' MUHAMMAD HASHIM KHAN KAKAR, J.---This appeal is directed against, the judgment dated 11-5- 2007, passed by the Additional Sessions Judge, Dera Allah Yar, whereby appellant Abdul Rehman was convicted and sentenced under section 302(b) read with section 34 of the P.P.C. To suffer life imprisonment as ta'zir and to pay an amount of Rs,50,000 as fine, in default whereof to further undergo S.I. For six months and in case of recovery, the amount of fine was ordered to be paid to the legal heirs of the deceased, with the benefit of section 382-B of the Cr.P.C.
2. The relevant facts, arising out of instant appeal, are that on 22-10-2005, a case vide F.I.R. No,245 of 2005 (Exh.P/6-E), under section 302 of the P.P.C. Was registered at Police Station Dera Allah Yar on the report of complainant Wali Muhammad, wherein he alleged. That about 5/6 months back, he contracted marriage with Mst. Sakina Bibi, whereas the hands of his sister Mst. Naz Bibi was given to his brother-in-law i,e, the appellant Abdul Rehman, in exchange of that marriage. He further alleged that on 21-10-2005, he, along with his wife Mst. Sakina Bibi, went to the house of his in-laws in order to harvest the paddy crops, stayed there fora night and next morning started harvesting the crops. In the evening, his relative Abdul Razaq also came there to meet them. In the night, he, along with Faqir Muhammad and Raja Khan, was chatting in the 'Autaq' , when at about 10-20 p.m., his brother-in-law Abdul Rehman came there and told that he has committed the murder of his wife Mst. Naz Bibi by means of strangulation while declaring her siyahkar with, his relative Abdul Razaq, whereas Abdul Razaq ran away. He further alleged that accused also ran away, whereas he, along with Faqir Muhammad and Raja Khan, went to his in-laws house, where his sister's dead body was lying on a cot. Consequently, the aforesaid F.I.R. Was registered.
3. After registration of the F.I.R., investigation of the case was entrusted to P.W.6 Sikandar Khan, S.I., who visited the site situated at Goth Akbar, where he found the dead body of deceased Mst. Naz Bibi, prepared inquest report Exh.P/6-F, sent the dead body to Civil Hospital, Dera Allah Yar for postmortem examination and report, prepared site inspection memo and site sketch Exh.P/6-G and Exh.P/6-H, recorded the statements of P.Ws., arrested accused Abdul Rehman on 24-10-2005, and on 26-10-2005, on the pointation of accused, recovered and seized crime weapon i,e, Dophata vide memo. On 28-10-2005, father of the deceased, namely, Muhammad Hassan came to police station along with an application and an affidavit by nominating the complainant of the present case Wali Muhammad and brother of the appellant, namely, Muhammad Akbar to have committed the offence along with the appellant. He obtained the warrants of arrest of the above named accused persons, however, they could not be arrested and were declared absconder and after completion of the investigation, he placed the papers before S.H.O., who prepared incomplete challan Exh.P/6-J and on receiving medical report, prepared supplementary challan Exh.P/6-K and appellant was sent up to face the trial.
4. On the stated allegations, a formal charge was framed and read over to, the appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced six witnesses. P.W.1. Muhammad Hassan is father of the deceased, who produced an application Exh. P/1-A and his affidavit Exh.P/1-B, by nominating the' complainant of the present case, namely, Wali Muhammad and brother of the appellant, namely, Muhammad Akbar to have also committed the offence along with the appellant. P.W.2 Jan Muhammad, soon after the occurrence, reached at the site, where he found the appellant and co-accused persons along with dead body of the deceased, who told him that they have committed the murder of deceased by declaring her siyahkar with Abdul Razaq. P.W.3 Haji Khan, constable, is witness to the alleged disclosure of the appellant and recovery witness of the alleged crime weapon i,e, Dophata on the pointation of the appellant from his house vide memo. Exh.P/3-A. P.W.4 Ghulam Mustafa resiled from his statement and was declared hostile. P.W.5 Farah Naz Khoso, Lady Medical Officer, DHQ Hospital, Dera Allah Yar, examined the dead body of the deceased and issued medico legal certificate Exh.P/5-D and P.W.6 Sikandar Khan, S.-I., is the Investigating Officer of the case. Then the prosecution closed its side.
