' ATTAULLAH KHAN J.--- Through this single judgment we propose to dispose of Criminal Appeal No,44 of 2009 and Murder Reference No,5 of 2009, as both these have been filed against one and the same judgment delivered by learned Sessions Judge, Tank, -vide which he convicted and sentenced the appellant Rahmatullah to death under section 302(b), P.P.C. Along with fine of Rs,50,000 to be paid as compensation to the L.Rs, of the deceased and also convicted under section 201, P.P.C. To three years and fine of Rs,10,000 and in default to one year's R.I. He also convicted and sentenced under section 13 A.O. To one year and fine of Rs,500 and in default to one month's R.I. Through appeal the appellant/accused seeks acquittal while. Murder reference is for confirmation of sentence or otherwise.
2. The brief facts as disclosed in the F.I.R. No,340 dated 1-11-2007 are that the complainant Ramatullah brought the dead body of deceased Suleman son of Gulab Khan to Police Station, Tank in a Datsun. He lodged the report that the deceased was his friend. On that day, he was present in his jewelry shop in Mahsud Market Tank. Suleman when came to his shop at 10 a.m. And asked for his motorcycle which he gave to him and went. After half an hour, he asked him on cell phone to accompany him for getting the loan from Gul Khan in Bara Khel. That he was present opposite of Kohisar Bakery. He went there. They both sat on motorcycle while Suleman was driving the bike.
When they reached to Gul Khan house in Bara Khel, inmates of his house informed them that he had gone to Tank. On the way back to Tank, when they reached on Pukhta road near Bara Khel at 12-30 hours, two persons with muffled faces sitting on the road side, one of whom was having kalashnikov and other was armed with pistol came on the road and signaled them to stop.
Suleman stopped the bike. Accused ordered them to come down from bike. Suleman caught hold of the nearby man armed with Kalashnikov. His companion who was armed with pistol fired upon Suleman with intention of killing him. He was hit on his head and died. They appeared Pashto speaking. After sometime a Datsun came there from Ranwal Adda. He stopped it, put the dead body of Suleman and personal Hunda Bike 125 in it and brought to the Police Station. In the F.I.R. He charged unknown person for killing of Suleman. The present accused/appellant after investigation admitted murder of Suleman and was made accused in the present F.I.R.
3. After completion of investigation, complete Challan was put in C art against the accused. Formal charge was framed against the accused/appellant to which he pleaded not guilty and claimed trial.
4. The trial Court recorded statements of six witnesses of the prosecution. Accused/appellant recorded his statement under section 342, Cr.P.C.
5. After hearing arguments, the learned trial Court passed the impugned conviction and sentence.
6. Against the above conviction and sentence, the accused/appellant has filed appeal while trial Court submitted murder reference for the confirmation of the conviction and sentence.
7. We have heard the arguments of learned counsel for the parties and gone through the record.
8. Learned counsel for the accused/appellant contended that in this case there is no ocular evidence. Initially the report was lodged by the accused/appellant and after his arrest he was arrayed as an accused in this case. His next argument is that the matter of recovery of weapon is doubtful and it cannot be believed, therefore, cannot be made basis for conviction.
9. On the other hand, the stand of learned counsel for the complainant is that the prosecution has proved its case on the basis of recovery of pistol and empties, FSL report and last seen evidence.
10. The impugned Judgment of the learned trial Judge discloses that the learned trial Court has based its judgment on the recovery of pistol and empty, the pointation of spot by the accused to the police, report of FSL coupled with medical evidence.
11. Admittedly, in this case there is no eye-witness. Initially the incident was reported by the complainant in the Police Station, Tank. The F.I.R. Is Exh.P.A. On the same day i,e, 1-11-2007, the accused was arrested on suspicion and on his alleged pointation, one empty of .30 bore, one .30 bore pistol along with magazine were recovered. Similarly on the same day, one purse, Photostat of identity card along with, cash amount Rs,810 belonging to the deceased and one mobile set was recovered. These articles were taken into possession by the police vide recovery memo Exh.P.C., Exh.P.C./1 and Exh.P.W.2/2. On the day of occurrence, after lodging report, the police noticed that the accused/ appellant Rahmatullah is disturbed and. Terrified; therefore, he was suspected for the murder and was interrogated. During interrogation he admitted his guilt and informed the police that he has murdered the deceased with his .30 bore pistol and has thrown his pistol on the spot.
The legal heirs of the deceased also suspected the accused/appellant. After recovery of incriminating articles he was made an accused in this case.
12. We have to examine the circumstances which led the police to make the complainant/lodger of F.I.R. As an accused in this case. It is well-established principle of criminal justice that no one shall be involved in crime unless there is evidence and circumstances leading to the same. In this case the police have based its opinion on the alleged fact that while present in the Police Station the accused was disturbed, therefore, he was interrogated and during interrogation articles mentioned above were recovered. In our opinion this is not the proper way because there is no material on record to establish the involvement of the accused in a serious crime. If we analyze the details of the recovery, we find that the same is also not beyond doubts. The pistol and empty were recovered allegedly on the pointation of accused vide recovery memo. Exh.P.C. And Exh.P.C./1.
