' SHAH JEHAN KHAN YOUSUFZAI, J.-This criminal appeal filed by the appellant through the Superintendent, Central Jail, Haripur is directed against the judgment dated 8-5-2000 passed by the learned Judge Special Court/Sessions Judge, Mardan, whereby the appellant was found guilty for committing an offence under section 302, P.P.C. And on conviction sentenced him to life imprisonment with payment of Rs,50,000 as compensation payable, to the legal heirs of the deceased, or in default thereof to suffer six months' simple imprisonment.
2. The prosecution story as narrated by Akbar Khan son of Naimatullah Khan (appellant herein) is that on the eventful night he alongwith Sherinzada, with whom his daughter was engaged, were asleep in a room on different Charpaies, while in the adjacent room Sadullah son of Manarus and,Ghulam Qadir son of Shah Sawar were asleep. At about 10-00 p.m. Some unknown persons fired at them from the Veranda and courtyard of the Hujra with which Sherinzada was hit and died on the spot. He disclosed that he was armed with a Kalashnikov and after the said firing he opened the door of the room and in order of self-defence opened fire with his kalashnikov towards the unknown accused who had decamped thereafter and due to whose firing the glasses of window of the room were broken. He stated that he had no enmity with anyone but about a year ago the deceased Sherinzada had told him that he (the deceased) had killed a person in Bajaur. On this information a case under section 302, P.P.C. Was registered in Police Station, Chuara Mardan vide F.I.R. No,160 dated 1-4-1999 against unknown culprits. Subsequently on 5-4-1999, Mst. Noor Begum, widow of the deceased appeared before the Investigating Officer and made a statement to the effect that the appellant and her deceased husband were not on good terms and the deceased had told her that if any wrong was done to him, Akbar Khan would be responsible for that. On her this statement, Akbar Khan, complainant of the case, was arrested as an accused who during police custody admitted to have committed the crime, whereafter he led the Investigating Officer to the scene of occurrence showing his own presence and firing at The deceased Sherinzada.
3. In order to prove its case, the prosecution produced eleven P.Ws. While the accused in his statement recorded under section 342, Cr.P.C. Denied the allegations levelled against him. On conclusion of the trial, the learned trial Judge found Akbar Khan guilty for committing the murder of deceased Sherinzada and on conviction sentenced him as noted above. Hence this jail appeal by the convict.
4. We heard learned counsel for the parties and minutely scrutinized record of the case.
5. The prosecution has produced ten witnesses as the statement of. Mukhtiar Khan, A.S.-I., who has incorporated the Murasilk Exh.P.A./1 into F . I . R. Exh. P. A . Was recorded twice as P. W .2 and P. W .5 .
P. W .3 has escorted the dead body to the mortuary. P.W.4 has recorded statement of Mst. Nor Begum, widow of deceased, under section 161, Cr.P.C. And also examined her under section 164, Cr.P.C. Wherein she charged the appellant for the murder of her deceased-husband. The said Noor Begum did not appear during trial as she had shifted her abode to an unknown place as stated by S.W.1. The statements of Ghulam Qadir and Sadullah, the servants of Saadat Khan, who were asleep in the adjacent room of the venue of occurrence at the relevant time were recorded as P.W.9 and P.W.10, Saadat Khan, the Master of deceased, P.Ws.9 and 10, was examined as P.W.B. Aurangzeb Khan, I.H.C. Was examined as P.W.1 in whose presence the Investigating Officer took into possession blood-stained earth from the spot through memo. Exh.P.C., ten empties (Exh.P.1) and fifteen spent bullets (Exh.P.2) were recovered from inside the Nom and taken into possession through memo.
Exh.P.C./1. The Investigating Officer also recovered 29 empties (Exh.P/3) from the Verandah adjacent to the room where deceased was done to death through recovery memo. Exh.P.C./2. In his presence, Zahir Shah, F.C. Produced blood-stained shirt (Exh.P.4), Shalwar Exh.P.5 and Bunyan (Exh.P.6) which were taken into possession through memo. Exh.P.C./3. One cot (Exh.P.7), one mattress (Exh.P.8) and one pillow (Exh.P.9) stained with blood were also taken into possession through memo. Exh.P.C./4. The appellant produced his Kalashnikov (Exh.P.10) alongwith seven chargers (Exh.P.11) and 131 live rounds (Exh.P.12) which were taken into possession through memo.
