' FAZAL-I-HAQ ABBASI; J.---Impugned herein is the judgment dated 19-11-2009, passed by learned Additional Sessions Judge/Izafi Zila Qazi, Malakand at Dargai, whereby Noor Zaman son of Muhamniad Nawaz resident of Galgechai Banda, Meharwai, Shahkot was convicted and sentenced as follows:--
(i) Under section 302(b), P.P.C. To death as Ta'zir, with direction to payRs, one lac as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default to suffer six months' SI.
(ii) Under section 449, P.P.C. To undergo five years' R.I. And a fine ofRs,50,000 or in default to suffer further six months' SI.
' Benefit of section 382-B, Cr.P.C. Was extended to the accused.
2. Learned trial Court has sent Murder Reference No, 27 of 2009 for confirmation of the death sentence, awarded to the accused.
3. We intend to dispose of Criminal Appeal No, 571 of 2009, filed by Noor Zaman, and Murder Reference No, 27 of 2009, sent by the trial court through this judgment.
4. Subedar Baradar Khan, P.W.8, received an information that a dead body has been brought in '
Civil Hospital, Dargai, he proceeded to the hospital and in the Emergency Ward found a dead body of Mst. Falak Naz, daughter of Abdul Latif, where Muhammad Shakeel lodged the report on 28-7- 2007 at 11-35 a.m., alleging therein, that Mst. Falak Naz, daughter of his maternal aunt, had come to his house as guest. On the said day, he along with Zafar Ali son of Yousaf Khan, the son of his material uncle, Mst. Pashmina, his mother and Falak Naz, deceased, was present it his house. In the meantime, at 10-45 a.m. Accused Noor Zaman son of Muhammad Nawaz resident of Galgechai Banda, Meharwai, armed with a pistol, entered into his house and by placing pistol at Falak Naz, started firing, with which Mst. Falak Naz died at the spot and the accused decamped after the occurrence. Motive for the occurrence was that the accused had demanded the hand of Mst. Falak Naz, which was refused by her parents. Occurrence was witnessed by Zafar Ali and his mother besides him. Report was recorded in shape of Murasila Exh.PA/1, which was signed by him and thereafter sent the same to Police Station through Saif-ur-Rehman constable. P. W.8 prerared the injury sheet Exh.P.W.8/1. Case was registered vide F.I.R. No,201 dated 28-7-2007 under sections 302/449, P.P.C. At Police Station, Dargai. Dead body was examined by Dr. Saraj, P.W.1, who found the following:-- ' Entrance wound 1/2 c.m in diameter at the occipital region, near neck. No charring mark could be noted.
' Exit wound 1 c.m. In diameter on the left side of forehead, brain tissues coming out.
' Entrance wound on the back of left hand 1/4 c.m. In diameter.
' Exit wound at palm of left hand at first web. The right thumb muscle has been detached of its nail bed with charring marks.
' Entrance wound at the level of 10th rib in the left flank with charring marks half c.m in diameter.
' Exit anterior abdominal wall at level of umbilicus on right side. Weapon. FAI.
Cause of death. Injury to vital organs plus circulatory failure.
' Time since death: 0 to 6 hours. He stated that report Exh.PM bears his signature.
6. Thereafter, dead body was handed over to the heirs through receipt Exh.P.W.8/2.
7. Subedar Baradar Khan, P.W.8, then proceeded to the spot, prepared site plan Exh.PB, at the pointation of Muhammad Shakeel, complainant. Through memo Exh.P.W.8/3, he took into possession blood-stained earth and three empty shells of .30 bore Exh.P-3 from the crime spot, recorded the statements of the witnesses to the recoveries and of eye-witnesses, namely Yusaf Khan, Mst. Pashmina and Zafar Ali under section 161, Cr.P.C. On 29-7-2007, he took into possession bloodstained shirt and "dopata" of the deceased produced by Zafar Ali, prepared the recovery memo and recorded the statements of the witnesses. On 2-8-2007, he recorded the statements of Abdul Latif, father and Mst. Nasreen Begum, mother of the deceased. He obtained warrant of arrest of the accused under section 204, Cr.P.C. Through application Exh.P.W.814 and handed over the same to DFC for execution. He got recorded the statements of P.Ws. Under section 164, Cr.P.C. As Muhammad Nawaz was also charged for abetment, therefore, issued a letter for addition of section 109, P.P.C. In the charge. Through application Exh.P.W.8/6, he applied and obtained warrant under section 204, Cr.P.C. Against Muhammad Nawaz and handed over the same to DFC for execution.
