' ANWAR ZAHEER JAMALI, J.---This Criminal Jail Appeal is directed against the judgment, dated 8-5- 1999, passed by additional Sessions Judge, Sanghar, in S.C. No.124 of 1997, arising out of Crime No.18 of 1977, Police Station Khahli, wherein the Appellant, who is real father of the deceased Allandad, was found guilty of commission of his murder. He was accordingly convicted under section 308, P.P.C. And awarded sentence of rigorous imprisonment for 14 years, and was also directed to pay the Diyat to other legal heirs of the deceased. The appellant, who is stated to be in custody since 11- 6-1997 was also extended benefit of section 382(b), Cr.P.C.
2. According to the prosecution story, on spy information that the Appellant has committed Murder of his son Allahabad, vide Roznamcha, entry No.6, the complainant A.S.-I. Qurban All Rajar, along with P.C. Ghulam Qadir and P.C. Noor Zaman visited the house of the Appellant, where they found the dead body of Allandad wrapped in a 'Kaffan' lying on a cot I the courtyard of his house. When the complainant reached at the house of the Appellant, he and his wife were present beside the dead body of deceased Allandad and upon inquiry of the complainant the Appellant had narrated the whole story to him about causing of hatchet injuries to his son Allahbad, the deceased. After registration of such F.I.R. The appellant had also produced blood stained hatchet in presence o two police Mashirs Ghulam Qadir and Noor Zaman.
3. After usual investigation of the case challan was submitted before the trial Court on 25-6-1997.
Charge was framed in the case on 21-4-1998, to which Appellant pleaded not guilty and claimed to be tried.
4. From the prosecution side they examined following witnesses:--
(a) P.W. 1 D. Abdul Rehman (Exh.5), who produced the police letter (Exh.5/A) and post-mortem report (Exh.5/B).
(b) P.W.2 Noor Zaman (Exh.9) who produced copy of Mashirnama of arrest and recovery (Exh.9/A), Mashirnama of place of incident and dead boy as (Exh.9/B) and Mashirnama of recovery of clothes of deceased as (Exh.9/C).
(c) P.W.3 Qurban Ali (Exh.10), the complainant in the crime, who produced copy of F.I.R. (Exh.10/A) report of the chemical examiner as (Exh.10/B).
(d) P.W.4 Ghulam Qadir (Exh.11) the other Mashir of the incident.
(e) P.W.5 Alam Khatoon (Exh.12), mother of the deceased and the alleged eye-witness of the incident was examined as last prosecution witness, whereafter side of the prosecution was closed on 3-4-1999.
5. The statement of the Appellant under section 342, Cr.P.C. (Exh. 14) was recorded on 14-4-1999, whereafter impugned judgment was passed on 8-5-1999. Learned trial Court while passing the impugned judgment framed following points for determination:
(1) Whether accused has committed Qatl-i-Amd of his son deceased Allah Dad in his house, by causing hatchet blows? OR whether accused died due to fell down from tree?
(2) What offence if any accused has committed?
6. After taking into consideration the evidence adduced by the prosecution the trial Court came to the conclusion that the Appellant was guilty of committing murder of his son Allah Dad and consequently by impugned judgment he was convicted and the above mentioned sentence was awarded to him.
7. Mr. Madad Ali Shah, amicus curiae, appointed by this Court has rendered valuable assistance by advancing his detailed arguments in the case. He has contended that the Appellant is an innocent person, who has been falsely implicated in this crime due to some conspiracy. To add force to this submission he firstly attacked the role of Investigating Officer in the crime and contended that neither the Investigating Officer had produced the copy of Roznamcha Entry No.6 under which allegedly he had left the Police Station, on spy information about the murder of Allah Dad, nor after reaching at the house of the Appellant, he bothered to collect private Mashirs to witness the recovery of alleged blood stained hatchet from the Appellant. He further contended that admittedly Investigating Officer is not the eye-witness of the incident and statement, if any, made by the Appellant before him was not admissible in view of Article 38 Qanun-eShahadat, 1984. In such circumstances, the proper course available to the I.O. Was that he should have got recorded the F.I.R. Of the incident through Mst. Alam Khatoon, the mother of the deceased, who was the only alleged eye-witness of the incident. He also contended that before the trial Court the Appellant was represented by pauper advocate, who did not conduct the proceedings on his behalf properly and it is due to this reason that without examining the salient feature of the case, the trial Court had convicted him in a, hurried manner. Explaining the other weaknesses and discrepancies in the case of the prosecution, he further made following submissions:
(A) Referring to the post-riftIrtem report of the deceased learned counsel pointed out that there is material contradiction in the prosecution story and the postmortem report as regards the exact time of the incident and exact time of death of Allah Dad. In the F.I.R. Time of incident - is mentioned as noon time on 10-6-1997, which as per dictionary meaning means time between 12- 00 noon to 1-00 p.m. For which the F.I.R. Was lodged at 11-30 a.m. On 11-6-1997. As per post-mortem report of the deceased which was conducted at 2-30 p.m. On 11-6-1997, it was conducted 30 hours after the death of Allah Dad which makes the time of death as 8-30 a.m. On 10-6-1997.
