AALIA NEELUM, J.---The appellants-Muhammad Asif and Muhammad Ramzan, both sons of Muham mad Tufail, caste Taily, residents of Kot Khushi Muhammad Mashmoola Jambar Kalan, Tehsil Pattoki, District Kasur , were involved in case FIR No.266 of 2013, dated 28.06.2013, offence under sections 302, 148 and 149, P.P.C., registered at Police Station Saddar Phoolnagar , District Kasur and were tried by the learned Additional Sessions Judge, Pattoki, District Kasur . The learned trial court seized with the matter in terms of judgment dated 28.02.2017 convicted the appellants under section 302(b), P.P.C. for committing 'Qatl-i-a md' of Dilawar-deceased and sentenced them to undergo Imprisonment for life each with the direction to pay Rs.2,0 0,000/- each as compensation to the legal heirs of the deceased in terms of section 544-A, Cr.P.C. and in case of default in payment thereof, they would further under go S.I for six months each. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellants.
2. Feeling aggrieved by the judgment of the learned trial court, the appellants have assailed their conviction through filing instant appeal bearing Criminal Appeal No.610 of 2017.
3. The prosecution story as alleged in the FIR (Ex.P A/A) lodged on the application (Ex.P A) of Liaqat Ali alias Malko (PW-1)-the complainant is that on 27.06.2013 at 06:00 p.m, the son of complainant namely Dilawar (the deceased) was coming from his field after getting the fodder of his buffalos and when he reached Changa Manga road near Jamia Raheemia Qadria, Muhammad Tufail was standing there. The son of the complainant (PW-1) asked him to leave the passage, upon which he felt bad, abused the son of the complainant and also extended threats of dire consequences and called his sons Asif and Ramzan (the appellants). Tufail also asked his sons to bring their companion and teach a lesson to son of complainant. Meanwhile, Asif (the appellant No.1) armed with hatchet, Ramzan (the appellant No.2) armed with iron rod and four unknown persons armed with clubs came there and started giving merciless beating to son of complainant (PW-1). On hearing the hue and cry, Muhammad Akhtar (PW-3) and Muhammad Anwar (PW-2), who were also following after taking fodder reached the spot and witnessed the occurrence. The accused persons were giving fist, kicks and iron rod blows to the son of the complainant. The witnesses while beseeching the accused, rescued the son of complainant. The accused persons fled away from the spot while leaving him in unconscious who was taken to Phool Nagar hospital through police docket from where he was referred to Jinnah Hospital, Lahore and on 28.06.2013, at about 1 1:00 a.m., succumbed to the injuries.
4. After registration of case, the investigation of this case was entrusted to Asif Ali Shah S.I. (PW-10), who having found the accused/appellants guilty , prepared report under section 173, Cr.P.C. and sent the same to the court of competent jurisdiction. On 19.12.2013, the learned trial court formally charge sheeted the appellants to which they pleaded not guilty and claimed trial. The prosecution in support of its version produced as many as ten (10) 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 appellants in the afore stated terms.
6. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record available on the file.
7. The occurrence had taken place on 27.06.2013 at 6:00 p.m. in the area of Jamia Raheemia Qadria, Changa Manga Morr, village Jamber Kalan, situated within the jurisdiction of Police Station Saddar Phool Nagar , Tehsil Pattoki, District Kasur which is at a distance of 1/2 kilometer only from the place of occurrence. Whereas FIR (Exh.P A/A) was got registered on 28.06.2013 at 02:00 p.m., on the written complaint (Exh.P A) of Liaqat Ali alias Malko (PW-1)-the complainant made on 28.06.2013 at 02:00 p.m. It is notable that occurrence took place at 06:00 p.m. and distance between the police station and the place of occurrence was 1/2 kilometer whereas Liaqat Ali alias Malko (PW-1)-the complainant took twenty (20) hours for reporting the incident to the police at Police Station, Saddar Phool Nagar , Tehsil Pattoki, District Kasur . The FIR (Exh.P A/A) was lodged by Liaqat Ali alias Malko (PW- 1)-the complainant after considerable delay of twenty (20) hours without explaining the said delay . Liaqat Ali alias Malko (PW -1) the complainant deposed during examination-in-chief that, "Both above mentioned witnesses rescued my son. We took him to RHC Phoolnagar where from he has been referred to Jinnah Hospital, Lahore. On 28.6.2013 at about 11:00 a.m. Dilwar joined the majority submitted application Ex.P A which bears my signatures before the police on the basis of which FIR No.266/2013 has been incorporated."
