' SAHIB KHAN, C.J.---Appellant/accused was charged by the complainant P.W.3 through his written application dated 1-10-2003 Exh.P.W.3/A presented to Station House Officer Police Station Gunner Farm of District Diamer. The same was converted into F.I.R. By the S.H.O. On the same day and date i.e. 1-10-2003 and placed on file as Exh.P.W .7/A .
2. The complainant Muhammaad Mussa son of Afiullah in his report alleged that on 30-9-2003 his nephew Muhammad.Wali (deceased) had gone to graze his cattle at the Nallah known as Kharoti and did not return back till late about 6 p.m. He went towards pasture and found his nephew coming while appellant/accused was following him at a space of about 20-25 spaces, holding a .12 bore shot gun. Appellants/accused soon after opened fire on the deceased who after receiving fire shot fell down on the ground. Complainant rushed towards the victim and saw that he had received bullet injury on abdominal side and he brought the victim to his house who died there due to the serious injury. The motive behind this incident he disclosed to be quarrel between the accused/appellant and deceased one month prior to the present occurrence.
3. The investigating agency i.e. Police after investigation put up challan of the case for trial against the appellant/ accused on the charge 302, P.P.C. The accused/appellant was formerly charged on 28-4-2004 who denied the charge and claimed trial. Prosecution adduced 7 P. Ws. Beside the documentary evidence in proof of the charges. On the conclusion of the trial the appellant was found guilty and accordingly was convicted under section 302(b) of P.P.C. And sentenced to life imprisonment with fine of Rs.200,000 as compensation payable to legal heirs of the deceased.
Feeling himself aggrieved appellant challenged the Judgment/Order passed by the trial Court on 26-3-2012 through the instant appeal.
4. We have gone through the record and have heard lengthy arguments advanced by the learned counsel for appellant, A.A.-G. For the State assisted by counsel for the complainant.
5. The learned counsel for the appellant submitted that the F.I.R. Lodger in his report has alleged that the bullet hit the deceased on his abdominal side, while in his statement before the Court he deposed that fire shot hit the deceased from his back and clearly indicates for being non-witness of the occurrence. There is material contradictions in between the statements of the P. Ws.
Recorded in the case, that no recovery has been effected from the position or pointation of the appellant as envisaged under section 103 of Cr.P.C., that the P.W. Gul Tasreen has not been cited in the F.I.R. To be present when the victim was brought to the house or any statement had been made before her by the victim, that the complainant being uncle and father-in-law of the deceased have falsely implicated the appellant in the case making improvements in his statements before the Court and built up a new case before the Court, that there is no evidence against the accused hence he is liable to be acquitted from the charge. The learned counsel cited number of case-laws in support of his contention.
6. On the other hand the learned A.A.-G. Assisted by the counsel for complainant argued that the occurrence took place in broad-daylight and the appellant has been named in the F.I.R. The delay in lodging F.I.R. Has been explained and being the natural story cannot be denied. That there is no material contradictions or improvements in between the F.I.R. And statements of the P. Ws. Mst. Gul Tasreen is the witness for dying declaration made by the deceased when he was brought before her/witness at her seasonal dwelling.
7. The contents of the F.I.R. Are very much clear that F.I.R. Was lodged on the basis of written report in the shape of application addressed to S.H.O. Police Station Gonar Farm on 1-10-2003 wherein it has been stated that the occurrence had taken place on 30-9-2003 about one day prior to the lodging of F.I.R. Keeping in view the locality where the alleged occurrence had taken place we found no such gravity in delay A in lodging, of F.I.R., because the complainant/P.W.3 being the close relative of the deceased had managed things connected with the occurrence and he had no means of communication except to reach Police Station on foot. The time consumed in the process can be reasonably considered that there is no delay in lodging F.I.R. Which may affect the merits of the case as be taken false implication of the appellant.
8. In his report Exh.P.W.3/A, contains the thumb-impression of the complainant/P.W.3 and the F.I.R.
Exh.P.W.7/A, clearly indicates that the F.I.R. Lodger had stated that the deceased had received a fire shot on his abdominal area (t.Tr(?) {{URDU TEXT }}in the result of fire opened by the appellant with a .12 bore gun. There is neither any post mortem reportIB on the record to prove the contention of the F.I.R. Lodger, nor the arm' and used empty shells were sent to the Expert for report/opinion.
Therefore, the corroborative evidence required to support the contentions of the witnesses is lacking in this case.
9. The F.I.R. Ledger appeared in Court as P.W.3 in his statement before the Court alleged that the deceased had received the fire shot from his back as the appellant had hit him from the back side and the appellant fled away from the scene. After receiving fire injury the deceased was brought to his house with the support of P.W.3. In the F.I.R. And statement before the Court the witness did not alleged that the appellant opened fire taking cover of a stone but as against to this the police prepared site plan which is placed on file as Exh.P.W.6/ A. In the exhibit Place No.1 is shown as the place from where the fire was opened is a stone. This exhibit creates a doubt in mind whether the contention of witness or the position given in the Exh.P.W.6/A is correct.
10. The F.I.R. Lodger/P.W.3 did not disclose in his statement and report that the deceased had made any statement before his death; C however Mst. Gul Tasreen appeared in the Court as P.W.4 and stated that her deceased husband had charged the appellant for committing the offence. To rely on the evidence of this witness indeed a Medical Certificate by the competent doctor is required, whether the victim was fully conscious and was able to make a statement as alleged, but the same certificate is missing.
11. Coming to the recovery of the weapon of offences from the possession of the appellant, it is noted that the prosecution produced P.W.1 Safar Malok in proof of the recovery of the crime weapon who stated in his statement that he went to the scene of occurrence from where the empty shells and blood-stained earth was collected. In Court note the trial Judge, have mentioned that the prosecution could not be able to produce the blood-stained earth before the Court, P.W.2 appeared in the Court as marginal witness to the recovery of crime weapon. In his statement the P.W. Stated that the S.H.O. Took him to the house of Badam. The S.H.O. Took the P.W., Gulbar Shah and appellant into the house of one Badam where a .12 bore rifle was hanging on the pillar. The S.H.O. Took the said rifle in his own hand and showed it to the accused saying that whether the accused had murdered the deceased with this rifle? Appellant admitted that he had committed the murder of the deceased with this rifle. This P.W. Further admits that the rifle shown to him in the Court is the same which he had seen at the moment of its alleged recovery as the words "Sikandar" and "Sialkot" were marked on the said rifle. In his Court note the trial Judge mentioned that the parcel did not contain the signatures of Investigating Officer. It was further mentioned in the Court note that on inspection of the said cloth it was also found there, written as accused Ihsanullah son of Noor 7 shot Gun No. 7457 however it was also written with black marker in bold words Case No.21 of 2013 of Police Station Conner Farm along with the name of accused Muhammad Shafa.
12. The above statement and footnote given by the trial Court clearly indicates, that the parcel did not bear the signatures of the official and moreover it creates a confusion in which case it is recovered. The recovery effected by the S.H.O. By taking a witness with him into a house belonging to some other and inducing the appellant to state that he had committed murder with this rifle.
This mode of recovery can neither be termed to be the voluntarily from the possession of the appellant or on his pointation.
13. The discussion made above gives a clear picture that the prosecution badly failed to establish that the appellant had committed the murder of the deceased in the manner stated in report and F.I.R., thus he cannot be sentenced. We, therefore, set aside the impugned judgment/order dated 26-3-2012 passed by Additional Sessions Judge Diamer and acquit the appellant from the charge of section 302, P.P.C. However, any recovery made by the police from the appellant in case property shall be confiscated in favour of State. . File be consigned to record.