These two recoveries were witnessed by Khan Zaman, Komaidan and Amir Abdullah A.S.-I. Amir Abdullah A.S.-I. Is the police official while the two remaining are private witnesses. Among these three witnesses Amir Abdullah A.S.-I. And Komaidan have been abandoned by the prosecution while Khan Zaman was examined as P.W.3. This witness has disclosed in his testimony that on the day of occurrence when he reached at the spot, police mobile reached there. He was stopped by the police and in his presence, on the pointation of accused Rahmatullah in handcuff, Investigating Officer picked up blood-stained earth, one empty of .30 bore pistol Exh.P.1 and also .30 bore pistol Exh.P.2. In his statement it is disclosed that the articles were picked up by the Investigating Officer at the pointation of accused Rahmatullah. The Investigating Officer is examined in this case as P.W.S. According to him the accused while in handcuff pointed out the places wherefrom the recoveries were made. According to him the accused himself picked up the weapon of offence .30 bore pistol Exh.P.2 which was lying in the field and produced to him. The recovery of pistol is an important piece of evidence as the conviction is based, inter alia, on this recovery also. According to marginal witness P.W.3, on the pointation of accused Rahmatullah, the Investigating Officer picked up .30 bore pistol while according to the Investigating Officer on the pointation of accused, he himself picked up the weapon of offence. These two statements of witnesses regarding recovery of weapon of offence is contradictory and conflicting each other and cannot be believed.
In cross-examination he stated that his entire investigation is based on the statement of accused under section 161, Cr.P.C.
13. It is also an admitted fact that there is no eye-witness of the occurrence. The Investigating Officer admitted in his cross-examination that none of the P.Ws. Has furnished the ocular account of the occurrence. In our opinion there is no sufficient material on record, at the relevant time, to substitute the complainant and make him as accused.
14. The said recovery of weapon of offence in this case is doubtful because of material contradiction between the Investigating Officer and the marginal witness of the recovery memo. In these circumstances the recovery of weapon of offence is not proved. The evidence of P.Ws.
Coupled with and statement of accused pointed out two versions, one is that the deceased was done to death by the two unknown robbers. The contents of F.I.R. Lodged by complainant now accused discloses this allegation. The accused in his statement has also taken this stand that as a result of a scuffle between the robbers and complainant party, deceased was killed. The second version as set out by the prosecution is that it was accused who killed the deceased because the deceased had advanced loan to the accused and he was not ready to pay it and this is the reason for the murder. If put both these versions in juxtaposition, the version of the accused is natural and supported by the circumstances. The first reason is that if the deceased is killed by the accused then why he took his dead body to the Police Station and himself lodged the report. He had ample chance of slipping away and nobody at the time of offence was present. Instead of disappearance he took the dead body and lodged the report in the Police Station. This appeals to mind. Moreover, the advancement of loan by the deceased to the accused is not proved. So the version of the accused is to be accepted in these circumstances. As far as the second version of the complainant is concerned it is not proved and is too weak to be believed for the reason that neither motive set up is proved nor ocular evidence is available.
15. So in our view the version of accused as contained in the F.I.R. Is more nearer to truth and the benefit must go to the accused.
16. To sum up the prosecution case rest upon recovery of pistol and empty, medical evidence and last seen evidence. We have reached to the conclusion that conviction recorded by learned trial Judge is based on unsound reasoning, surmises and conjectures. The recovery as discussed in detail above, is not legally proved. The witness and Investigating Officer have taken different stands in this regard. One say these were picked up by the accused in handcuff and handed over to the Investigating Officer while second stated that he himself recovered it. It is material contradiction which has altogether shattered the veracity of the recovery. The medical evidence is of no relevancy in the case in hand in the available circumstances of the case for the reason that there is no material on record either of ocular or circumstantial nature to connect accused with the murder of the deceased. Medical evidence can only establish the type of weapon used, the seat of injury and the time. It can never be a primary source of evidence of the crime itself specially where no ocular evidence is available. Reference may be given to Ghulam Mustafa v. The State 2009 SCM R 916. It is double version case and the benefit should go to the accused particularly when the version of the accused near to truth. There is also no ocular testimony. Motive is too weak and not proved through documentary evidence.
16. Before parting with, we advise that the trial Court must bring on record the arguments of counsel of both the parties, set out points for determination and record findings thereon with reasons, in order to fulfil the requirement of mandatory provision of section 367, Cr.P.C. In future.
17. In these circumstances we have reached at the conclusion that the prosecution has badly failed to prove the case against the accused. Therefore, we set aside conviction and sentence recorded by the trial Judge by accepting the appeal of the accused/appellant. The accused/ appellant be set free if not required in any other case. The murder reference is resultantly answered in negative.