1. ' SYED ZAKIR HUSSAIN, J.---This criminal appeal is preferred by the appellant against the judgment dated 30-3-2006, whereby the learned trial court has been pleased to hold him 'guilty' of the offence, he was charged with, in Sessions Case No,22 of 1998, and accordingly convicted and sentenced him under section 302, P.P.C. To suffer life imprisonment with fine of Rs,50,000 and in default of payment whereof to suffer further R.I. For three years. He was given benefit of section 382-B, Cr.P.C. He has prayed in the appeal that the impugned judgment, conviction and sentence, may be set aside on the facts and grounds mentioned therein.
2. ' By its short order dated 15-9-2010, this court allowed the appeal, set aside the impugned order, acquitted the appellant and ordered his immediate release, for the reasons to .Be recorded later on.
3. ' The perusal of the record shows that the prosecution has advanced two altogether different versions of one and the same incident. In the first instance, the P.W. Hanifa wife of deceased, is said to have narrated that the deceased committed suicide with a T.T. Pistol fire shots. The police on such information, carried out the proceedings under section 174, Cr.P.C. Visited the place of Wardat, secured the pistol and empties therefrom, prepared memo of the body, and that of the bullet injuries of the deceased as well, sent such body to the hospital for postmortem examination and report, deposited the said weapon and empties etc. In Malkhana of the police station, and then, having recorded the statements of the relevant witnesses, closed the chapter of such proceedings in affirmative with no further action.
4. ' After 77 days, the same lady Hanifa, is said to have narrated that her nephew the appellant committed the murder of the deceased, and who after having thrown the pistol to the ground in her presence, and threatened her to kill her and her children if she would disclose his name as culprit, managed to escape; and she kept her mum about his crime and made out a story of suicidal death of her husband the deceased, under fear of being harmed as to herself and her children on the part of the culprit. On such report, the police registered the instant and arrested the culprit and having completed the investigation, charge sheeted him in the court for the purpose of trial under section 302, P.P.C. On both the occasions of reporting the incident, the step brother of the deceased namely, Meer Muhammad Khan approached the police to report the same on the basis of having come to know the facts of the report of each occasion, through the said lady Mst. Hanifa.
5. She was examined under section 164, Cr.P.C. In the case of the F.I.R. While she had already stood examined under section 161, Cr.P.C. By A.S.-1. Sikandar in the matter of first report, which culminated in the proceedings of section 174, Cr.P.C. The F.I.R. Carries a reference of the said proceedings of section 174, Cr.P.C.
6. ' The said A.S.-I. Sikandar is cited as P.W. In the charge sheet in question but has not been produced in court to depose or to give his evidence in the matter. The record of the said proceedings, is also left unproduced in evidence (at trial of the appellant). The statement of the complainant is hearsay in nature and carried no much weight The lady witness with two different versions of one incident, is doubtful as to her being trustworthy witness of the case particularly when she too, is not eye- witness of the act of killing in question since as per her own statements, she had been in washroom and on gun shot report, rushed to the room where her husband the deceased had stood killed, and that she then, could see only that the deceased had already stood shot dead, and the appellant was present with T.T. Pistol in hand; who having given the aforesaid threat, to her, and thrown the said pistol to the ground, left the scene; and the memo of the place of the wardat and that of the dead body in question, go to show that when the police visited the said room in the first instance, it found the said pistol as lying on the chest of the body of the deceased, and not to the ground. The said memo is dated 18-7-1996 while the incident is dated 18-7-1997, and hence, the same also makes the proceedings thereof, doubtful. Besides, the Magistrate who recorded her 164, Cr.P.C.
7. Statement, is not produced as witness in the case. The same is therefore, left unestablished in accordance with the Qanun-eShahadat Order, 1984, too. The prosecution produced no record of ownership of the appellant as to the secured crime weapon at all. It therefore, prima facie follows that the police did not conduct any inquiry in this regard and it also took no action against the appellant under section 13-D Arms Ordinance, against the said crime weapon, if so warranted in the circumstances. The said pistol and empties remained in police station for the intervening period of its date of securing to that of its dispatch to the expert. There is nothing to show as to in whose possession, did the said articles remain; and there appears nothing ensuring that the same remained untampered througout, during the course of their being in police custody: The ballistic report is of no avail to the prosecution in the circumstance as such. Thus, the crime weapon being doubtful in the circumstances, is purposeless to the prosecution too. There is no blood stained material secured from the spot and hence, the place of Wardat is also doubtful, for where a murder of like nature did take place at the given place, there ought to have been blood stained material over there and similarly, the same should have been there even if, there had been a case of suicidal death (by a pistol fire shot). The evidence of other two witnesses namely, Azam Khan and Roidad Khan as P. Ws. 3 and 4 being inordinately delayed, carries no weight. Besides, the same seems to be doubtful at its very outset for a variety of reasons such as:--
(1) That the witnesses like the complainant are the step brothers of the deceased and are the residents of the area of 2 KM away from the place of Wardat and their presence in the street of the house of the deceased just nearer to one of, its walls at the relevant time, needs be explained and justified, while no such explanation or justification appeared any where in the matter at all.
(2) That they heard the gun shot report as having come from the house of the deceased and immediate thereafter, noticed escaping of the culprit, a boy of tendered age, by scaling over the said wall of the house of the deceased, yet they did not suspect him for having committed the offence, inside the house of their brother, and neither apprehended him nor showed any reaction thereagainst, which was expected to have stood shown on their part in an ordinary course of nature.
(3) That these witnesses knew the facts of the crime in question (as they have claimed), yet they remained silent rather became party to the version involved, in the earlier proceedings of section 174, Cr.P.C. As to the suicidal death of the deceased, and therefore, they did not purposefully furnish information (they have already had) to the police and such conduct fan hardly be conceived as one of no vested interest.
(4) That these witnesses came forward to give their evidence or to furnish the police with the information already in their knowledge, (after the F.I.R. Had already stood registered), after about 77 days of the incident of the mysterious death in question.
8. ' All these reasons are sufficient to make the witnesses doubtful and untrustworthy. In other words, their evidence in the form it has come on record alone, does not serve the purpose as on the basis of the same, the appellant is not open to be held 'guilty' to the offence he was charged with in the case in question. ' consequently, I being of the firm view that the case is doubtful, passed the short order referred to above, whereby I allowed the appeal, set aside the impugned judgment, acquitted the appellant of the charge of the case, and ordered his immediate release in the cases accordingly, for the reasons to be recorded later on.
9. ' The above are the reasons for the same.