1. Muhammad Noor Meskanzai, J.--Brief facts conceiving this appeal against the judgment dated 19th June, 2009 delivered by Sessions Judge, Dera Murad Jamali are as under:-- That an FIR Bearing No, 91 of 2006 lodged with S.H.O., P.S Saddar, Dera Murad Jamali by PW-2 Mehr- ud-Din son of Abdul Rashid on 12th July, 2006 at 10:45 p.m. under Sections 302/34 P.P.C., wherein; it was alleged that complainant alongwith other PWs namely Sikandar, Sadruddin and Saif-ud-Din were present at their house, when they heard gunshot reports from the house of Sohrab Khan son of Amanullah Khan. It was further alleged that all of them rushed to the house of Sohrab Khan, where they found the dead body of Mst. Naseeman lying in the Courtyard of house. It was also alleged that they saw in the light of bulb Muhammad Akbar son of Amanullah, Abdul Rasool son of Abdul Fateh and Sikandar son of Dost Muhammad, armed with deadly weapons, running and saying "that the) have committed murder of Mse Naseeman on account of "SIA-KARI" with one Idayatullah son of Haji Muhammad Unman, saying so all three came out of house and ran away at dark night and foi the purpose of protection of dead body Sadr-ud-Din and otner were left at venue. PW-8 Hazar Khan after lodging of FIR visited the venue, prepared the sketch, recorded the statements of PWs, took into possession blood-stained earth, one empty lying at the place of incident was also collected, recovery memos. were prepared. It is important to note that upto filing of Challan No, 07 of 2007, nobody could have been arrested, therefore; challan was filed under Section 512 Cr.P.C. on 13th January, 2007. Appellant was arrested on 20th January, 2009 and the statement of Mst. Zulekhan was recorded by Investigating Officer on 28th January, 2009, so challan 7-A/09 was submitted on 27th January, 2009 and after the receipt of F.S.L report, Challan 7-B/09 was filed on 06.6.2009. Charge under Sections 302/34 P.P.C. was framed on 16th February, 2009, which was denied by accused. In order to prove the charge, prosecution produced following nine PWs:-- PW-1 Mst. Zulekhan is mother of deceased. She narrates the story by stating that deceased Mst.
2. Naseeman was her daughter, whose marriage was solemnized with one Sohrab Khan some about 20/25 years ago. Incident took place about 23 (two and half) years earlier at 9:00 p.m. at the time of fateful night. She was residing with her daughter Mst. Naseeman. Electric bulb was on, so lightening was there all of them were sleeping in Courtyard. She saw Muhammad Akbar, Abdul Rasool and Sikandar coming armed with deadly weapons. I howl at and asked them, as to why they are coming armed, after my calling, Muhammad Akbar, Abdul Rasool and Sikandar started firing with Kalashnikov upon my daughter Mst. Naseeman. Firing continued for a minute, thereafter; all three persons ran away by making aerial firing. Mst. Naseeman sustained three bullet injuries.
3. The accused declared the deceased as "Siakar" with one Inayatullah son of Haji Usman. Her daughter was not at all a "Siakar". She identified accused present in the Court.
4. PW-2 Mehr-ud-Din son of Abdul Rashid produced FIR as Ex.P/2-A and stated that on 12th July, 2006, the incident took place at night on 9:45 p.m. He was sleeping with his family and nephews namely Sikandar, Sadr-ud-Din, Saif-ud-Din, suddenly they heard gunshot report from the house of Sohrab Khan. Witness alongwith his nephews rushed. there, where he saw his sister lying dead in pool of blood, thereafter; he lodged the FIR. This witness was declared hostile and cross-examined by State counsel.
5. PW-3 Saif-ud-Din son of Muhammad. Amin stated that the incident, took place on 12th July, 2006 at night. Witness alongwith his family members i,e, Mehr-ud-Din, Sadr-ud-Din and Sikandar were present at their houses, when they heard gunshot reports. Mehr-ud-Din, Sikandar. Sadr-ud-Din and I rushed to the venue. My cousin saw the corpse of Mst. Naseeman lying in pool of blood, then Mehr-ud-Din lodged the report. This witness was also declared hostile and cross-examined by the State counsel.
6. PW-4 Dr. Zohra Baloch issued the M.L.C., found following injuries on the person of Mst. Naseeman and produced the M.L.C. as Ex.P/4-A:-- Hand on occipital region a big wound about 3 to 4 muscles and brain exposed.
7. On left side of the body next to cardiac are size 1 and 1/2 ". Exit: Multiple petals back of body. The hollow body. "
8. PW-5 Wali Muhammad, Head Constable produced recovery memo. of blood-stained clothes as Ex.P/5-A vide Articles 7 and 8.