5. Thereafter, the appellant was examined under section 342 of the Cr.P.C., wherein he denied the prosecution accusation and claimed to be innocent. He did not opt to record his statement on oath as envisaged under section 340(2) of the Cr.P.C., however, produced DW-1 Faqir Muhammad and DW-2 Raja .Khan in his defence. The trial Court, after close of the parties evidence, vide impugned judgment, convicted and sentenced the appellant, as mentioned hereinabove, hence this appeal.
6. We have heard learned counsel for the appellant as well as learned Additional Prosecutor- General and have also gone through the available record with their valuable assistance. It has been urged by learned counsel for the appellant that P. W.1 Muhammad Hassan is father of the deceased and P.W.2 Jan Muhammad is the grandson of Muhammad Hassan, therefore, it would not be safe to rely upon their testimonies without independent corroboration. He further argued that the stay of the witness at the house of appellant on the fateful night was unnatural, therefore, his claim of having witnessed the occurrence was doubtful and further there was nothing on record to suggest that the appellant was unhappy with the deceased and, thus, the appellant would have no reason to commit the murder of Mst. Naz Bibi. On the contrary learned Additional Prosecutor-General has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, the present appeal deserves dismissal.
7. After hearing learned counsel for the parties and having gone through the entire evidence, we have arrived at a confident conclusion that the prosecution had, indeed, failed to prove its case against the appellant beyond reasonable doubt. A careful reappraisal of the evidence, produced by the prosecution, would show that not a single bit of tangible evidence could be found in support of the charge against the appellant, connecting him with the commission of the offence.
8. The connection of the appellant with the crime in question is sought to be established by the evidence of P.W.1 Muhammad Hassan and P.W.2 Jan Muhammad. Both the witnesses are closely related to each other and are, admittedly, inimical to the appellant. P.W.1 is father of the deceased, while P.W.2 Jan Muhammad is grandson of P.W.1. After having gone through 'their evidence, we have no hesitation in observing that the alleged eyewitnesses have failed to inspire our confidence and have contradicted each other on material aspects of the case. The evidence of P.W.1 is of no avail to the prosecution being hearsay evidence, as he had not seen the occurrence and was informed about the incident by P.W.2 Jan Muhammad and P.W.4 Ghulam Mustafa, that too, after considerable delay of about six days of the occurrence without any plausible explanation.
Moreover, it is an other hand, . Subsequently, he was also involved in the commission of the offence by his own father i,e, P.W.1 Muhammad Hassan along with brother of the appellant, namely, Muhammad Akbar, by submitting an application Exh.P/1-A and an affidavit Exh.P/1-B before the S.H.O.' concerned. The presence of the alleged eye-witnesses i,e, P.W.2 Jan Muhammad and P.W.4 Ghulam Mustafa, who had informed P.W.1 Muhammad Hassan regarding the B incident, in the house of accused/ complainant Wali. Muhammad, is also highly doubtful, particularly when the above named Ghulam Mustafa when , appeared before the trial Court as P.W.4, he resiled from his statement and was declared hostile. It would be advantageous to reproduce the statement of P.W.4 as under:-- 9.Though the F.I.R, was promptly registered on 22-10-2005, in which the appellant Abdul Rehman has been nominated, but the fact remains that there is double versions of the prosecution story, which creates serious doubt to the case of the prosecution. The F.I.R, was registered by the complainant Wali 'Muhammad, by nominating the appellant with the commission of the' offence, while on the ther hand,, subsequently, he was also involved in the commission of the offence by his own father i.e. P.W.1 Muhammad Hassan along with brother of the appellant, namely, Muhammad Akbar, by submitting an application Exh.P/l-A and an affidavit Exh.P/1-B before the S.H.O, concerned. The presence of the alleged eye-witnessese. P.W.2 Jan Muhammad and P.W.4 Ghulam Mustafa, who had informed P.W.1 Muhammad Hassan regarding the incident, in the house of accused/ complainant Wali Muhammad, is also highly doubtful, particularly when the above named Ghulam Mustafa when appeared before the trial Court as P.W.4, he resiled from his statement and was declared hostile. It would be advantageous to reproduce the statement of P.W.4 as under:- "On 22-10-2005, the dead body of deceased Mst. Naz Bibi was brought to Goth Chandar. The .