Warrant of 'arrest against Noor Zaman was returned un-served, therefore, applied and obtained proclamation notices under section 87, Cr.P.C. Against him and handed over the same to DFC on 9- 8-2007. Noor Zaman accused was arrested and three days physical custody of him was obtained.
On 12-8-2007, pistol .30 bore, Exh.P-4, was recovered from the house of the accused and taken into possession through memo Exh.P.W.8/8. He also prepared the sketch, Exh.PB/1, of the place of recovery. Through application, Exh.P.W.8/9, he sent the blood-stained articles to Serologist, whose report is Exh.PZ. Through application Exh.P.W.8/10, he sent the pistol and empty shells to the Arms expert and the report is Exh.PZ/1. After completion of the investigation, he submitted complete challan against the accused for trial.
8. Learned trial Court, after receipt of the complete challan and complying with the provisions of section 265-C, Cr.P.C, framed the formal charge to which the accused did not plead guilty and claimed trial. Statements of eight P.Ws. Were recorded and, thereafter, statements of accused under section 342, Cr.P.C. Were recorded. The accused did not produce defence evidence nor offered their statements on oath under section 340(2), Cr.P.C.
9. Learned trial Court, after hearing the arguments of the parties through judgment dated 19-11- 2009, acquitted Muhammad Nawaz accused, while Noor Zaman was convicted and sentenced, as stated above.
10. Learned counsel for the appellant argued that name of Mst. Nasreen, P.W.7, was not mentioned in the F.I.R. And her statement was recorded on sixth day of the occurrence without any explanation of the delay in recording her statement. He submitted that the eye-witnesses mentioned in the F.I.R.
Were abandoned on the ground of being un-necessary and the complainant was abandoned by stating that he was out of the country, without any proof. He averred that the medical evidence furnished by P.W.1 contradicts the prosecution version. He also challenged the recoveries and contended that pistol was planted and after fabrication of the empty shells same were sent to the Expert after sufficient unexplained delay. He contended that the prosecution failed to prove its case against the accused beyond reasonable doubt; therefore,' the appellant deserves acquittal. Placed reliance on 1996 SCM R 167, 2002 SCM R 1795, 2002 SCM R 1986, 2003 YLR 777 and 2008 YLR 1176.
11. Learned counsel representing the complainant party controverted the contentions of the learned counsel for the appellant and argued that it -is not necessary for prosecution to produce each and every witness and it is quality and not the quantity of evidence to be relied upon. He contended that it is not necessary that name of every witness should be mentioned in the F.I.R. He submitted that there is no reason for substitution of the actual culprit by the mother of the deceased. He maintained that non-production of the witnesses, mentioned in the list, cannot adversely affect the prosecution case and that relationship with the deceased by itself is no ground to discard the statement of a related witness. He further argued that non-mentioning of the name of Mst.
Nasreen, P.W.7, in the F.I.R., is of no consequence because within one hour site plan was prepared at the pointation of Muhammad Shakeel, complainant, wherein presence of Mst. Nasreen has been shown. He contended that the prosecution proved its case against the appellant, therefore, the appeal is liable to be dismissed .He placed reliance on 1985 SCM R 854, PLD 1980 SC 225, 2003 SCM R 554, 2008 SCM R 688, 2010 SCM R 1025, 2011 SCM R 725 and 2311 SCMR 856.
12. Arguments heard, record perused.
13. Perusal of the record shows that according to the report lodged by Muhammad Shakeel, complainant, No6r Zaman appellant, placed the pistol on the body of Mst. Falak Naz and started firing. According to Dr. Siraj, P.W.1, only charring was found on some of the injuries of the deceased but no burning was found. One injury of 1/4 c.m. And the other injuries of 1/2 c.m. Dimension were found. P.W.1 has given the time since death as 0-6 hours. He has not given the condition of the dead body as to whether the same was warm or cool, any post mortem staining or rigor mortis was found or not. In cross-examination he stated that keeping in view the time given in his report, it was possible that the occurrence took place at 5-20 a.m.