9. PW-6 Sadr-ud-Din stated that on night of 12th July, 2006, Saifud-Din, Mehr-ud-Din, Sikandar and I were present at our house; all of a sudden they heard gunshot reports from the house of Sohrab Khan, so they rushed to the house of Sohrab Khan and found Mst. Naseeman lying dead in pool of blood. Mehr-ud-Din lodged report. Police visited the site. He acknowledged his signature on Ex.P/3- A, Ex.P/3-B and Ex.P/3- C respectively. This PW was also declared hostile and cross-examined by D.A.
10. PW-7 Sikandar Ali son of Hokam-ud-Din stated that on 12th July, 2006, Mehr-ud-Din, Sadr-ud-Din, Saif-ud-Din and I were present at our house and at 9:45 p.m., suddenly they heard gunshot reports from the house of Sohrab Khan, they rushed to the house of Sohrab khan, there they found the dead body of Mst. Naseeman lying in pool of blood in the Courtyard. In the light of bulb, he saw Muhammad Akbar, 'Abdul Rasheed and Sikandar son of Dost Muhammad, armed with deadly weapons, running and declaring Mst. Naseeman as "Siakar" with Inayatullah, hence they have committed murder of Naseeman; he identified accused present in the Court. This witness was also cross-examined by the State counsel after declaring him hostile.
11. PW-8 Hazar Khan stated that on 12th July, 2006, he was posted as Investigating Officer at Police Station, Saddar Dera Murad Jamali, at that night FIR No, 91/2006 was lodged by Mehr-ud-Din at 10:45. He was entrusted with investigation of case. He went to venue and found the dead body of Mst. Naseeman in the house of Sohrab Khan. He inspected the site. He prepared inspection report, prepared site-plan and produced the same as Ex.P/8-A and acknowledged his signatures on it. He recorded the statement of PWs, inspected the dead body of deceased, prepared the inquest report and produced the same as Ex.P/8-B, took into possession blood-stained earth, one empty and prepared the recovery memos, thereafter went to hospital and after post-mortem of dead body, the same was handed over to the relatives against the receipt vide Ex.P/8-C. since accused could not be arrested, therefore; challan under Section 512 Cr.P.C. was submitted, which was prepared by Nasibullah, the same was produced as Ex.P/8.D.
12. PW-9 Abdul Ghafoor stated that on 12th Jul, 2006, FIR No, 91 of 2006 was lodged by Mehr-ud-Din, initial investigation was carried out by Hazar Khan, subsequently accused was arrested on 20th January, 2009 and he was entrusted with investigation of case. After carrying out investigation, accused was remanded to judicial custody. :le also recorded the statement of PW-Mst. Zulekhan and filed incomplete challan, which he produced as Ex.P/9-A, thereafter he filed complete challan on receiving of F.S.L report, which was produced as Ex P/9-B. He identified the signature of Ghulam Mustafa on complete challan.
13. At the end of prosecution evidence, the appellant was examined under Section 342 Cr.P.C., however, no statement with in domain of 340(2) Cr.P.C. nor any DW was examined.
14. After hearing the parties, the learned trial Court found the accused guilty of offence and sentenced him as mentioned above.
15. Mr. Kamran Murtaza learned Advocate for appellant submitted that in fact the incident is unseen.
16. Statement of PW-1 was recorded after a delay of about 2 years. No explanation was offered by prosecution for such inordinate delay. He further argued that since rest of PWs were declared hostile, therefore; prosecution has totally failed to make out any case against convict/appellant. He stressed that the impugned judgment is result of misreading of evidence, there was/is no material available en record whatsoever in nature, justifying the conviction, hence impugned judgment may be set.aside and the appellant be acquitted of the charge.
17. Miss Shazia Abbasi learned state counsel controverted the arguments so forwarded by learned counsel for the appellant and supported the judgment impugned herein, however; could not offer 'any plausible explanation regarding the delay in recording statement of PW1, so we propose to form our own opinion, while confining ourselves to the points already formulated by trial Court i,e, 0 whether deceased Mst. Naseeman met with violent unnatural death by means of fire-arm injuries to her person? (ii) Whether on 12.7.2006 at about 9:45 p.m. (night), accused facing trial Muhammad Akbar alongwith absconding accused Abdul Rasool and Sikandar armed with fire-arms with the furtherance of common intention had committed Qatl-e-Amd of deceased Mst. Naseeman by inflicting fire-arm injury to her person.
18. Insofar as Point No, 1 is concerned, there is no dispute that Mst. Naseeman died unnatural death on the night f 12th July, 2006, on account of sustaining bullet injuries. All the PWs are consistent on the point and their version is substantiated by the documentary evidence i,e, Ex.P/4-A produced by PW-4 Dr. Zohra Baloch. So Point No, 1-was resolved rightly and we uphold the judgment to that extent. However, we answer Point,No, 2 in negative on the basis of following reasons.
19. We have heard the arguments of both the counsel and have gone through the record very minutely and carefully. A careful examination of record reveals that the learned trial Court though claims to have had "a quick and considered glance at the record placed before it and minute analysis of the deposition of prosecution case" yet it seems that there has been only a quick glance, which has culminated entirely in misreading to evidence. The statement .of PW-1 Mst.
