WAZIR SHAKEEL AHMED, J.---Through this single judgment we intend to dispose of the instant criminal appeal filed u/s 410 Cr.PC against the impugned judgment/order dated 02-11-2012 alongwith connected Cr. Rev for enhancement of sentence awarded to convict/ appellant.
' Brief facts necessary for the disposal of the present appeal can be summarized as, one Azhar Ali s/o Sadiq r/o Chamughar got registered a report on 29-7-2011 at about 0830 hours before police station Danyore Gilgit stating that on the day of occurrence between 29/ 30th July 2011, accused Raziullah and Nadeem-ur-Rehman sons of Abdul Azeem r/o Chamughar have murdered his brother Altaf Hussain and his wife Mst. Sania by stoning and through blows of hatched in the darkness of night in front of their house in the field of one Sattar. The complainant has feared the involvement of some other persons also in the above murder.
2. Police after reducing the complaint into writing chalked FIR No. 03/2011 and after necessary investigations submitted challan of the case before the sessions Judge Gilgit. The prosecution in its case adduced 6 PWs and after full trial the present convict/appellant was found guilty of double murder and was sentenced to undergo rigorous imprisonment for 7 years. The benefit of section 382 Cr.P.C. Was also extended to him. The convict/appellant was further fined Rs.300,000/- and in case of default of payment of fine he was further undergo 6 months rigorous imprisonment. The Co accused Nadeem-ur-Rehman was acquitted from the charges in the impugned judgment.
3. The learned counsel for the convict/appellant in support of his appeal argued that the impugned judgment/order is in sheer negation of the law and facts of the present case, hence not sustainable. The learned trial Court instead of extending benefit of doubt in the present case to the convict/appellant have shifted the same towards the prosecution against the settled principle of criminal justice and norms of equity and fair play. The learned counsel vehemently argued that the impugned judgment order in nullity in the eyes of law and the finding arrived at are based on mere surmise, conjurors. The learned counsel cited the following case laws in supported of their arguments. YLR 2005 P.1128, PLD 2009 SC P-53, 1993 PCr.LJ P-1118, 2005 PCr.LJ 1232, 2010 PCr.LJ (FSC)
P 1750 and 2001 SCMR P-424.
4. On the other hand the learned Additional Advocate General assisted by counsel for complainant also held that the impugned judgment of trial court is not in accordance with settled principles of criminal justice system and against the mandate of specifically added proviso of Section 302 (c)
PPC added through law amendment Act of 2004(Act-1 2005) wherein such cases are to be covered u/s 302 (a) and (b) entailing the punishment of death or life. The learned counsel finally argued that in the present case the convict/appellant has himself surrendered alongwith blood stained hatchet so the punishment of 7 years' R.I is against the above provisions of PPC as mentioned above and while summing up his arguments prayed the present appellant be dealt with u/s 302 (a) and (b) PPC and the sentence of respondent No.1 be enhanced to death to meet the ends of justice. Learned counsel relied on the fallowing case laws: (1) 2001 PCr.LJ P-1766; 2011 PCr.LJ P-877; PLD 1975 SC P-607 (4) PLD 2011 Lah. P-84.
' We have given a thoughtful and judicious consideration to the above submissions of the learned counsel for the parties and also gone through the record of the case with their able assistance.
' The occurrence admittedly is that of night and also of unseen one and the whole of the case is based on circumstantial evidence i.e. Recoveries and medical /autopsy report. The prosecution has adduced 6 witnesses including SIP Syed Iqbal Hussain. The gist of the statements of the above PWs are reproduced as under for ready reference.
5. PW-1 Muhammad Azam Khan: This PW is the father of deceased Sania who stated that he was informed by someone about the occurrence/murder of his daughter alongwith deceased Altaf while both the deceased having illicit relations were in a compromising position. He further stated that he owns the above illicit relation of the two and further claims that he had forgiven whosoever has murdered his deceased daughter. No question was put to him during his cross examination.
PW-2 Muzaffar Alam: Is the uncle of deceased Altaf who is associated in recovery memos Exh PW.2/A to PW-2/F vide which police recovered blood stained earth PW-21A axe used in the commission of offence Exh-PW2/B, handing of death body of deceased Altaf to his relative for burial, Exh-PW2/C, handing over of death body of deceased Sania wife of convict/appellant to lady doctor for autopsy, Exh-PW.2/D through Exh.PW-2/E police took the death body of Altaf after autopsy. The body of deceased Altaf was handed over to doctor for autopsy vide Exh-PW2/F.
During the cross examination this PW states that he had gone to the place of occurrence, the police station and hospital at his own. He admits that he did not note whether the recovered axe was blood stained or not. He further admits that he recovered axe through Exh PW-2/B was not sealed by the police in his presence. PW-3 Azhar Ali: Is the real brother of deceased Altaf and the complainant of the case he during the statement recorded before the court owns the contents of the FIR chalked by him, during cross examination he states that he is an employee of G.B Police, on the night, of occurrence he was at Chinese camp at Minawar das on duty. On the information of his maternal uncle on telephone at about 7:30 AM on 30-7-2011 he proceeded to his home after obtaining permission from DSP/Inchrage, he lodged FIR at about 1:PM on 30-7-2011. He also says that he himself wrote the content of Exh-PW-3/A in police station Danyore. Finally he stated that while he was lodging FIR accused Raizullah was in police station cantt Gilgit who had gone there on his own after the occurrence. PW-4 Mir Alam: is also a relative and marginal witness of PW-4/A to PW-4/D vide which police took the death bodies of deceased Altaf and Sania and bloodstain earth from the place where the death bodies of the two deceased were lying. Police did not produce parcels of articles of Exh-PW-4/C and 4/D before the trial Court this PW also discuss the recovery memo PW 4/D vide which the blood stained earth were recovered from the scene of occurrence.
