Attaullah Khan J.--Wahid-ur-Rahman, convict/appellant, having charged in case FIR No, 262 dated 31/10/2001 of Police Station Ghoriwala, District Bannu, registered under Section 302 PPC, when tried by the learned Sessions Judge Bannu, for allegedly committing the murder of the deceased Mst. Amina with fire-arm, was found guilty of the offence and thus on conviction under Section 302(b) PPC was sentenced to imprisonment for life and to pay rupees one lac to the legal heirs of the deceased as compensation in terms of Section 544-A Cr.P.C., or in default to further undergo simple imprisonment for one year with benefit under Section 382-B Cr.P.C., vide judgment dated 17/1/2006.
2. Feeling aggrieved from the above verdict of the learned trial. Judge, the convict Wahid-ur- Rahman has challenged it through Criminal Appeal No, 14/2006.
3. Concise facts of the case as per report of the complainant Muhammad Amin lodged on 31/10/2001 at 1030 hours in the emergency room of Civil Hospital Bannu are that his daughter named Amina was married to Zahid Rahman and out their wedlock, three children were born. His house was situated adjacent to the house of Zahid Rahman who was not available in his house. At about 1030 hours, he heard the report of fire shots towards the house of his said son-in-law where he immediately rushed and found his daughter Mst. Amina lying in injured condition in the Courtyard. An old dilapidated condition DB shotgun was also lying near her having a freshly discharged 12 bore empty in one of its barrel. He was informed by his grand-daughter, namely, Mst.
Gulfam aged about 10/11 years, that Mst. Amina was got hit by Wahid-ur-Rahman son of Muhammad Rahman who was seen running. Motive for the offence was stated to be that the Accused/appellant Wahid-ur-Rahnian was beaten by Zahid Rahman. The injured Mst. Amina was referred to Peshawar for treatment but she succumbed to the injuries on the way.
4. After arrest of the accused and completion of investigation, complete challan was put against him in Court where he was summoned but he did not plead guilty to the charge, professed innocence, false implication and claimed trial.
5. The prosecution, in order to prove its case against the accused examined ten witnesses and closed its evidence. Thereafter, statement of the accused was recorded under Section 342 Cr.P.C. but he denied the allegations leveled against him. However, he neither produced any defence evidence nor opted to examine himself on oath under Section 340(2) Cr.P.C.
6. The learned trial Judge on evaluating the evidence brought on record and hearing arguments on both sides found the Accused/appellant guilty of the offence charged with and thus on conviction sentence him as mentioned above vide judgment dated 29/1/2005.
7. The aforesaid judgment was assailed in an appeal before this Court which was accepted vide judgment dated 25/5/2005 and the case was remanded to the trial Court to get examine the Accused/appellant by a Standing Medical Board to evaluate his mental status and then to decide the case afresh in the light of its decision.
8. After remand and receipt of requisite medical report, the Accused/appellant was retried by the trial Court on the same charge by examining the same ten witnesses but he was again found guilty of the charge and on conviction sentenced him vide judgment impugned herein.
9. Learned counsel for the appellant vehemently contended that:--
(a) The FIR is lodged with an inordinate and unexplained delay of one hour and twenty five minutes;
(b) That the deceased remained alive for 4 to 8 hours and there is no report that he could not talk or was unconscious due to which he could not lodge the report; ( c) That the recovery of weapon of offence is doubtful because it was produced by the complainant and not by the accused, which too was presented outside the scene of occurrence, therefore, the appellant cannot be connected with the offence;
(d) That the recovery of weapon of offence is further doubtful because initially the marginal witnesses to the said recovery were Faridullah FC and Muhammad Karim, private person, but at the trial stage, the private PW was abandoned;
(e) That the ocular evidence in this case consists of a solitary witness, namely, Mst. Gulfam, who is related to the deceased and has motive to falsely implicate the accused. The testimony of such like witnesses is to be appreciated with great care and caution and must be corroborated by some independent source which is lacking in the case in hand and lastly;
(f) That the statement of this solitary witness is full of contradictions which cannot be made basis for conviction."
