' This is jail criminal appeal filed by Sameen Khan against his conviction and sentence recorded by Sessions Judge, Charsadda on 8-4-2003 vide which the appellant accused has been convicted under section 302/34, P.P.C. And sentenced to life imprisonment with a fine of Rs.1,00,000 or in default of payment of fine, to undergo two years' S.-11. The fine if realized from the accused shall be paid to the legal heirs of the deceased as compensation in terms of section 544-A, Cr.P.C. Benefit of section 382-B, Cr.P.C. Has been extended to the appellant accused.
2. Short facts of the case are that on 29-2-2000 at 18-00 hours, Naushad Khan, Additional S.H.O.
Police Station Prang alongwith police party was on mobile Gasht of the Illaqa when he received information that some murder has taken place in the area of Shabera. On this information, he rushed to the spot and noticed that a dead body of a young man is lying in the field. Age of the deceased is about 30/35 years wearing brown clothes and a coloured sweeter. The S.H.O. Drafted the Murasila and sent the dead body to the Civil Hospital Charsadda under the escort of Constable Fazal Subhan and on the basis of said Murasila, F.I.R. No.300 dated 29-2-2000 under section 302, QDO was registered against unknown accused. Later on, accused Shaukat and Sameen Khan (the present appellant) were arrested by the local police. They made confessions before the Magistrate but during the course of trial, accused Shaukat compromised with the legal heirs of the deceased and he was acquitted. The present appella,-it accused Sameen Khan was proceeded. After completion of the investigation, challan was submitted in Court. Accused was brought before the Court and charged for the murder of the deceased Fida under section 302/34, P.P.C. To which he pleaded not guilty and claimed trial. Trial commenced.
3. The prosecution produced almost 13 P.Ws. And closed its case on 9-9-2002. On 3-10-2002 accused Sameen Khan was examined under section 342, Cr.P.C. He pleaded innocence but neither produced any detence nor wished to be examined on oath and thereafter after hearing the prosecution and defence, the trial Judge passed the aforementioned conviction and sentence, hence this appeal.
4. Learned counsel for the appellant mainly argued that it is an unseen occurrence. The site-plan, the medical evidence and other circumstantial evidence do not support the prosecution version.
Further argued that the appellant had no motive to commit the offence and that confessional statement of the appellant is the result of coercion and duress and totally belied, by the medical evidence. Further argued thatlast seen evidence is not, proved and there is no proof in this behalf.
5. Learned counsel for the complainant argued that the prosecution has proved its case beyond any doubt by a voluntary confessional statement of the accused, last seen evidence and the recoveries. Further argued that the prosecution evidence is supported by the medical evidence and that recovery of weapons of offence has been made as is clear from the statements of Imitaz and Alamzeb. The learned D.A.G. Also followed the same line of arguments.
6. We have heard the learned counsel for the appellant, complainant and the State and have scrutinized the available record.
7. There is no direct ocular evidence in the instant case and the whole case hinges upon the confessional statement of the appellant accused, the last seen evidence and the recoveries of incriminating articles coupled with medical evidence. We will take up each and every aspect of the case one by one. As far as the last seen evidence is concerned, in this behalf, statement of Fazal Muhammad who is the brother of the deceased appeared as P.W.10. The statement of P.W.9 Lal Muhammad who is father of the deceased which lends support to the statement of P.W.10 clearly shows that that the statement about last seen evidence by the brother of the deceased who appeared as P.W.10 is not proved from the record as the murder has taken place some 2/3 days prior to the recovery of the dead body and in this behalf, no report with regard to the missing of the deceased has been made in the police station either by Fazal Muhammad, brother, or Lal Muhammad, father of the deceased. So the story about the last seen evidence seems an afterthought and is the result of police advice.
8. Coming to the next important factor of the case which is the recovery of incriminating articles like repeater shotgun and .32 bore pistol. These recoveries are of no help to the prosecution because the perusal of the statement of P.W.3 Imtiaz and P.W.5 Alamzeb clearly show that both of these P.Ws. Have been arrested by the police and kept in custody for three days in the police station and when they were ready to give statement in favour of the prosecution, the police released them and made them P.Ws. In the instant case. So these recoveries in the light of the statements of P.W.3 and P.W.5 are washed away as the two P.Ws. Were threatened by the police to be made accused in the case if they do not give favourable statement to the prosecution case and after their assurance, they were made P.Ws. In the instant case. So the recovery of weapon of offence are of no help to the prosecution in the given circumstances. Neither any empty nor any blood-stained earth has been recovered from the spot. The other recoveries like clothes of thedeceased and bullet is of no help to the prosecution. The conduct of the police in the instant case is also not aboveboard. They kept the witnesses (P.W.3 and P.W.5) for 3/4 days in police custody and when they were ready to give favourable statements, then they were made P.Ws. In the instant case. The last and foremost factor of the case is the confessional statement of the present appellant Sameen Khan. Though the police has shown them arrested on 7-3-2000 and according to the record, they remained in custody for three days, then he made the confession, but it is not clear when the accused Sameen was arrested by the local police. So the confessional statement which has been retracted by the accused is of no avail as its voluntary nature is doubtful. Moreover, this confessional statement is totally negated by the medical evidence because according to the appellant accused Sameen, when they fired at the deceased, he was still alive and as they were in hurry, they took out the string from the Shalwar of the deceased and strangulated him to death by means of Azarband' but according to medical officer, he has found no mark of ligature on the neck. So the confessional statement is belied by the medical evidence and such type of confessional statement which is not voluntary, retracted and not supported by any circumstantial evidence and negated by the medical evidence cannot sustain the conviction of the appellant accused. In this background of the case, the last seen evidence is an afterthought, the incriminating article have been recovered by threats and duress of the local police and the confessional statement is not voluntary and totally negated by the medical evidence.
9. So the prosecution has not established its case against the appellant accused. Thus this appeal is accepted, the conviction and sentence of the appellant namely Sameen Khan awarded by the learned Sessions Judge, Charsadda vide his judgment dated 8-4-2003, is set aside and the appellant is acquitted of the charge. He shall be released from jail forthwith if not required in any other case.