MUHAMMAD AMIR MALIK, J.- Mansha (16/17) appellant was tried by learned Addl. Sessions Judge Sheikhupura, for the murder of Muhammad Younas (22) deceased and vide judgment dated 24.2.1991 convicted under Section 302 PPC and sentenced to imprisonment for life and a i.e of Rs.5000/- or in default thereof one year's R.I. He was also ordered to pay a compensation of Rs.
10,000/- to the legal heirs of the deceased or in default thereof six months, R.I. He has appealed.
2. The occurrence took place in the area of Chah Gujranwala at a distance of 2 acres from Police Station Sharapur at U.Q0 Pro. On 10.10.1987 just outside the house of his (the deceased's) father Muhammad Siddique complainant (PW.1). He was taken to Mayo Hospital on the same night where he was medically examined by Pr. Ghias un Nabi (PW/10) at 239 a.m. On 11.10.1987. His condition was unsatisfactory and was in a state of shock. He was having an incised longitudinal wound on the left costal margm to the left upper outer quadrant of abdomen 5 cm x 3 cm, omentum protruding out from the wound with corresponding cut on the shirt.
3. The injured died in the hospital on the next night and his post mortem examination was performed by Dr. Wasee Ahmad PW (not produced) on 13.10.1987 at 10.30 a.m. Post mortem report (Ex.PC) has been proved by Muhammad Shah Record Keeper (PW.9).
4. Muhammad Siddique complainant reached bus-stand Sharapur on 12.10.1987 and made statement (Ex.PA) at 9.00 a.m. To Mujahid Abbas Inspector (PW. Ll) and on its basis formal F.I.R.
(Ex.PA/1) was registered at 9.10 a.m. By Muhammad Iqbal A.S.I. (PW.7).
5. The version given in the F.I.R, was that about 5/6 days before the occurrence the deceased had a quarrel with the appellant, the latter was given kicks and fist blows, they had been separated and the appellant had left throwing a threat of revenge. The father of the deceased even went to seek forgiveness from the appellant and his father but to no avail.
6. The version proceeds that on the night of occurrence it was the betrothal ceremony of the deceased at the house in which Maula Bukhsh (PW.2) the uncle of the complainant and Muhammad Sharif (given up PW) the unde of the deceased were present. After the ceremony V.C.R, was on and at the fateful time, the deceased went out to ease himself. He was confronted by the appellant armed with a dagger who raised a lalkara and gave a strike in the abdomen attracting the complainant, Maula Bukhsh and Muhammad Sharif PWs but he ran away with the dagger and the deceased fell down. He was taken to the Mayo Hospital.
7. The appellant at the close of the trial pleaded that the deceased was injured in the darkness of night by somebody and he had been falsely involved just be the suspicion.
8. The prosecution case rests upon the medical evidence, the eye-witness abount given by Muhammad Siddique and Maula Bukhsh (PWs. 1 and 2) and the ive stated by the former.
9. Learned counsel for the appellant has contended that the F.I.R, was 'innately delayed, the police station being just two acres from the spot there to reason why the police should not have been informed and rather, Hng to him, the police had not only been informed but it was the S.H.O. f who had escorted the injured to. The hospital and the case was later on up. After hearing him and the learned counsel for the State and going the record there seems to be much force in the contention.
Dr. Ghias-ul-Nabi (PW.10) has admitted in cross-examination that of the medico legal report was handed over to Muhammad Yar A.S.L of Police station sharaqpur. He also informed that the injured was produced before him by the police for medical examination and one sadar. The sardar has not been cited in the calendar nor produced at the trial. The medical report (EX.PD) clearly shows that the decased when he reached in the hospital in injured condition was accompanied by sardar son of noora and Mujahid abbas S.H.O Not only this but the number of the F.I.R. i.e. 268 is also mentioned. How this F.I.R. number could have been mentioned on 11.10.1987 at 2.39 a.m. while actually it was registered on 12.10.1987 at 9.10 a.m. The copy of the medico legal report according to Ex.PD was received by Muhammad Yar A.S.I. The conclusion is therefore, in escapable that the police knew about the occurrence, the eyewitnesses cited in the F.I.R, including the complainant himself were not with the injured in the hospital and so unless there is strong corroboration the two cannot be believed. No blood stained earth was recovered from the spot. The statements of the two eye-witnesses are also contradictory. Siddique complainant (PW.1) stated that Allah Ditta and Sharif had separated the appellant and the deceased in the quarrel but the two have not been cited nor examined. He also stated that he had informed Naseer Qazi in the matter of quarrel but Qazi has also neither been cited nor produced. According to him a V.C.R, was on in their Have consist of two kanals when the deceased went out and it was on his alarm that the witnesses reached. He could not say what sort of film, whether, Panjabi, Urdu or English was on, except that he was enjoying the same. It is also in his statement that Maula Bukhsh had reached from his house and Sharif as well which were 15 and 10 miles from the spot. He claimed that Maula Bukhsh, Sharif and he had taken the injured to the hospital at Lahore, but none of them finds mention in the medico legal report. He also told that Younas went unconscious at the spot and had had no talk with him. He also told that no person from the adjoining houses reached the spot. He denied that Mujahid Abbas S.H.O, was with them when the injured was taken to the hospital. According to him the deceased was betrothed to Mst. Safia daughter of Nazeer of Lahore, but Maula Bukhsh told that it was the daughter of one Karamat with whom the engagement was performed and he could not name the girl. According to Maula Bukhsh presents had been given to the deceased in the betrothal ceremony but to the contrary is the statement of the complainant himself. Both the eye- witnesses denied that Mst. Safia was abducted by the deceased and perhaps it was that family who had stabbed him in the darkness of night. Of course it is clear from the statements of the two that the appellant is also a near relative of the complainant but in view of what has been discussed above they cannot be believed to bring home the charge entailing imprisonment for life unless there is corrobaration but there is nothing on the record to corraborate the same. Rather the deceased seems to have been taken to the hospital by the police and the assailant was not known and the version was later on cooked up.
11. The upshot is that the apppellant is granted the benfit of doubt and acquitted of the charge. His appeal is accepted and the convisition and sentence are herey set aside. He be set at libety forth with if not required to be detained in any other case.