JUDGMGNT ALI BAIG, J.---This criminal appeal under section 417, Cr.P.C. has been directed against the impugned judgment dated 25.3.2014 passed by the learned session Judge Astore, whereby the learned trial court has acquitted the present respondents/accused from the charge under section 302/34, P.P.C., case FIR No 9/2009 Exh PW-9/A registered at police station Astore.
2. Brief facts of the prosecution case as disclosed in the FIR are that on 24.3.2009 at about 9.a.m the complainant was informed by one Faqir shah son of Shahzad Noor R/o Dashkin Astore that his real paternal uncle namely Mohammad Qabil son of Lo khan has been murdered at Nokai Mushkin road by some unknown culprits. On receipt of this information the complainant proceeded to the place of occurrence and found that his uncle namely Molvi Muhammad Qabil who was serving as road qooli has been murdered by some unknown culprits/ culprit by opening fire shots with fire arm. Suspiciously the present respondent/accused have murdered the deceased. Motive behind the occurrence is stated to be that about 7/8 months prior to the occurrence one Tahir son of Musa Wali Khan who belongs to the family of complainant party had allegedly abducted/eloped sister of accused/ respondent namely Zahid Hussain son of Mohmmad Zaman and it was alleged that the deceased has abetted/facilitated the above named accused/respondent by making/writing an amulet. After registration of criminal case under sections 302/34, P.P.C. against the respondents/ accused vide FIR No 9/2009 at police station Astore by IP/SHO namely Mohmmad Shafa, the case was entrusted to Faqir Mohmmad SIP for investigation. The above named 1.0./SIP along with his team and complainant proceeded to the place of occurrence where he found that the dead body of deceased Molvi Mohammad Qabil son of Lo Khan was lying on upper side of the road. The deceased had sustained bullet injury on left side of his neck. The police took the dead body of deceased in their possession in presence of PWs namely Muhammad Zakir and Naib. Khan. Blood stained earth has also been taken into their possession from the place of occurrence by police.
Thereafter, dead body of deceased removed from the scene of occurrence and was taken to the house of Muhammad Zaril situated at Dashkin, where Dr. Zahid Hussain conducted postmortem examination of the dead body of Molvi Muhammad Qabil. There after D.S.P Headquarter Mr. Jahangir Khan constituted joint investigation team under the supervision of SHO/IP Muhammad Shafa consisting of Faqir Muhammad SIP and Ghulam Mustafa SIP. On 25-3-2009 the joint investigation team arrested the respondents/accused. On 27-3-2009 the police recovered crime weapon i,e, .30-bore pistol on the joint pointation of accused/respondents namely Hafizurehman and Umer Rehman from Dichlay Nallah. The Police also registered another criminal case against accused/ respondent namely Hafizurehman under section 13 A.O. 1965 vide FIR No,11/2009 at police station Astore. The JIT recorded statements of I-Ws under section 161, Cr.P.C. They prepared inquest report and site plan of the place of occurrence. After completion of usual investigation the JIT handed over the case file to SHO Police Station Astore for submission of challen in the court of competent jurisdiction for trial of accused/respondents. Accordingly SHO Police Station Astore submitted the charge sheet/challen against the accused/respondents in the trial Court.
3. The learned Sessions Judge Astore/Trial Court framed formal charge against the respondents/accused on 18-11-2009 to which the respondents/accused pleaded not guilty and claimed trial. After framing of formal charge the PWs were summoned.
4. In order to substantiate the charge the prosecution examined 9 P.Ws in the trial court and thereafter the DPP Astore closed prosecution evidence. The learned trial court examined the accused/respondents under section 342, Cr.P.C. on 25-5-2013. In their statements recorded under section 342, C.r.P.C. the accused/respondents repudiated the charge of murder of the deceased and professed their innocence stating therein that PWs being close relatives of the complainant party have falsely deposed against them. The accused/respondents neither opted to record their statements on oath under section 340(2), Cr.P.C. nor produced any witness in their defence. The learned Sessions Judge Astore after hearing the final arguments on behalf of both the parties has acquitted all the accused/respondents vide impugned judgment dated 25-3-2014.
5. Feeling aggrieved from the impugned judgment passed by the trial court, the learned Deputy Advocate General has filed the instant criminal appeal against acquittal of accused/respondents in this court.
6. The learned Dy. A.G. appearing on behalf of State has contended that the impugned judgment dated 25-3-2014 passed by the trial is contrary to law and facts on the record of the case as such the impugned judgment passed by the learned trial is not maintainable and liable to be set aside.
The learned Dy. A.G. further argued that the prosecution has proved its case against the accused/respondents by producing cogent circumstantial evidence in the trial court but the learned trial court has wrongly acquitted the accused/respondents. The learned Dy. A.G further argued that the weapon of offence i,e, .30-bore pistol was recovered by the police on the joint pointation of the accused/respondents namely Hafiz-Ur-Rehman and Umar Rehman.