20. Zulekhan was not liable to be accepted for various reasons; firstly the incident had taken place on 12th July, 2006, whereas; the statement of this PW was recorded for the first time on 28th January, 2009. She has utterly failed to offer any reasonable, plausible and rational explanation for this inordinate delay. Secondly there are material improvements; thirdly the statement is otherwise unbelievable, as it does not reconcile with the circumstances and there is lack of corroboration.
21. Admittedly incident has taken place at night. She claims to have seen the assailants in the light of bulb, but we have carefully and minutely perused the site-plan; neither any point indicating the place or fixture of bulb has been pointed out, nor any electric pole has been shown. So in the dark night visibility and identification of assailant if not impossible but becomes very difficult, doubtful and improbable. Similarly; it is not known as on whose instance and pointation the site-plan was prepared. Nor the site-plan mentions and shows her presence inclusive any one else. Fourthly she claims to have seen all the three accused to have fired with Kalashnikov upon deceased, but recovery of only one empty negates this version. Fifthly PW-2, 3 and 7, claim to have reached at the site first, they do not mention the presence of any one including Mst. Zulekhan at the place of incident. PW-2 has admitted that Mst. Zulekhan resides in Manji Pura" Therefore, presence of Mst.
22. Zulekhan at site becomes highly suspicious; doubtful rather unbelievable, therefore; the learned trial Court committed material illegality by believing PW-1 to be an eye-witness of the incident. So in these circumstances the learned trial Court ignored all these basic and inherent defects and believed the PW-1 while resolving Point No,
2. This act on the part of trial Court was highly illegal, because there was no occasion to base conviction on such illegal, unbelievable and scanty, piece of evidence. Hence in view of principles and requirement of safe dispensation of criminal justice, conviction cannot and ought not to be recorded on the basis of such doubtful, suspicious, scanty and unbelievable evidence. We are mindful and conscious of legal prepositions that major penalty can well be awarded on the solitary statement of an eye-witness, provided that rings true and is free of any doubt. Here the situation is entirely different, therefore; by no stretch of imagination, this piece of statement can be believed nor can be relied and based for recording conviction in death cases. On the point of delay, we are supported by the judgment of Hon'ble Apex Court reported in SCMR 1996 page 1553, wherein; it was held as under:-- "--S. 161--Penal Code (XLV of 1860), S.302/34--Late recording of statement under S. 161, Cr.P.C.-- Value--Late recording of a statement of a prosecution witness under S. 161, Cr.P.C. reduces its value to nil unless delay is plausibly explained."
23. As far as delay in recording evidence, the Hon'ble Apex Court in the judgment reported in SCMR 2001 page 424 held as under:-- "--Ss. 302/149, 148 & 382--Anti-Terrorism Act, (XXVII of 1997), S. 7--Appreciation of evidence-- Unexplained delay in recording statement of eye-witness--Effect--Where no plausible explanation is offered by the prosecution for not recording the statement of eye-witness immediately after the registration of the case, ?hen the evidence of such witness becomes incredible."
24. As regards site-plan, we are fortified by the judgment reported in SCMR 2001 page 424. The relevant potion is reproduced herein below:-- "--Ss. 302/149, 148 & 382--Anti-Terrorism Act, (XXVII of 1997), S.7--Site-plan--Evidentiary value-- Site-plan loses its evidentiary value if it is not prepared on the pointation of a witness."
25. PW-2, PW-3 and PW-6, who are admittedly not eye-witnesses, but yet claim to be circumstantial witnesses, PWs-2, 3 and 6 have not supported prosecution case, except to the extent of hearing of gunshot reports and death of victim. However, PW-7 to some extent has stuck to his gun with reference to his statement recorded under Section 161 Cr.P.C., but all the four PWs i,e, PWs-2, 3, 6 and 7 categorically exonerate convict appellant from any liability. For instance PW-2 in reply to a question put by D.A. says that: {{URDU TEXT}} PW-8 Hazar Khan, though claims to have arrived at the place of occurrence at 12:00 O'clock night, yet according to challan Ex. P/8-A {{URDU TEXT}} In the light of these circumstances, it is highly improbable and irrational to believe such scanty evidence and illegal to base conviction on the same. Resultantly, we do not have any hesitation in holding that the evidence on record has been misappreciated and misread by the trial Court. The conclusions so drawn by the trial Court are contrary to record, in utter disregard and flagrant violation of principles of natural justice. The impugned judgment dated 19th June, 2009 delivered by Sessions Judge, Dera Murad Jamali, whereby; appellant/convict was found guilty and sentenced, is hereby set aside. We extend benefit of doubt to convict/appellant, hence appellant is acquitted of the charge and appeal is accepted. The appellant shall be released forthwith, if not required in any other case/offence.
26. These are the reasons for our short order.