1. ' Appellant has challenged the judgment dated 28-11-2001 passed by learned IVth Additional Sessions Judge, Hyderabad (Mr. Abdul Rasool Memon) whereby respondent Nos.1 and 2 have been acquitted under section 265-H, Cr.P.C.
2. ' Prosecution story, briefly stated, is that on 22-9-1995 at 2-00 a.m. Deceased Muhammad Ishaq was murdered by inflicting injuries to the deceased with Dandas in presence of P.Ws. Muhammad Umar, Noor Ahmed, Ahmed Khan and other villagers who had arrived on the scene of occurrence and F.I.R. Was subsequently lodged by complainant Haji Khan on the same day at 2140 hours.
3. ' During course of trial charge was framed against the respondents/accused under section 302 read with section 34, P.P.C. To which they pleaded not guilty and the trial commenced against them. P.Ws. Complainant Haji, Noor Ahmed, Muhammad Umar (eyewitnesses), Dr. Ranomal, Mashir Ali Khan, Tapedar Muhammad Bachal, A.S.-I./Investigating Officer Gul Muhammad another Investigating Officer Khalid Tagar and Mr. Fida Hussain Judicial Magistrate were examined by the prosecution. Statements of both the accused under section 342, Cr.P.C. Were recorded. Neither they examined themselves on oath nor any other witness was examined in defence. Learned trial Court after hearing parties acquitted both the respondents, , as stated above.
4. ' Appellant is represented by Mr. Nandan A. Kella and company, Mr. Nandan A. Kella was present in the early hours of the day, however, when this matter was taken up at 11-45 a.m. He chose to remain absent despite repeated calls. He is also not present when the judgment is being dictated after hearing learned counsel for respondents Nos.1 and 2 and the learned State counsel.
5. ' It is contended by learned counsel for the respondents Nos.1 and 2 that prosecution in order to bring the guilt home against the respondents relied on ocular evidence, recovery of crime weapon, medical evidence and the motive. As far as ocular evidence is concerned, it is submitted by him that prosecution examined only P.Ws. Muhammad Umer and Noor Ahmed while another eye- witness Ahmed Khan was given up. It is, next, argued that P.W. Umer Khan did not support the prosecution case inasmuch as he was declared hostile; and, during the course of his cross- examination nothing tangible could be extracted from him to support the prosecution case; and the evidence of another eyewitnesses P.W. Noor Ahmed was not believed by learned trial Court as the same was found to be contradictory and filled with other infirmities. It is urged that the trial Court also did not believe the medical evidence whereas motive was not proved by the prosecution as not a single word was stated by the complainant as well as P.W. Noor Ahmed towards that end. To sum up, it was submitted by learned counsel that learned trial Court by disbelieving the prosecution evidence as above rightly acquitted both the respondents Nos.1 and 2.
6. He submitted that learned trial Court passed a well reasoned judgment.
7. ' Learned State counsel while adopting arguments of learned counsel for the respondents Nos.1 and 2 supported the impugned judgment.
8. In the context of above submissions, we have examined the impugned judgment minutely. It is noted that P.W. Umar and complainant are .Real brothers, P.W. Ahmed Khan is son-in-law of complainant whereas P.W. Ali Khan is his brother while co-Mashir Niaz Ahmed is engaged with his daughter, P.W. Noor Ahmed an eye-witness is son of the complainant hence it appears that prosecution in order to bring the guilty home against respondents Nos.1 and 2 solicited evidence of only those P.Ws. Who are closely related to each other though it is an admitted position that other villagers had, too, arrived at the time of incident. Complainant Haji Khan is not an eye-witness. He was informed of the incident by his son P.W. Noor Muhammad (eye-witness) whose evidence has not been believed by learned trial Court in the circumstances, next to follow hence complainant's evidence being hearsay is adversely affected. Out of 3 eye-witnesses P.W. Ahmed Khan was given up by prosecution which leads to the impression that he was not ready to support the prosecution case. Another P.W./eye-witness Muhammad Umer did not support the prosecution case and was declared hostile. As far as evidence of only remaining eye-witness Noor Muhammad is concerned, learned trial Court while disbelieving the same observed as follows:-- "18. In the instant case, the evidence of this single witness of the occurrence Noor Ahmed is full of infirmities as under:--
(i) According to this witness the accused gave Danda blows to the deceased Ishaq on various parts of his body. The deceased also received blow on left side, of his temple.
