' This judgment will dispose of Criminal Appeal No,164 of 2002 and Criminal Appeal No,165 of 2002 directed against the judgment dated 22-12-2001 passed by learned Additional Sessions Judge, Lahore whereby he convicted the appellants under section 302(b), P.P.C. And sentenced them to undergo life imprisonment with fine of Rs,50,000 each or in default thereof six months' S.I. Each.
2. The facts of the instant case in brief as narrated in the F.I.R. By the complainant are that on 30-4- 1990 the complainant alongwith his brother Rashid Ali and brother of his wife Muhammad Aslam went to the house of their father to settle the matter between their mother and father as per programme and when they reached there at about 5-30 a.m. They found the door of the house opened and there were cries from inside the house. They entered into the house and saw that Khalil Ahmad armed with Danda, Asghar Ali armed with iron fist, Irshad having cloth and one other person who was known to them, armed with mausar .30 bore, were present there. Irshad had laid his father down in the 'Khura and was tying his mouth with cloth and Asghar Ali was inflicting blows with iron fist on the mouth of their father, whereas, Khalil Ahmad was inflicting blows with Danda on his head.
' The person who was armed with mausar threatened them that if they made noise, they would also be murdered. The deceased died at the spot and the accused fled away from the spot.
3. The local police after getting information about the occurrence completed all the necessary formalities and thereafter Abdul Rehman, S.-I. Alongwith his subordinate proceeded to the spot, he prepared the injury statement Exh.P.L., he secured blood-stained earth vide memo. Exh.P.B. Last worn clothes of the deceased were also received by him vide memo. Exh.P.K. He arrested Irshad Ahmad accused on 9-5-1999 from whom he got recovered prize bonds and Rs,500 vide memo.
Exh.P.C. On 12-5-1999 he arrested Khalil Ahmad accused and got recovered from him Danda vide memo. Exh.P.D. On 16-5-1999 Khalil Ahmad accused got recovered some stolen articles vide memo.
Exh.P.E. On 23-5-1999 he arrested Saeed and Asghar Ali. On 26-5-1999 Asghar Ali accused got recovered an iron punch vide memo. Exh.P.G. On the same day Saeed accused got recovered revolver vide memo. Exh.P.F. Vide memo. Exh.P.V. Inquest report was also prepared by him on the first day of investigation. Ultimately he completed the investigation and challaned all the accused.
4. The prosecution in order to prove its case has produced as many as 12 witnesses including Doctor, Investigating Officer and other relevant and formal witnesses. After tendering in evidence report of Chemical Examiner Exh.P.X., report of Serologist Exh.P.X/1, report of ChemicalExaminer Exh.P.Y., report of Serologist Exh.P.Y/l, learned A.D.A. Closed the prosecution evidence. Thereafter statements of the accused were recorded under section 342, Cr.P.C. In which they pleaded their innocence. One C.W. And 5 D. Ws. Are also examined in this case. Learned trial Court after taking into consideration every aspect of the case and hearing the arguments advanced by both the parties, convicted and sentenced the appellants as mentioned above. Hence these appeals.
5. Learned counsel for the appellants in support of this appeal submits that it was an unwitnessed occurrence and witnesses were not present at the spot. They were imported later on by the police, that the appellants have been falsely implicated in this case. He submits that no independent witness has been produced by the prosecution, that both the eye-witnesses are real brother inter se and are sons of the deceased, that F.I.R. Was recorded after due deliberation and consultation, that the recovery if any, has been planted on the appellants, that as far as recovery of Danda and iron punch is concerned none of them was stained with blood, that Muhammad Sadiq P.W.3,. Who was witness of identification of dead body, had stated during the cross-examination conducted by the learned defence counsel that both eyewitnesses were not present at the spot, that Doctor Imran Jawad P.W.7 who had conducted the post-mortem examination on the dead body of the deceased, has found the semi-digested food in the stomach of the deceased, that the prosecution has failed to prove the case against the appellants and they are entitled to acquittal.
6. On the other hand learned counsel for the State submits that lengthy cross-examination was conducted on the P.Ws. And they stated that it was a case of promptly lodged F.I.R., names of the appellants are mentioned in the F.I.R. And that already a very lenient view has been taken by awarding life imprisonment instead of death sentence. Weapons have been recovered from the appellants. Both the appellants have been found to be guilty in this case and they were main accused in this case. He supports the judgment of the learned trial Court.
7. I have heard the learned counsel for the parties and also have gone through the eye-witnesses account specially the statement of Doctor Imran Jawad P.W.7 who had conducted the post- mortem examination on the dead body of the deceased. The occurrence in this case according to the prosecution had taken place on 30-4-1999 at 5-30 a.m., matter was not reported to the police at police station, that according to the Karvai Police, the police itself came at the spot and recorded the statement of Qasim Ali complainant who is son of the deceased. Both the eye- witnesses Qasim Ali and Rashid Ali P.Ws.1 and 2 respectively, are real brother and sons of the deceased. They were residing with their mother but the reason given by them to be present at the spot was that they alongwith Muhammad Aslam the brother-in-law of the complainant came at the spot in order to settle the matter between their father and their mother because their father had divorced their mother about four years ago. Their presence at the spot is doubtful for the reason that their conduct is most unnatural. They were real sons of the deceased and on their statements two co-accused namely Irshad and MuhammadSaeed who was not named in the F.I.R.
But having pistol at the spot, were acquitted. No appeal against their acquittal either by the State or by the complainant has been filed. I had seen the site-plan prepared by the Patwari, there are residential houses around the place of occurrence. It was month of April and the time occurrence i.e, 5-30 a.m., was sun rising time. Had the F.I.R. Been lodged at 6-00 a.m. As has been mentioned in the Karvai Police, then post-mortem should have been conducted on the very same day but the same was conducted on the next day i.e, on 1-5-1999 at 10-00 a.m. With a delay of 28 hours without any plausible explanation which shows that after the occurrence some body had informed the police and the police came at the spot found the dead body and then informed the present complainant Qasim All and his brother Rashid Ali about the death of their father. Even otherwise the duration given by the Doctor between death and post-mortem examination is 24 to 28 hours which also does not fit in with the time of occurrence. Doctor had found the semi-digested food in the stomach of the deceased. At 5-30 a.m. In the usual course of events semi-digested food should not have been found. As far as recoveries are concerned, recovery of Danda and iron punch is concerned, they were not stained with blood. Had the eye-witnesses been present at the spot, they must have tried to apprehend the appellants. One of them was armed with Danda and other was armed with iron punch, although, including both the eye-witnesses their brother-in-law was with them. After the occurrence no body went to the police station to lodge the F.I.R. And it was the police who came at the spot and recorded the statement of Qasim Ali. One C.W. Namely Javaid Akhtar, S.-I. Was also examined by the learned trial Court. Five D.Ws. Were also examined in this case but this Court has to see whether the presence of the eyewitnesses at the spot is natural or not. In view of the above discussion, I am of the opinion that eye-witnesses were not present at the spot, they were brought later on and then the F.I.R. Was recorded after due deliberation and consultation. As far as the question that the appellants have been falsely implicated in this case is concerned, the Court has to see whether the presence of the eye-witnesses is proved on the record or not. In my considered view the eyewitnesses were not there at the relevant time, so while granting benefit of doubt both these appeals are accepted. Conviction and sentence awarded to them is set aside. They shall be released forthwith if they are not required in any other case. With these observations both the appeals are disposed of.