' GHULAM MUSTAFA. MENGAL, J.---This appeal is directed against the judgment dated 17.12.2008 passed by learned Sessions Judge, Zhob in Murder Case No, 8/2007, whereby appellants have been, convicted under Section 302/34, PPC and sentenced to life imprisonment. They have been extended benefit of Section 382-B, Cr.P.C.
2. Facts of the case in brief are that on 24.8.2007 at about 4:30 p.m. FIR No, 104/2007 under Section 302/34, PPC was registered with Police Station Zhob on the report of Uhaidullah son of Bayak resident of Killi Murghail District Sherani stating therein that his sister Mst. Zar Bakhat , was married with Haji Hassan r/o Sherani Bazar about 20 years ago, who had been usually beating his sister merely on petty matters. He further stated that on the eventful day when he came from his Killi to Zhob Bazar at 9:00 a.m. One Hanif son of Haji Mir Salam informed him that his sister Mst. Zar Bakhat had died. Upon receiving the said information the complainant went to the house of his sister where .He was informed that his sister Mst. Zar Bakhat had committed suicide at 5:00 a.m. At that time brother-in-law of the complainant namely Haji Hassan was not present in his. House Mst.
'Kiyal Bibi w/o Saleh Muhammad, who undertook washing dead-body came and informed the complainant that his sister had not committed suicide but she had been murdered by firing with gun shot and that there were injuries on her body. The injuries. Were seen by the complainant himself alongwith Alif Khan, Haji Muhammad Gul and Ghulam Haider and came to know that his sister had sustained gun shot injuries on her right shoulders. They also found injuries on different parts of her body. The Complainant alleged that his sister had been killed by her husband Haji Hassan Sherani and his son Muhammad Qasim.
3. After recording statement of Ubaidullah Mushtaq Ali. SI was entrusted the investigation of the case, who immediately reached, at the place of occurrence and initiated the 'proceeding under, Section 174, Cr.P.C. Prepared site sketch as Ex.P/8-B and inquest report as Ex.P/8-C. Mushtaq Ali, SI, PW-8 arrested the appellants on the same day. The complainant, Obaidullah produced blood- stained shirt of the deceased. Mushtaq Ali took the shirt into possession through recovery memo. Ex . P/6-A Prepared a parcel No,
1. During inspection of the place of occurrence he also took pieces of mattress into possession through recovery memo. As Ex.P/6-B and prepared seal parcel No,
6. An empty cartridge was also taken into possession through. Recovery memo. Ex. P/6-C and parcel No, 3 was prepared by the I.O. Mushtaq Ali, SI, PW-8 arrested the appellants on 26.8.2007. On the same 'day while in custody the appellants No, led. To the recovery Rifle 303 bearing No, 99672 which was taken into possession vide Memo. E.P/6-D. On the same, day he also led the recovery of Magazine No, 2319 which was taken into possession, vide Memo. Ex.P/6-E. On personal search of, appellant No, 2 a. Knife was recovered, which was taken into possession as Ex:P/7-A. During police custody the accused appellant No, 2, made disclosure before PW78. On , 5.9.2007 in presence of DSP, which was produced by PW-5 Abdul Ghat:Om, ASI as Ex.P/6-D. All the articles taken into . Possession by the Investigating Officer, were sent to the F.S.L on 26.8.2007 through D.P.O. After receipt of the report the same was produced before the Court vide Ex.P/9-A. ,
4. During trial prosecution produced as many has nine witnesses in support of its case. The complainant alongwith his other,: relative Alif Khan appeared as PWs-1 & 2. They supported the story given in the FIR. Dr. Shahhaz Khan, Medical Officer, Zhob, PW-3 stated that on 24.7.2007 he conducted the external. Post-mortem of the dead-body of Mst. Zar Bakhat. According to him he found following injuries:-- ' One circular wound with inverted margin in the scapular region on right hone side. This an entrance of wound:
(ii) One lacerated wound on interior side of chest in the mid circular time at the level of second ribs.
This is an exit of wound;
(iii) One circular wound in left iliaefossa stab wound also in left iliaefossa, ss hich was Muscular deep, which was proximately one day old.
' According to his conclusion duration of stab wound was one day old and that she died because of fire-arm injuries.
5. PWs-4 to 7 and 9 are the marginal, witnesses of recovery menios. Etc. Who stated about the arrest. Of the accused persons and recoveries at the instance of accused. While closing its side the prosecution produced the report of Fire-Arm Expert and Chemical Expert Report FSL Crimes Branch.
