2020 P Cr (PLP)

ABDULLAH BALOCH, J.

This common judgment disposes of Criminal Appeal No.224 of 2018 and Criminal Revision Petition No.28 of 2018. Appellant Juma Khan son of Abdul Sattar has filed the Criminal appeal, against the judgment dated 5th July 2018 (hereinafter referred as. "the impugned judgment") passed by the learned Sessions Judge Loralai, (hereinafter as, "the trial Court"), whereby the appellant was convicted under section 302(b)/34, P.P.C. and sentenced to suffer imprisonment for life with compensation of Rs. 100,000/-, which in case of recovery was directed to be paid to the legal heirs of deceased Shah Muhammad, while in case of non-payment thereof, the appellant to further suffer six (06) months' S.I. with the benefit of section 382-B, Cr.P.C. While, the Criminal Revision Petition has been filed by the complainant/petitioner for enhancement of the sentence of appellant from life imprisonment to that of Capital punishment of death.

2. Facts of the case are that on 18th February 2016, the complainant Din Muhammad lodged FIR No.15 of 2016 at Police Station Duki, under sections 302, 34, P.P.C., stating therein that on the day of occurrence he along with his brother Fida Muhammad over a Motorcycle, while his other brother Shah Muhammad over another motorcycle started proceeding towards Duki Bazar, when they reached near the office of Town Committee Duki, they found accused persons Malik equipped with Pistol and Juma armed with Kalashnikov, who started firing over his brother Shah Muhammad, due to which he succumbed to his injuries on the spot, while two passers by namely Asmatullah and Kalla Khan also received bullet injuries. The motive behind the occurrence is stated to be a dispute over a motorcycle in between the parties.

3. After registration of FIR, none of the accused was arrested, thus on completion of investigation, the I.O. submitted challan in the trial Court and accordingly proceedings under section 512, Cr.P.C. were carried out. Subsequently, the appellant was arrested, who was subjected to investigation and on completion thereof, he was challaned before the trial Court, where the absconding accused Malik was declared as proclaimed offender by the trial Court by initiating proceedings under sections 87 and 88, Cr.P.C.

4. At the trial, the prosecution produced eight witnesses, whereafter the appellant was examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the appellant was found guilty of the charge and was convicted and sentenced as mentioned above in para No.1. whereafter, the instant appeal has been filed by the appellant, while the complainant filed revision petition for enhancing the sentence of the appellant.

5. Heard the learned counsel and perused the available record. The admitted feature of the case is that the prosecution in order to establish the charge has produced the evidence of eight witnesses, out of whom PW-1 and PW-2 being brothers of deceased are claiming to be the direct eye-witnesses of the occurrence, while PW-3 and PW-4 were passers by and were injured in the said incident. PW-5 has furnished medical evidence. PW-6 is the witness of disclosure of the appellant. PW -7 and PW-8 are the Investigating Officers of the case. The minute scrutiny of statements of all witnesses suggests that the trial Court has failed to appreciate the evidence in its true persvetive and has come to a wrong conclusion by awarding conviction and sentence to the appellant.

6. The most important evidence furnished by the prosecution through the statements of PW-1 Din Muhammad and PW-2 Fida Muhammad. Both the witnesses were the real brothers of deceased. According to complainant/PW-1 on the day of occurrence he along with PW-2 started proceeding towards Duki Bazar in one motorcycle, while the deceased Shah Muhammad proceeded on his own motorcycle and when they reached nearby the gate of Town Committee, the present appellant armed with Kalashnikov and the absconding accused armed with pistol started firing upon his brother, due to which he died at the spot. PW- 2 being the second brother of deceased and complainant is the second eye-witness of the occurrence, who narrated the same story with regard to their departure to Duki Bazar and facing murderous attack by his brother by the hands of appellant and absconding accused.

