MUSHTAQ Versus State
MUHAMMAD QASIM KHAN, J .---Mushtaq-appellant along with co-accused, namely Zahid, Saleem and Nazeer (since acquitted) was tried by the learned Additional Sessions Judge, Renala Khurd District Okara in case FIR No.313/2010 under sections 302, 148 and 149, P.P.C., Police Station Chuchak Tehsil Ranala Khurd and vide judgment dated 29.06.2013 while acquitting the co-accused, the learned trial Judge convicted the appellant under section 302(b), P.P.C. and sentenced him to imprisonment for life as 'Tazir' along with payment of Rs.2,00,000/- (two lac rupees) as compensation to the legal heirs of deceased-Rustam Zaman, recoverable as arrears of land revenue. In case of non-payment, he shall further undergo six months simple imprisonment. Benefit of section 382-B of Cr.P.C. was extended.
2. Being aggrieved with his above conviction and sentence, the appellant has filed instant appeal.
3. Brief facts of the case, gist of prosecution story, stance of learned counsel for the appellant and the prosecution has already been narrated in detail in the impugned judgment of learned trial Court; hence, there is no need to mention the same here.
4. I have heard learned counsel for the appellant as well as learned Deputy Prosecutor General and examined the record with their able assistance.
5. In this case, the occurrence was taken place on 18.8.2010, at 10:00 p.m. (night) and two witnesses namely Nayyar Gill/PW.8 and Abdul Ghafoor/PW.9 were produced. The cross-examination of PW.9-Abdul Ghafoor was reserved but he did not appear before the Court for the purpose of cross-examination and the trial Court declared that his testimony is left out of consideration and only the statement of PW.8 to the extent of ocular account is left with the prosecution. His testimony is not confidence inspiring due to the following reasons:- i. Although, as per prosecution stance, occurrence in this case was taken place on 18.8.2010 at 10:00 p.m. (night) and FIR was registered at 12:30 a.m. (night), it is a night occurrence and no electric bulb has been taken into possession by the Investigating Officer to establish that the bulb was fitting and unless the bulb is not taken into possession, in the light of judgment of apex Court of the Country it could not be believed that the light was available there. ii. The deceased succumbed to the injuries at the place of occurrence and the occurrence was taken place, as earlier stated, at 10:00 p.m. (night) and FIR was registered at 12:30 a.m. (night) but the postmortem of the deceased was conducted on 19.08.2010 at 10:30 a.m. at District Headquarter City Hospital, Okara and normally in the District Headquarter Hospitals, doctors are available 24 hours but Dr. Shah Nawaz while appearing as PW.2 stated that the dead body was arrived at 10:00 a.m. It does not appeal to reason, if FIR was registered at 12:30 a.m. night why the dead body was kept with the complainant or police for continuously 10 hours and possibility could not be ruled out that it was a night occurrence, none had seen the occurrence and the dead body was recovered in early hours of the morning, FIR was registered by ante-time and for the same reason, dead body was dispatched and received in the hospital after considerable delay. An important aspect in the opinion of the doctor/PW.2 is that he stated probable time between injury and death within half hour to one hour. It means the deceased was alive for about one hour after receiving the injuries and if PW.8-Nayyar Gill, who is real son of the deceased, was present at the place of occurrence then his natural conduct must be to save the life of his father and for saving the life, he had to take the injured-father to the hospital immediately but as per prosecution case and FIR (Ex.PA), no such effort was made by PW.8 or any other witness at the relevant time. Another most important aspect of the case is that two witnesses namely Mikal and Bashir, who identified the dead body, as per statement of the doctor/PW.2 were not present at the time of postmortem to identify the dead body as he stated that:-
"Mikal and Basir PW did not appear before me at the time of post mortem examination of dead body. However, I maintained their names in relevant column on the basis of entries contains in police papers."
All these facts lead me to irresistible conclusion that it was a night occurrence, none had seen the occurrence, FIR was registered ante-time with deliberation and consultation.
6. Although, the complainant of FIR (PW.8) attributed a specific role of causing injury to the deceased and as per FIR, the witnesses were present at the place of occurrence before the injury was attributed by the convict/appellant but Abdul Ghafoor, while appearing as PW.9 in the witness box did not attribute any injury to the convict/appellant and his role as attributed by PW.9 could not be distinguished from the other accused, who have been acquitted from the charge. This witness was neither declared hostile nor got cross-examined by the prosecution; hence, it is to be presumed that his statement i.e. not attributing specific injury to convict/appellant was not challenged by the prosecution and when any witness is not supporting the prosecution and he is not declared hostile by the prosecution then accused is entitled to get benefit of doubt resulted in his acquittal. In this regard, I am fortified by the judgment reported in the case "Osimuddin Sarkar v. The State" (PLD 1961 Dacca 798), "Tiloo and 3 others v. The State" [2007 YLR 239 (Karachi), "Said Munir and another v. The State" [PLD 1964 (W.P.) Peshawar 194], "Syed Iqbal Hussain v. Mst. Sarwari Begum" (PLD 1967 Lahore 1138) and "Karnidan Sarda and another v. Sailaja Kanta Mitra" (AIR 1940 Patna 683).
7. Although, weapon of offence i.e. Chhuri-P.3 was recovered and was taken into possession through recovery memo (Exh.PH) on 02.3.2011 after the arrest of convict/appellant by PW.10-Maqsood Akhtar-SI/I.O. who stated that weapon of offence was stained with blood but astonishingly it could not be believed as occurrence was taken place on 18.8.2010 and weapon of offence was recovered on 02.3.2011 i.e. after about six and half months and for such a long period, the blood could not remain on the weapon of offence. This fact also creates doubt qua the recovery proceedings.
8. For what has been discussed above, I found sufficient doubts and dents in the prosecution story which makes its case highly doubtful and the benefit of doubt even how slightest always goes in favour of the accused. Hence, this appeal is allowed and the appellant is acquitted from the charges levelled against him. He be released forthwith if not required in any other case. Case property, if any, be disposed of in accordance with law. Lower court record be returned immediately.
SA/M-101/L Appeal allowed.