10. On the other hand, learned counsel for the complainant and State argued that it is a broad day light occurrence duly witnessed by eye-witness, the weapon of offence has been recovered and there is no motive for false implication, therefore, being reasonably connected with the offence, the convict/appellant was rightly convicted and sentence for the offence.
11. We have carefully scrutinized the entire record of the case and anxiously considered the valuable arguments of the learned counsel for the parties.
12.We would first discuss the FIR which is available on file as Ex.PA. The occurrence took place on 31/10/2001 at 1030 hours, while the report was made on the same day at about 1155 hours. Thus, there is a delay of one hour and twenty-five minutes in lodging the first report. According to the report, the place of occurrence is at about 4/5 kilometers from the police station.
13.Muhammad Amin complainant appeared as PW.8. According to him he lodged the report in the hospital. He has no-where mentioned the distance between the place of occurrence and the hospital. Similarly, he has failed to explain the delay occurred in lodging the First Information Report. He has simply stated that the delay occurred in making the initial report was on account of shifting the deceased in injured condition to the hospital.
14.We have scanned the entire record and have come across no explanation as to why this delay occurred. There is also nothing on the record as to in how much time the deceased-then-injured was taken to the hospital. In the absence of any such explanation, we may very safely infer that the time spent was consumed in consultation and deliberation. The other fact regarding the manner of lodging the FIR is that the deceased remained alive for four to eight hours. The time between the death and post-mortem examination is shown by the Doctor 12 to 24 hours. According to this report, the post mortem was conducted at 8.15 a.m. The deceased was first examined on 31/10/2001 at 1155 hours in injured condition by the Doctor and after his death on the second day, i,e, 1/11/2001, his autopsy was conducted. There is one hour and twenty-five minutes in between receiving injuries by the deceased and her medical examination in respect of her injuries while she was alive, The duration of injuries was shown as half to two hours. There is nothing in this medical evidence that she was not incapable of talking. After examination of injuries, she remained alive for a sufficient period and even then her statement was not recorded. This creates some doubt about the manner of occurrence.
15.Moreover, PW.8 has stated that the occurrence had taken place at about 10/1030 Hours. This also creates doubt about timing, because in the FIR, the time recorded is 1030 a.m. and not 1000 a.m.
16.According to PW-7, he lodged the report which is again contradictory with the eye-witness, namely, Mst. Gulfam who appeared as PW.9. According to her cross-examination, the occurrence was reported in the police station by her grandfather. The relevant portion of her cross- examination is as below: The matter was reported in the police station by my grandfather and have also reported to the police in the crime house as well 17.After the above statement of the eye-witness, the manner of lodging the first report has taken another turn which is totally contradictory to the version taken by the complainant PW.8. According to the eye-witness (PW.9), the occurrence was twice reported, firstly in the police station and secondly on the place of occurrence. Both these versions of the eye-witness are contradictory with the FIR which reveals that the same was lodged in the hospital.
18.It is also an interesting feature of the case that in his cross-examination, PW-7 who is the husband of the deceased, has stated that he had reported the matter in the hospital which is also thumb impressed by him which reads as under: "I reported the matter in the hospital which is also thumb marked by me".
19.It is also dubious as to who was the lodger of the FIR, either PW.7 or PW.8, because both claims to have lodged the report. Further more, the time of occurrence given by PW.7 is 9/10 a.m. So in our opinion, the lodging of FIR and its place is suspicious and it is not known as to where the matter was reported, either in the police station, in the hospital or on the place of occurrence.
20.Coming to the recovery of weapon of offence, we may point out that vide recovery memo Ex.PR/I, the complainant Muhammad Amin produced a .12 bore shotgun in broken condition to the Investigating Officer which was taken into possession in the presence of Muhammad Karim Khan private PW and Faridullah Khan FC.