7. The minute scrutiny of statements of both the eye-witnesses establishes the fact that they same are silent with regard to material aspects of the case. Both the witnesses have stated nothing about the position and direction of the accused persons from which firing was made. Even otherwise, nothing has come on record that the culprits had made firing only upon the deceased or they also made an attempt to take the lives of both the eye-witnesses. The statements of both the witnesses are also silent to the effect that what strategy was adopted by the PW-1 and PW-2 in order to save themselves as well as to save their deceased brother. The presence of both the witnesses is absolutely doubtful for the reasons that the complainant/PW-1 along with his brother PW-2 Fida Muhammad including the deceased were on the target of the appellant and absconding accused, who were armed with sophisticated weapons, but the deceased brother was hit and the complainant along with his another brother were let free. It does not appeal to the logic that by killing a person in presence of his real brothers, the culprits would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged. Reliance in this regard is placed on the case of Muhammad Farooq v. State 2006 SCMR 1707. Reference in this regard is also made to the case of Dohlu v. State 2002 PCr.LJ

690. Apparently, the conduct of PW-1 and PW-2 appears to be unnatural, thus the presence of both the witnesses are doubtful. We are fortified by the dictum laid down by the Hon'ble apex Court in the case of Muhammad Asif v. The State 2017 SCMR 486, wherein it was held as under: "

10. We fail to understand that in the presence of the two close friends accompanying the deceased and parents, how such tragedy with a son could happen without any intervention on their part to come to rescue of the deceased when they were not far away as shown in the site plan."

8. The best piece of evidence in the case in hand is the testimony of PW-3 Kalla Khan and PW-4 Asmatullah, suffice to state here that both the witnesses are independent eye-witnesses of the occurrence, who received bullet injuries in the incident and being independent witnesses their testimonies are most credible and worth of credence. However, both the witnesses in specific terms have stated before the Court that they neither saw the culprits making firing nor they were aware about the murder of any person in the said incident. Admittedly, both the witnesses have stated nothing against the appellant, thus their testimonies are not helpful to the case of prosecution.

9. It has further been observed during investigation, the Investigating Officer has recorded the disclosure of the appellant in presence of PW-6 as Ex.P/6-A, perusal of which reflect that the facts so narrated in the said disclosure were already known to the prosecution and no new fact was emerged pursuant to the said disclosure and even no any incriminatory evidence or article was recovered pursuant to the said disclosure. Thus, the disclosure so recorded whilst in police custody is not helpful to the case of prosecution.

10. Since the entire case of the prosecution was rested upon the ocular evidence of witnesses, but the same are contradictory to each other on all material counts. The only evidence which remains in the field is the unnatural death of the deceased, which though was not disputed by the parties, but however, the medical report is only a corroboratory piece of evidence and the same cannot term to be the substitute of direct evidence. Since the prosecution has failed to prove its case through confidence inspiring evidence, as such, the medical certificate alone could not be helpful to the case of prosecution to base the conviction of the appellant. Besides, the recovery of crime weapon was also not effected from the possession of the appellant and thus the empties so collected from the place of occurrence could not be sent for matching to FSL.

11. In view of the ocular testimony of the related/interested prosecution witnesses, contradictions and dishonest improvements in their testimony and lacking independent corroboration in material aspects, the false implication of the appellant by the PWs cannot be ruled out of consideration as the appellant while recording his statement on oath has taken specific plea of his false implication by PWs due to previous dispute. The perusal of impugned judgment reveals that the same is suffering from mis-reading, non-reading and mis-appreciation of material available on record. The above defects in the prosecution case were not considered by trial Court, thus wrongly the benefit of such doubts could not be extended in favour of appellant. Needless to emphasize that accused were entitled to be extended benefits of doubt as a matter of right. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under: "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right." For the reasons discussed hereinabove, the appeal is accepted, the impugned judgment dated 5th July 2018 passed by the learned Sessions Judge Loralai, is set aside and while extending the benefit of doubts, the appellant Juma Khan son of Abdul Sattar is acquitted of the charge, under sections 302, 34, P.P.C. The appellant being in custody, is ordered to be released forthwith, if not required in any other case. Consequent to the above, the criminal revision petition is hereby dismissed. JK/33/Bal. Appeal allowed.