Quetta as Ex.P/9-A and Ex.P/9-B respectively. 'Thereafter the statements of both the appellants were recorded under Section 342, Cr.P.C. Both the accused/appellants pleaded innocence.; Neither they recorded their :statements under Section. 340(2), Cr.P.C. Nor they. ' produced any witnesses in defence.
6. Learned counsel for the appellants contended that the appellants had been convicted merely on the basis of alleged disclosure- made by appellant No, 1 on 26.8.2007 before the Police Officer and on the basis of recoveries which were not worth reliable. He further submitted that the appellants had been involved merely on account of suspicion for the reason that the PW-1,- complainant, was not eye- Witness of the occurrence and secondly, the recovery of Rifle 303 bore on the pointation of appellant is of no help to the prosecution. According to him the same was sent to the Fire-Arm Expert on 19.7.2008 after delay of one year. He further submitted that no conviction could have been awarded on the basis of extra-judicial 'confession', which was always considered as weak type of evidence as the supporting material was also lacking in this case. He has relied on the judgment reported in PL,D 1974 Quetta 28.
7. Learned Prosecutor General supported the impugned judgment. He submitted that there was .
Overwhelming evidence on record that the appellants had 'committed the 'murder of .Deceased which was supported by medical evidence and recovery of crime weapon on pointation of appellant No,
2. It was also supported by the positive report of the Fire-Arm Expert.
8. We have heard the learned counsel for the appellants, the learned Prosecutor General for the State and have also perused carefully the record including the statements of all the prosecution witnesses. Admittedly PW-1 Obaidullah. And PW-2 Alif Khan are not the eye-witnesses so the evidence of these two witnesses cannot be believed to have intensive value. So far as the extra- judicial confession of appellant, No 2, before the prosecution witness Abdul Ghafoor, ASI and Mushtaq Ali, SI on 5.9.2007 are concerned these are not far from doubt. The extra-judicial confession considered a substantive piece (f evidence, unless it is corroborated by another strong piece of evidence. In the instant case all the prosecution including recovery of crimes Rifle and other articles were taken into possession by the PW-8 Mushtaq Ali, SI on 26.8.2007 whereas, the circumstantial evidence brought on record by the prosecution does not lead to the conclusion that each chain of the incident is linked with other to prove the guilt of the appellant. We, would like to reproduce the observations of the Hon'ble Shariat Appellate Court in the case of Wazir Muhammad and another v. The State, reported in 2005 SCM R 277 hereunder:-- "6. A careful scrutiny of the deposition of Muhammad Ashiq (PW-2) would reveal that extrajudicial confession was made by the appellant when he was being investigated by the police at Police Station, Sangjani and as such it cannot be considered being in violation of the provisions as contained in Article 39_ of the Qanun-e-Shahadat Order, 1984. Another reason for disbelieving the statement of Muhammad Ashiq (PW-2) that he is a "regular visitor" of police station, who used to visit police station, according to his own statement, frequently and thus can safely be termed as a "stock witness". Besides that the appellant had never admitted the murder of taxi driver but on the contrary he had stated that "when they - reached Fateh Jang road some distance ahead of Tarnol, they forcibly deboarded taxi driver from taxi and after tying driver near the Railway Line they thrown him to the grass and proceeded back towards Peshawar". There is no cavil with the proposition that the extra-judicial confession is a very weak type of evidence and no conviction could have been awarded without having strong corroboration which aspect of the mater hardly needs any comments because the statement of Muhammad Ashiq (PW-2) itself is not worthy of credence and once it is disbelieved no corroboration could be sought from his statement and question of corroboration becomes immaterial."
9. After perusal of the evidence on record, we are of that the prosecution evidence is not consistent and circumstantial evidence does not lead us foxing the opinion that the appellants were responsible for the commission of murder of the deceased. So far the unnatural death of deceased is concerned the same was not disputed by the defence in cross-examination. Only conclusion, which could be derived that the deceased had sustained one bullet injury over her scapular region on right bone side.
10. We are of the affirmed opinion that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt.
In view of the above facts and circumstances the impugned judgment being not sustainable in the eye of law, is hereby set aside. The appellants are directed to set free, if not required in any other case. These are the reasons of our short order dated 5.11.2009 whereby the appellants were acquitted from the charge, levelled against them.