Liaqat Ali alias Malko (PW -1)-the complainant deposed during cross-examination that, "It is correct that in FIR and complaint it is not mentioned that we took the deceased to hospital while this has been mentioned in my examination in chief recorded before this Court."'
In the prosecution evidence there is serious flaw. So as to precisely fix the time when the deceased last breathed and passed away no evidence or material has been produced by the prosecution to prove the time when the deceased took his last breath. Dr. Muhammad Rizwan Shafie (PW-9) deposed about time of death of Dilawar contrary to the time deposed by Liaqat Ali alias Malko (PW -1)-the complainant during examination-in-chief that, "According to death certificate date and time of death 28.06.2013, at 11:45 a.m., according to police papers."
In this case, Dr. Amjad Kazmi, who conducted post mortem examination of the dead body of Dilawar , mentioned in the post mortem examination report (Exh.PF) that according to the death certificate of Jinnah Hospital, Lahore death occurred on 28.06.2013 at 11:45 a.m. However , the death certificate was not brought on the record by the prosecution. Even prosecution has no other records to show that medical aid was provided to Dilawar (then injured) at RHC Phoolnagar and wherefrom Dilawar (then injured) was referred to Jinnah Hospital, Lahore. Liaqat Ali alias Malko (PW -1)-the complainant during cross-examination that, "In, FIR and complaint through Dackit sending the deceased to RHC Phoolnagar is not mentioned."
In the post mortem examination report (Exh.PF) it was also mentioned that dead body was received in the dead house at 4:00 p.m. at 28.06.2013; police documents were received at 08:00 p.m. and thereafter post mortem examination upon the dead body was conducted at 08:30 p.m. on 28.06.2013. Dr. Muhammad Rizwan Shafie (PW- 9) deposed during examination-in-chief that, "The dead body received in dead house on 28.06.2013, at 04:00 p.m. The complete documents received from police on 28.06.2013 at 08:00 p.m. The postmortem examination was conducted on 28.06.2013, at 08:30 p.m."
Contrary to the documentary evidence and deposition of Dr. Muhammad Rizwan Shafie (PW-9), Asif Ali Shah S.I.
(PW-10) investigating of ficer deposed during cross-examination that, "I handed over the dead body of dece ased Dilawar Ali to Ahmed 576/C at about 4:30 pm for postmortem examination. Ahmed Ali 576/C escorted the dead body to mortuary THQ Hospital, Pattoki on ambulance."
Ahmad Ali 576/C (PW -5) deposed during cross-examination that, "Deadbody was handed over to me at about 4:00/5:00 p.m. on the said date. The time is not remember to me when I deposited the deadbody in the mortuary of THQ Hospital Pattoki."
These aspects create serious dents on the prosecution version, going to its roots. The First Information Report, in this case, was lodged after a delay of twenty (20) hours from the time of incident. From the above detailed examination and analysis of the prosecut ion witnesses and the documentary evide nce produced on record by the prosecution, it appears to me that various discrepancies, contradictions, omissions and infirmities are found in the oral as well as documentary evidence which create grave doubts with regard to the truthfulness of the prosecution witnesses and about genuineness of prosecution story . In Column No.1 of inquest report (Exh.PG) it was recorded that the dead body of deceased was lying at Changa Road, Jamber Morr at Jamb er Kalan. Under Column No. 24 of the Inquest Report (Exh.PG), sketch-plan where the dead-body is found is given. The drawing of the place prepared by the 1.0. where the dead-body was lying along with the writing, revealed that dead body was lying in front of Jamia Raheemia Qadria, Jamber Morr in the area of Jamber Kalan and not at Jinnah Hospital, Lahore. Asif Ali Shah S.I. (PW -10)-investigating of ficer deposed during cross-examination that:- "It is correct that in the inquest repor t Ex.PG Hospital is not mentioned anywhere in column No.24. It is correct that inquest report always prepared where dead body found."
Even at the bottom of Page 4 of the inquest report (Exh.PG) there is mentioned that same was prepared at Jamber Kalan, Changa Road. Whereas, in the column of brief history as per the inquest report (Exh.PG), it is mentioned that dead body was lying in the Jinnah Hospital, Lahore. This threw cloud of doubt about where dead body was lying and inquest report was prepared as well as the time when actually incident was reported to the police. Even Dr. Muhammad Rizwan Shafie (PW-9) deposed that on 28.06.2013 at 08:00 p.m. complete documents were received from the police. This aspect of the matter is sufficient to cast doubt about the authenticity of the FIR. This creates serious doubt about the genuineness of the prosecution story including presence of the complainant and eye-witnesses at the scene of occurrence. Liaqat Ali alias Malko (PW-1)-the complainant deposed during cross- examination that, "I have not shown the fodder being brought by deceased Dilwar to the police. No place was shown by me to the police from where Dilwar was bringing fodder for animals. I also did not show any instrument used for cutting fodder for animals. I also did not show any instrument used for cutting fodder to the police. I did not show to the police anything by which deceased was bringing fodder for cattle that however was present at the spot."
