Kh. Muhammad Sharif, C.J.--This judgment will dispose of Criminal Appeal No, 191 of 2005 filed by Asif Masih, appellant, who was convicted by learned Sessions Judge, Attock vide his judgment dated 24.5.2005 as under:-- Death under Section 302(b) PPC as Tazir and to pay Rs, 200,000/- as compensation to the legal heirs of the deceased or in default thereof six months S.I.
Under Section 459 PPC to undergo ten years R.I. Murder Reference No, 601 of 2005 for confirmation or otherwise of death sentence of Asif Masih appellant shall also be disposed of through this single judgment.
2. Brief facts of the case as disclosed by Imtiaz Begum complainant are that her deceased husband Riaz Ahmad was a Professor in Cadet College Hassan Abdal and they were residing in Bungalow No, 5 of the said College. On the night between July 31st and August 1st 2004 the complainant and the deceased went to sleep in their bed room while their children slept in the other bedroom. At about 2.00 a.m the deceased called her name loudly upon which she woke up.
She saw that a young man wearing black pant and shirt holding an iron sumba and injured her husband. They were scuffling with each other. The light of the room was ON and she could recognize the culprit on seeing. The complainant took a wicket from the kitchen and gave its three blows on the head of the culprit but he managed to run away from the door of the kitchen. The deceased was smeared in the blood, Mehwish Riaz daughter of the complainant made a telephonic call to the Principal and official doctor reached the spot. The neighbourers Rana Iqbal, Doctor Zeshan and others also reached at the place of occurrence. The deceased was escorted to POF Hospital Wah where he succumbed to the injuries and the case was got registered against an unknown culprit by the complainant.
3. The investigation of the case was taken over by Javed Ahmad S.I PW.12. He after receiving information about the occurrence reached at the place of occurrence and recorded the statement of the complainant Imtiaz Begum and sent the same to the police station for registration of formal FIR. He inspected the spot, took into possession blood through swabs vide memo. Ex.PE, secured wicket P.3 vide memo. Ex.PG, secured a locket along with dori P. 1 vide memo. Ex.PF from inside the kitchen and sent the dead body to the mortuary for post-mortem examination. He prepared inquest report Ex.PK and prepared rough site plan Ex.PL. On 3.8.2004 he arrested Asif Masih accused and on 5.8.2004 Imtiaz Begum complainant produced Photostat copy of identity card of Asif Masih P.6, which was taken into possession vide memo. Ex.PM. On 6.8.2004 the accused Asif Masih got recovered sleeb/surnba P.7, which was taken into possession vide memo. Ex.PJ. However, after completion of formal investigation, the accused was challaned to face the trial.
4. At the trial, the prosecution in order to prove its case produced twelve witnesses in all, thereafter, learned District Attorney after tendering in evidence report of Chemical Examiner Ex.PN, report of Serologist Ex.PN/1, report of Chemical Examiner Ex.PO and that of Serologist Ex.PP closed the prosecution evidence. Then the statement of the accused u/S. 342 Cr.P.C. was recorded in which he pleaded his innocence. However, after conclusion of the trial, learned trial Court convicted and sentenced the appellant as stated above. -5. After having read the entire prosecution evidence, statement of the accused recorded u/S. 342 Cr.P.C. and other material available on record, learned counsel for appellant submits that appellant is not named in the FIR, which was lodged with the delay of eight hours without any proper explanation; that no identification parade was held in this case; that the doctor, who initially medically examined the deceased in his life time, was neither produced by the prosecution not his MLR was placed on record; that original recovery memo. of sumba was never produced by the prosecution; that extra judicial confession is a very weak type of evidence, which was allegedly made by the appellant before Muhammad Ikram Ullah PW. 10 on 2.8.2004 but he made statement before the police on 5.8.2004 without any explanation; that no motive is alleged in the FIR nor stated by the witnesses before the trial Court; that recovery of Identity Card of the appellant underneath the Oven by the complainant on 5.8.2004 is a fabricated one and was planted upon the appellant while the appellant had got his identity card made by NADRA in the year 2003; that there was no necessity on the part of the appellant to go to the house of deceased; that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt and he is entitled to acquittal.
6. Learned D.P.G submits that there was no previous back ground of enmity between the parties; that the appellant is a single accused so there was no question of substitution because substitution is a rare phenomena; that the complainant had identified the appellant after getting Photostat copy of his identity card underneath of Oven when she was cleaning her kitchen and she had identified him in the police station so there was no question of false implication of the appellant in this case; that a locket was also recovered by the police on the day of occurrence from the spot having a monogram of Christianity; that motive is not requirement of law; that the prosecution has proved its case against the appellant and the appeal filed by him is liable to be dismissed.
7. We have heard learned counsel for the parties at a great length and have also gone through the record with their able assistance. Occurrence in this case had taken place on 1.8.2004 at 2.00 a.m while the matter was reported to the police by Mst. Imtiaz Begum Widow of Muhammad Riaz deceased on the same day at 9.35 a.m, although the distance between police station and place of occurrence was K.M. Neither the name of the accused nor any description has been given in the FIR. No identification parade has been held in this case. Above all complainant had stated that she had given three injuries with wicket on the person of appellant, one on his head and other on his back. According to the police appellant was arrested on 3.8.2004 but police did not get him medically examined to corroborate the version of the complainant given in the FIR. Then there is evidence of extra judicial confession furnished by Muhammad Ikram Ullah PW.10. If the appellant had made extra judicial confession before him and one PW was also with him why they did not apprehend the appellant at that moment or informed the police or the complainant on the same day but he informed the police on 5.8.2004 and no plausible explanation in this regard has been given by the prosecution. As far as recovery of sumba from the appellant is concerned, original recovery memo. of sumba was never produced by the prosecution, neither it was on the judicial file nor on the police file so no corroboration can be lent by the prosecution from the said recovery. It was also the case of prosecution that on 5.8.2004 Mst. Imtiaz Begum complainant was cleaning her, kitchen and she found Photostat copy of Identity Card of the appellant underneath the Oven and then she went to the police station and identified him there who was already arrested on 3.8.2004. This evidence cannot be accepted to maintain the conviction of the appellant on a capital charge. We have seen this case from all angles but we are of the considered opinion that the prosecution has miserably failed to prove its case against the appellant beyond any shadow of doubt. Resultantly the appeal filed by the appellant is accepted and the conviction and sentence recorded by the learned trial Court vide impugned judgment is set aside. The death sentence is not confirmed and murder reference is replied in negative. He is in jail and shall be released forthwith if not required to be detained in any other case.