' This judgment will dispose of Criminal Appeal No,66 of 1995 filed by Murid Hussain, Muhammad Saleem and Muhammad Gulzar appellants and Criminal Appeal No,67 of 1995, filed by Mubarik Ali, appellant, all of whom were convicted and sentenced by learned Additional Sessions Judge, Bahawalpur for the murder of Manzoor Hussain under sections 302(b)/34, P.P.C., to undergo life imprisonment, with a fine of Rs,30,000 each and in default thereof to undergo further R.I. For five years, with the benefit of section 382-B, Cr.P.C. Mst. Surraya, co-accused of the appellant was acquitted while Mushtaq was not challaned.
2. Occurrence in this case had taken place during the night between 18/19-12-1993 in the Revenue Estate of Chak No,58/DB while the matter was reported by Abdul Ghafoor P.W.2 at 10-45 a.m. On 19- 12-1993 and the formal F.I.R. Exh.P.A. Was recorded by Muhammad Saddique, A.S.-I. P.W.9 on the same day.
3. Brief facts of the case as set up by the prosecution were that Manzoor brother of the complainant having common land wanted to contract second marriage as Mst. Surraya Bibi, his first wife was disobedient but Mubarik Ali his son and Surraya Bibi his first wife were not agreeing to his second marriage, therefore, they made a plan that if Manzoor contracted second marriage they would not spare him alive. During the last night complainant went to his land and while coming back, he heard a noise and rushed towards the Dera. He was having a torch with him and saw that Saleem was holding the legs of Manzoor while Gulzar was holding him by his head and Mureed was holding his arms. Complainant was accompanied by Yousuf, Ali Muhammad and Ghulam Rasool. On seeing the complainant and his companion, the accused started running. They were chased but because of threats to their life by the accused complainant and his companion came back. When complainant saw his brother Manzoor he was fighting for his life. Within the vision of complainant party, Manzoor Ahmed succumbed to the injuries.
4. Motive behind the occurrence was that Mushtaq Ahmad in order to grab the land of Mst. Surraya Bibi wanted to finish Manzoor Hussain.
5. After registration of the case, Muhammad Saddique S.-I. 'P.W.9 went to the spot, inspected the dead body, prepared inquest report, Exh.P.D. Injury statement Exh.P.D./1, prepared the rough site- plan Exh.P.F. And sent the dead body for postmortem examination. He arrested all the five accused on 2-1-1994. Incomplete challan was submitted by the S.H.O., in the trial Court.
6. Prosecution in order to prove its case produced nine witnesses in all, out of whom, Abdul Ghafoor, P.W.2 and Muhammad Yousuf, P.W.3 were eye-witnesses of the occurrence, while the doctor, who conducted post-mortem examination on the dead body of Manzoor Hussain was examined as P.W.4, thereafter, the statements of the appellants were recorded under section 342, Cr.P.C., in which they pleaded innocence and claimed false implication. The accused/appellants also produced Mst. Parveen and Mst. Nasreen D.Ws.1 and 2 respectively in their defence.
7. It may be noted here, that Mst. Surraya Bibi co-accused of the appellants was acquitted by the learned trial Court.
9. After reading the prosecution evidence and statements of the appellants recorded under section 342, Cr.P.C., learned counsel for the appellant submits that there is clear conflict between ocular account and medical evidence as none of the eye-witness had seen the occurrence. Had they seen the occurrence, they must have stated the injuries landed on the head, thigh and other parts of the deceased. Learned counsel further submits that according to the prosecution, it was 12-00 midnight of 18/19-12-1993. He further submits that none of the eye-witness cited by the prosecution could be present at the spot, had they been present at the spot, they must have also apprehended one of the accused person who were also empty-handed. Learned counsel further submits that police station was at a distance of 6 k.m. From the place of occurrence and the matter was reported to police after delay of 10 hours without any plausible explanation. Learned counsel further submits that in the facts of the inquest report no case number of the F.I.R., has been given. He adds that prosecution has asserted that the F.I.R. Was lodged at 10 a.m. But complainant stated that he reached police station for lodging the F.I.R. At the time of Maghrab prayer. Learned counsel further submits that in fact the complainant who was real brother of the deceased, had no land and in order to grab the land of Sarryya, his Bhabhi, he has concocted this story in connivance with local police. On the other hand learned A.A.-G. Submits that the complainant is real uncle of Mubarak Ali, the appellant in this case and was closely related to Sarryya accused (acquitted) who was his Bhabi and there was no question of false implication of the appellants in this case. He further submits that all the injuries which the doctor has mentioned in the post-mortem examination report, were stated by the complainant in the F.I.R. And also in his statement before the trial Court.