21.Now two propositions have emerged in this regard, firstly is that Muhammad Karim private marginal witness to the recovery has been abandoned for no reasons and instead Faridullah police official has been preferred over him which is contrary to the provisions of Section 103 Cr.P.C., which provides that witnesses from general public are to be. preferred. Though each witness is not necessary to be produced but when one is important and independent, he must be produced and his non-production would adversely affect the matter. So in this case also, the withholding of Muhammad Karim Khan private PW has damaged the prosecution case in respect to the recovery of weapon of offence. Secondly that the shotgun which was allegedly used by the accused in the crime was produced by the complainant and not by the accused and that too in some other place.
Alongwith this shotgun, one empty was also produced. If it was .a crime weapon, then it should have been recovered from the spot, but it is not so. Reliance in this respect is placed on the case of Muhammad Younus Vs. The State reported as 2008 P.Cr.L.J.507, which reads as follows:-- "The recovery of the Chhuri used at the time of commission of the offence also could not be used as piece of evidence against the accused as admittedly the said Chhuri was not secured at the instance of any accused, but it was secured lying near the corpse by the Investigating Officer, therefore, it could not be said that the said Chhuri was recovered at the instance of the accused".
22.Further more, the prosecution has failed to produce evidence regarding the ownership of crime weapon. So none is sure that it belonged to the accused.
23. Another interesting fact in this regard is the non-examination of crime weapon and the empty.
The Investigating Officer has sent only blood stained clothes of the deceased for examination and has failed to forward the gun or empty for chemical analysis. So, we have A no evidence before us to show that the weapon of offence allegedly recovered by the Investigating Officer was used in the commission of the crime. Further more, the shotgun was produced by the complainant in six broken pieces and its serviceability is also doubtful. In this respect, we may refer to the case of Ghulam Sikander Vs. Mamraiz etc; (PLD 1985 Supreme Court-11) and in view of this case law, the recovery is of no avail. Similarly, in the case of Muhammad Arif Vs. The State (2007 P.Cr.L.J. 432), the crime weapon not sent for examination to the laboratory was not believed. The relevant observations are as under: "It is also noteworthy that a .30 bore pistol which was allegedly left by the accused was recovered from the spot on 22/4/1998. After registration of the case, this recovered pistol was never sent to the Forensic Science Laboratory, that reflects on the dishonesty of the Investigating Office'.
24.Coming to the ocular evidence in this case which consists of PW.9 Mst. Gulfam, who is the daughter of the deceased has stated that they alongwith the deceased were present inside the house when in the meanwhile the accused who is her uncle entered the house and fired at the deceased with which she was hit. This witness is admittedly the close relative of the deceased, though mere relationship is not a disqualification but it needs corroboration. In the case in hand, the motive disclosed by the prosecution is a double edged weapon which may be used at either side. This motive might have promoted the PW to falsely implicate the accused and in this way she also became inimical and interested witness and, as such, her testimony must be corroborated which is lacking here.
25.Moreover, this witness in cross-examination has stated that her grand-father had seen the occurrence. The grand-father, namely, Ameen, had appeared in trial as PW.8 and has denied witnessing the occurrence with his own eyes. This is very important and material contradiction which destroys the very foundation of the case.
26.The ocular evidence in this case is not corroborated by any independent evidence and thus it cannot be made basis for conviction. In this respect, we may refer to 2008 SCMR '707, wherein it has been held that no independent corroboration was available in support of the ocular evidence which resulted the prosecution failure to prove the guilt of the accused.
27.The upshot of our above discussion is that the manner of occurrence, the lodging of FIR and the time of occurrence is doubtful. The FIR is lodged with sufficient delay which remained unexplained. The recovery of weapon is not helpful because of number of defects discussed above: The ocular version is full of contradictions, not straightforward and also not corroborated through independent sources. This case is full of doubts and the Accused/appellant is entitled to the benefit of doubt.
28.Resultantly, we accept this appeal, set aside the impugned conviction and sentence of the appellant and acquit him of the instant charge. He shall be set at liberty forthwith if not wanted in any other case.
29.Above are the reasons for our short order of even date.