(B) Mr. Madad Ali Shah also argued that when the only eye-witness of the incident, the mother of the deceased, Mst. Alam Khatoon was present at the house of appellant, when the police has reached there, then it was incumbent upon the I.O. To have immediately recorded her 161, Cr.P.C.
Statement which was done by him three days thereafter without any plausible explanation for such delay.
(C) With reference to recovery of blood stained hatchet learned counsel submitted that:--
(i) There is material contradiction in the evidence of I.O. And the Mashirs of recovery about the mode of alleged recovery of blood stained hatchet from the Appellant. According to the Investigating Officer (P.W.3) the accused himself has brought the blood stained hatchet from the room and produced it before him, while according to Mashirs of recovery the hatchet was lying on the ground inside the house of accused Dur Muhammad near the cot.
(ii) The place of incident is a village, having more than 200 houses and many houses adjoining to the house of Appellant Dur Muhammad, but no efforts were made by the I.O. To take any private Mashir for arrest of the Appellant and recovery of blood stained hatchet, which is glaring violation of section 103, Cr.P.C.
(iii) The report of chemical examiner (Exh.10/B) reveal that the sealed parcel containing blood stained hatchet was dispatched vide letter, dated 24-7-1997, while it was received in the office of chemical examiner at Karachi on 19-9-1997.
(iv) Though the report of the chemical examiner regarding blood stained hatchet is in the affirmative still such report does not meet the requirement of law as laid down in the case of Khalid Javed v. The State (2003 SCMR 1419) which provides that to attach full weight to such report of the chemical examiner the blood group of the deceased should have been collected before hand for its comparison with the blood found on the crime weapon.
(v) The story of recovery of bloodstained hatchet from the appellant is also belied from the post- mortem report which shows that all the injuries caused to the deceased were inflicted/suffered through hard and blunt substance while as per Mashiranama of recovery of blood stained hatchet its blade (sharp side) was stained with blood.
8. Criticizing the role of the lady Mst. Alam Khatoon, Mr. Madad Ali Shah, further contended that in case the appellant had inflicted injuries upon her son Allah Dad in her presence, it was but natural that she should have reacted and resisted to save him from being injured at the hands of the appellant or at least she should have made hue and cry to attract the neighbour to intervene and save her son. He further argued that leaving apart .This aspect, after the deceased had sustained injuries, she could have either rushed to the Police Station for report or at least taken him to the hospital for treatment, as according to her own assertion after sustaining injuries the deceased remained alive for more than 5/6 hours. Mr. Shah argued with vehemence that all these important features of the case lead to an irresistible conclusion that Mst. Alam Khatoon had not witnessed the incident at all but it was under some conspiracy that she was installed as such by the prosecution, against her own husband.
9. Concluding his submissions on the merits of the case Mr. Shah contended that looking to the case of the prosecution from any angle it is evident that there are many flaws and contradictions in the prosecution case which have created reasonable doubt in the case of prosecution, therefore, the Appellant was entitled for the benefit of such doubt instead of being convicted for the alleged murder of his own son.
10. In the alternate Mr. Madad Ali Shah argued that the Appellant, since after his arrest has already remained in custody for over 10 years (including more than 1 year and 9 months remission) which is more than sufficient punishment for a father for the alleged murder of his own son. In such circumstances, at least the sentence awarded to the Appellant could be reduced to one already undergone by him and for payment of Diyat amount his case can be referred to the Government to arrange such payment for his release. In this regard Mr. Shah has placed reliance upon the cases Zafar v. The State (2001 YLR 533) and Allah Ditta v. The State (PLD 2002 Lahore 406).