He submits that prosecution has proved its case beyond any shadow of doubt.
10. 1 have heard the learned counsel for the parties and have also gone through the evidence recorded by the trial Court and also statements of the Doctor Muhammad Zahid, M.O., who was examined as P.W.4, who had conducted the post-mortem examination on the dead body of the deceased, on 19-12-1993 at 2-30 p.m. Injuries on the person of the deceased found by the Doctor and his opinion is reproduced below:---
(1) A lacerated wound 3 cm x 1 cm into skin deep on left side of front of head. Crapitus was felt.
Clotted 'blood was present.
(2) Slight bleeding was present from left ear. Pinna and external auditory meautus were healthy.
(3) There were multiple bruises in an area of 20 cm x 19 cm on left side of front of abdomen.
(4) There were multiple bruises present on whole front of right thigh. No crapitus was present.
(5) Multiple bruises were present on whole front of left thigh. No crapitus was present.
(6) Penis and scrotum were having multiple bruises and abrasions and twisted and both testis in scrotan were felt compressed.
Carnium and Spinal Cord.
' There was a lacerated wound 3 cm x 1 cm on left side of front of head. Only upper to layers of skin were involved on palpation. Crapitus was present on dissection. There was seen fracture of skull bone on left lateral (temporal side), extending towards to left ear and bleeding from left ear was due to this fracture and vertebrae were healthy.
' Membranes of brain in area of head injury were congested. Brain and spinal cords were healthy.
' Thorax. All organs were healthy. Abdomen.
' Multiple bruises were present in an area of 20 x 19 cm on left side of front of abdomen. Organs of generation external and internal. Penis and scrotum were having multiple bruises and abrasions and also were twisted. Testis were felt compressed. On dissection all vessels and nurves of testis were torn. Muscles of penis and testis were echymosed and peticheal haemorrhages were present on muscles. Spermatic cords, ductus deferences and epididymus of both testis were tome. Both testis were compressed sequesed. Morphology of both testis were completely destroyed and damaged. All other organs of abdomen were healthy and stomach was empty.
OPINION.
' After going complete internal and .External post-mortem examination the doctor had come to the opinion that all the injuries were ante-mortem and homicidal and injury No,6 on penis, scrotum and testis (both) was sufficient to cause death, in this case also injury No,1 on skull was enough to cause death. Hence injuries Nos.1 and 6 both were responsible for death. Probable time between injury and death was immediately. Time between death and post-mortem was within 16 hours.
11. If one goes to the statement of the Doctor mentioned above, it becomes crystal clear that the eye-witnesses were not present at the spot. Had they been present, they must have also mentioned the injuries which the deceased received on other parts of his body beside his penis.
The occurrence took place in full winter season and the pretext of P.Ws. Being present at the spot is highly doubtful. Even the complainant has admitted that he had no land. He had further admitted that he had gone to police station to lodge the F.I.R. On 19-12-1993. According to the police record the F.I.R. Was lodged at 10-45 a.m. After delay of 10 hours and delay was not explained, although distance from the place of occurrence to P.S. Was 6 k.m. The defence plea taken by the appellant and story put forward by the prosecution if put in juxtaposition, the story put forward by the appellants seems to be more plausible and convincing one.
11-A. The upshot of the above discussion is that prosecution has failed to bring on record evidence through an impeachable source. In this view of the matter, I accept this appeal and set aside the conviction and sentence awarded to the appellants by the learned trial Court. They shall be released forthwith if they are not required in any other case.