' AZMATULLAH MALIK, J.---Through this Jail Criminal Appeal, appellant Rahim Khan son of Gul Zamir r/o Lakari Tehsil and District Nowshera called in question the judgment/order dated 3-4-2008 passed by Additional Sessions Judge-I, Nowshera whereby the appellant was convicted and sentenced under section 302(b), P.P.C. To imprisonment for life and compensation of Rs,100000 to be paid to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in default thereof to further suffer six months S.I. Benefit of section 382-B, Cr.P.C. Was extended to the appellant.
2. The prosecution story as unfolded by Mst.Misal Pari, mother of the deceased Niaz Muhammad in her report made in the hospital at Nowshera Kalan stating therein that her son was on friendly relations with Mst. Parveen widow of Libas Khan r/o Lakari and used to visit her house frequently.
Yesterday on 6-7-2004 he had gone to the house of said Mst. Parveen situated at Village Lakari and today she received information that her son Niaz Muhammad has been murdered by Rahim Khan. His dead body is present in the DHQ Hospital so the complainant along with her husband and son Gul Muhammad reached to the DHQ Hospital Nowshera Kalan and noticed that Niaz Muhammad was lying murdered who was brought by the co-villagers. It was disclosed to her by Mst. Parveen widow of the Libas Khan that Niaz Muhammad has been murdered today by accused Rahim Khan son of Gul Zamir through firing and the occurrence was witnessed by Mst. Parveen and 'her son Shahid. Motive for the offence was that the accused was annoyed with the deceased for his frequent visit to the house of Mst. Parveen.
3. To prove its case the prosecution examined 13 witnesses amongst those P.W.1 Rizwanullah HC who was marginal witness to the recovery memo Exh.PC and Exh.PC/1 vide which in his presence I.O. Took into his possession an empty of 30 bore and blood through -cotton from the spot of occurrence P-1, P.W.2 Zahoor Shah FC, who happened to be a marginal witness to the recovery memo Exh.PC/2 and PC/2 vide which the I.O. Took into possession blood-stained garments of the deceased P-2 to P-4. P.W.3 Anwar Shah FC who executed the warrant under section 204 and preclamation notice under section 87, Cr.P.C. And prepared his report on it. Exh.P.W. 3/1 and Exh.P.W.3/2. P.W.4 was Zar Wali Shah FC who brought the blood-stained cloths of deceased to the I.O. Who took the same vide recovery memo Exh.PC/2. P.W.5 Nawaz Khan IHC who registered the instant case on receipt of Murassala. P.W.6 Haji Bahadar Khan Inspector who submitted supplementary challan against the accused/appellant whereas 'Shah Hassan P.W.7 being S.H.O. Of Police Station Azza Khel subthitted complete challan against the accused. P.W.8 Mst. Misal Pari mother of deceased and complainant of the case who reiterated her earlier narrators made in the report to the Police. P.W.9 Gul Muhammad who verified his signature on the report of complainant as ExH.PA/1. P. W.10 Shahid Khan deposed as an eye-witness of the occurrence. He was the son of Mst. Parveen on whose disclosure report was made by the P.W.B. P.W.11 Muhammad Hussain IHC verified his signature upon the report of the complainant P.W.8 Mst. Misal Pari, Exh.PA/1. He also prepared injury sheet and inquest report of deceased Exh.P.W.11/1 and Exh.P.W.11/2 and forwarded the dead body to Medical Officer for PM examination. P.W.12 Sabz Ali Khan S.I who investigated the present case, visited the spot and prepared site plan ExH.P.B at the instance of the eye-witness namely Shahid Khan P.W.10, took into possession one empty of .30 bore from point "A" vide memo Exh.PC. He also took into his possession blood-stained pebbles/stones through cotton from the spot vide recovery memo Exh.PC/1. He also took into his possession and sealed into parcel blood- stained garments of the deceased consisting of Shirt Shalwar and Baniyan P-2 to P-4 vide memo.
Exh.PC/2. He also conducted house search of the accused vide memo. Exh. PC/3 the empty P-5 recovered from the spot was also sent to the FSL for safe custody through application Exh.P12/2. The blood-stained stone/pebbles and garments of the deceased were sent to the FSL through his application Exh.P.W.12/2. The result whereof is PZ. He also got recorded the statements of Shahid Khan and Mst. Parveen under section 164, Cr.P.C. Before the Judicial Magistrate vide his application Exh.P.W.12/3 and Exh.P.W.12/4, respectively. He also obtained warrant under section 204 and proclamation notices under section 87, Cr.P.C. Against the accusecdvide his applications Exh.P.W.12/6 and Exh.P.W.12/7 respectively. Vide application Exh.P.W.12/8 he obtained the details of property owned by appellant from Patwari Halqa which was provided but the same was in the name of the father of appellant which is Exh. P.W.12/9. Since the appellant was already under arrest in case F.I.R. No,602 dated 23-12-2004 of Police Station Wah Cantt. Under section 13-A.O. So P.W.12 vide his application Exh.P.W.13/ 1 applied to the Court of Alaqa Magistrate for handing over of the appellant to him. The application for transfer of appellant was also made to the said Court which is Exh.P.W.13/2. The appellant during his police custody pointed out the spot of occurrence to P.W.12.
