Amir alias Shami, the convict-appellant and his brother Mehmood were tried on charges under section 307/34, P.P.C. Arising out of F.I.R. No.138 dated 2-6-1987 registered at Police Station Kirana, District Sargodha. Vide Judgment dated 29-4-1993, the trial Court acquitted Mehmood and convicted Amir alias Shami, under section 307, P.P.C. And imposed a sentence of 5 years' R.I. And a fine of Rs.10,000 only. In default of payment of fine he was ordered to further undergo one year's R.I.
The convict was, however, given the benefit of section 382-B, Cr.P.C. This is first appeal by convict from jail.
2. Mr. Akhtar Ali Kureshi, Advocate representing the State was, however, asked to argue the case for defence also which he has competently done. The case of the prosecution as unfolded in the F.I.R.
Is that on 28-5-1987, Muhammad Khan, the injured had summoned persons from outside for thrashing his wheat. Safdar son of Fazal Ahmad was one of such persons. While Safdar was waiting outside the house of injured, Muhammad Khan, the convict --appellant, came there and admonished the said Safdar saying that (Safdar) has earlier abused' his servant. Both started quarrelling and abusing each other, Muhammad Khan, injured P.W.9 came out and intervened on the side of Safdar which annoyed the convict who picked up Sua from nearby shop of Ramzan and delivered one blow on the left side of the chest of Muhammad Khan, injured P.W.9. He fell down. His son Muzammal was removing him to the hospital when on the way, one again Amir alias Shami, the convict armed with Barchi alongwith his real brother Mehmood armed with Lathi came there and attacked Abdul Rauf. In the attack Amir alias Shami is alleged ' to have given Barchhi blows to Abdul Rauf. This occurrence taking place on 28-5-1987 was reported to the police on 2-6-1987. Both the accused were charged under sections 307, 34, P.P.C. On two counts and both pleaded not guilty to the same.
3. Prosecution examined as many as 10 witnesses in support of its case. The material witnesses, however, are Anwar, P.W.1 son of the injured, Muzammal, P.W.5 son of the injured and the complainant P.W.9, Muhammad Khan the injured himself. Abdul Rauf, the alleged victim of the second occurrence was examined as P.W.8. Since the doctor was not available, the dispenser who worked with him was called as Court-witness and this witness proved the Medico-Legal Report of injured, Muhammad Khan as Exh.P.C.. While the report regarding Abdul Rauf, injured was proved as Exh.P.D the remaining witnesses are formal (constables and Investigating Officers). In their statements, the accused denied the charges and pleaded false implication.
4. Learned trial Court devoted most of the judgment to reproducing the evidence. The case of Mehmood was discussed in para. 9 and he was acquitted on the ground that it was admitted by P.W.9 in cross-examination that the left hand of Mehmood was defective. Similar admission was made by Munir Ahmad, P. W.2. The case of present convict was discussed in paragraph 10 and the trial Magistrate, after simply recording that prosecution has successfully proved its case against this accused and that all P.Ws. Have corroborated each other on all material points, convicted and sentenced him, as noted above. The learned State Counsel has rightly objected to the manner in which the judgment has been written. According to him the basic points arising out of the facts of the present case have not been touched at all by the trial Court.
5. With the assistance of the learned counsel I have examined the case. After review of the evidence, I have come to the conclusion that the conviction of the appellant cannot be maintained. To begin with, there is a delay of about 5 days in lodging of the F.I.R. And the only reason given is that the matter was being compromised and it was only after the failure of the compromise that the case was reported. This hardly is a sufficient explanation for delay.
Compromise, if any, could have been arrived at after recording of the F.I.R. Also. This delay has assumed importance in view of the other reasons, which are detailed below.
6. It is a peculiar feature of the case that all the witnesses are very closely related to the injured. In fact all of them are sons of injured although it is not, the case of the prosecution that occurrence has not taken place in an open area accessible to public or that persons around were requested but they declined to become witness. Even Ramzan, the shopkeeper from whose shop the Sua is claimed to have been picked up by convict has not been produced. It has not been explained by the prosecution as to why Ramzan has not been produced. It is not even clear whether he was associated in the investigation at all.
7. By far the most serious lacuna in the prosecution case is that the medical evidence does not support the prosecution case. Exh.P.C., the medico--legal report of Muhammad Khan states that Muhammad Khan. P.W.9 suffered one lacerated wound 1 c.m. x 1/2 c.m. On left side of the chest, caused with a blunt weapon. This completely negates the prosecution allegation that Muhammad Khan, P.W. Was given blow by the convict appellant. Keeping in view this contradiction, the delay in lodging the F.I.R. Has assumed importance. Seemingly, the time has been used to cook up a case against the accused. Be that as it may, in view of the falsification of prosecution claim by medico- legal report Exh.P.C., a serious doubt is caused as to the veracity and correctness of the prosecution allegation.
8. For the reasons stated above, I grant the benefit of doubt to the appellant and set aside his conviction and the sentence. He shall be released forthwith if not required in any other case. This appeal is allowed.