Muhammad Anwar (PW -2) deposed during cross-examination that:- "I told to the police that I was standing at the time and place of occurrence on said place. I was standing there after coming from my fields but regarding to coming from my fields and reason for standing there I have not deposed to the police. I have not shown to the police my agricultural land where from I was coming. I have not given any proof of my ownership of any agricultural land."
Similarly , Muhammad Akhtar (PW -3) deposed during cross-examination that:;, "I am uncle of the deceased.......... The distance between the place of occurrence and my house is about 2 to 3 acres......... I am cultivator . I have never provided any proof to the police regarding my ownership of any agricultural land."
From the deposition of Muhammad Anwar (PW-2) and Muhammad F Akhtar (PW-3) it reveals that they were chance witnesses.
Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. Considering all these facts, I have no hesitation in comin g to the conclusion that the prosecution has not been able to prove on record that the incident was reported at the time at which, it was claimed to have been recorded.
8. The motive established by the prosecution was not proved, which as alleged could not be considered against the appellant. Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan titled as "Mst. Sughra Begum and another v . Qaiser Pervez and others" (2015 SCMR 1 142).
9. The recovery of hatchet (P-3) at the instance of the appellantAsif and the recovery of iron-rod (P-4) at the instance of the appellant-Muhammad Ramzan were another incriminating circumstance that the prosecution has to prove. However , since the recoveries had been made from the courtyard of their Haveli Bhatti Wali. Asif Ali Shah, S.I. (PW-10) admitted during cross-examination that, "The place of recovery is an open place without gate. It is correct that hatchet and iron rod of common pattern are available in the market easily ." Muhammad Anwar (PW-2) deposed during cross-examination that, "The place where from recovery was affected has a door which was closed at that time. It was merely bolte d from outside. There was veranda at the place of recovery , but not fully covered. It is correct that hatchet and iron rod were of common pattern, easily available in open market." Similarly , Muhammad Akhtar (PW-3) deposed during cross-examination that, "The place where from recovery was affected has a door which was closed at that time. It was mere ly bolted from outside. There was veranda at the place of recovery , but not fully covered. It is correct that hatchet and iron rod were of common pattern easily available in open market. Owner of said place of recovery wasnot present at the said time." Even otherwise, it does not appeal to reason that the accused-appellants might have kept hatchet (P- 3) and iron-rod (P-4) with them intact in order to produce it before the Investiga ting Officer on their arrest. The accused-appellants cannot be expected to keep the hatchet (P-3) and iron-rod (P-4) in their use for a long period in their Haveli, when they fled away from place of occurrence and could have easily disposed of the same. Thus, recoveries of hatchet (P-3) and iron-rod (P-4) become doubtful.
10. As it is difficult to rely upon the testim onies of PW-1 to PW-3 and for other reasons enumerated hereinbefore, I am persuaded to hold that the prosecution had not been able to prove its case against the appellants beyond shadow of doubt as there were many dents in the prosecution story . As such the conviction and sentence recorded by the learned trial court cannot be sustained. Reliance has been placed on the case reported as "Muhammad Akram v. The State" (2009 SCMR 230) wherein the Hon'ble Supreme Court of Pakistan has held that even a single circumstance creating reasonable doubts in a prudent mind about the guilt of the accused persons makes them entitled to the benefit, not as a matter of grace and concession but as a matter of right.
11. The upshot of the above discussion is that the prosecution had badly failed to bring home charge against the appellants beyond any reasonable doubt, therefore, in the interest of safe administration of Criminal Justice, Criminal Appeal No.610 of 2017 filed by-Muhammad Asif and Muhammad Ramzan, appellants are accepted in toto. The conviction and sentence awarded by the learned Addl. Sessions Judge, Pattoki, District Kasur vide judgment dated 28.02.2017 is set aside and the appellants are acquitted of the charge in case FIR No.266 of 2013 dated 28.06.2013 offence under sections 302, 148 and 149, P.P.C. registered at Police Station Saddar Phool Nagar , District Kasur . The appellants-Muhammad Asif and Muhammad Ramzan are in jail. They (the appellants) are directed to be released forthwith , if not required in any other case.