MUNIB AKHTAR, J.---Appellant Sultan was convicted and sentenced to life imprisonment with fine of Rs,100,000 by the learned Additional Sessions Judge, Tando Adam by judgment dated 11-4-2007 in Sessions Case 96 of 2001 for the murder of Yar Muhammad. Yar Muhammad was murdered on 12-2-2001, and the learned trial court gave the following description, in brief, of the prosecution case:-- "That on 12-2-2011 at 7-00 p.m. complainant Ameen Muhammad Thaheem lodged F.I.R. at Police Station Tando Adam alleging therein that they are four brothers and his brother Yar Muhammad is hari of Zamindar Yar Muhammad Shah. ,They are at disputed terms matrimonial atrimonial affairs with the accused Sultan. He has also alleged that on the day of incident he after finishing work went to village and saw the accused Sultan available there. The accused Sultan asked his brother Yar Muhammad to accompany him for taking cock from village Ghazi Khan Thaheem and thereafter, they proceeded for village Ghazi Khan Thaheem. After some time his brother Lal Muhammad came in the house and disclosed that he has heard voice of fire in the land of Yar Muhammad Shah. Thereafter, he along with his brother Lal Muhammad and father Shahmeer proceeded there and reached near Sugarcane crop of Yar Muhammad Shah and saw the accused Sultan armed with pistol coining from sugarcane crop. Thereafter, they entered into the crop and saw his brother Yar Muhammad lying on the ground, having fire arm injury and blood was oozing from the injury and was dead. Thereafter, he had left his father and brother Lal Muhammad over the dead body went to the Nek Mard Sikander Shoro but he was not available in his village and thereafter came to police station where he has lodged F.I.R."
2. The following charge was framed by the learned trial court on 10-11-2003:-- "That you on 12-2-2001 at about 1300 hours at the lands of Yar Muhammad Shah near village Ghulam Muhammad Thahim, due to dispute over matrimonial affairs took away deceased Yar Muhammad from his village in presence of complainant Amir Muhammad on the pretext that you 'have to purchase cock from Ghazi Khan Thahim, hence you took away him and then by firing shot from firearm upon Yar Muhammad committed his Qatle-e-amd by intentionally causing the death of Yar Muhammad and thereby you committed offence punishable under section 302-B/34, P.P.C., within the cognizance of this Court.
And I hereby direct that you be tried on the aforesaid charge by this Court,"
The prosecution examined the following witnesses at the trial:--
(1) Ameen Muhammad, the complainant and brother of the deceased (hereinafter referred to as "P .W.1")
(2) Lal Muhammad, brother of the deceased (hereinafter referred to as "P.W.2")
(3) Bashir Ahmed, mashir of the place of the incident (hereinafter referred to as "P.W.3")
(4) A.S.-I. Abdul Jabbar, mashir, (hereinafter referred to as "P.W.4")
(5) Haji Ibrahim, tapedar, who prepared the sketch of the place of the incident (hereinafter referred to as "P.W.5")
(6) Dr. Fayaz Ali Shah, Medico-Legal Officer, who performed the postmortem (hereinafter referred to as "P.W.6")
(7) HC Mir Muhammad Baladi, mashir of the recovery of country made pistol and cartridges (herein after referred to "P.W.7")
(8) SIP Abdullah Chaniho, who was the S.H.O. of the concerned police station at the relevant time, and Also Investigating Officer (hereinafter referred to as "P.W.8")
3. The accused-appellant was examined under section 342, Cr.P.C., but he did not appear as a witness in his own defense nor did he examine any witnesses or produce any other evidence. After considering the prosecution evidence, and hearing learned counsel for the accused-appellant and State counsel, the learned trial court was satisfied that the prosecution had been able to establish its case, and convicted and sentenced the appellant as noted above. The learned trial court held as follows:-- "I have heard learned Advocate for the accused D.D.A for the State and have carefully gone through the relevant record.
