2005 PLP 685 (MLD)

This appeal is directed against the impugned judgment of conviction dated 26-3-2003 passed by the learned Additional Sessions Judge, Kasur, whereby, having tried the appellant in the case registered vide F.I.R. No.215 of 2002 dated 13-5-2002 under sections 302/34, P.P.C., Police Station Saddar, Kasur, District Kasur, the appellant was convicted under section 308, P.P.C. and sentenced to pay Diyat equal to amount of Rs.3,00,000 to the legal heirs of the deceased in lump sum or in instalments spreading over a period of three years from the date of decision with a further direction that he shall be kept in jail till the realization of the amount of Diyat. It was further directed that in case of his death the amount of Diyat or any part thereof shall be recovered from his estate. He was further sentenced to fourteen years R.I. as Tazir coupled with benefit of section 382-B, Cr.P.C.

2. The prosecution story as unfolded through F.I.R. (Exh.P.C./1) registered on the statement of the complainant/P.W. Muhammad Siddique, briefly stated is that on 11-5-2002 he along with Muhammad Bashir P.W. had come to Kasur in connection with a job; that due to night they decided to go to Village Kaisar Garh at the house of the sister of complainant rather to their own houses; that on the night of occurrence he along with Muhammad Bashir P.W. and family members of Munir Ahmad slept in the courtyard of the house; that at about 2-00 a.m. after hearing the noise, complainant and said Muhammad Bashir woke up and saw that accused Munir Ahmad, Hammedan Bibi had laid Safia Bibi on the floor of a room, Sohan Din had over powered her from her arms whereas Hameedan Bibi from her legs, accused Munir Ahmad had sit on the chest of her, Abdul Majeed was standing nearby having a mouzar; that Hameedan Bibi raised a Lalkara that Safia Bibi be finished forever; that the complainant along with said Bashir advanced to relieve her but Abdul Majeed threatened them that who would come near, would be killed; that Munir Ahmad accused shaked the head of Safia Bibi; that hence Manka of Safia Bibi broke; that Safia Bibi also received some abrasions on her body; that thereafter it was requested by the complainant, let them allow to shift Safia Bibi to hospital to save her life but they did not allow them to do so. Safia Bibi succumbed to the injuries. The motive behind the occurrence was that two years prior to the occurrence Safia Bibi deceased, the sister of complainant Muhammad Sadiq, was married with Munir Ahmad, out of the said wedlock a male child aged eight months took birth, accused Munir Ahmad developed illicit relations with a woman Safia Bibi deceased used to reprimand him or to divorce her. Hence the occurrence.

3. After having completed the investigation and all other legal formalities, the police submitted challan against the appellant before the learned Court of competent jurisdiction, where, in order to prove its case, the prosecution produced nine witnesses.

4. The accused, when examined section 342, Cr.P.C., while denying the prosecution case, attributed involvement to false implication and claimed trial by the learned trial Court.

5. Learned counsel for the appellant, in support of this appeal, while canvassing acquittal, submits that there is a delay of fifteen hours in lodging the F.I.R. although the complainant himself claims to be present at the spot which is repellent to common sense; that both the eye-witnesses are chance witnesses, that according to the prosecution version the appellant continued shaking of the neck and head of the deceased while the two acquitted accused held the deceased from arms and legs but according to the doctor death of the deceased was due to "asphyxia and throttling" of the neck for about five to ten; that there is no mentioning in the site-plan of the presence of the two eye-witnesses or the light; that both of them are residents of the places which were 20/25 kilometers from the place of occurrence which is reflective of their plantation in the case so that it could be strengthened; that the Investigating Officer had opined that 10/15 persons appeared before him who had stated that the eye-witnesses were not present at the place of occurrence; that the learned trial Court has disbelieved the motive part of the prosecution case and that since it is a case of no evidence, therefore, the appellant be acquitted from the charge levelled against him.

6. On the other hand, learned counsel for the State, while opposing the above submissions made by the learned counsel for the appellant, submits that in the site-plan presence of light as well presence of eye-witnesses at the place of occurrence has been shown; that the appellant is a nominated accused of the case who had brutally committed the murder of his wife. While concluding his submissions, learned State counsel submits that the impugned judgment is a well-reasoned judgment and does not call for interference in the appellate jurisdiction of this Court.

7. I have heard learned counsel for the parties, have gone through the evidence on record and have also given anxious consideration to the submissions made by the respective parties at the bar.

8. The occurrence in this case, according to the prosecution had taken place on the night between 11/12th May, 2002. The Police Station was at a distance of five kilometers while the written application was submitted to the Police Station by Sadiq complainant at 5-00 p.m. at the place of occurrence while the F.I.R. was recorded at 5-25 p.m. A. bare perusal of the F.I.R. and the "Karwai Police" shows that till 5 p.m. nobody went to the police station to lodge the F.I.R. The F.I.R. was recorded at Qaisar Garh. Distance between the Police Station and the place of occurrence is 5 kilometers only. Both the eye-witnesses, namely, Sadiq and Muhammad Bashir are not residents of the vicinity or of a place close to the occurrence. Sadiq (P.W.5) is resident of Jabomail while Bashir (P.W.6) hails from Raja Jang. Sadiq is the real brother of the deceased while Bashir is brother-in-law of Sadiq P.W. The place of occurrence is surrounded by houses but none from the locality was produced during the trial in this case. The post-mortem examination was conducted on 13-5-2002 meaning thereby that it is a case of delayed post-mortem as well. Two co-accused of the appellant, namely Hameedan Bibi and Sohan Din have already been acquitted by the learned trial Court on the same evidence. Appeal against their acquittal has neither been filed by the State nor the complainant party. The defence plea taken by the appellant in his statement recorded under section 342, Cr.P.C. is more plausible and convincing. The presence of the eye-witnesses at the place of occurrence, in the afore-referred circumstances, is highly doubtful and their statements cannot be believed for the reason that they are also closely related to the deceased and have not put any plausible reason for their presence at the spot.

9. Having adjudged the case from every angle and after having sifted grain from the chaff, this Court is of the considered view that the prosecution has failed to prove its case against the appellant as well beyond an iota of doubt. Resultantly, this appeal is allowed, the impugned judgment of conviction is set aside, appellant is acquitted from the case and is directed to be released forthwith if not required to be detained in any other case. H.B.T/M-835/L Appeal allowed.