1. ' AFTAB AHMED GORAR, J.---Through this criminal appeal, the appellant has assailed the impugned judgment dated 10-1-2014 passed by learned IInd Additional Sessions Judge, Jacobabad in Sessions Case No.147 of 2013 re: State v. Nabidad Talani under section 302(b), P.P.C., whereby the appellant/accused was convicted and sentenced to suffer R.I for life as Tazir and pay fine of Rs.100,000 which shall be payable to the legal heirs of deceased Mst. Khursheeda as compensation, if recovered and in case of default of payment, the accused shall suffer S.I for six months more. The benefit of section 382-B, Cr.P.C. Was also extended to the accused.
2. ' Briefly the facts of the prosecution are that complainant Ashiq Hussain lodged F.I.R. Alleging therein that his maternal niece daughter of Lal Muhammad Tallani was married with one Nabidad.
3. On 13-2-2013 complainant, his cousins Bahadur and Ghulam Mustafa came to the house of Nabidad with some work, but he was not available in his house, hence they stayed in his house. It is further alleged that at about 2-00 p.m. Nabidad came to his house and demanded meal from Mst.
4. Khursheeda when she was talking with some one on mobile phone and at the same time accused Nabidad took out TT pistol from the fold of his shalwar and declaring her Kari with one Muhammad Bux, fired from his TT pistol directly at Mst. Khursheeda with intention to commit her murder and she fell down. Complainant being empty handed remained silent. Then accused Nabidad decamped from the place of incident along with his TT Pistol and later it was seen that Mst. Khursheeda had sustained fire-arm injuries at her face and head, blood was oozing and she died at the spot.
5. Thereafter, leaving the above witnesses on the dead body, he went to police station Saddar Jacobabad and lodged the F.I.R. To the above effect.
6. ' After registration of the F.I.R. The investigation followed and in due course the applicant was arrested and sent up to stand trial before learned IInd Additional Sessions Judge, Jacobabad.
7. ' Formal charge was framed against the appellant at Exh.2.
8. ' Prosecution in order to prove the charge against present accused examined P.W.1 complainant Ashiq Hussain at Exh.3, who produced the copy of F.I.R. At Exh.3-A, P.W.2 Bahardur at Exh.4, P.W.3 Ghulam Mustafa at Exh.5, P.W.4 Mashir Taj Muhammad at Exh.6, who produced memo. Of place of incident, danishnama and memo. Of sealing of blood stained earth and clothes of deceased at Exhs.6-A, 6B and 6-C respectively, P.W.5 Mashir Mashooque Ali at Exh.7, P; W.6 Corpse bearer PC Shamsuddin was examined at Exh.8, who produced the receipt at Exh.8-A, P.W.7 LPC Muhammad Rafique at Exh.9, who produced the memo. Of arrest and recovery at Exh.9-A, P.W.8 ASI Saindad at Exh.10 who produced the letter/dead body inspector form at Exh.10-A, chemical examiner's report at Exh.10-B and report of Forensic Science Lab. At Exh.10-C, P.W.9 Tapedar Kamil at Exh.11, who produced the sketch at Exh.11-A and P.W.10 Dr. Ghazala WMO Civil Hospital Jacobabad at Exh.12 who produced the post-mortem report at Exh.12-A. Thereafter the learned DDPP for the State closed the side of the prosecution vide statement Exh.13.
9. ' Statement of the present accused was recorded under section 342, Cr.P.C. In which he stated that no eye-witness supported the prosecution against him and the case against him is false one, but he neither opted to record his statement under section 340(2), Cr.P.C. Nor wished to produce evidence, in his defense.
10. ' Subsequently, after hearing the parties, learned trial Court convicted and sentenced the appellant under impugned judgment as stated above, giving rise to the present appeal.
11. ' I have heard learned counsel for the parties and perused the material brought on record.
12. ' It is contended by learned counsel for the appellant that the evidence adduced by the prosecution at trial is not properly assessed and evaluated by the trial Court and the same was insufficient to warrant conviction of appellant. He submitted that all the witnesses examined in the case being relatives of deceased lady Mst. Khursheeda have not supported the case of prosecution. He further argued that complainant of the case namely Ashiq Hussain, the maternal grandfather of the deceased and both eye-witnesses namely P.W. Ghulam Mustafa and P.W.
13. Bahadur, and the mashirs namely Taj Muhammad and Mashooq Ali, place of wardat and inquest report, have not supported the prosecution case. He further argued that evidence against the appellant is only that the empties recovered from the place of wardat and the pistol recovered from the appellant both were sent for chemical examination and the chemical examiner's report is received as positive. Only on this sole evidence the appellant has been convicted by the trial Court absolutely it is the case of no evidence. Neither ocular evidence incriminate the present appellant nor circumstantial evidence. He further argued that it is well settled principle of law that medical evidence does not give identity of accused, it has only value to the extent of corroboration with ocular evidence. He has argued that only on the basis of evidence of interested police officials, who deposted more than their actual examination in chief and exaggerated their version, therefore, exaggerations and improvements made by police officials witnesses can neither be taken into consideration nor relied upon for awarding punishment in an offence carrying capital punishment.
14. He lastly argued that the trial Court has not appreciated the evidence properly and convicted the appellant only on the basis of author of the F.I.R. Who is I.O. Of the case. On all these scores, learned counsel for the appellant prayed for acquittal of the appellant.
15. ' Learned A.P.-G. Has supported the impugned judgment and submitted that it is a day time incident, parties have patched up outside the court, therefore, P.Ws. Have not supported the case of prosecution and the learned trial Court initiated proceedings under section 193, Cr.P.C. Against the prosecution witnesses. He further argued that all the official witnesses have supported the case of prosecution. He lastly submitted that in view of the above, the impugned judgment passed by the trial Court may be maintained.