According to the case of prosecution the deceased Yar Muhammad had left his house along with the accused Sultan present in the Court just before his murder. It is also case of prosecution that the P.W Lal Muhammad had heard voice of fire and thereafter, he along with complainant had proceeded there and found the accused Sultan coming out from Sugarcane crop armed with pistol. It is also case of prosecution that the complainant and P.W. Lal, Muhammad went inside the sugarcane crop and found their brother Yar Muhammad dead having firearm injury and thereafter, complainant has lodged F.I.R. It is also case of prosecution that after arrest the accused had voluntarily produced weapon/pistol used in the crime in presence of private witnesses.
The complainant in his deposition before the Court have fully supported the version of prosecution and deposed that accused had taken his brother Yar Muhammad from their house for village Ghazi Khan for purchasing cock and after some time he along with P.W. Lal Muhammad went towards sugarcane crop and saw the accused Sultan coming out from the sugarcane crop armed with pistol and they also found dead body of their brother Yar Muhammad having fire arm injury and thereafter lodged F.I.R.
The complainant was cross-examined at length but nothing came on record to prove him as false witness.
P.W. Lal Muhammad has also supported the case of prosecution and deposed that at noon time he had crossed the place of wardat and heard voice of fire and thereafter, he had narrated the incident to complainant and thereafter he along with complainant went towards place of fire and found accused Sultan coining out from sugarcane crop armed with pistol. They also found the dead body of their brother Yar Muhammad having fire arm injuries.
According to the case of prosecution the accused Sultan has voluntarily produced incriminating weapon before the police in presence of mashir Mir Muhammad. The prosecution have examined said witness who has supported the case of prosecution and deposed that accused has voluntarily produced pistol along with three live cartridges after taking it from the roots of mango tree.
Moreover, the medical evidence also fully support the case of prosecution regarding the time of incident and nature of injuries caused by firearm.
In view of the above discussion, I am of the opinion that. there is sufficient evidence on record to believe that the prosecution has succeeded to prove the case against accused Sultan therefore, I decide this point as proved."
4. Learned counsel for the appellant submitted that the learned trial Court had erred materially in concluding that the prosecution had been able to establish its case beyond reasonable doubt. She submitted that the two material witnesses, P.W.1 and P.W.2, were brothers of the deceased and there were no independent witnesses to the incident. There was admittedly enmity between the appellant and the complainant party, and thus, the evidence of the brothers could not be relied upon, especially when there was no independent corroboration of the same. In this context, she submitted that although these witnesses had testified seeing the appellant leave the scene of the incident, and had almost immediately reached the dead body of their brother, the F.I.R. had been registered after about six hours and this was, in the circumstances, a significant delay which cast doubt on the prosecution story. Learned counsel submitted that there were material contradictions even in the testimonies of these two witnesses. Thus, though they were together when they saw the accused come out from the sugarcane crop, P.W.1 stated that the distance was about 4 acres, while P.W.2. stated that the distance was about 2 acres. (It may be noted that the witnesses had stated distances in terms of "acres" which is of course a measure of area and not distance.
However, both learned counsel for the appellant and learned D.P.-G .were agreed that a distance of 1 "acre" corresponded to 264 feet (i,e,, 88 yards), and this is the measure used by me.) Learned counsel further submitted that the blood-stained earth said to have been recovered from the place of incident had been sent for chemical examination after about two years, and the country made pistol recovered by P.W.7 on 26-2-2001 (and said to be the murder weapon) was sent for ballistics testing on or about 25-6-2004. i,e,, after a delay of about three years. Learned counsel submitted that these delays were not explained at all by the prosecution, and the learned trial court erred materially in failing to appreciate this aspect of the matter. Learned counsel also relied on certain decisions in support of her case, and these are considered below.