Exh.P.C./5. The articles taken into possession were sealed into separate parcels. Liaqat Ali Khan who conducted investigation was examined as P.W.11. He scribed the Murasila (Exh.P.A./1), prepared injury sheet and inquest report of deceased Sherinzada as Exh.P.M./1 and Exh.P.M./2 respectively. He prepared the site plan at the instance of appellant and after his arrest as an accused in the case he made certain additions in the site plan at pointation of the accused. He recorded statements of the P.Ws. And in light of statement of Mst. Noor Begum, widow of deceased, he arrested the appellant. Through application (Exh.P.11/1) he sent the blood-stained articles to Forensic Science Laboratory and received the report (Exh.P.W.11/2) which reveals that blood on all the articles was human blood. On the application (Exh.P.11/3) the same day on which the case was registered, i,e, 1- 4-1999, he sent the Kalashnikov rifle produced by the appellant and the empties recovered from the spot for Arms Expert opinion. The report was received and placed on record as Exh.P.W.11/4 which reveals that all the empties were fired from the rifle examined. The appellant was interrogated for two days wherein he led the Investigating Officer to the venue of occurrence and pointed out various places but he declined to make a confessional statement before the Court. He also submitted complete challan against the appellant in Court.
6. The evidence produced by the prosecution as discussed above reveals that there is no ocular evidence to bring home guilt of the appellant. The prosecution has solely relied upon the recoveries affected from the spot, production of kalashnikov by the appellant, positive report of the Arms Expert about the empties and kalashnikov as the crime weapon and the statement of Mst. Noor Begum, widow of the deceased, recorded during investigation.
7. The statement of Mst. Noor Begum recorded under sections 161 and 164, Cr.P.C. During investigation is of no use for the prosecution for the simple reason that her statement under section 164, Cr.P.C. Was recorded in absence of the appellant who was already under arrest in the case, while she did not appear in the witness box to face cross-examination. Even otherwise, her statement is not conceivable, as she has stated that her daughter was betrothed to the appellant, while the daughter of appellant was betrothed to the deceased. Such terms of appellant and deceased would negate the story put forward by Mst. Noor Begum that she was told by the deceased that in case of uneven happening, the appellant should be charged. Her statement appears to be based on mala fide against the appellant, as he had betrothed his daughter to the deceased and due to that grievance she might have cooked up a false story against the appellant.
8. The circumstance that appellant led the police party to the venue of occurrence during interrogation is also of no significance because the venue of occurrence was already known to the Investigating Officer and the site plan was prepared and the place of occurrence was examined in the initial investigation at the pointation of appellant as complainant. Even otherwise, no additions were made in the alleged subsequent pointation of the appellant.
9. The next and last evidence of the prosecution in the shape of positive report of the Arms Expert (Exh.P.W.11/4) regarding the empties and rifle produced by the appellant is also not believable for the simple reason that the articles were allegedly sent on 1-4-1999, but the same were astonishingly received in the Laboratory by the Arms Expert on 94-1999. There is no explanation from the prosecution that where the empties and crime weapon were lying for eight days. The empties and crime weapon were taken into possession by the Investigating Officer and obviously he can be asked to explain the delay in sending the said articles for examination and report. The Investigating Officer who was in possession of the crime weapon could easily tamper with the seal of the articles and to replace the empties in accordance with his wishes so that the positive results could be achieved. A case rests upon circumstantial evidence is required to be so transparent that by no hypothesis there could be any doubt regarding any chain of the circumstantial evidence. In the present case, the prosecution has been miserably failed to establish the motive on the ,part of appellant to commit the murder of deceased and the only evidence of Arms Expert in the shape of recovery (Exh.P.W.'11/4) which was produced by the Investigating Officer is also doubtful. The Arms Expert was not brought and examined in the trial Court and the defence was deprived of a right to cross-examine the witness on whose report, conviction of the appellant was recorded.
10. The learned counsel for appellant also objected to the post- mortem examination of the deceased after the sunset and before the sunrise time. He submitted that there is a notification regarding direction to conduct post-mortem examination after the sunrise and before the sunset but he could not lay hands on that notification.
11. For what has been discussed above, we are of the view that the prosecution has note successfully established the guilt of appellant. Resultantly, while accepting this appeal against the impugned judgment dated 8-5-2000, we order acquittal of the appellant from the charge of murder of deceased Sherinzad and direct him to be released forthwith if not wanted in any other case. These are the reasons for our short order of even date.