SYED DEEDAR HUSSAIN SHAH, J.--By this common judgment we intend to dispose of Criminal Appeals Nos.361 and 362 of 1994, which are directed against the judgment of the Peshawar High Court, Bench at D.I. Khan, dated 16-10-1993, passed in Criminal Appeal No,7 and. Murder Reference No,1 of 1993.
2. The prosecution story in brief is that on 10-7-1991 at 'Digar Qazawela' complainant Muhammad Hussain (P.W.8) went to the house of respondent Shah Jehan to see his daughter. In the presence of the complainant, accused-Shah Jehan while talking to his wife Mst. Hanifa Bibi got infuriated, pulled out a .12 bore pistol from the fold of his Shalwar and fired at the deceased, as a result of which she died at the spot Thereafter he gave a blow on the head of his mother with the butt of the pistol and then ran away throwing the pistol in the house. The version revealed by the retracted confession of the accused is that the deceased used to degrade and humiliate him, therefore, their relations became strained.
3. The post-mortem of the dead body of the deceased was carried on by Dr. Farrukh Jabeen (P.W.9), on 11-7-1991, at 8-10 a.m. And in her opinion the death was caused due to fire-arm injuries and hemorrhage.
4. Haq Nawaz Khan, A.S.-I. (P.W.2) arrested the accused from Lundah Sharif on 11-7-1991. To prove its case the prosecution examined as many as ten witnesses.
5. The accused-respondent in his statement recorded under section 342, Cr.P.C. Retracted his confession denied the commission of the offence and professed his innocence.
6. After hearing the learned counsel for the parties, the trial Court vide judgment dated 8-5-1993 convicted the accused-respondent under section 302(b), P.P.C. For the murder of his wife Mst.
Hanifa Bibi and sentenced him to death. On appeal, he was acquitted by the High Court vide impugned judgment dated 16-10-1993.
7. Vide order dated 6-7-1994, leave to appeal was granted on the grounds "that it was a case of sole accused charged for the murder of his wife inside the house and that the occurrence was witnessed by the complainant, father of the deceased, and the real mother of the accused- respondent, who was also injured, as is evident from the medical certificate available on the file.
That in absence of any doubt about the misidentify of the accused-respondent and in view of the ocular evidence supported by the medical evidence furnished by the doctor, the motive, the retracted confession and other circumstantial evidence whether the High Court was legally justified in extending the benefit of doubt to the accused".
8. Ch. Muhammad Akram, learned Advocate Supreme Court for the appellant in Criminal Appeal No,361 of 1994, inter alia, contended, that the impugned judgment of the High Court is not in consonance with the settled principles of the dispensation of criminal justice and the High Court had not properly appreciated the evidence of the prosecution, which has resulted in miscarriage of justice.
9. Ch. Akhtar Ali, learned Advocate-on-Record for the appellant in Criminal Appeal No,362 of 1994, inter alia, submitted that the prosecution through reliable evidence established the guilt against the accused, whereby he was convicted by the trial Court and sentenced to death; that the learned High Court misread the evidence on record, which was misinterpreted and the same was totally ignored which gave rise to the wrong conclusion; that the findings of the High Court are not sustainable in law, with the result the acquittal of the respondent is unjustified.
10. Sardar Muhammad Siddique Khan, learned Advocate Supreme Court for the accused- respondent submitted that the High Court had considered the entire evidence in its proper perspective, and with sound and cogent reasons allowed the appeal filed by the respondent acquitting him from the charge, and the murder reference submitted by the trial Court was rightly declined. He supported the impugned judgment.
11. We have considered the arguments of the learned counsel for the parties and very carefully examined the evidence available on record. The entire prosecution case is based on the ocular evidence and the retracted judicial confession of the accused-respondent coupled with the recovery of crime weapon. The High Court has considered each and every aspect of the case in its true perspective and found that the ocular account furnished by complainant Muhammad Hussain was not confidence-inspiring, therefore, the High Court rightly disbelieved the prosecution version.
There is extraordinary delay of at least three hours in lodging the F.I.R. With Police Station Saddar, D.I.Khan. The High Court rightly held that the accused house is at a distance of about 4/5 miles from the Police Station Saddar and had the complainant been present in the house and seen the occurrence he would have immediately rushed to the Police Station to lodge the report; whereas according to the statement of Abdul Jalil, A.S.-I. (P.W.10), who stated on oath, that he heard rumour about the murder while he was on patrol duty, thereafter he went there and recorded the F.I.R. The delay in lodging the F.I.R. Has not been explained plausibly, which shows that it was lodged after preliminary inquiry/investigation, deliberation and consultation, and the complainant (P.W.8) was called for from his village Dinpur, which was at a distance of about three miles from the house of the respondent. The retracted judicial confession of the accused-respondent was also considered and rejected by the learned High Court on the settled principles of law that it was quite contrary and was not in conformity with the ocular evidence with regard to the time and the circumstances under which the crime was committed. Moreover, it was also not in conformity with the medical evidence especially about the number of shots fired at the deceased and it was not corroborated by material particulars. The recovery of the weapon was rightly disbelieved by the High Court because neither the same was made at the instance of the accused nor it was effected in his presence. The High Court after carefully analyzing the evidence, as a whole, rightly acquitted respondent Shah Jehan.
12. In view of what has been discussed above we do not find misreading, or non-reading of the material evidence or misconstruction of law in the impugned judgment. The appeals therefore, fail and are accordingly dismissed.