HAIDER ALI KHAN, J.- Appellant Sabz Ali has impugned the judgment dated 10.10.2012 of learned Additional Sessions Judge/Izafi Zilla Qazi-I, Buner, rendered in case FIR No.22 dated 29.01.2012, under sections 302/324 PPC of police station Chinglai, District Buner, whereby he has been convicted under section 302(b) PPC and sentenced to death as Ta'zir with payment of compensation of Rs:2,00,000/- (rupees two million), in default whereof he was to further undergo six months S.I; further convicted under section 324 PPC and sentenced to seven years imprisonment and also to pay Daman amount of Rs:10,000/- to injured Mushtaq. Benefit under section 382-B, Cr.P.C. has been extended to him.
2. Brief facts of the case are that on 29.01.2012, Nazir Muhammad (PW-2), son of deceased Sher Muhammad reported in the police station to S.I., Noor-ul-Jalil Khan (PW-10) to the effect that on the eventful day he alongwith his father Sher Muhammad were returning home after purchasing vegetables from Chinglai Bazaar, when they reached the place of occurrence, accused Sabz Ali, duly armed with pistol, was present there, who started firing as a result of which his father was hit on left rib, back and fell to the ground, while Mushtaq Ali sustained injury on his left thigh, whereas Wazir Muhammad escaped unhurt; that his father succumbed to his injuries on the way to police station. The occurrence was stated to have been witnessed by Wazir Muhammad and Rahman Ali.
Motive for the occurrence was stated to be a family suit in respect of woman. On completion of investigation, the case was sent to the trial Court for trial which indicted the appellant for commission of the offence but he pleaded not guilty and claimed trial. Prosecution, in order to substantiate its case, produced and examined as many as ten witnesses while Anwar Shad DFC No.941 was examined as CW-1, whereafter statement of the accused was recorded wherein he professed innocence, however, neither he produce evidence in his defence, nor opted to be examined under section 340(2), Cr.P.C. On conclusion of the trial, the learned trial Court found the accused guilty of the offence and on conviction sentenced him as mentioned above. Hence, the instant appeal, while the trial Court has sent Murder Reference No.9-M of 2012 for confirmation.
3. Learned counsel for the appellant, in support of the appeal, contended that the prosecution has not proved its case against the accused beyond any reasonable doubt and the witnesses produced by the prosecution are planted ones. He further submitted that the occurrence is un- witnessed which had taken place in the bazaar but no independent witness has come forward to support the prosecution version; that presence of eyewitnesses has not been established; he further contended that no suggestion was put to PW-2 with regard to his presence on the spot.
Learned counsel concluded that the learned trial Court while convicting the appellant has brushed aside the motive which was proved on the record, therefore, the impugned judgment of conviction is liable to be set aside.
4. As against the above, learned counsel for the complainant, assisted by the learned A.A.G, has defended the judgment of conviction and submitted that the same is based on proper appreciation of prosecution evidence, therefore, no exception could be taken.
5. Arguments heard and record perused.
6. In the light of arguments of the counsel for the parties, the entire evidence has been sifted through. According to the FIR, the time of occurrence has been stated to be 10:45 a.m, whereas the FIR was lodged at 11:15 a.m. The said FIR in the very first sentence, states that: {{URDU TEXT}} The above-mentioned narration establishes one fact that the deceased was killed at 10:45 a.m. and to that effect report was lodged at 11:15 a.m. when the dead body of the deceased was directly taken to police station Buner. The said complainant was examined as PW-2 who is the real son of the deceased and the injured child witness, namely Mushtaq Ali, aged about 10/11 years, produced as PW-3. Both these PWs have given similar statement which for a larger part corroborate each other excepting the fact that the PW3 states that his father took him to the hospital at Swabi in injured condition. However, PW-2 is completely silent about this fact and he only states that he took his deceased father directly to the police station at 10:45 a.m. where the FIR was lodged. Pursuant to order of this Court dated 18.12.2013, Dr. Muhammad Israr, Senior Medical Officer, District Headquarter Hospital, Swabi was examined as CW-1. He was also examined as PW-9 during the trial. He confirmed and verified his report in respect of examination of PW-3 Mushtaq Ali (injured child witness). The said witness when examined as CW, stated that on 29.01.2012 at about 11:45 hours, the deceased Sher Muhammad was also brought to the District Headquarter Hospital Swabi in injured condition. The said witness during cross-examination of the defence, stated that the deceased and PW-3 were brought to DHQ Swabi together at the given time and the deceased was alive when he was being given first aid.
7. Admittedly, according to the statements of PWs, the distance between police station Buner and the District Headquarter Hospital, Swabi is about one hour's drive one way. Keeping in view the statements of the CW and PW-2&3, who were the star witnesses of the prosecution, the time of registration of the FIR and the time of death of the deceased become diametrically opposed to each other. According to the FIR, the deceased was brought to the police station at 11:15 a.m, whereas the said CW states that the deceased was brought to DHQ Swabi at about 12:00 hours in severely injured condition but still alive. The prosecution has miserably failed to give any plausible explanation with regard to such an important and glaring contradiction as to the time of death of the deceased and the concealment of fact that the deceased was first taken to DHQ Hospital Swabi, where he was medically examined for about one hour and finally around about 2'O clock was brought back to the police station. Keeping in view the distance of one hour drive from the place of occurrence to DHQ Hospital Swabi and one hour time to examination and first aid to the deceased and again one way back to the police station, makes it three hours, whereas in the FIR, the presence of the deceased and the complainant was shown at about 11:15 a.m. sharp. Reliance can be placed on SCMR 889 'Mardan Ali V. Gulistan and others'.
8. Apart from the above major contradictions, there are other discrepancies as well. Firstly, statement of Mushtaq Ali PW-3, under section 161, Cr.P.C. was not recorded on the same date i.e. 29.01.2012, rather his statement was recorded on the following day of the occurrence which is a serious irregularity. Reliance can be placed on case law reported in 1998 SCMR 570 'Muhammad Khan V. Maula Bakhsh and another', wherein it has been held that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation. In another case reported as 1993 SCMR 550 'Syed Saeed Muhammad Shah and another V. The State', the apex Court held that statements recorded by police after delay and without explanation are to be ruled out of consideration.
9. Secondly, that although the crime weapon was stated to have been recovered at the pointation of accused in his house, the empties recovered from the spot also matched according to the Forensic Science Laboratory report but nevertheless, the recovery memo in respect of the recovery of the crime weapon has not been proved in accordance with law, as one of the marginal witnesses was abandoned by the prosecution being won over while the second witness to that effect was stated to be abroad, therefore, the recovery has not been proved in accordance with law. Reliance can be placed on 1983 SCMR 1292 'Bagh Ali V. Muhammad Anwar and another', wherein it has been held that mere recovery, in absence of other evidence, would not be sufficient to furnish a foundation for conviction in capital charge.
10. Thirdly, the child witness while being examined as PW-3, the questions answers put to said witness were not reduced into writing by the learned trial Judge which is also illegality. The learned trial Judge was supposed to reduce the questions and answers put to the child witness in his statement according to the judgment of Supreme Court reported in 1979 SCMR 186 'Umar Jehan V. The State' and case law reported in PLD 1980 Peshawar-25 'Abdul Hamid V. the State'.
11. In view of what has been discussed above, we allow this appeal, set aside the impugned conviction and sentence recorded by the trial Court and consequently acquit the appellant of the charge. He is in custody, be set free at once if not required to be detained in any other case. Murder Reference No.09 of 2012 is answered in negative.
12. Above are the reasons of our short order of even date.