' The present criminal appeal calls in question the legality and propriety of the judgment dated 12- 24991, whereby Shaukat Javed Farooqi, Judicial Magistrate Section 30, Lahore Cant. Lahore, convicted the appellant under section 307, P.P.C. And sentenced him to 7 years' R.I. And a fine of Rs,25,000 or in default thereof to further undergo R.I. For one year. Half of the fine if realized was directed to be paid to the injured P.W., Mst. Nighat Javed, as compensation.
2. The prosecution case as stated in the F.I.R. Exh.PA./1 registered at Police Station Sarwar Road, Lahore Cantt. On 27-2-1990 at 12-20 p.m. Under section 307/325, P.P.C. At the instance of Irfan All P.W.1, was to the effect that on the fateful day at 12-15 p.m. He heard the voice of a lady calling for help from the neighbour's House No,2/31; and that on peeping into the said bungalow, he noticed an unknown person giving blows with an iron wrench on the person of the lady i,e. Mst. Nighat Javed, falling on the ground; and that on his raising Lalkara, the said accused ran way towards the main gate of the said house. The complainant, P.W.1 had claimed to be the orderly of an officer i,e.
Captain Idnan Qaisar, who was the next door neighbour in the House No,3/31 Sarwar Road, Lahore Cant of the injured Mst. Nighat Javed. It was further stated therein by the complainant P.W.1 that after getting assistance from a nearby police station he had entered the bungalow of the injured P.W. And that at the said time motor-cycle No,LER/8463 was parked outside the said bungalow and that on entering the said bungalow the injured P.W. Was found trying to enter the drawing room from the back compound where a motor pump was on and that he had helped her to sit in a chair and that on the direction of the injured P.W., he had switched Off the main switch and had rung up her husband, Javed, who had removed her to the hospital on reaching the place of occurrence.
3. To prove its case, the prosecution had examined six witnesses. P.W.1 Irfan Ali, the complainant, had deposed that on 27-2-1990 at 12-15 p.m he had heard a lady shouting 'save"save', whereupon he had looked over the adjacent wall and noticed that the injured P.W. Had fallen on the ground and the accused/appellant was causing injuries with wrench P.1 on her head; and that on his raising Lalkara, the accused had left the injured P.W. He further stated that he had rusehd towards the main gate but the accused had not come out as yet and that, therefore, he had rushed towards the police station, but noticed no one there and rushed back to the place of occurrence and found the door opened and entering into the said Bungalow No,2/31 noticed the injured P.W.
Standing while bleeding from head injury; and that he had helped her in sitting in a chair and had switched off the main switch on her direction; and that after some time Javed, the husband of the injured P.W. Had reached there and removed her to the hospital. Further stated that while proceeding to the poli e station he met the police at 'Zakir Tikka Shop' and recorded his statement Exh.PA. Further stated that the police had accompanied him to the spot and had secured the motor-cycle No,LER-8463 vide memo. Exh.P.B.; and that he had attested the same. Further stated that he had noticed the accused causing one blow with wrench on the head of the injured P.W.; and had further stated during his cross-examination that the police station Sarwar Road was situated at the distance of 20 feet across the road from the place of occurrence.
4. P.W.2, Dr. Naveed Anjam C.M.O. Services Hospital, Lahore, had deposed that on 27-2-1990 at 12-50 p.m. Mst. Nighat Javed was brought by Javed Adnan. She was semi-unconscious and not well- oriented in time and space. He medically examined her and found the following injuries on her person:--
(a) A lacerated wound 3 inches long 1/2 inch deep on top of the head.
(b) A lacerated wound 5" long curved on top of head on right side of injury No,1.
(c) A lacerated wound 2" long on back of head below injuries Nos.1 and 2.
(d) A lacerated wound 1" long over the forehead just above the left eyebrow.
' All the four injuries were fresh, caused by blunt weapon and were kept under observation. He referred the case to the Surgical Special Unit and from there, under his intimation, the case was referred to Lahore General Hospital, Lahore. Exh.P.C. Is the correct carbon copy of the medico-legal report written and signed by him.
' Later on, after consulting operation notes received from Neuro Surgeon Lahore General Hospital and X-ray Report from Radiologist of Services Hospital, Lahore, vide report Exh.P.C./1, he declared injuries Nos.2 and 3 as grievous because of depressed fractures of skull; and the other injuries were found simple.
5. P.W.3, Muhammad Afzal son of Muhammad Siddique, stated that on 12-3-1990 the police associated him, when Zahid Niaz accused got iron wrench P.1 recovered from his father's house situated in Mian Meer Colony. The wrench was taken into possession vide memo. Exh.P.E. And he signed the same.