13. Investigating Officer, P.W.8, recovered three empty shells from the Crime spot on 28-7-2007 and according to recovery memo, Exh.PC, there is no mention whether the same were initialed or sealed into a parcel. Umar Ali, P.W.2, in cross-examination stated that he signed the recovery memo of the empty shells after reading it. He stated that in the recovery memo it was mentioned that the empty shells were initialed by the investigating Officer and were sealed in a parcel but when confronted with memo, Exh.PC, he admitted that there is no mention of the same. Investigating Officer also admitted this fact. P.W.8 admitted in cross-examination that prior to the recovery of pistol, raid was conducted on the house of the accused and rooms were searched. He stated that since 12-8-2007 till 23-8-2007 pistol was lying with the Moharrir of the Police Station but he was not produced to prove the same. No explanation was offered for not sending the empty shells to Laboratory for safe custody. Empty shells recovered on 28-7-2007 and the pistol on 12-8-2007, were sent together to the Arms Expert on 23-8-2007, without any explanation. Such delay destroyed the evidentiary value of the recoveries.
' In case of Ali Sher and others v. State, reported in 2008 SCM R 707, it was held by the apex Court that:-- "Crime empties allegedly found at the place of occurrence were sent to Forensic Science Laboratory along with the crime weapons 12 days after the recovery of alleged weapons. Delay had destroyed the evidential value of such piece of evidence and the recoveries could not offer any corroboration to the ocular testimony".
14. Muhammad Shakeel, complainant, was abandoned by the prosecution on the ground of being abroad and unavailable, but no evidence in this regard was produced. Order No,23 dated 7-10- 2008 reveals that counsel for the complainant stated before the trial Court that Shakeel Ahmad is coming from Saudi Arabia on 18-10-2008 and requested for adjournment, as such, case was adjourned to 25-10-2008, but he was not produced before the court and abandoned on 21-1-2009.
Zafar Ali and Mst. Pashmina, the alleged eye-witnesses of occurrence, who were the most natural and material witnesses, were abandoned being unnecessary. As such, complainant and the eyewitness, mentioned in the F.I.R., were abandoned without any plausible reason. It can safely be held that either they. Were not supporting the prosecution case or were withheld avoid cross- examination and bringing the true facts on record.
' In case of Lal Khan v. State, reported in 2006 SCM R 1846, it was held; "Non-production of most natural and material witness of the occurrence would strongly lead to an inference of prosecutorial misconduct, which would not only be considered a source of undue advantage for prosecution but also an act of suppression of material facts causing prejudice to accused"
' It was further held: "Act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness box, he might not have supported the prosecution and in such eventuality the prosecution must not be in a position to avoid consequence"
' In case of Riaz Ahmad reported in 2010 SCM R 846, it was held: "prosecution case rested only on the solitary statement of the complainant. One witness of the occurrence had expired and the other eye-witness had been given-up by the prosecution being unnecessary. Prosecution under illustration (g) of Article 129 of Qanun-e-Shahadat Order, 1984 could fairly be drawn that had the given-up eye-witness been examined, his evidence would have been unfavourable to the prosecution".
16. Name of Mst. Nasreen, P.W.7, does not find mention in the F.I.R. Occurrence took place on 28-7- 2007 and her statement under section 161, Cr.P.C. Was recorded on 2-8-2007, i,e,, on 6th day of the occurrence. No explanation whatsoever was offered by the prosecution for such delay. Her statement cannot be relied upon, in a case involving capital punishment.
' In case of Muhammad Sadiq, reported in PLD 1960 SC 223, held that:-- ' Delay of 24 hours 'in statement of a friend of deceased was considered fatal for prosecution case.
Similar views were taken in 1984 SCM R 930, 1993 SCM R 550, 1998 SCM R 570 and 2008 SCM R 1221.
' In case of Rahat Ali reported in 2010 SCM R 584 it was held:-- "Delay in recording the statement of a witness by police without furnishing any plausible explanation, is fatal to the prosecution case and the statement of such witness is not to be relied upon".
17. Yusaf Khan, P.W.6, stated that he had seen the accused while running away from the scene of occurrence, but neither his name is mentioned in the F.I.R., nor his presence, has been shown in the site plan.
18. Prosecution case is full of doubts. Complainant and the witesses, mentioned in the F.I.R. Were abandoned without any plausible and reasonable explanation. Medical evidence is shaky. Name of the sole eye-witness examined at the trial was not mentioned in the F.I.R. And her statement was recorded under section 161, Cr.P.C, after six days of the occurrence, without any explanation for such delay. Single reason creating reasonable doubt in a prudent mind is sufficient for discarding the evidence produced by the prosecution.
19. In the light of the above discussion, the impugned judgment cannot be sustained. The conviction and the sentences awarded to the appellant under section 302(b), P.P.C. As well as under section 449, P.P.C. Are set aside. The appellant is acquitted. He be released forth with if not required in any other case.
' Resultantly, this appeal is allowed. Murder reference sent by the trial Court is answered in negative.