' This judgment will dispose of Criminal Appeal No.2079 of 2002 filed by Muhammad Habib, Muhammad Nisar, Muhammad Sajjad, Mst. Kausar Bibi and Mst. Bakht Bano, appellants, who were convicted and sentenced by learned Additional Sessions Judge, Khushab vide judgment dated 16- 11-2002 as under:-- ' Muhammad Habib, Muhammad Nasir and Sajjad. 14 years' R.I. Under section 311 read with sections 308(2) and 302(C), P.P.C.
' Mst. Kausar Bibi and Mst. Bakht Bani 10 years' R.I. Under the above mentioned sections.
' All the accused were also ordered to pay Diyat amount. The benefit of section 382-B, Cr.P.C. Was also extended in favour of the accused.
' Criminal Revision No.385 of 2003 filed by the complainant shall also be disposed of through this single judgment.
2. Briefly stated the facts of the case are that during the night between 24th/25th of February, 2002, Muhammad Azhar, complainant, brother of Mst. Manzooran Bibi was sleeping in the house of his sister when at about 12-30 mid-night Habib accused along with Nisar, Sajjad, Bakht Bano and Kausar Bibi, all carrying Dalaks (wooden pieces) entered in the house. Habib raised Lalkara to teach a lesson for lodging a case, held the victim and took her outside in the compund. Firstly, Habib inflicted a blow with Dalak hitting on the head of Mst. Manzooran and she fell down. Sajjad also hit on her head while Bakht Bano inflicted a blow on right chin. Similarly, Kausar gave two blows on the arm of Mst. Manzooran. On hue and cry of the complainant, Ghulam Shabbir, husband of the victim reached and tried to rescue his wife who too was hit by Nisar accused and Shabbir received injuries on his head. Mst. Bakht Bano and Kausar also assaulted Shabbir.
' The motive set up in the F.I.R. Was that Ghulam Shabbir had lodged a case against the accused, which was later on compromised, but the accused party was annoyed because of registration of that case.
2. Investigation of the case was taken, over by Khuda Yar, S.-I. (P.W.11). He, after registration of the F.I.R., prepared injury statement Exh.P.S. In respect of Ghulam Shabbir injured, sent him to hospital for medical examination, then went to the place of occurrence where the dead body of Mst.
Manzooran was lying, prepared her injury statement Exh.P.H.1, inquest report Exh.P.T., took into possession the blood-stained earth vide memo. Exh.P.L. And the accused were arrested on 11-3- 2000. On 13-3-2000, on pointation of all the accused Dalaks, the weapons of offence, which were taken into possession, vide memos. Exh.P.M. To Exh.P.R. After completion of the investigation, all the accused were challaned to face the trial.
3. At the trial, prosecution in order to prove its case produced 11 witnesses in all. Then the learned D.D.A. Tendered in evidence report of the Chemical Examiner Exh.P.X., report of the Serologist Exh.P.Y.
And closed the case of the prosecution. In their statements under section 342, Cr.P.C. The accused denied the allegation.
4. Learned counsel for the appellants submits that prosecution has failed to prove the motive set up in the F.I.R. By producing any oral or documentary evidence before the Investigating Officer or before the trial Court. Further submits that Muhammad Azhar and Muhammad Khan, P.Ws.9 and 10, real brother of the deceased having their own independent houses at 1-1/2 and 2 kilometers from the place of occurrence, their presence at the spot at mid-night was unnatural apart from their conduct that they did nothing to rescue their sister specially when the accused were not armed with any deadly weapon. Adds that Ghulam Shabbir injured though was star witness of the prosecution, was given up and was produced before the trial Court as D.W .1. Further adds that according to case of the prosecution, on hue and cry raised by the complainant, many people from the vicinity collected at the spot, but no independent witness was produced by the prosecution and that there is no independent corroboration of the interested testimony of P.Ws.9 and 10 who are real brother of the deceased. The alleged recoveries of weapons of offence apart from being joint were not stained with human blood. It is submitted that defence version of the accused was supported by Ghulam Shabbir injured and Khuda Yar, S.-I./Investigating Officer, P.W.11 and that there is no earthly reason to disbelieve the testimony of the 1.0. Learned counsel argues that prosecution witness always remain P.W. Whether he appears as P.W. Or D.W. Concluding his submissions, learned counsel submits that prosecution has miserably failed to prove its case against the appellants and they are entitled to acquittal.
5. Learned counsel for the State assisted by learned counsel for the complainant submits that it was a case of promptly lodged F.1.R.. Appellants were named in the F.I.R. With roles, wooden. Pieces the weapons of offence were recovered on the pointation of the appellants, both the P.Ws.9 and 10 being real brothers of the deceased, their presence at the spot was natural, Ghulam Shabbir D.W.1 had supported case of the prosecution before the pOlice, he did not make any application to the higher police officer that his wife was not killed by the appellants but some other persons. Version of the defence is not probable and that D.W.1 being real brother of some of the appellanti was won over as such was given up and / that the prosecution has been successful in proNiing, its case against the appellants.
