MALIK HAQ NAWAZ, J.---Appellant along with two co-accused was booked for the above offences under sections 302/34/109, P.P.C., sections 6/7 of A.T.A., 1997 vide FIR No, 192/2012 of Police Station City Gilgit.
2. After conclusion of trial the convict/appellant along with two co-accused was found guilty and awarded death sentence under section 302/34, P.P.C. And 7 of A.T.A., 1997. He was also convicted under section 13(d) and was awarded 7 years' R.I. Vide judgment dated 20.01.2014.
3. The convict/appellant along' with co-accused filed an appeal under section 25 of A.T.A., 1997 read with section 410, Cr.P.C. Before this Court, which was admitted for regular hearing and notice was issued to State for 17.2.2014 for arguments.
4. During pendency of appeal, a compromise was effected between the convicted accused and the legal heirs of deceased and on 19-09-2015, the appellant and his two co-accused were acquitted from all the charges on the basis of compromise, however the appeal under section 13, A.O. Was fixed for hearing on 17.12.2015.
5. The said appeal came for hearing today before this Court. The learned counsel for the appellants submitted that there are material contradictions in the statement of recovery witnesses and the recovery is result of planting and padding and recovery proceedings are just a masvering by the I.O. Just to show his efficiency.
6. The learned defence counsel drew our attention towards the EX.PW-7/A and stated that there are material and un-rebutted contradictions in the statement of recovery witness Hafiz-ur- Rahman available on (page-89 of paper book) and stated that the appellant Saeed Alam was arrested on 08-12-2012 and recovery was effected on his pointation on 18.12.2012, for which no explanation is available on police file, while the other recovery witness H.C. Muhammad Ismail has been abandoned by the prosecution for sinister motive and the Magistrate namely Noor Alam examined as PW-8, who supervised the raid completely negates the statement of PW-7 H.C. Hafiz- ur-Rahman, which are beyond repair. He further stated that no independent witnesses were associated with the so-called recovery proceedings.
7. The learned Dy. A.-G. stated at the bar that compromise has been effected between the parties and the compromise also on indication of guilt of accused. He further stated that people do not come forward to associate in recovery due to fear of their life and the police officials are as good witnesses as any other public witness till malice or ill will is specifically pleaded and brought on record. Moreover, the defence failed to get any clarification for non-association of private witnesses.
8. We heard the learned counsel for both the parties at length and found that there are many material contradictions in the statements of PW-7 H.C. Hafiz-ur-Rahman and PW-8 Magistrate Noor Alam regarding the mode and manner of recovery. We put a query to the learned Dy. A.G. that as per prosecution story the room where from the recovery was effected was opened with the key which was in possession of appellant/convict, to which the learned Dy. A.G. replied that the key of room was taken into possession through a recovery memo, but we are sorry to note that his statement was just an eye wash and the I.O. (examined as PW-16) stated during cross- examination that the key was not taken into possession but the key was with the appellant/convict till recovery of pistol from him. The relevant portion of cross-examination of I.O., which is available at (page 120 of paper book) is reproduced as under:- "After body search the key of the lock was handed over to Muharrir, but after two three days the key was returned back to accused Saeed Alam. I have not taken back the key of the lock from accused Saeed Alam. The key of lock is still remained with the accused till today. The lock was China made. I have not taken into my possession the lock of the room. It is incorrect to suggest that firstly I took the key from the accused and kept the weapon in the room and after 3 days recovery was made."
9.The mode and manner of recovery is not convincing and created a doubt in our mind that recovery was planted and later on a false story of recovery was cooked up. Non-association of independent recovery witness at the time of recovery is also a factor, which cannot be lightly ignored in peculiar circumstances of this case. Non-association of public witness cannot be made an excuse always, till very exceptional circumstances exist to justify the departure from the compliance of section 103, Cr.P.C.
10.The contention of the learned Dy. A.G. that since no question was put to the I.O. regarding non association of private witnesses in the recovery proceedings is repelled as responsibility to prove the case against the appellant is always upon the prosecution and even if no D question was asked by the defence regarding non association of independent witnesses, still the benefit will go to the appellant.
11.In view of above discussion the prosecution miserably failed to establish the charge against the appellant/convict. There are grave doubts in the prosecution case and we extend the benefit of doubt to the E appellant/convict and acquit him from the charge by accepting this appeal.
12.Before parting with judgment, we observe that no order regarding disposal of .9 mm pistol bearing No,252 SAR made AS TISAS Turkey, has been passed by the trial Court in the judgment. The weapon of offence referred above stands confiscated in favour of the State.