5. Learned D.P.-G. opposed the appeal, and supported the impugned judgment. His case was that that prosecution had fully established its case, and the appellant had been rightly convicted for the heinous offence of murder. He submitted that the evidence of P.W.6, the doctor who carried out the postmortem, had not been effectively refuted, and clearly established that the deceased had been murdered with a shot from a firearm that fired cartridges. Both P.W.1 and P.W.2 had testified that they saw the appellant emerge from the sugarcane crop, where their brother's body was almost immediately thereafter discovered, armed with just such a weapon. After his arrest, the accused had voluntarily taken the police to the place where he had hidden the murder weapon, i,e,, the country made pistol which tired cartridges. It was found with three live cartridges, and one spent cartridge inside it. On ballistics testing, the spent cartridge was found to have been fired from the pistol. There had been no delay in the registration of. the F.I.R. Thus, the prosecution case had been fully made out, and the appellant had been rightly convicted.
6. I have heard learned counsel for the parties, and gone through the record with their assistance.
There were of course no eye-witnesses to the murder. Learned D.P.-G. correctly pointed out that the evidence of P.W.6. was not effectively rebutted, and hence it stood established that deceased Yar Muhammad had been killed with a cartridge tired from a firearm. The prosecution case therefore depended crucially on the evidence of P.W.1. and P.W.2. and the recovery and connection of the murder weapon with the accused-appellant. I start by considering the latter aspect of the matter.
The prosecution case A was that no cartridges, spent or otherwise, were recovered from the place of the. incident, but that after his arrest, the appellant had voluntarily confessed to the murder and had taken the police to the place where he had hidden the murder weapon. The weapon recovered was a country made pistol with three live cartridges found along with it, and a spent cartridge found inside it. The learned trial court accepted this evidence, tying it to the fact that the deceased had been killed with a cartridge shot. In my view, the learned trial court committed a material irregularity in this regard. The purported "confession" of the appellant to the police was of course entirely inadmissible. But even his statement that the country made pistol to which he led the police was the "incriminating weapon" (to use the words of the learned trial court) or was "the crime weapon used by him" (to use the words of P.W.7) was inadmissible under Article 40 of the Qanun-e-Shahadat Order, 1984. This is a well-settled proposition, which was recently re-affirmed and explained by the Supreme Court in Mst. Askar Jan and others v. Muhammad Daud and others 2010 SCM R 1604 (per Rahmat Hussain Jafferi, J.). Reference was made to several decisions from the Indian jurisdiction to explain the proper scope and extent of Article 40. In that case, the recovery of blood-stained bailchas was made upon the statement of the accused, and the Supreme Court observed as follows:-- "As regards the recovery of blood stained bailchas, the prosecution relied upon the evidence of P.W.3 and P.W.18. The evidence of P.W.3 reveals that on 18/19-104994 at 10/11.00 p.m., in the Police Station Wah Cantt. the S.H.O. interrogated the appellant and on the said interrogation he, inter alia, disclosed that he could lead to the recovery of bailchas, the weapon of offence. The statement. He could lead to .the recovery of baiichas" is admissible under Article 40 of the Order, but subsequent statement regarding "weapon of offence" is inadmissible. Reference is invited to the basic authority of the Privy Council on the above subject delivered in the case of Kotayya v. Emperor (AIR 1947 (34) PC 67), which has consistently been relied upon by the superior Courts of this country and so also of India." (para. 20; emphasis supplied)
Thus, all that was legally admissible in the present case was that a country made pistol (which companying cartridges) was recovered through the appellant. The further or additional statement that it was the "incriminating" or "crime" weapon was wholly inadmissible, and the learned trial Court erred materially in failing to keep this in mind. Now. the spent cartridge was, according to the prosecution itself, found inside the pistol (and not from the scene of the incident), and therefore, the ballistics report tying this cartridge to the pistol does not add anything material to the prosecution case. Furthermore, learned counsel for the appellant relied on Suwali v. The State 1982 PCr.LJ 808 (SHC; DB), Laldino v. The State 006 PCr.LJ 1846 (SHC; SB) and Ghinam Nabi and others v.
