SHAIKH ABDUR RAZZAQ, J.- Instant appeal is directed against judgment dated 26.3.1998 passed by Syed Afzal Hussain Kazmi, Additional Sessions Judge, Mianwali, whereby he convicted the appellant-accused under Section 302-C, PPC and sentenced him to imprisonment for life. He was, however, extended benefit of Section 382-B, Cr.P.C.
2. Briefly stated the facts are that on 10.5.1994 Rabnawaz, ASI (PW. 10) was present at Lari Adda Kundian, when Muhammad Wazir (PW8) reported to him that a dead-body was lying near P.I Daachinawala. He recorded his statement Ex. P/J and made for the place of occurrence, inspected the dead-body and recovered a letter from the pocket of his shirt. He then informed the parents of the deceased who came on the spot and identified the dead-body to be of their son Muhammad Amir Khan. He thus prepared the statement of injury Ex.PM, inquest report Ex.PN, despatched the dead-body through Mutiullah, Constable for postmortem examination, secured two empties Ex.PI 1/1-2 and blood-stained earth and grass vide memo. Ex.PI and PG respectively, secured Per se P5, Chit P6, letter P7 vide memo. Ex.PD. He arrested the accused who on 23.5.1994 led to the recovery of pistol 12 bore P8 and two cartridges P9/1-2 which he secured vide memo. Ex.PF. He secured bicycle P10 vide memo. Ex.PH. He also secured last worn clothes PI to 4 of deceased vide memo. Ex. P/A. He also got the site-plans prepared from the Patwari which are Ex.PE and PE/1. After usual investigation, the case was sent up to the Court for trial.
3. A charge under Section 302 PPC was framed against the accused to which he pleaded not guilty and claimed trial.
4. In order to bring home guilt to the accused, prosecution examined Matiullah (PW1) who deposed that on 11.5.1994 he escorted the dead-body for post-mortem examination and thereafter, clothes PI to P3 and a sealed phial were handed over to him by the doctor which he produced before the I.O. Who secured it vide memo. Ex.PA. Ehsanullah, ASI (PW2) deposed about recording of report No. 22 Ex. P/B and of FIR Ex.PC. He was also given two parcels containing bloodstained earth and grass as well as empties which he delivered to Nazir. Ahmad Constable on 15.5.1994 for onward transmission to the office of Chemical Examiner, Lahore. Similarly on 23.5.1994 he was handed over another parcel of pistol which he also delivered to Nazir Ahmad, Constable on 27.5.1994 for delivering in the office of Forensic Science Laboratory, Lahore. Muhammad Amir Constable (PW3) is witness of recovery of purse P5, chit P6 and letter P7 which were secured by Rabnawaz, ASI on 11.5.1994 vide memo. Ex.PD. Meraj Din Patwari (PW4) deposed that on 12.5.1994 he visited the place of occurrence and prepared site-plans Ex.PE and Ex.PE/1. Khalid Masood (PW5) is a witness of recovery of pistol P8 and two live cartridges P9/1-2 which were produced by the accused-appellant on 23,5.1994 and were secured vide memo. Ex.PF. Muhammad Azeem Khan (PW6) is father of the deceased who deposed that about three years and nine months ago at about 9.00 a.m., he alongwith his wife Mst. Walayat Khatoon and sons Muhammad Anwar and Muhammad Amir were present in their house. The accused Saifullah armed with 12 bore pistol came there on a bicycle and asked Muhammad Amir to accompany him, as he had to receive some money from some person who accordingly left with him. As Muhammad Amir Khan did not turn up till evening, so he approached Saifullah Khan accused who told him that he had already sent Muhammad Amir Khan to his house. He further deposed that he continued search for his son and on the third day police informed them about the recovery of a dead-body at Daachiawala Pull, so he alongwith his son Muhammad Anwar Khan and wife Mst. Walayat Bibi went to identify the dead-body and recognized the same to be of his son Muhammad Amir Khan. That Saifullah Khan accused do not contact them during this period to inquiry about Muhammad Amir Khan deceased. That Saifullah Khan accused suspected his son Muhammad Amir Khan for having illicit relations with the wife of his brother. Muhammad Anwar Khan (PW7) also corroborated the statement of PW6. Muhammad Wazir (PW8) deposed about seeing the dead-body and of communicating such information to Rabnawaz, ASI at Adda Kundian who recorded his statement Ex. P/J. Dr. Sher Ali Khan (PW9) conducted post-mortem examination on the dead-body of Muhammad Amir Khan son of Muhammad Azeem Khan on 11.5.1994 and found the following injuries on his person:
(1) 7 fire-arm entrance wounds about average size, each 1 cm x 1 cm x circular x edges burnt ana blackened in an area of 7 cm x 4 cm. The medial margin of this area was on vertebral groove and lateral was laterally 7 cm to it. These were equally apart to each other (it was 7 cm below nape of neck).
(2) Six fire-arm wounds of entrance in an area of 4 cm x 4 cm on back of left chest, 1 cm below the apex of scapula 4 cm lateral to injury No. 1. These were irregular in shape and were closer in relative each other as compared to injury No. 1.
In his opinion, injuries were ante-mortem and sufficient to cause death in ordinary course of nature. He gave the probable time between injuries and death as instantaneous and between death and post-mortem examination within 3 to 4 days. He produced carbon copy of post- mortem examination Ex.PK and diagram of injuries Ex.PK/1. Rabnawaz, ASI (PW. 10) is the Investigating Officer whose evidence has already been discussed above.
5. Thereafter the learned Assistant District Attorney tendered report of Chemical Examiner Ex.PQ and closed the prosecution evidence vide his statement dated 21.3.1998.
