' QALANDAR ALI KHAN, J.---Feeling aggrieved of acquittal of accused/respondent, Nazakat, the State through Advocate General, Khyber Pukhtunkhwa, Peshawar, preferred this appeal under section 417, Cr.P.C. Against the judgment of the learned trial Court/Additional Sessions-II, Abbottabad, dated 11.07.2015.
2. The accused/respondent was charged for the Qatl-i-amd of mother of the complainant, Muhammad Zafoor aged 12/13 years, in his report lodged to the police in the emergency Ward of RHC Lora at 1330 hours on 26.12.2013. In his report, the complainant stated that he along with his mother Mst. Gulzareen Bibi prepared cattle feed and when at 1100 hours his mother was carrying a sack containing feed for cattle to the cattle shed, his paternal uncle Nazakat son of Maqbool-ur- Rehman, accused/respondent, came there armed with rifle and opened fire at his mother which hit her on the back side of her head and thereafter his uncle made good his escape from the spot. The fire shot and hue and cry attracted Rustam son of Muhram and others people who were taking his injured mother to the hospital but she succumbed to the injuries on her way to the hospital. The complainant mentioned dispute over property as motive for the offence and charged the accused/respondent for the Qatl-i-amd of his mother. The report was lodged in the presence of maternal uncle of the complainant namely Nisar son of Gulzar who also signed the report, reduced into writing in the shape of murasila, as rider besides the complainant, who too, signed his report.
3. During Postmortem examination of the deceased, the Medical Officer, however, found three entry wounds with corresponding exit wounds beside a graze wound on the neck and skull of the deceased. The I.O. Secured blood and also a crime empty of .12 bore during spot inspection. The blood secured from the spot and blood stained garments of the deceased were sent to the FSL and the result received there-from was in the affirmative. The accused/respondent was arrested on the following day of the occurrence i.e, 27.12.2013, and an unlicensed single barrel .12 bore shotgun was allegedly recovered on his pointation by the LO after his arrest while he was in police custody; and the shotgun along with .12 bore crime empty were sent to the firearms expert, and the firearms expert furnished his opinion in the affirmative. After collection of evidence and completion of investigation, complete challan was submitted to the trial Court.
4. The trial Court charged the accused-respondent under sections 302, P.P.C. And 13, A.O., to which he pleaded not guilty and claimed trial. During trial, the prosecution produced as many as 9 PWs; while the complainant, Muhammad Zafoor, was abandoned with the observation that he had no maturity to understand the questions and unable to give rational replies. The prosecution evidence comprised material witnesses like Safdar Zaman SI (PW.1), who recorded report of the complainant; Lady Dr. Shaista Qurban (PW.6), who conducted P.M examination of the deceased; Malik Sher Hassan (PW.7), marginal witness to the recovery memos in respect of blood stained earth and empty of .12 bore as well as one .12 bore single barrel shotgun, allegedly, recovered in his presence; Nisar Ahmed (PW.8), who signed murasila as rider; and Abdul Razaq Khan (PW.9), who conducted investigation in the case. The prosecution abandoned the other marginal witnesses to the recovery memos namely Muhammad Riasat and Gul Naseer, statedly, being won over by the defence. PW Rustam, who was mentioned as the person .Who along with other people reached the spot after the occurrence and hearing the fire shot and hue and cry was also abandoned by the prosecution being won over. The other PW namely Maqbool-ur-Rehman was also abandoned being own over and Mst. Zahida Jan being unnecessary. It may be added here that the prosecution requested for declaring PW. Malik Sher Hassan (PW.7) hostile and the learned trial Court allowed the learned APP to cross-examine the PW. Thereafter, statement of the accused/respondent was recorded under section 342, Cr.P.C. Wherein, he denied the charges levelled against him by the prosecution but declined to be examined as his own witness under section 340(2), Cr.P.C. And produce defence evidence. After hearing arguments, the learned trial Court/ASJ-II, Abbottabad acquitted the accused/respondent by extending him the benefit of doubt, vide the impugned judgment dated 11.07.2015.
5. The perusal of record would show that complainant, Muhammad Zafoor, was the only eye- witness but he was abandoned by the prosecution when he was found not mature enough to understand question and give rational replies; which, indeed, would also cast doubt about the FIR lodged by him, when seen in the light of statement of Nisar Ahmed (PW.8), who signed the murasila as rider, but simply deposed about his accompanying the complainant at the A time of lodging of report by him. He is, however, not one of the two witnesses who identified the dead body before the police as well as Medical Officer, despite the fact that deceased Mst. Gulzareen Bibi was his elder sister and according to his statement he was accompanying the complainant at the time of lodging report by him.
6. In the absence of eye-witness account of the occurrence, case of the prosecution would solely rest on circumstantial evidence, which too received setback after marginal witness to the recovery memos relating to blood stained earth, crime empty and so-called weapon of offence i.e, .12 bore single barrel shotgun, resiled from his earlier statement to the I.0 and stated that he never met the police after 26.12.2013 and thus denied his signatures on the recovery memo of the so-called weapon of offence and pointation memo dated 27.12.2013. Needless to say that the other material witnesses of the prosecution, including the other marginal witnesses to the recovery/pointation memos, were abandoned by the prosecution for being won over by the defence, thus leaving behind nothing in terms of cogent evidence to connect the accused/respondent with the commission of the offence. The motive alleged in the FIR was also not established on record. The learned trial Court rightly noticed delay in furnishing the Postmortem report dated 26.12.2013 by the Medical Officer to the police on 30.12.2013. The learned trial Court aptly observed that none of the inmates of the house where the complainant and deceased were jointly residing came forward in support of the prosecution case. The Statement of the Medical Officer admitting firing from different directions also created irreparable dent in the prosecution case showing fire by the accused/respondent only from back side of the deceased.
7. In short, after reappraisal of the entire evidence of the prosecution, we could not persuade ourselves to arrive at a conclusion other then arrived at by the learned trial Court. Therefore, we found the impugned judgment of the learned trial Court thereby acquitting the accused/ respondent of the charges not open to exception.
8. The appeal is, therefore, devoid of substance, hence dismissed in limine.