7. On the other hand the learned counsel for the accused/ respondents controverterd the arguments advanced by the Dy. A.G and supported the impugned judgment by contending that although the respondents were nominated in the FIR on basis of suspicion but no specific role has been attributed to the accused/respondents. The learned counsel for the accused/respondents further argued that no eye-witness has witnessed the occurrence whereas the murder of the deceased was allegedly committed on main Astore Road. The learned counsel for the respondents further argued that the alleged recovered weapon of offence was not sent to the Arms Expert for his expert opinion, hence recovery of weapon of offence on joint pointation of two respondents/accused namely Hafiz-ur-Rehman and Umer-ur-Rehman is highly doubtful.
Concluding his arguments the learned counsel for the accused/ respondents argued that since prosecution has rightly acquitted the accused/respondents argued that since prosecution has miserably failed to prove its case against the accused/respondents, therefore, the learned trial court has rightly acquitted the accused/respondents vide the impugned judgment under appeal which may be maintained in the interest of justice.
8. We have heard the learned counsel for the parties and have gone through the record with their able assistance.
9. From perusal of record it transpires that the prosecution had cited total 15 P.Ws in column No,6 of challan. Out of total 15 prosecution witnesses the prosecution produced/examined 9 P.Ws in the trial Court and remaining 6 P.Ws were abandoned by the learned DPP. Gist of statements of PWs are as under:--
10. PW-1 namely Amir Khan has deposed that he had seen the respondents/accused while proceeding towards Mushkin. A couple of hours later he saw the accused namely Zahid Hussain running towards the Kachati das. In the meanwhile a vehicle/Haice reached there and accused namely Zahid Hussain boarded in the said vehicle and went towards Astore. He has further deposed that he saw rest of the accused running towards the area known as Dichli at the other side of Astore River. In cross-examination the above named accused has admitted that deceased was his real uncle.
11.P.W-2 Sohail Ahmed has deposed that on the day of occurrence he along with Mir Gazi,Sabir Khan and deceased Molvi Muhammad. Qabil were on their way to their duty at Mushkin sliding area. When they reached at a place known as Nokai near RCC Bridge, the deceased Muhammad Qabil stopped near the road to urinate and they walked ahead. In the meanwhile he heard report of fire shot. He returned back and saw that the deceased Muhammad Qabil was lying on the road and accused namely Imran ul Haq, Zahid Hussain and Hafiz-Ur-Rehman were present there.
Accused Imran ul Haq was armed with a pistol. All accused threatened him if he made/raised any noise. The accused/respondents run away towards Astore. In cross-examination the above' named P.W has admitted that the deceased Muhammad Qabil was his brother in law. He has also admitted in cross-examination that he did not see who had open fire at the deceased Muhammad Qabil.
12.P.W-3 namely Muhammad Zeril son of Sahib Khan is the complainant. He has reported the occurrence vide written application Exh P/3. The above named P.W is also not eye-witness of the occurrence. In his cross-examination he admitted that the deceased was his grandfather.
13. P.W-4 namely Naib Khan has deposed that he had seen accused/respondents namely Imran- Ul-Haq, Hafiz-Ur-Rehman and Umer Rehman at a place known as Dichali in a very urgency. When he reached at main road at Kachati das a wagon came from Gilgit side and accused Zahid Hussain boarded on the vehicle and went towards Astore. In his cross-examination he has admitted, that deceased was his grand father.
14. P.W-5 Walayat Shah and P.W-6 Mohmmad Wakil are marginal witnesses of recovery of weapon of offence. They have testified that in their presence police had recovered weapon of offence i,e, .30 bore pistol on in pointation of the accused namely Hafiz Ur Rehman. The P.W 6 Mohmmad Wakil has admitted in his cross examination that the deceased was his real uncle.
15. P.W.7 Dr. Sayed Zahid Hussain has conducted postmortem examination of the deceased Mohammad Qabil.
16. P.W.8 namely Mohmmad Faqir SI and P.W 9 namely Mohmmad Shafa IP/SHO have conducted joint investigation in this case and on completion of investigation P.W 9 namely Mohmmad Shafa IP has submitted charge sheet/challan against the accused/ respondents in the trial court.
17. From perusal of statements of above named P.Ws recorded in the trial court it reveals that the above named P.Ws have not attributed specific role to the accused/respondents. The P.Ws have not witnessed the accused/respondents while opening fire shot at the deceased. PWs 1 to 5 are close relatives of the deceased as admitted by them in their cross-examination. Weapon of offence was allegedly recovered on the joint pointation of the accused/respondent namely Hafiz- ur-Rehman and Umer Rehman but the recovered .30-bore pistol and empty shells were not sent to Arms Expert for analysis and his expert opinion. Moreover, A PWs-1, 2 and 4 have just seen the respondents/accused near the place of occurrence. It is admitted fact .that after arrest of accused their confessional statements under section 164, Cr.P.C. have not been recorded, whereas the occurrence was unseen nor identification parade was held. There is no piece of evidence produced by the prosecution to connect the respondents/accused with the commission of alleged offence.
The learned Dy. A .G has tailed to point out any material misreading and non reading, of evidence illegality, irregularity in the impugned judgment which warrants interference by this court.
18. For the above stated reasons we have come to the conclusion that prosecution has failed to prove its against the respondents/accused beyond any reasonable doubt as such learned trial Court has rightly acquitted the accused/respondents vide the impugned judgment. This criminal appeal being devoid of merit is hereby dismissed and the impugned judgment passed by the learned trial Court is up held. File.