The State 2009 M LD 49 (SHC; SB) to contend the alleged crime weapon was sent for ballistics testing after some delay, and that vitiated the prosecution case. In the present case also, there was a substantial delay in sending the country made pistol for ballistics testing and no proper explanation is forthcoming for the delay. The learned trial court, in my view, erred materially in not considering this aspect of the matter.
7. It will be seen from the foregoing that the only thing that could tie the pistol recovered through the appellant with the murder was the evidence of P.W.1 and P.W.2, who testified that they saw the appellant emerge from the sugarcane crop with a pistol. According to their evidence, sometime after their brother, the deceased, had gone off with the appellant, P.W.2 heard a shot fired, which came from the direction of the sugarcane crop and he came to the family house to apprise P.W.1 (and their father) of this. The men set off together towards the sugarcane crop and saw the appellant coining out of the field with a pistol in his hand. According to P.W.1, they were at a distance of about 4 "acres" (i,e,, about 350 yards) when they saw the appellant, and P.W.2. testified that they were about 2 "acres" i,e, about 175 yards) away. As correctly pointed out by learned counsel for the appellant, this is a material contradiction. Furthermore, it is difficult to accept that the two prosecution witnesses were able to make out, at such a distance (on either version), that the appellant was carrying a pistol. Learned counsel for the appellant (while exercising her right of reply) had also pointed out that the incident took place in February when the sugarcane crop, which stands several feet high, is ripe and ready for harvesting. According to both prosecution witnesses, the appellant had just emerged from the sugarcane crop when they saw him, and this further erodes the credibility of what P.W.1 and P.W.2 said regarding having seen the appellant armed with a pistol. In my view therefore, this fact could not be said to have been established beyond reasonable doubt. Thus, a crucial element of the prosecution case, namely, connecting the appellant with a pistol (or weapon) that was used to commit the murder of Yar Muhammad was not properly established, and the learned trial court erred in concluding to the contrary.
8. I now turn to consider the contention of learned counsel for the appellant that the material witnesses on the prosecution side (i,e, P.W.1 and P.W.2) were the deceased's brothers and there was no independent corroboration of their evidence. It is to be noted that the incident occurred in the daytime, at around midday. The deceased was murdered by a shot being fired, which was heard by P.W.2 who was admittedly at some distance (perhaps as much as 8 "acres" or 700 yards) from the scene of the incident. In his cross-examination, P.W.1 stated that the village had around 200 houses. It is difficult to accept that the gunshot was not heard by any other person or that, at that time of the day, there were no other persons who could have seen the appellant and/or the deceased at the relevant time. It is also pertinent to note that it was only P.W.1 (and not P.W.2) who (along with their father, who however, was not a prosecution witness) was at their house in the village when the appellant asked the deceased to accompany him to the other village to purchase a. cock. The statement to this effect made by P.W.2 in his examination in chief was therefore clearly hearsay and inadmissible as such. Thus, there was only witness (P.W.1) who saw the deceased and the appellant go off together, and there is no independent corroboration of this fact. Furthermore, it would seem that when P.W.2 heard the gunshot, he had no reason to suspect that anything was amiss. Thus, the entire prosecution case rests on the evidence of two witnesses who admittedly were inimical to the appellant; and there was no independent corroboration of their evidence. Even the evidence of these witnesses is not fully satisfactory. Thus, in respect of both the crucial elements of the C prosecution case, i,e, the evidence of P.W.1 and P.W.2. and the recovery and connection of the murder weapon with the accused-appellant, the evidence produced by the prosecution was not of the required nature and quality.
9. For all of the foregoing reasons therefore, I am satisfied that the prosecution was not able to establish its case beyond reasonable doubt and the learned trial Court erred materially in coming to the contrary conclusion. Accordingly, this appeal is allowed and the impugned judgment is set aside. The appellant is acquitted and shall be forthwith set at liberty unless otherwise required in some other case.