2001 P Cr (PLP)

EJAZ AFZAL KHAN, J.‑‑‑ On 5‑2‑1997 Kifayatullah I.H.C. after learning about some casualty proceeded to the Civil Hospital, Khawaza Khela where he found the deceased Sanober lying injured and unconscious in the Emergency Ward. His son Umar Wahid who happened to be there, reported that his father was a Chaukidar in a Forest owned by the inmates o: village Sheen and had gone to the Forest for his routine duty. On getting an inkling about some mishap with his father when he went to the forest he saw hirn lying injured and unconscious there and thus, shifted him to the hospital In the report so made he charged nobody for injuring his father as according to him, he and the deceased had no enmity with anyone.

2. The I.H.C. scribed the Murasila, Exh.P.A., prepared injury‑sheet Exh.P.W.6/1 and after obtaining the opinion of the doctor vide application Exh,P.W.6/2 about the incapacity of the deceased to make any statement, sent a Murasila for the registration of case. On receipt of the Murasila the S.H.O. registered a case vide F.I.R. No.60, dated 5‑2‑1997 under section 324, P.P.C. in the Police Station Khawaza Khela which is Exh.P.A./1. The S.H.O. P.W.9, deputed Muhammad Alam, A.S.‑I., P.W.10 fir the investigation of the case. The Investigating Officer on receipt a copy of the F.I.R. visited the spot, prepared the site plan Exh.P.B, at the instance of the eye‑witnesses, took into possession blood‑stained earth and blood‑stained pebbles Exh.P.6, a piece of wood Exh.P.7, one ring Exh.P.8 consisting of 3 keys and one scissors vide recovery memo. Exh.P.C. In the meantime when the deceased succumbed to his injuries, the Investigating officer also prepared the inquest report Exh.P.W.9/1, arrested the accused on 6‑2‑1997, recovered sickle Exh.P.9, at his instance vide recovery memo. Exh.P.W.3/1, prepared the site plan Exh.P.W.9/2 of the place of recovery, sent the blood‑stained articles to the Serologist for opinion and on receipt thereof placed it on the file which is Exh.P.W.9/5. During the course of interrogation when the appellant expressed his willingness to confess his guilt, the Investigating Officer produced him before the Magistrate who recorded his confessional statement.

3. On completion of the investigation the appellant was forwarded to the Court of learned Additional Sessions Judge/Azafi Zila Qazi for trial.

4. On being charged when the appellant pleaded not guilty the prosecution examined as many as 10 witnesses against the appellant to prove the case against him,

5. P. W .1 deposed that in his presence blood‑stained earth, blood stained pebble and a ring consisting of 3 keys and one scissors were recovered vide recovery memo. Exh.P.C. and that during the course of house search of the appellant, a lock on a box lying there was opened with one of the keys mentioned above vide memo. Exh.P.C.II a .30 bore pistol with 6 cartridges, a single barrel shot‑gun and one rifle were taken into possession vide recovery memo. Exh.P.C./2. P.W.2 is Mst. Khubani who furnished eye‑witness account by stating that on the eventful day she was present in her house that one Mst. Gulzadai called her by saying that she, is being summoned by Ghundo who was standing somewhere near the scene of occurrence. On reaching there the said lady directed her to go further down in the depression. Accordingly when she went there she witnessed that the appellant Baz Gull was killing the deceased with stones. On query as to why he was killing the deceased, he bolted away from the spot. She then asked one Muhammad Hamza to identify the person who had injured the deceased. P.W.3 testified to the correctness of Exh.P.W.3/1 vide which the Investigating Officer at the instance of the accused recovered sickle which was stained with blood. P.W.4 is I.H.C. who testified to the correctness of recovery memo. Exh.P.W.4/1 whereby blood‑stained shirt Exh.P.l, blood stained Shalwar Exh.P.2, blood‑stained woollen cap Exh.P.3, blood‑stained Wasket Exh.P.4 and a sheet Exh.P.5 were taken into possession and packed into a sealed parcel. P.W.5 stated that they were collecting fuel wood that on reaching a place Juznai, they saw the accused cutting wood. After covering some distance when they stayed for a while to take rest they were informed by Mst. Khubani that there was a quarrel between the appellant and the deceased and that the appellant injured the deceased. P.W.6 partially investigated the case, recorded Murasila Exh.P.A. prepared injury‑sheet Exh.P.W.6/1 and obtained opinion of the doctor vide Exh.P.W.6/2. P.W.7 medically examined the deceased who was then injured and found the following:‑‑ "(1) Laceration of scalp at forehead 2" x 1/2" by scalp deep (bone exposed). (2) Laceration of scalp right temporal region 3" x 1/2" by scalp deep (bone exposed and fractured). (3) Laceration of scalp at vertix 3" x 1/2" by scalp deep (bone exposed). Injuries are caused by blunt means. Within 24 hours and are grievious. Patient was serious and unconscious. He was referred to Saidu Hospital but on his way he was expired at about 16‑00 hours. " P. W.8 recorded the confessional statement of the appellant and testified to the correctness of the statement Exh.P.W.8/1, questionnaire Exh.P.W.8/2 and certificate Exh.P.W.8/3. P.W.9 on receipt of Murasila registered the case vide F.I.R. No.Exh.P.A./1 and during the course of house search opened the lock of a box lying in the house of the appellant with one of the keys vide memo. Exh.P.C./1, recovered arms etc. vide memo. Exh.P.C.2 and recorded the statement of the witnesses under section 161, Cr.P.C. P.W.10 investigated the case and recovered material detailed above, prepared the site plan Exh.P.W.9/2 produced the appellant for recording confessional statement vide application Exh.P.W.9/2, recorded police statement of the witnesses, got their Magisterial statements recorded, sent the incriminating material for opinion to the Chemical Examiner, on receipt of his report placed it on the file which is Exh.P.W.9/5 and on the completion of the investigation handed over the file to the S.H.O. for its submission to the trial Court who accordingly submitted it to the Court of the learned Sessions Judge for trial.

