1. ' MRS. YASMIN ABBASEY, J.--- Facts leading to this case are that after receiving intimation from MLO Dr. Zia Ahmed of Jinnah Hospital about arrival of a person in injured condition by fire-arms weapon. He went there and recorded 154, Cr.P.C. Statement of injured.
2. ' As per 154, Cr.P.C., statement of injured/complainant Sajjad Ahmed, subsequently died, on 4-10- 2000 his mother-in-law and brother-in-law Zeeshan came at his house for taking away deceased's wife Samina to their home. Deceased's wife Mst. Samina and her mother left while his brother-in-law/appellant Zeeshan remained there and asked from the deceased as to why he had slapped his sister. According to complainant/deceased, he told the appellant not to interfere in their family matter. Then, there was exchange of words in between appellant and the deceased, during that appellant took out pistol of deceased and went outside the door. Deceased demanded the same, instead of returning it appellant fired on him, which caused injuries on deceased's abdomen.
3. ' On the basis of this statement case was registered against the appellant. Matter was tried by the learned tried Court and vide judgment dated 31-1-2006 appellant was convicted for life imprisonment with fine of Rs,100,000 payable to,the legal heirs of the deceased. In case of nonpayment of fine appellant had to suffer one year more imprisonment. Benefit of section 382-B, Cr.P.C. Was also extended in favour of the appellant/accused. Being aggrieved with this judgment appellant has filed this appeal.
4. ' Heard Mr. Abdul Razzak learned counsel for the appellant as well as Mr. Muhammad Ayaz Khan learned State Counsel.
5. ' After reading out 154, Cr.P.C. Statement of the deceased/ complainant, it is contended by learned counsel for appellant that on the basis of 154, Cr.P.C. Statement of deceased, prosecution has tried to build up case against the appellant but the very 154, Cr.P.C. Statement does not have any corroboratory evidence. None of the prosecution witnesses is an eye-witness of incident happened nor there is anything on record that who brought him to hospital. Roznamcha entry said to be made on the basis of MLO Jinnah Hospital has also not been placed on record. However, the medico-legal certificate of injured has been produced to support the prosecution case that injured was brought to hospital and medical aid was provided to him but still the Medico-legal Officer Dr. Ayaz Ali is silent to the fact that any 154, Cr.P.C. Statement of deceased was recorded in his presence. Contents of 154, Cr.P.C. Statement also does not confirm the presence of any medical officer at the time of recording complainant/deceased's statement. Absence of any member of hospital staff while recording the statement of deceased and non-verification of it by any officials of hospital that the statement of deceased was actually recorded, will be deemed as a weak kind of evidence. It's credibility depends upon authenticity of the record and the circumstances, in which it was recorded therefore, it is to be taken with careful scrutiny of the evidence and the surrounding circumstances. Reference has been made to Mst. Zahida Bibi v. The State PLD 2006 SC 255, Faqir Ali v. The State 1997 PCr.LJ 1453 and Mureed v. The State PLD 2000 Kar.
6. 530.
7. ' Pointing out to other discrepancies which create doubt it is contended by learned counsel that inspite of the fact that the firearm injuries received by deceased was confirmed by the medical officer in his statement as well as in the medico-legal certificate issued on 4-10-2000 and 17-10- 2000 but inspite of that no post-mortem was conducted.
8. ' Next he pleaded that the appellant was arrested on 6-10-2000 and as per prosecution story pistol was recovered from his possession along with 5 live bullets but the same has been sent to Ballistic Expert for examination and opinion after two years on 4-6-2002 with no reasonable cause of delay.
9. In set of this irresponsible conduct Ballistic Expert also sent his report after about more than nine months on 11-3-2003.
10. Except Investigating Officer none of the prosecution witness has supported prosecution version of causing fire-arm injuries by appellant to deceased. Circumstantial evidence is also not available on record to connect this appellant with the commission of offence. Even if, statement of Mst.
11. Samina, who is wife of deceased and sister of this appellant is taken, which although has been objected being interest witness, then also neither through her or by rest of six witnesses, prosecution has been able to brought any direct evidence against this appellant to connect him in the present case.
12. ' Whole story of prosecution is based on 154, Cr.P.C. Statement of deceased but as pointed out earlier in absence of any authentic proof solitary statement of Investigating Officer in the circumstances cannot be believed. Even otherwise, if it is taken as correct that deceased's statement was recorded in hospital than also besides the non-certification of statement of deceased, record is also silent that whether before recording such statement any permission was obtained by Investigating Officer from MLO as neither in his statement he had made any reference of the permission taken by him from the MLO for recording statement nor any application or permission granted to him by MLO of Jinnah Hospital has been placed on record, hence under these circumstances authenticity if any relates to this document again appears to be doubtful in view of 'contradictory statement of two witnesses viz. Mst. Samina wife of the deceased and the Investigating Office Shabbir Ahmed who made detailed statement with reference to the incident of this case. Mst. Samina who is said to be with deceased in hospital from the very first day till his death deposed that during this whole period from the day of his admission till his death deceased was unconscious. Whereas according to Investigating Officer he was conscious and had made such statement.
13. ' In these contradictory versions medico-legal certificate produced on 4-10-2000 becomes material, which states the condition of deceased on 4-10-2000 as conscious. Even if with reference to this medico-legal certificate if the statement of Investigating Officer is taken as correct then again question arises that why after his death on 17-10-2007 no post-mortem was conducted on the dead body of the deceased, the medical treatment provided to deceased and the result of operation of deceased has not been placed on record. In absence of postmortem and operation report cause of death is uncertain and these medico-legal certificates placed on record are not helpful for arriving at a proper conclusion that deceased died because of fire-arm injuries because both certificates placed on record are silent to the fact that whether during operation any bullet was recovered from the body of the deceased and if it was recovered whether it was sent to Ballistic Expert for matching the same with pistol recovered from the possession of the appellant.
14. ' If it is assumed that bullet was recovered from the body of deceased at the time of Operation then no such report is appearing on record, and if it is assumed that bullet passes from the body through and through then no empty was recovered from the place of incident, to prove that deceased died because of fire-short by pistol recovered from the possession of this appellant. It is also relevant to note that after two days of the incident this appellant was arrested on 6-10-2000 and according to prosecution he was in possession of the crime weapon along with bullet, which is unbelievable statement on the part of prosecution as it dies not appeal to common sense that after committing such heinous crime a boy of tender age will be allowed to keep the pistol with him while roaming in public place to have a definite evidence against him. Apart from it no reasonable cause has been placed on record by the prosecution and learned counsel for the State was also unable to answer question that what was reason of sending the crime weapon to Ballistic Expert after two years and the report was also received at a very belated stage on 11-3-2003 with no definite opinion of use of this pistol in the commission of offence. According to opinion of the examiner gun powder residue was present in the barrel of .30 bore pistol, which admittedly is not possible after two years and in absence of any empty said to be recovered from the place of incident or from the body of the deceased. I am also unable to understand that how the opinion formed by Ballistic Expert can be relied upon for conviction of appellant particularly in the circumstances when crime weapon after its recovery was not sealed by the Investigating Officer and possibility of its change cannot be ruled out.
15. In view of foregoing reasons which have been frankly conceded by the learned counsel for the State, I am of the view that prosecution has failed to prove its case against the appellant.
16. Above are the reasons of my short order announced on 1-2008 whereby appeal was allowed and appellant was ordered to be released forthwith if not required in any other custody matter.