MUHAMMAD EJAZ SWATI, J.---On 5th January 2009 Muhammad Essa, Naib Resaldar (PW-9) the than SHO Police Station Akhtarzai, District Killa Saifullah during special ghasht at Killi Akhtarzai, he along with other Police officials reached there and found a dead body having bullet injuries in a ground situated towards western side of the said Killi. The people of the Killi who identified the dead body of Nizam-ud-Din, but people gathered at the spot including relatives of the deceased, had neither seen the incident, nor willing to become complainant of the case. So FIR Ex.P/9-B was registered on the Murasilla Exh.P/9-A sent by PW-9 against unknown person, site plan Exh.P/9-C and inquest report Exh.P/5-A were prepared. Due to non-implication of any person in the crime, case was closed vide report Exh.P/9-D dated 1st July 2009.
It appears that on the application dated 28th December 2009 Exh.P./9-E of Shah Jehan PW-1, the son of deceased, after sanction of concerned Judicial Magistrate, case was reopened, whereafter, Shah Jehan and another son of deceased, namely, Sarwer PW-2 submitted their respective affidavits Exh.P/9-G and Exh.P/9-H, wherein, it was averred that on 5th January 2009 they along with their brother i.e. Respondent were present in bazar, the respondent told them that he (respondent) will murder his father Nizam-ud-Din, thereafter they on a motorcycle proceeded towards their home and saw that the respondent in a ground situated in the back side of their home was making firing upon deceased Nizam-ud-Din. As a result of firing Nizam-ud-Din fell down and died. After that the respondent escaped from the spot. They did not disclose name of their brother just to avoid his arrest. According to PW-1 the respondent remained away and due to his threat of dire consequences, they remained silent. Respondent was arrested on 29th December 2009 and during investigation on 7th January 2010 a disclosure memo. Exh.P/3-A of respondent was prepared. On the pointation of the respondent, a Kalashnikov Exh.P/3-B was taken into possession from a room of an abandoned place. During investigation, PW-1 Shah Jehan also recorded his confessional statement on 29th December 2009, wherein he reiterated his contention mentioned in his affidavit.
2. At the trial prosecution examined PW-1 Shah Jehan, PW-2 Sarwer Jan, PW-3 Siraj-ul-Haq, PW-4 Haji Gulab, PW-5 Haji Hamdullah, PW-6 Attaullah, PW-7 Muhammad Shabbir, PW-8 Dr. Jamal Abdul Nasir, PW-9 Muhammad Essa, Naib Tehsildar (Investigating Officer).
3. When examined under section 342, Cr.P.C., the respondent denied the prosecution allegation. He neither recorded his statement under section 340(2), Cr.P.C. Nor produced any witness in defence.
4. The trial Court vide impugned judgment acquittal the respondent of the charge.
5. The learned Additional Prosecution General contended that the ocular account furnished by PW- 1 and PW-2 coupled with recovery of crime weapon on the pointation of the respondent were altogether ignored by the trial Court, therefore, the findings rendered by the trial Court are perverse, arbitrary and reflect misreading and non-reading of evidence.
6. We have heard the learned Additional Prosecution General and have gone through the record of the case. The case of the prosecution is based on the ocular account furnished by PW-1 Shahjehan and PW-2 Sarwer Jan, recovery of Kalashnikov on the pointation of the appellant, disclosure and pointation of the appellant and the confessional statement of PW-1 Shahjehan. The deceased Nizam-ud-Din left 200 acre land including an orchard and cattle, which after the murder of deceased Nizam-ud-Din and arrest of the respondent in the instant case exclusively came into possession of PW-1 and PW-2, therefore, their statements require deep scrutiny. Before dilating upon the statement of PWs, it is necessary to consider the admissibility of disclosure of the respondent Exh.P/3-A, recovery of Kalashnikov vide recovery memo. Exh.P/3-B, pointation memo of place of incident Exh.P/3-C and confessional statement of PW-1 Shahjehan. The disclosure Exh.P/3- A and pointation memo Exh.P/3-C of the respondent was recorded on 7th January 2010, wherein the facts related to the incident, commission of the offence and pointation of place of the incident had been allegedly mentioned by the respondent. Admittedly, all these facts and place of incident had already been brought into the knowledge of police by PW-1 and PW-2 on 28th December 2009, the place of the incident was also into the knowledge of the Police on 5th January 2009 i.e. Prior to disclosure of the respondent, therefore, the alleged disclosure and pointation of the respondent cannot be termed to be fact discovered in consequence of the information of the respondent, thus the alleged disclosure and pointation of the respondent. In no way fall within the ambit of Article 40 of the Qanun-e-Shahadat Order, 1984, whereas the confessional statement Exh.P/1-E of PW-1 Shahjehan is concerned. It is come on record through PW-4 that the respondent was arrested on 29th November, 2012 and the confessional statement Exh.P/7-C reflect that no notice as required under section 265-J Cr.P.C. Was given to the respondent, therefore, in absence of any such notice the said statement having no evidentiary value, as held in the judgment reported in 1992 PCr.LJ 2119.