During the cross he admits that the police took his signature of the recovery memos ExPW-4/A to D on 3 or 4 August. There is a Court note during the cross examination of this PW which reveals that the articles of Exh PW-2/A were checked in the Court which were found placed in an ordinary plastic shopper without any seal or even knotting the said shopper. The produced stottes were also found not blood stained the Court observed that tall three stones were found to be fresh, taken from same place and placed in the shopper for presenting in the Court. The trial Court vide yet another Court note also observed that the article of Exh PW-2/B(axe) which police produced in sealed form that day was unsealed in the Court and found that the sealed axe recovered through PW-2/B was also not blood stained. PW-5 Mamoonullah: Is the Doctor who conducted the autopsy of deceased Altaf and prepared the report Exh-PW-5/A. This PW admits that he did not found the cloths of the deceased blood stained, also admits that there were no pellet or earth on the wound of death body of deceased. The PW also admitted that he is not a medico legal surgeon nor he has specialized in forensic science he is a simple medical officer. PW-6 SIP /SHO: Who conducted whole investigation of the case after getting the necessary investigation processes as mentioned above got submitted the challan of case before the trial court in his own hand writing. Apart from the above discussed recovery memos this P.W. Has prepared the site plan Exh-PW-6/A site inspection report Exh-P.W.-6/G, inquest report Exh-PW6/H and Exh-PW6/I of the two deceased. This PW during the cross examination states the complainant had reached the police station before he was informed about the surrender of convict/appellant Raziullah by SHO Police Station Cantt. He recorded the report of the complainant and soon after the same rushed towards the scene of occurrence. The PW admits that deceased Altaf had caused stone injuries which is reflected in the inquest report, but at the same he also stated that deceased Altaf has also got injuries inflected by axe. This PW admits that he had prepared the site plan on the pointation of PW Azhar Ali but there is no mention of the said Azhar Ali in the site plan ExPW-6/F. The PW-6 claims the sealing of stones recovered from the scene of occurrence as against the Court note mentioned/discussed above.
The PW also admits not mentioning of sealing of particle of recover weapon of offence axe vide Ex PW-2/B and that of stones vide memo Exh PW-2/A same is the case with two memo Exh PW-4/A, PW-4/C (recovery memos of blood stained earth). The I.O. Also admits that there is no mention of handing over of weapon of offence axe by Raziullah to him in recovery memo Exh PW-2/B. The 1.0.
Further states that the appellant /counsel was arrested by him as he went to the Police Station Cantt for taking custody of convict/appellant Raziullah. The I.O. On a question put to him categorically denied that the police at P.S Cantt handed over convict Raziullah to him finally the PW6 I.O. Claims that he had requested S.P Gilgit for sending blood stained earth, cloths, stones and axe for expert opinion, but the Court note reveals that the judicial file does not contain any letter etc, showing any request of I.O. Or SHO for sending any of the articles for expert opinion. The I.O.
Finally admits that the final challan of the case was submitted before the Court without waiting for the result of expert opinion on the above mentioned articles.
6. The whole prosecution case is silent about the mode and the manner of arrest of the convict/appellant, there is a mention of going of the convict/appellant to police station Cantt Gilgit soon after the alleged commission of offence but not a single document is appended with the case file where from it could be ascertained that how the convict/ appellant was got arrested.
According to the case set up by the prosecution the convict/appellant had surrendered himself before the police at Police Station Cantt with the weapon of offence in that case also there should have been any record of the same in the case file. All that is available in a recovery memo of alleged weapon of offence which is shown to be recovered from the convict/appellant in the police station Danyour.
7. It is also material to note that inspite of alleged infliction of injuries to the person of the two deceased through stone and axe, and in the light of alleged recovery of blood stained axe, and stone recovered as weapon of offence, they were not found blood stained as observed by the trial Court through its Court note. The other incriminated blood stained clothes were also not presented before the Court. Finally the recovered axe and stone allegedly used for commission were not even sent to the FCL and admittedly the challan of the case is silent about the sending of the same to the laboratory that is why the I.O. Has nothing left to say but to admit that he had submitted the complete challan without waiting of any expert report.
8. In the light of what has been discussed above we are of the firm opinion that the prosecution has bitterly rather willfully failed to prove the corroborative pieces of evidence which were required to be proved beyond any shadow of doubt in the circumstance of the present case of unseen occurrence. We are also of the opinion that in the case of such a poor investigation the trial Judge should not have gone for the conviction and that too of the sentence of 7 years in a case of 302 PPC against the settled principle laid down in such like case, wherein even a slight benefit of doubt .Should have gone to non-else than the accused. So this appeal is hereby accepted and the impugned/judgment of the trial Court is set aside, the convict/appellant is discharged from the offences leveled against him in the case and he is directed to be released forthwith if not required in any other case. Above are also the findings of dismissing the connected Cr. Rev. No.05/2013 filed by the father of deceased Altaf to enhance of sentence and accordingly the Cr.Rev-05/2013 is dismissed these are the reasons of our short order dated 6-04-2015. File.