SW-1 statement of Mir Zaman DFC who was entrusted with the summon Exh.SW-1/1 issued, in the name of Dr. A. Masood of DHQ Hospital Nowshera but the same was returned unexecuted along with the report that the said Doctor was serving on contract who has left his job and his where about are not known.4. Dr. A. Masood who had performed the postmortem of the deceased could not be produced because his where about were not known therefore postmortem report Exh.PM was brought on record through DPP. According to the medical report the deceased was found to have sustained the following injuries:--
(i) Entry wound on right side of back about 1/2 X 1/2 X 1/2 in dimension.
(ii) Exit wound on right lateral side of chest of above 1" x 1" x dimension with no rigor mortis.
' All the other organs of thorax and abdomen were healthy in the opinion of the Doctor, the death of deceased occurred due to massive blood loss and damage of major vessels and right lung.
' The probable duration between injury and death was within half an hour and between death and postmortem examination two hours.
5. The case of the appellant before the trial Court was that he was involved in the case due to suspicion rather replaced- as he had no occasion whatsoever to commit the murder. The occurrence according to him was un-witnessed and not has seen any body committing the murder.
6. We have gone through the record of the case with the able assistance of the learned defense counsel and the learned counsel for the State as well as counsel for complainant.
7. Admittedly P.W.8 Mst. Misal Pari is not an eye-witness of the occurrence and her information regarding the occurrence and involvement of the appellant in the crime was based upon the disclosure of Mst. Parveen who was not produced at trial the reasons best known to the prosecution. The presence of Mst. Parveen Bibi and her son P. W.10 Shahid Khan was also not shown at the time of making the report in the hospital by P.W.B. So the best evidence available with the prosecution was with held without any reason creating doubt in of story of prosecution, moreover, the entire case hinges upon the statement of P.W.10 Shahid Khan who is the star witness of prosecution. Except making of report P.W.8 Misal Pari did not join investigation and the entire exercise was carried out by the Police with the help of P. W.10 Shahid Khan at whose instance site plan was prepared where he had shown his presence and presence of his mother as well at the time of occurrence.
8. We are not impressed by the evidence of P.W.10 Shahid Khan who claimed himself to be an eye- witness for the reason that the site plan prepared at his instance contradicts his story regarding the mode and the manner of the occurrence as according to him the appellant fired at the deceased from point No,2 to point No,1 where the deceased was present who on sustaining injury at the said point rushed toward point No,1-A which according to the site plan Exh.PB was at a distance of 330 paces from point No, 1 and on reaching there he was again fired at the said point from point B. Neither any trail of blood was noticed from Points Nos. 1 to 1-A nor any blood was found at point No,
1. Moreover, the story of firing at the deceased by the appellant from point No, B to point A-1 is contradicted by the medical evidence as according to the medical report the deceased sustained only 1 fire arm injury. This narration of B P.W.10 Shahid Khan do not find support from the host of the circumstance as per site plan. Non-recovery of blood and non-recovery of empty from point B also costs doubt on the version of P.W.10. Shahid Khan which cannot be resolved in favour of prosecution. Another reason to our mind while disbelieving the presence of P.W.10 Shahid Khan at the spot at the time of occurrence is that had he been present on the spot he would have shifted the deceased to the hospital and could have made the report of occurrence by himself being eye-witness. P.W.8 Misal Pari did not mention any where in her report or while appearing as P.W. During trial that P.W.10 Shahid Khan met him in the hospital when she went there after learning about the murder of her husband and presence of his dead body in the hospital.
9. No doubt solitary evidence of an independent witness is sufficient to hold conviction provided the same is unimpeachable and reliable. The motive shown for the crime against the appellant could also be taken a ground against this P.W.10 Shahid Khan as the deceased having no relation with Mst. Parveen Bibi, the mother of this witness, was a frequent visitor to her house without any relation and the probability that a young son might have killed the person on annoyance for frequent visits of the stranger into his house, hence, his evidence to carry conviction of capital charge cannot be accepted, unless supported by some strong circumstance to over come the inherent doubt, which is lacking in the instant case. We have also noticed that Mst. Parveen Bibi who had allegedly seen the occurrence was not produced in the Court and was given up as un- necessary. The presumption is that had she been produced in the. Court she would have deposed otherwise against the prosecution. Therefore her non-production before the trial Court is fatal to the case of prosecution.
10. The medical evidence belies the ocular evidence in that according to the medical report the deceased, sustained only one fire arm injury whereas according to P.W.10 Shahid Khan deceased was fired at twice from two different places by the appellant.
11. From the above discussion it is crystal clear that the alleged occurrence remained un-witnessed and in order to get rid of deceased for his frequent visits to the house of Mst. Parveen (widow) mother of young Shahid Khan P.W.10 the prosecution forwarded the story implicating the appellant as an scape goat. The case of prosecution is not only doubtful but also unbelievable.
12. For all the foregoing reasons we proceed to accept the appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be released forthwith if not required in any other case.
13. Above were the reasons for the short order dated 13-9-2011 vide which the appeal was allowed.