6. When examined under Section 342, Cr.P.C, the appellant-accused denied the prosecution version and stated that engagement of Muhammad Amir Khan deceased was made with the sister of Muhammad Anwar Khan, son-in-law of Muhammad Azeem Khan PW, in exchange of his sister Mst. Hidayat Bibi.
However, in laws of the deceased refused to perform Rukhsati of their daughter with Muhammad Amir deceased whereupon a quarrel took place between Muhammad Amir Khan and Muhammad Anwar Khan afore-mentioned. That Muhammad Anwar Khan had suspicion that Muhammad Amir Khan deceased quarreled with him at his (appellant-accused) instigation and as such had involved him in this case falsely at his instance. He further stated that if he had killed Muhammad Amir Khan deceased, how the real sister of the deceased could have stated with him. He stated that this conduct of his wife reveals his innocence. He also questioned the recovery and stayed that the same has been planted upon him.
7. After going through the evidence brought on record, the trial Court convicted the appellant vide judgment under appeal.
8. Arguments have been heard and record perused.
9. It is submitted by the learned counsel for the appellant-accused that the evidence collected by the prosecution connecting the appellant-accused with the commission of this offence is that the deceased was last seen in the company of the appellant, that, this evidence of last seen rests upon the statements of PW6 Muhammad Azeem Khan and PW7 Muhammad Anwar Khan, that this evidence hardly carries any weight as it is in direct conflict with their previous statements Exs.DD and DE recorded under Section 161, Cr.P.C., that the other piece of evidence collected by the prosecution pertains to the recovery of pistol 12 bore P8 and two empties PI 1/1-2, that this evidence is also of no value as no report of Forensic Science Laboratory Lahore has been produced by the prosecution though the pistol Ex. P8 was sent firstly on 27.5.1994 and then again on 1.6.1994 and empties were sent on 15.5.1994, that non-production of said report falsifies the evidence of recovery of pistol etc. He further submitted that deceased Muhammad Amir Khan has been done to death due to their enmity with three other families, which fact stands admitted by Muhammad Azeem Khan (PW6). That prosecution evidence lacks any independent corroboration. Even the dead-body was not recovered at the instance of accused-appellant, as the same has been detected at the instance of Muhammad Wazir PW8, that there is no proximity of time of last seen and time of occurrence and this fact further makes the prosecution version highly doubtful and relied upon Nazo alias Ali Nawaz v. The State (1997 SCM R 20) and Umaid Ali v. The State (PLJ 1978 Cr.C. (B.J.)
145). He thus submitted that all these facts clearly prove that prosecution has failed to prove its case against the accused-appellant beyond doubt and he is entitled to acquittal.
10. Conversely, the learned State counsel has also conceded to the arguments advanced by learned counsel for the appellant-accused.
11. According to the statements of PW6 Muhammad Azeem Khan and Muhammad Anwar Khan PW7, the deceased was last seen in the company of the [Vol. XVIH accused, as the deceased left with the accused on his request as he wanted to collect, money from some person. However, this evidence is. Of no credence as both PWs. 6 and 7 have made extensive improvements in their previous statements. Exs.DD and Ex.D/E recorded under Section 161 Cr.P.C. It is evident from the cross- examination of PW6 that he did not state in his statement Ex.DD that Saifullah accused came to their house at 8/9.00 a.m., that his son Muhammad Anwar Khan was present in the house, that accused came on a bicycle, that accused had to receive the price of wood, that his son did not turn up till evening. He also admits that he had not stated before police that he received information about the dead- body of his son through police. Almost all these improvements have been made by PW7. Again there are certain contradictions in the statements of PWs.6 and 7. It is admitted by PW6 that accused Saifullah stayed in their house for one or two minutes, whereas PW7 has given this time as fifteen minutes. PW6 admits that he alongwith his wife Mst. Walayat Khatoon and his son Muhammad Anwar Khan had gone to Saifullah to enquire about Muhammad Amir deceased. He stands falsified on this point by PW7 Muhammad Anwar Khan who states that his father alone had gone there. PW6 admits that a'-pair of chappal was recovered from the spot, whereas PW7 talks of one chappal. PW6 states that eyes of deceased were swollen and were not out of socket, whereas this fact stands denied by PW7. All these contradictions coupled with the improvements referred above, clearly suggest that incident has not taken place as alleged by the prosecution. The other piece of evidence connecting the accused consists of recovery of pistol P8 and two empties Ex.PI 1/1-2. As per statement of Rab Nawaz PW. 10, two empties PI 1/1-2 were recovered lying near the dead-body on 11.5.1994 vide memo. Ex. P/I. However, it is fact that pistol P8 was recovered at the instance of accused on 23.5.1994. As per statement of Ehsanullah, ASI (PW2), he gave the parcel of empties to Nazir Ahmad Constable on 15.5.1994 and that of pistol P8 on 27.5.1994 for Onward transmission to the office of Forensic Science Laboratory, Lahore. Neither Nazir Ahmad, Constable has been examined nor any such report has been brought on record. Thus the so-called evidence of recovery of pistol P8 and of empties PI 1/1-2 is of no consequence and does not advance the case of prosecution. It is also fact that no independent witness has been examined in the instant case to corroborate the statement of PWs.6 and 7 who are father and son inter se. There is also no proximity of time of last seen and time of occurrence, which fact also makes the prosecution version highly doubtful.
12. The upshot of the above discussion is that prosecution has miserably failed to connect the accused-appellant with the commission of this offence and thus the impugned judgment is not sustainable. Accordingly, appeal is accepted and appellant is hereby acquitted. He is ordered to be released forthwith if not required in any other case.