The recovery of Kalashnikov allegedly on the pointation of the respondent in absence of non- recovery of empties from the spot and positive report of FSL, had no consequence and cannot be regarded as corroborative evidence.
7. Now adverting to the ocular account furnished by PW-1 and PW-2 according to them, the respondent on 5th January 2009, in bazar told them that he will kill his father Nizam-ud-Din and on the same day when at about 4-30 p.m. They reached home, they found that the respondent is making firing upon the deceased Nizam-ud-Din in a ground situated behind their house. As a result of firing, deceased fell down and died at the spot. The conduct of these witnesses are quite unnatural, they being real son of deceased Nizam-ud-Din neither had taken his father to hospital nor to home nor reported the matter to the Police. PW-9 Muhammad Essa Naib Resaldar altogether negates the testimony of PW-1 and PW-2, who stated that on 5th January 2009, during patrolling at about 11:00 p.m. He received information about a dead body. When he reached at the spot, the dead body of the deceased Nizam-ud-Din was lying on the ground and the people of the Killi Akhtarzai including the relatives of deceased were gathered there, who neither disclosed about the happening of the incident nor any one came forward to become complainant of the case, therefore, through Murasilla Exh.P/9-A, the FIR Ex.P/9-B was registered on his report. PW-2 Sarwer Jan during the course of cross-examination stated that on 5th January 2009, they reached home at 4:30 p.m. Where they witnessed the incident. Had PW-1 and PW-2 witnessed the incident at 4:30 p.m. They would have not let the dead body of his father unattended till 11:00 p.m. PW-6 Dr. Jamal Abdul Nasir stated that the dead body of the deceased was brought in hospital by the Police constable on 5th January 2009 at about 11:00 p.m. The unnatural conduct of PW-1 and PW-2 being real son of deceased who remained mum and after 11 months of the incident they at once came forward and through the application Exh.P/9-E and their affidavits Exh.P./9-G and Exh.P/9-H dated 28th December 2009 implicated the respondent in the commission of the offence, which in the aforesaid circumstances of the case, is highly doubtful. In the case of Muhammad Sharifan Bibi v.
Muhammad Yasin and others, 2012 SCMR 82, the Hon'ble Supreme Court of Pakistan in respect of unnatural conduct of a prosecution witness who neither lodged the FIR nor taken the deceased to hospital held as under: "We find that the three witnesses who furnished the ocular account namely P. W 4 Hafiz Shahid Mehmood, P. W. 7 Dost Muhammad and P. W.9 Wajahat Ali, if had seen the occurrence, nothing prevented them to get the case registered the same day instead they waited for 2/3 days to have their statements recorded. Their presence becomes further doubtful as none of them accompanied Abdul Latif deceased to the hospital for postmortem examination."
8. In the instant case besides the unnatural conduct of PW-1 and PW-2, they during the course of cross-examination admitted that after the murder of their father and involvement of the respondent in the instant case, 200 acre landed property including an orchard and cattle left by their deceased father came into their possession, therefore, the reasonable possibility of false implication of the respondent cannot be excluded. The trial Court after considering the evidence on record by means of well-reasoned-judgment extended benefit of doubt in favour of the respondent, which is unexceptionable, warrants no interference by this Court.
In view of the above, the Criminal Acquittal Appeal No. 145 of 2011 having no merits is dismissed.