2008 PLP 2329 (YLR)

KHAWAJA MUHAMMAD SHARIF, J.

This judgment will dispose of Criminal Appeal No.1958 of 2002 directed against the judgment, dated 13-7-2001 passed by Muhammad Hanif Khan, Sessions Judge/ Juvenile Court, Bhakkar, whereby he convicted the appellant under section 308, P.P.C. and sentenced him to undergo 10 years' R.I. with further direction to pay Rs.1,70,000 as Diyat or in default thereof he shall be kept in jail and dealt with as if sentenced to S.I. benefit of section 382-B, Cr.P.C. was also granted to him.

2. Brief facts of the instant case as narrated by the complainant in the F.I.R. are that on 12-3-2001 at about 6 p.m. the complainant along with Muhammad Yaqoob and Abdul Majeed was sitting in the ground of Boys High School when Fazal Karim his nephew along with other boys were flying kites at some distance and Muhammad Ibraheem his nephew was also present near. Muhammad Saleem accused broke the dore of the kite of Fazal Karim and Muhammad Ibrahim complained to Muhammad Saleem accused in this regard on which an altercation took place between Muhammad Saleem and Muhammad Ibraheem. Muhammad Saleem accused with both hands a caught hold Muhammad Ibraheem from his chin and head and pulled down due to which Muhammad Ibraheem fell on the ground. Thereafter Muhammad Saleem sat on the chest of Muhammad Ibraheen and started giving fist blows. On seeing the complainant and other P.Ws. ran away from the spot. The deceased died on the way to hospital.

3. After getting information about the occurrence the local police completed all the necessary formalities and then investigation of the case was entrusted to Muhammad Nasarullah Khan S.-I. who along with his subordinates proceeded to the spot. He prepared injury statement Exh. P. D. and inquest report Exh. P. E. Last worn clothes were also received by him vide memo. Exh.P.A. On 15-3-2001 he arrested the accused/appellant Muhammad Saleem. Ultimately investigation of the case was completed and the accused was challaned.

4. Prosecution in order to prove its case has produced as many as 8 witnesses including I.O., doctor, eye-witnesses and other formal witnesses. Thereafter statement of the accused/appellant was recorded under section 342, Cr.P.C. in which he pleaded his innocence. Learned trial Court after taking into consideration every aspect of the case and hearing both the parties, convicted and sentenced the appellant as mentioned above. Hence this appeal.

5. Learned counsel for the appellant in support of this appeal submits that appellant has been falsely implicated in this case, that no weapon was used by the appellant, that in fact the fight took place between the deceased and the boys who were playing at the place of occurrence and the deceased met his death. He submits that Hafiz Ghulam Rasool is real uncle of the deceased while Abdul Majeed is first cousin of the deceased. No independent witness has been produced by the prosecution, that ocular account is, not corroborated by the medical evidence and that nothing incriminating was recovered from the appellant. He submits that appellant is entitled to acquittal.

6. On the other hand learned State Counsel assisted by the learned counsel for the complainant submits that appellant was named in the F.I.R. He is the person who is responsible for the death of the deceased. He submits that already a lenient view has been taken by the learned trial Court and the appellant has been convicted and sentenced under section 308, P.P.C. being a minor. In fact according to the learned counsel for the State and the complainant the appellant should have been given full dose as mentioned under section 308, P.P.C.

7. I have heard the learned counsel for the parties. According to the F.I.R., which was lodged by Hafiz Ghulam Rasool at 7-50 p.m. at Check Post and the formal F.I.R. was recorded at 8-20 p.m. An altercation took place between the deceased and the appellant over flying of kites on the day of occurrence. Muhammad Saleem caught hold Muhammad Ibraheem from his chin and head with his hands and gave him a jerk as a result of which Muhammad Ibraheem fell on the ground. Thereafter Muhammad Saleem sat on his chest and gave him fist blows. The occurrence was witnessed by the complainant Hafiz Ghulam Rasool, Muhammad Yaqoob and Abdul Majeed. Before the learned trial Court an other motive was introduced by Hafiz Ghulam Rasool complainant which is as follows:

"The motive for the occurrence is that house of Muhammad Saleem accused is near our house and he has been keeping pegions and coming over the roof of his house. One day prior the occurrence Muhammad Ibraheem disgraced Muhammad Saleem appellant for coming over the roof of the house. Due to this reason the accused broke the Dore of kite."

8. This motive was never mentioned by the complainant in the F.I.R. He was duly confronted with his previous statement as mentioned in the F.I.R. Both the deceased and the appellant are 13 to 14 years of age. Hafiz Ghulam Rasool P.W. has admitted that Muhammad Ibraheem deceased was of well height. It is not possible for a boy of the same age to catch the deceased from his head and chin and then gave him jerks. Hafiz Ghulam Rasool was uncle of the deceased while Abdul Majeed was cousin of the deceased. Then there is another eye-witness namely Muhammad Yaqoob. Appellant was not armed with any weapon and it is unnatural that in the presence of three adult male persons a minor boy would ran away from the place of occurrence when he was not armed with any weapon. The story of the prosecution in the F.I.R. was that appellant sat on the chest of the deceased and then gave him fist blows. I have gone through the post-mortem report. There is not a single injury due to those fist blows. Even during the period when the appellant was sitting on the chest of the deceased none of the above said three P.Ws. mentioned in the F.I.R. apprehended the accused/appellant. In my considered opinion the eye-witnesses were not present at the spot and this fact is also proved from the fact that the F.I.R. was not recorded at the P.S. but was recorded outside the P.S. Post-mortem was conducted on 13-3-2001 at 9 a.m. while the occurrence according to the prosecution case had taken place on 12-3-2001 at 6 p.m. The duration given by the doctor between the death and the post-mortem report is 12 to 18 hours, so the occurrence could have taken place at any time and not at the time which the prosecution wants this court to believe. Even in the column of post-mortem report i.e. column of death of said report Exh. P. G. , date has been given but no time of death has been mentioned which also shows that inquest report was not sent at the time of post-mortem report because in column No.3 of the inquest report time of death has been given as 7 p.m. Had it been present or available with the doctor at the time of post-mortem report, he must have mentioned the said time in the relevant column.

9. After having heard the learned counsel for the parties and going through the evidence available on the record, I am of the opinion that eye-witnesses were not present at the spot. There is conflict between the statements of the P.Ws. The story of the prosecution seems to be improbable, unnatural and against the facts so while granting benefit of doubt to the appellant, I accept this appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Court. He is on bail. He shall be discharged from his bail bonds. N.H.Q./M-380/L Appeal accepted.