6. P.W.4, Mst. Nighat Javed, injured, had testified to the effect that on 27-2-1990 at about 11-40 a.m.
She was marking papers in her house, when on hearing the call bell, she opened the door for the accused, who had come to check the water pump; and that after a little while the accused had informed that he had repaired the machine and on his insistence she had gone out to check the same; and that at that time the accused gave a blow with wrench on her head and after her falling down had repeated blows on her head; and that on her raising alarm, Irfan orderly, had noticed the incident from the adjoining wall and raised Lalkara and reached there, whereafter her husband, Javed, had reached there and removed her to the hospital, where she remained admitted for 14 days and where her statement was recorded by the police. She had further stated that the accused had wanted to loot her house after killing her. She had repelled the suggestion that she had received an electric shock, during her cross-examination.
7. P.W.5, Malik Shah Nawaz, Inspector, had stated that on 3-3-1990 he recorded statement of injured P.W. And later on arrested Zahid Niaz accused. The rest of investigation was conducted by Hadayat All Sub-Inspector. P.W.6, Malik .Hadayat Ali, Sub-Inspector, had stated that on 27-2-1990 he alongwith Faryad All and Manzoor Ahmad constables was present at 7akir Tikka Shop, when complainant Iran got his statement Exh.P.A. Recorded. He sent the complaint to the police station, on which formal F.I.R. Exh.PA./1 was recorded by Muhammad Amin Moharrir and he identified his handwriting. After that he reached the place of occurrence, prepared the site plan Exh.P.F., secured Motor-cycle Yamaha No,LER/8463 vide memo. Exh.P.B. And entrusted the investigation to Malik Shah Nawaz Inspector. Again on 8-3-1990 investigation was transferred to his files and he interrogated the accused and on 12-3-1990 he succeeded in recovering weapon of offence, iron wrench, from the residence of accused on his pointing out in the presence of witnesses, vide memo.Exh.P.E.
8. After hearing the learned counsel for the appellant and the State, the Court has taken notice of the fact that according to the prosecution the complaint in question was lodged within five minutes of the occurrence, as the time stated for the lodging of the complaint is 12-20 p.m., whereas the occurrence is alleged to have taken place at 12-15 p.m. In this respect further notice was taken of the fact that according to the complainant P.W.1, Irfan Ali, himself, he had at first rushed to the police station, but finding no one present there, had come back to the place of occurrence, helped the injured P.W. To sit in a chair, switched off the main switch on her direction and rang up her husband Javed, and thereafter while once again on his way to the police station he had come across the police at Zakir Tikka Shop; and that on that point of time his complaint Exh.PA. Was recorded by P.W.6, Malik Muhammad Ali, Sub-Inspector, on the basis of which the formal F.I.R. Exh.PA./1 was lodged. Therefore, the claim of the prosecution that the complaint was lodged within five minutes of the occurrence is highly improbable and it raises serious doubt as to the truthfulness of the time of record of the complaint and the possibility in respect of the same having been lodged after pre-meditation and/or preliminary inquiry cannot be ruled out.
Furthermore, whereas the injured P.W.4, Mst. Nighat Javed's injuries Nos.2 and 3 were stated to be grievous on the basis of the operation notes received from Neuro-Surgeon, Lahore General Hospital, Lahore and X-ray reports from the Radiologist of Services Hospital, Lahore, vide report Exh.P.C./1, yet neither the Surgeon nor the Radiologist in question had been produced as witness, to support the same; and that as-such failure of the prosecution to do so, leaves a grave lacuna in its case as charged. Further notice has been taken of the fact that the recovery witness P.W.3, Muhammad Afzal, a Sui Gas Contractor was working under the administrative control of Javed Inaam, Sales Manager Sui Gas, who was the husband of the injured P.W. And as such he was not an independent witness and that in this respect even the learned trial Court had remarked that even if the statement of the P.W.3 was excluded from consideration for the said reason, it shall not be material and important for the reason that the nature of injuries were sufficient to indicate kind of weapon by which the injuries were caused. However, the Court is constrained to point out that the observation of the'learned trial Court is totally in conflict with the established principle that the nature of injuries by itself cannot lend corroboration to the recovery of the weapon alleged to have been used. Similarly, the observation of the learned trial Court to the effect that the failure of the prosecution to produce the Neuro-Surgeon or the Radiologist does not harm the case of the prosecution and that the prosecution was not bound to examine them; and that as to why the defence failed to examine them as Court-witnesses or defence witnesses, is in grave disregard of the time-honoured principle that the burden to prove the charge shall always be the responsibility of the prosecution; and that its failure to do so shall always go in favour of the accused.
Regrettably, the learned trial Court has opined in the same manner in respect of the prosecution's failure to recover and produce the blood-stained clothes and the blood-stained earth. However, it is hereby held that the failure of the prosecution, as detailed above, amounts to its failure to prove the charge against the appellant.
9. Pursuant to the above discussion, it is hereby held that the prosecution had failed to prove its case beyond reasonable doubt against the appellant, therefore, while extending the benefit of doubt thus arising to the appellant, the present criminal appeal is hereby allowed, the impugned judgment is set aside and the appellant is hereby acquitted of the offence charged. He shall be released forthwith, if not required to be detained in any other case.