6. After the close of the prosecution evidence, the statement of the accused under section 342, Cr.P.C. was recorded wherein the appellant pleaded innocence and denied his involvement in the commission of the crime. On the conclusion of the trial, the appellant was sentenced by the learned Additional Sessions Judge/Azafi Zila Qazi to pay Diyat to the legal heirs of the deceased in three equal instalments vide judgment/order, dated 26‑11‑1999. The appellant on being aggrieved by the judgment/order filed this appeal.

7. The learned counsel appearing on behalf of the appellant contended that it is an unwitnessed incident; that the ocular account so‑called was belatedly introduced; that the incriminating recoveries by no means are suggestive or the fact that the appellant is responsible for causing fatal injuries to the deceased and that the version spelt out in the confessional statement is not in conformity with the medical evidence as according to the confessional statement injuries on the deceased were caused by sickle which is a sharp‑edged weapon whereas injuries on the deceased according to the doctor were caused by blunt means. He by concluding his arguments submitted that the prosecution has miserably failed to substantiate the charges against the appellant.

8. On the other hand, the learned State Counsel contended that there is direct as well as circumstantial evidence to connect the accused with the crime; that the recovery of the keys from the spot of incident, whereby one of the locks in the house of the appellant was opened, would bear ample testimony to the fact that he was present at the scene of incident and that he was responsible for enacting this tragedy. He next contended that the confessional statement does not run counter to the medical evidence or for that matter to the ocular account. He by summing up his arguments submitted that the learned trial Court has rightly sentenced him to pay the amount of Diyat.

9. We have carefully considered the arguments of the learned counsel for the parties and had the advantage of examining the record. Even if it is assumed for a while that the ocular account furnished by P.W. Khubani is true, in that case too, it does not show that it was the appellant who was responsible for the commission of the crime because according to her P statement when she went to the place of the occurrence she saw someone killing the deceased. No sooner did she ask that person as to why he was killing the deceased, than he bolted away and she asked one Hamza to identify that person, meaning thereby that she herself did not know that person. Strangely enough neither Hamza was produced nor any identification parade was held to establish that it was the appellant who was responsible for the commission of the crime. In the circumstances of the case it was all the more imperative rather indispensable to examine Hamza and to hold identification parade. In the absence of his statement and identification parade there is no other evidence on the record to establish the identity of the appellant as the person responsible for killing the deceased. The evidence furnished by P.W.5 also does not establish that it was the appellant who was responsible for the commission of the crime. Firstly, because his name does not figure anywhere in the statement of Mst. Khubani; secondly because it is full of additions and improvements; thirdly because it is evassive inasmuch as it does not directly link and lace the appellant with the crime and fourthly because he saw the appellant while going, from an a real distance of 200 yards. Similarly the recovery of keys from the scene of occurrence whereby one oaf the locks on a box lying m the house of the appellant was opened cannot prove that he was the author of the tragedy as the keys may have fallen from the pocket of the appellant while passing through the spot of the occurrence as a way‑farer. Moreover, sometimes a lock could be opened with any other key than that of the lock itself.

10. Next comes the confessional statement of the appellant. When we examine it, that also does not make out a case for conviction against the appellant because according to the confessional statement the appellant gave blows to the deceased with a sickle in order to extricate himself from the clutches of the deceased whereas according to the medical evidence the injuries sustained by the deceased were caused by blunt means. When we exclude these two pieces of evidence from consideration then nothing is left behind to link the appellant with the crime. We, therefore, on a detailed analysis of the evidence on the record, are constrained to hold that the prosecution has not been able to produce any confidence inspiring evidence to connect the appellant with the crime beyond any shadow of reasonable doubt.

11. For the aforesaid reasons, we accept this appeal, set aside the judgment and order of the learned Additional Sessions Judge/Azafi Zila Qaz and direct the appellant to be released forthwith, if not required in any other case. N.H.Q. /257/P Appeal accepted