This judgment will dispose of Criminal Appeal No. 557 of 2002 filed by Muhammad Abbass, appellant, who was convicted under Section 308 PPC and sentenced to 14 years RI with further direction to pay Rs. 2,70,493/53 as diyat. Benefit of Section 382-B, Cr.P.C. was also granted to the appellant. The conviction and sentence was recorded by the learned Additional Sessions Judge, Depalpur vide judgment dated 10.10.2001.
2. Briefly stated the facts of the case as disclosed in the FIR are that on 1.5.1998 at 8.00/9.00 p.m., Muhammad Abbass gave beating to her wife namely Mst. Safia Bibi as a result whereof she died.
The FIR was recorded on 17.8.1999 with regard to the occurrence having taken place on 18.5.1998. On the application of the complainant, the dead body of the deceased was disinterred on the ground that she was poisoned. As per post-mortem examination, poison was detected to be the cause of death. The accused was arrested on 9.10.1999 by Muhammad Mazhar Iqbal SI (PW.10) and challaned to face the trial.
3. At the trial, prosecution in order to prove its case, produced 10 witnesses in all. The learned APP tendered in evidence report of the Chemical Examiner Ex. PJ and closed the case of the prosecution. Accused in his statement u/S. 342 Cr.P.C. pleaded false implication and took the plea that the deceased Mst. Safia Bibi committed suicide. After conclusion of the trial, the accused was convicted and sentenced as stated above.
4. Learned counsel for the appellant submits that there is delay of one year and three months in lodging the FIR, there were not marks of violence on the person of Mst. Safia deceased when her dead body was exhumed, there is no evidence on record that poison was given by the appellant to Mst. Safia and that as far as Mst. Sakina, the complainant is concerned, she was not medically examined. Further submits that nothing has been convered from the appellant. Lastly submits that there are material contradictions in the statements of the PWs.
5. Learned counsel for the State supports the judgment of the trial Court. He submits that delay in lodging the FIR has been explained and that ocular account is corroborated by medical evidence.
According to learned counsel, there is also dying declaration.
6. There is delay of one year and three months in lodging to the FIR when the dead body of the deceased was examined no mark of violence was found on it. According to report of the Chemical Examiner Ex. PJ, the poison was of insecticide. It was not even story of the complainant in the FIR that the deceased was administered poison. There is no eye witness who had stated before the trial Court that it was the appellant who had poisoned the deceased. It was the story of the prosecution that complainant Mst. Sakina received injury on her left ear at the hands of the appellant but the said lady was never medically examined. The plea of the appellant that the deceased committed suicide in the facts and circumstances of the case seems to be plausible.
There is no dying declaration. In my considered opinion, it is a case of no evidence. Resultantly this appeal is accepted, conviction and sentence recorded against the appellant by the trial Court is set aside and he is acquitted of the charge. The appellant is in jail and he shall be released forthwith if not required to be detained in any other case.