16. ' I have heard learned counsel for the appellant, learned A.P.G appearing on behalf of the State as well as perused the material brought on record.
17. ' Complainant Ashiq Hussain deposed in his examination in chief that deceased Mst. Khursheeda was his niece. This incident had taken place on 13-2-2013. On that day he was available at his house in village Abdullah Lashari Taluka Jacobabad, at about 2-30 p.m. Or 3-00 p.m. He received information from some sources that his niece has been murdered and thereafter he came to the house of Mst. Khursheeda and found that she was lying dead. He further deposed that he had not seen any body while committing murder of Mst. Khursheeda. Thereafter police came at the place of incident and asked from him about his relationship with the deceased, he replied that the deceased was his niece and thereafter police asked to accompany with them at P.S where police obtained his signature on blank white papers. He denied the suggestions.
18. ' P.W Bahadur, eye-witness as per prosecution case, deposed in his examination in chief that Mst.
19. Khursheeda was Daughter of his cousin. Incident taken place in the month of February, 2013. At the time of incident he was available at his house in village Abdullah Lashari. It was about 3-00 p.m., he heard that Mst. Khursheeda has been murdered, then he went to the house of Mst. Khursheeda and found her dead body lying in the house. He further deposed that he has not seen any body while committing murder of Mst. Khursheeda and police obtained his signature on blank white papers.
20. ' P.W Ghulam Mustafa eye-witness as per prosecution case, deposed in his examination-in-chief that Mst. Khursheeda was his relative. The incident had taken place on 13-2-2013. On that day, he was available in his house. It was 3-00/3-15 p.m., he came to know through villagers that Mst.
21. Khursheeda has been murdered. Then he went to the house of Mst. Khursheeda. He further deposed that he had not seen any person while committing murder of Mst. Khursheeda. He further deposed that he knows the appellant Nabidad who has not committed the murder of Mst.
22. Khursheeda.
23. ' P.W./Mashir Taj Muhammad deposed that he was called by SHO of Police Station and his L.T.Is. We obtained on some blank white papers. He further deposed that he had not seen the dead body of Mst. Khursheeda at place of wardat. Neither the police had collected blood stained earth from the place of incident nor police secured five empties in his presence neither blood-stained clothes of deceased were sealed in his presence. He produced danishnama and memo of sealing blood- stained earth and clothes of deceased as Exhs.06-A, 06-B and 06-C respectively. He denied the suggestions made by learned DDPP on behalf of the State.
24. ' PW/Mashir Mashcfoq deposed in his examination in chief that he is mashir of the case. He does not know any thing regarding this case; He was called by the SHO at P.S and his signatures were obtained on blank white paper. He has not seen the dead body of Mst. Khursheeda at the place of incident neither the police had collected blood stained earth from the place of incident nor police has secured five empties and nor the blood stained clothes were sealed in his presence. He further deposed that all the mashirnamas were prepared in his presence. He admitted that the memos prepared by polite contain his signatures but the contents thereof were not read over to him and only signatures were obtained on blank white papers. He denied the suggestions made by the DDPP on behalf of the State.
25. From the record it further reveals that allegedly on 16-2-2013 I.O. Received spy information at 2-00 p.m. That appellant was available near Qadri Dargah and the police party rushed there and arrested the appellant at 1400 hours in presence of police constables from thickly populated area but despite having sufficient time, the I.O. Did not bother to take any effort to associate any independent person from locality to attest the mashirnama of recovery and arrest of the appellant, thus there is clear violation of section 103, Cr.P.C. Besides this, it also does not appeal to a prudent mind that any person after three days of committing a murder would be freely roaming in the locality along with TT Pistol which also makes the arrest and recovery of crime weapon doubtful.
26. However, the T.T pistol recovered from the appellant was sent to Chemical Examiner along with 5 empties recovered from the place of wardat on 19-8-2013 after delay of six months. Report of Incharge Forensic Science Laboratory, Forensic Division, Larkana shows, that he received one .30- bore pistol No. Rubbed now butt/body signed with magazine with three .30 bore live cartridges.
27. Therefore, sending of T.T pistol along with 5 empties to chemical examiner with delay of six months create doubt in the recovery of pistol from the appellant.
28. ' The report of examiner is received in positive which has been made the sole evidence against the appellant and the only basis for recording conviction and sentence by the trial Court.
29. ' In the case of Ali Sher and others v. The State reported in 2008 SCM R 707, the honourable Supreme Court held as under:-- "(b) Penal Code (XLV of 1860)--- ---S. 302--- Reappraisal of evidence---Sending of crime- empties---Delay---Crime empties allegedly found at the place of occurrence were retained in police station and were sent to Forensic Science Laboratory, along with the crime weapons, 12 days after the recovery of alleged weapons---Effect---Delay had destroyed the evidential value of such piece of evidence and the recoveries could not offer any corroboration to the ocular testimony."
30. ' Looking to the whole prosecution case in which none of the eyewitnesses have implicated the present appellant but they have rather denied the very occurrence as disclosed in the F.I.R.
31. Therefore, the above sole evidence of report of chemical examiner was not sufficient to warrant conviction as it had only corroboratory value and in absence of any other evidence connecting the accused with the commission of crime, the same can not be held the sole basis for recording conviction.
32. ' In view of the above discussion as well as the dictum laid down by the honourable Supreme Court in the case of Ali Sher and others (Supra), it appears that the prosecution case is highly doubtful and the appellant is entitled to benefit of doubt as the prosecution has failed to bring home his guilt beyond shadow of reasonable doubt therefore, the appeal is allowed and the impugned judgment is set aside. The appellant is acquitted. He is directed to be released forthwith if not required in any other case.