9. ' This piece of evidence of this witness is totally in conflict and contravention to the evidence of doctor.
10. ' According to Dr. Rano Mal, there was only one injury on the person of deceased i.e. Contusion (swollen) of 4 c.m. x 6 c.m. Over left temporal region. Bleeding from left ear present. The doctor has not certified that any other injury was available on the person of the deceased. It is also important to note that P.W. Noor Ahmed in his cross-examination has stated that the deceased came at house at 1-00 or 1-30 p.m. And took the meals. But the Doctor has falsified this statement by giving opinion in the cross-examination that deceased probably taken last meals between 9 or 10-00 a.m.
11. ' There is another important factor, which may also not lost sight of that this witness has admitted in his cross-examination that after the incident after about one or half hour injured was lying at the place of occurrence. Nothing has been placed on record by the prosecution that why such delay was caused in shifting the injured to hospital. Moreover this witness did not accompany to his brother-in-law the deceased Ishaq to hospital, who was in a injured condition. It has also come, in the evidence in the cross-examination that this witness had also and (not) participated in the funeral ceremony of the deceased.
19. The defence of the accused is that the P.Ws. Noor Ahmed had objection on the residence of his brother-in-law deceased alongwith his sister at their house and deceased was confinally residing in another village which was at the distance of 30 kilo-meters may from the house of the complainant. On refusal to accompany his sister with deceased, fight took place and Danda blow was given by the present P.W. Noor Ahmed to the deceased, which resulted into death of the deceased. Though the accused have not proved this plea but it cannot be ignored in toto and carries some weight in the above circumstances that why P.W. Noor Ahmed did not accompany the deceased to hospital and also why he did not participate in the funeral ceremony of the deceased who was husband of his real sister. This controversy has remained unsolved.
20. According to P.W. Noor Ahmed the other villagers also gathered on their cries at Wardat but none of the villagers has been cited as a witness to corroborate the version of the complainant or P.W. Noor Ahmed. In his cross-examination P.W. Noor Ahmed has admitted that Mst. Husna, mother-in-law of P.W. Muhammad Umar, wife of Muhammad Umar namely Fahmida, Mst. Anina wife of Khair Muhammad, also reached on their cries, including P.Ws. Ahmed Khan and Muhammad Umar. Admittedly, P.Ws. Ahmed Khan and Muhammad Umar have not supported the P.W. Noor Ahmed on all material points while the above ladies have not been cited as a witness.
21. Furthermore this witness Noor Ahmed was present at the place of occurrence and his brother- in-law sustained injuries and was taken to hospital and, not only, P.W. Ahmed Khan and P.W. Umar were also with home, and injured was taken to hospital, but no one from the above 3 witnesses had bothered to inform the police regarding the incident. Even P.W. Noor Ahmed remained mum till the complainant arrived at home and thereafter the matter was reported to police by the complainant with a delay, which creates shadow of doubt on the prosecution story. The delay in lodging F.I.R. Is always held to be fatal to the prosecution case, as it gives presumption to the meditation, consultation and false implication of the innocent persons. Reliance in this respect is placed on the cases reported in "1998 SCM R 1847, 1981 Pak. Cr.LJ 1175 Lahore, 1998 M LD 1033 Peshawar, PLD 1978 SC 114, 2000 Pak. Cr.LJ 191 and 1986 Pak. Cr.LJ 2608 Lahore."
12. It is already stated in the foregoing paras. That medical evidence is in conflict with ocular evidence.
13. Factum of recovery has also been found to be doubtful by the learned trial Court; whereas motive has not been proved. Learned counsel for the appellant has chosen to remain absent. Thus there is nothing to controvert the above facts and circumstances. Consequently we do not find any merit in this appeal and dismiss the same in limine.
14. ' Respondents Nos.1 and 2 are on bail. Their bail bonds shall stand discharged.
15. ' Announced in open Court.