11. Mr. Rasheed Ahmed Qureshi, , learned Assistant A.-G. In his arguments has not been able to controvert any of the salient features of the prosecution case referred by Mr. Madad Ali Shah to show the weaknesses of the prosecution case and innocence of the appellant. He, however, supported the impugned judgment, but conceded only to the extent that in the facts and circumstances of the case, in order to meet the ends of justice, the sentence awarded to the appellant i.e. 14 years R.I., may be reduced to one already undergone by him and the case of the appellant, for payment of Diyat, looking to his poor financial position, may be referred to the Government.
12. I have given my anxious thought to the arguments advanced before me in the present case and have found much force in the arguments of Mr. Madad Ali Shah.
13. When the case of the prosecution is examined step by step, it will be seen that firstly the copy of Roznamcha entry under which the complainant/I.O. Of the crime had visited the house of the Appellant, has not produced by prosecution. The complainant/ Investigating Officer when visited the house of the appellant and found the dead body of his son wrapped in the 'Kaftan' lying on the cot in the house and also found his mother beside the dead body, he did not either bother to make her complainant of the crime or even to record her 161, Cr.P.C. Statement which was later on recorded after three days. There is no plausible explanation from the prosecution side in this regard. The I.O. Also did not bother to arrange some private Mashirs for the recovery of blood stained hatchet from the appellant or recovery of blood stained clothes of the deceased. For this violation of section 103, Cr.P.C. Again there is no plausible explanation from the prosecution side, in this regard. For sending the sealed parcels containing blood stained hatchet, blood-stained clothes etc. To the chemical examiner after a delay of more than 1 month and 12 days, again there is no explanation. Further if such sealed parcels were sent to the chemical examiner vide letter, dated 24-7-1997 why it took almost 2 months time to reach at the office of the chemical examiner situated at Karachi, the prosecution evidence is silent on this point.
14. The submission of Mr. Madad Ali Shah with reference to the material contradictions in the statements of the I.O. And the mashirs of recovery as regards the blood-stained hatchet also finds full support from the statement of the prosecution witnesses available in the Court file as according to the I.O. P.W.3 Qurban Ali, the blood stained hatchet was produced before him by the Appellant after bringing it from inside the room of his house, while P.W. Noor Zaman the Mashir of recovery has deposed that the hatchet was lying on the ground inside the house of appellant Dur Muhammad near the cot. Not only all these factors taken into consideration make the whole prosecution story with regard to the recovery of blood stained hatchet from the appellant doubtful but such assertions are further belied from post-mortem report which suggests that no injury to the deceased was caused from the sharp side of the hatchet which was alleged to be stained with blood from its sharp side. The reference of post-mortem with other material placed on record by the prosecution made by Madad Ali Shah to show the material discrepancies in the time of the incident, the time of death and the time of post-mortem report is also duly supported from the case record which creates further doubt about the actual nature of the incident and the time of its occurrence. The submission of Mr. Shah with reference to Article 38 of Qanun-eShahad, 1984 has also force and duly supported by the cases reported as Sharif v. The State (2000 PCr.LJ 562) and Pervaiz Masih v. The State (2005 PCr.LJ 1232). Another important feature of the case which has escaped the sight of the learned trial Court while awarding conviction to the Appellant is the role of Mst. Alam Khatoon the mother of the deceased. In case the incident in which the Appellant has allegedly inflicted five injuries to his son Allah Dad from his hatchet has occurred in presence of this prosecution witness then it does riot appeal to reason or to the mind of a prudent person that the real mother seeing her husband inflicting injuries upon her son would neither intervene to save him or make hue and cry to attract other people for this purpose nor even thereafter she will make any efforts to take him to the hospital for treatment so that his life may be saved. The shaky nature of the evidence of only eye-witness of the incident Mst. Alam Khatoon is also corroborated from her own admission when she had stated in her cross-examination that the deceased has fallen from the tree and he was brought home.
After taking into consideration all the above noted facts and circumstances of the present case I have come to an irresistible conclusion that the prosecution has failed to prove its case against the Appellant beyond reasonable doubt, therefore, the trial Court while passing the impugned judgment was not justified in convicting the Appellant on the charge of murder of his own son, instead of giving him benefit of doubt and passing a judgment of his acquittal.
' Foregoing are the reasons for the short order passed today, which reads as under:-- ' Heard the arguments of learned counsel.
For the reasons to be recorded lateron separately this appeal is allowed. Judgment, dated 8-5- 1999, passed by the trial Court in Sessions Case No.124 of 1997 is set aside and consequently the conviction awarded to the Appellant is also set aside. He shall be released forthwith if not required in any other case.