place between them. On hearing noise, the complainant (PW-1) alongwith Muhammad Shabbir and her daughters Lubna and Atia (PW-2) attracted at the spot and they saw that Muhammad Ali (the appellant) was beating Muhammad Yousaf (the deceased) with fists and on their noise, the accused pushed the husband of the complainant (PW-1), who fell on the ground and became unconscious. In the meanwhile, Sarfraz Ahmad (PW-3) also attracted at the spot and witnessed the occurrence. The complainant party shifted Muhammad Yousaf to hospital in unconscious condition, where the doctor declared him dead.
4. After registration of case, the investigation of this case was entrusted to Muhammad Arshad S.I. (PW-12), 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 19.09 .2011, 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 twelve
(12) prosecution witnesses.
5. The learned trial court after recording evidence and evaluating the evidence available on record in the light of the 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.
6. Learned counsel for the appellant has contended that in absence of there being any injury; external or internal found on the person of the deceased, nothing could be attributed to the accused. It is also the contention of the learned counsel that medical opinion is amply clear that the death of the decea sed is on account of vasovagal attack and there are various reasons why such attack would be possible, and according to him, the Expert who had been examined had also so stated.
7. Learned Deputy Prosecutor General as well as Mian Shakeel Ahmad, Assistant Advocate General on Court' s call have urged that the cause of death is vasovagal attack and the same medically becomes feasible, if a person is put under a great tension or receives shock.
8. Upon thus hearing both the sides, at the outset, I need to examine the cause of death specified by the expert.
Admittedly , soon after the incident, Muha mmad Yousaf (the deceased) was move d to the hospital in unconscious condition, where Doctor inspected him and found dead. His postmortem was carried out by Dr. Nayyar Imran Haider (PW-5). Post mortem note does not show either external or internal injuries. The cause of death was kept pending till the report of viscera from Chemical Analyst is received. Eventually , when such report was received, the cause shown is heart failure on account of vasovagal attack. Dr. Nayyar Imran Haider (PW-5), in his court deposition has clearly opined that: - "According to the report from Histopat hologist bearing No.321 Lab:1074/2010 of Muhammad Yousaf son of Muhammad Latif is histological examination, atherosclerotic changes in the coronaries in Myo Cardium was unremarkable, so in my opinion death in this case was occurred by probably vasovagal attack until proved otherwise."
In the cross examination, this expert says that heart attack is also commonly known as vasovagal attack. Dr. Nayyar Imran Haider (PW5), deposed during cross-examination that: - "Atherosclerosis means deposit of different types of facts in coronaries as well as due to these material there is some enlargement of arteries and it may be called as swelling in arteries. It is correct that it is temporary loss of consciousness due to sudden flowing of heart attack. In other words Vasovagal attack means heart attack."
The person who had suffered vasovagal attack is seldom saved because hardly there remains any time for the treatment. Dr. Nayyar Imran Haider (PW-5) emphasized during examination-in-chief that on the body of the deceased, neither external nor internal injuries were found. Whereas, Surrayya Bibi (PW-1)-the complainant, widow of Muhammad Yousaf (the deceased), deposed during examination-in-chief that: - "After hearing noise I alongwith some other persons including Muhammad Shabbir , Sarfraz and my daughters Lubna and Atia also reache d at the spot and saw that Muhammad Ali accused present in court was beating my husband with fists which hit him on different parts of his body and then he pushed my husband who fell down and became unconscious there."
In the similar lines, Atia (PW-2) and Sarfraz (PW-3), daughter and son of Muhammad Yousaf (the deceased) deposed. The above said witnesses are not believable as no injury , bruise, abrasions, swelling, or contusion indicative of fist and kicks blows were found on the person of the deceased. No explanation has come-forth from any of the witnesses, and therefore, they are not believable as truthful witnesses. In absence of any corroborative evidence and the cause of death being vasovagal attack, the version of the complainant and others could not be believed. The deceased received vasovagal attack with no injuries and died on account of vasovagal heart attack.
In the medical parlance, the said attack is feasible with many possibilities, one of which is also blockage of artilleries, and therefore, the same cannot be exclusively attributed to the accused. While considering overall circumstances and facts the accused is not guilty of the offence of murder . The cause of death stated in the post mortem appears no nexus with the manner of assault done.
9. It has also been noted that in the post mortem examination report (Exh.PB) on the first page of the post mortem report serial number and date and time of death was written with different ink, similarly writing on the last page in the column No.V & VI (first three lines) and time lapse between death and postmortem was in different ink.
Therefore, gives rise to suspicion about the time of reporting the incident to the police. More significantly , the time of incident and reporting to police claimed by the prosecution becomes doubtful as in the inquest report (Exh.PD), which was prepared after 6:00 p.m. on 31-10-2010, Muhammad Mansha, S.I. (PW-10) the investigating officer has mentioned in Column No.3 of the inquest report (Exh.PD), time of receiving information about death as 5:00 p.m on 31-10 2010. This out rightly suggests that the FIR was ante-timed. This also shows that inquest report of the dead body of Muhammad Yousaf was not prepared at the time it is alleged to have been recorded. This also created doubt about the time of occurrence. I have also noticed that Muhammad Mansha, S.I. (PW-10)-the investigating officer moved application for post mortem examination of the dead body (Exh.PD/1) to the medical officer Civil hospital, Gujranwala on 31-10-2010, which was received in the Civil hospital, Gujranwala at 11:25 p.m. whereas FIR (Exh.P A/1) was registered at 6:15 p.m. on 31-10-2010. On account of the above said infirmities, the FIR has lost its value and authenticity and it appears that the same has been ante-timed and had not been recorded till the inquest proceedings were made over by Muhammad Mansha, S.I. (PW-10)-the investigating officer. 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. The upshot of the above discussion is that the prosecution has badly failed to bring home charge against the appellant beyond any reasonable doubt, therefore, in the interest of safe administration of criminal justice, Crl.
Appeal No.1607 of 2012 filed by Muhammad Ali, appellant is accepted in toto. The conviction and sentence awarded by the learned Sessions Judge, District Gujranwala vide judgment dated 28.08.2012 is set aside and the appellant, Muhammad Ali son of Ali Hassan is acquitted of the charge in case F.I.R. No.832/2010, dated 31.10.2010, offence under Section 302 P.P.C., registered at Police Station Model Town, District Gujranwala. The appellant-Muhammad Ali is on bail, therefore, his sureties stands discharged.