6. Learned counsel for the State adopts the arguments advanced by learned counsel for the complainant.
7. I have heard learned counsel for the parties and have gone through the record with their able assistance. The motive given in the F.I.R. Was that Ghulam Shabbir had got lodged a criminal case against accused which was later - on compromised but the accused had a grudge that why Shabbir got the case registered. While appearing before the trial Court as P.W.9, Muhammad Azhar complainant introduced another motive by stating that about one year prior to the instant occurrence, his father and brother Islam and mother were assaulted by Sajjad, Habib, Amanullah and Saifullah at our house and he got a case registered against them but the matter was compromised subsequently and that about 15/20 days. Prior to the occurrence of assault against his parents and brothers, Mst. Kausar, Sajjad, Bakht Bano, Haji Feroze had ablazed household goods at the house of his sister Manzooran over a local altercation and a case thereafter was got registered by his brother-in-law against those accused. It was a dishonest improvement on the part of complainant with regard to motive, so the motive is disbelieved.
' Learned counsel for the complainant laid. Much stress that it is a case of promptly lodged F.I.R. To my mind, the F.I.R. In this case was got registered after due deliberation and consultation for the following reasons; (i) occurrence had taken place at mid-night in between 24th/25 of February, 2002 but the matter was reported to the police at 5-00 a.m. On 5-2-2002 while the distance between the place of occurrence and the P.S. Is 5 kilometers and according to 1.0., the P.S. And the place of occurrence are connected with Pucca road, (ii) in Column No.3 of the inquest report, no time and date about information of the occurrence has ' been given by the I.O.; (iii) no time and date of death as given in the column of death of post-mortem report, (iv) in brief facts number of the F.I.R. Has not been mentioned though the inquest report was prepared after registration of the F.I.R. And that tile dead body was received in the hospital at 5-30 p.m. And post-mortem examination was conducted at 5-30 p.m. On 25-2-2002 and had, the F.I.R. Been lodged at 5-00 a.m., the dead body should have reached hospital within 2/3 hours. For these reasons, I am fully satisfied that it was a case where the F.I.R. Was lodged after due deliberation and consultation.
Now, I would take up the eyewitness account furnished by Muhammad Azhar and Muhammad Khan, P.Ws.9 and 10. They both being real brothers of the deceased Manzooran were neither residents of the place of occurrence nor were injured. Had they been present at the spot, they must have intervened to save the deceased from the hands of the assailants who were armed only with wooden pieces. They having their separate houses at a distance of one and 1-1/2 kilometers away from the place of occurrence, in the normal course of events, they should have been preset in their houses and not at the place of occurrence at mid-night. According to the complainant, on hue and cry raised by him, many people from the vicinity collected but none was either cited or produced before the, police or the trial Court. In cross- examination, Muhammad Azhar, complainant P.W.9 stated that Ghulam Shabbir was attending the marriage ceremony. If this was the position then how he, received 9 injuries on his person. Ghulam Shabbir was an injured witness. Admittedly, he was brother-in-law of the complainant and Muhammad Khan, P.W.10. Their first anxiety should be to have removed the injured who was having nine injuries on his person, to the hospital but they did nothing rather Shabbir was taken to the hospital by The police.
Moreover, Ghulam Shabbir being husband of the deceased lady was inmate of the house and was also injured, hence was star witness of the prosecution apart from being natural witness. He was given up by the prosecution as having been won over but he supported the defence version while appearing as D.W.1. Moreover, it is settled law that a P.W. Always remain a P.W. Even if he appears as a D.W. The story of the defence was that Mst. Manzooran (deceased) was having illicit relations with one Fateh Muhammad, on the night of occurrence, Muhammad Ali informed Muhammad Islam, her brother that she was in the house of Fateh Muhammad, upon which Islam went to the house of Fateh Muhammad, brought said lady to house of the complainant, there he gave injuries to deceased, Ghulam Shabbir her husband intervened and he was also given injuries by Islam. This version of the defence has been proved by Khuda Yar, S.-I./ Investigating Officer who has admitted that on 11-3-2002, he came to the conclusion that Muhammad Islam was involved in the occurrence but the complainant did not V?Ant to get him implicated and that such conclusion was also affirmed by the S.H.O. On 15-3-2002. The Investigating Officer was never declared hostile either by the learned counsel for the complainant or the Public Prosecutor. The complainant had stated that his clothes were smeared with blood but those were never taken into possession by the I.O.
' According to case of the prosecution, F.I.R. Was lodged at 5-00 a.m. On 25-2-2002 at Police Station but Ghulam Shabbir injured was got medically examined by the police at 9-45 a.m., that is, 10 hours after the occurrence and five hours after lodging the F.I.R. The lady doctor (P.W.5) who conducted postmortem examination on the dead body of the deceased lady opined that probable time between injuries and death was within 24 hours. It means that the occurrence had taken place at any time starting from 5-00 p.m. Of 24-2-2002 to 5-00 p.m. Of 25-2-2002. With all the above facts, I disbelieve the presence of both the eyewitnesses at the spot.
Dalaks (wooden pieces) crime weapons though were taken into possession but those were never stained with blood so it has got no evidentiary value.
The prosecution having failed to prove the motive, presence of the eye-witnesses at the spot being doubtful, the injured witness having appeared as a D.W. And the Investigating Officer having supported the defence version and the crime weapons being not stained with blood, it can safely be held that case of the prosecution is full of doubts. While extending the benefit of doubt, I accept the appeal filed by the appellants and set aside the conviction and sentence recorded against them by the trial Court. Mst. Kausar Bibi and Mst. Bakht Bano are on bail. They shall stand discharged from their bail bonds. Muhammad Habib, Muhammad Nisar and Muhammad Sajjad, appellants are in jail. They shall be released forthwith, if not required to be detained in any other case.
' Cr. Revision No.385 of 2003 filed by the complainant is dismissed.