Dead body was brought by the brothers of deceased, namely, Wali Muhammad and Akbar, where both of them told that they have committed the murder of deceased Mst. Naz Bibi by declaring her The above version of the witness clearly shows that he, has not stated a single word against the appellant and has exonerated him from the commission of the offence. Though he was thoroughly cross-examined by the State counsel, but nothing incriminating was extracted against the appellant. He also stated in cross-examination that he was not present at the time of incident, nor had seen the occurrence, thus, in such view of the matter, he has ruined the entire story of the prosecution.
10. There remains the statement of P.W.2 Jan Muhammad, who alleged to be the sole eye-witness of the whole episode. He deposed before the trial Court that on 22-10-2005, he went to the house of his uncle Wali Muhammad situated at Goth Akbar Khan Khosa. At about 10-20 p.m., on commotion, he went into the room of accused Abdul Rehman and saw the accused Abdul Rehman, Wali Muhammad and Muhammad Akbar, standing there and the dead body of deceased Mst. Naz Bibi was lying on the bed. The accused persons told him that they murdered the deceased after declaring her siyahkar with a person, namely, Abdul Razaq. He further added that he remained busy in the burial and death ceremonies of the deceased and after three days of the incident, he informed his grandfather i,e, P.W.1 Muhammad Hassan about all the circumstances. The F.I.R. Does not purport the name of said P.W. Jan Muhammad. He claimed his presence in the house of his uncle Wali Muhammad, while according to the site sketch Exh.P/6-H, the alleged incident took place in a room of the appellant situated at a distance of 10/15 paces from the house of Wali Muhammad. P.W.2 Jan Muhammad is resident of Goth Chandar situated at a distance of about 70/80 kilometers from the alleged place of occurrence, as such; his presence, in the house of his uncle, at the relevant time, is highly doubtful and his claim to have seen the occurrence appears to be not only a tall claim but tall enough to raise serious doubt about its genuineness.
11. We are not unmindful of the fact that conviction can be based on the evidence of a solitary witness, but subject to the condition that the witness should be found to be a truthful and confidence inspiring, while, in the instant case, the evidence of P.W.2 Jan Muhammad and his claimed presence the occurrence and he has made dishonest in the house of his uncle Wali Muhammad is replete of doubt. His statement under section 161 of the Cr.P.C. Has also been recorded after 6 days of improvements in order to strengthen the case of prosecution, thus, on account of the above stated reasons, we have left with no option but to disbelieve his version, which, otherwise, does not appeal to a prudent mind.
12. The medical evidence in this case is also not of much helpful to the prosecution case, as the same cannot identify or locate the perpetrators of the offence in the case where the presence of the alleged eye-witness itself is found to be doubtful. Even otherwise, medical evidence is only of supportive nature and the same loses all its value in a case like the present one where there is no other reliable evidence available to give support to.
13. The other pieces of evidence are corroboratory in nature and are of no avail to the prosecution after discrediting the ocular account, furnished by the solitary witness Jan Muhammad. It is well established that unless substantive direct evidence is available, conviction cannot be based on any other type of evidence, howsoever, convincing it may be. Reliance in this regard may be placed on the case of Muhammad Noor and another v. Member-I Board of Revenue Balochistan and others (1991 SCM R 643).
14.There is another damaging aspect of the prosecution case, which has been oversighted by the trial court, while passing the conviction order. The application and affidavit Exh.P/1-A and Exh.P/1-B purport the names of Kamal Khan and Ghulam Mustafa as eye-witnesses. Ghulam Mustafa, as stated above, had been produced and examined as P.W.4 and was declared hostile, whereas the evidence of Kamal Khan was withheld by the prosecution for the reasons best known to it. It is settled principle of law that if a best piece of evidence, available with a party, is withheld, then it would be presumed that said party has some sinister motive behind it for withholding such piece of evidence and in such a situation a presumption under illustration (g) to Article 129 of the Qanun- e-Shahadat Order, 1984 can clearly be drawn that had the said piece of evidence been brought on record same would have been unfavourable to the said party.
15. The motive has stated to be illicit relationship of deceased Naz Bibi with one Abdul Razaq, but the record is silent regarding Abdul Razaq as to whether he had also been killed on account of honour killing or otherwise? The prosecution has order dated 11-8-2011 announced in open court.
16.In view of the reasons stated above the impugned judgment of conviction is not sustainable and is directed to be set aside and appellant Abdul Rehman is acquitted of the charge. He be set at liberty, if not required in any other case.
' These are the reasons of our short order dated 11-8-2011 amounted in open court.