2005 P Cr (PLP)

FAZAL-UR-REHMAN, J.

This criminal appeal under section 410, Cr.P.C. is directed against the judgment of learned Additional Sessions Judge-III, Quetta dated 18-2-2002 whereby, the appellant was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life. The appellant was also directed to pay a fine of Rs.1,00,000 as Diyat. The benefit of section 382-B, Cr.P.C. was also extended in favour of the appellant. The petitioner/father of the deceased also filed a revision petition being No.17 of 2002 under sections 435, 439-A, Cr.P.C. for enhancement of sentence. Since both of the above appeal and revision are arising out of one and the same judgment, therefore, they are taken together and will be disposed of by one and the same judgment.

2. The occurrence is stated to have taken place on 10-5-2000 at about 7-00 p.m. in Spinzer Colony situated at Sariab Road, Quetta. The report of this incident was made by P.W.2 Sher Hassan, brother of the deceased vide Fard-e-Bayan Exh.P/2-A. It is stated that Exh.P/2-A was reduced into writing by Muhammad Tariq, S.-I./S.H.O. (P.W.10) who is stated to have gone to Civil Hospital, Quetta on the receipt of telephonic information where, he found injured Mirwais in Surgical Ward No.3 in an unconscious condition. Complainant Sher Hassan in his statement has stated that he is student of 8th Class and also studying tuition in Balochistan Foundation Centre situated in his Muhallah. His brother Mirwais was also tutor in the Tuition Centre. Today at about 7-00 p.m., when after the class was over, they came out in the compound where they saw Muhammad Ali (appellant) standing on the roof of his house. The appellant called out his brother Mirwais to come out in the street. Mirwais went out. In the meantime two fire reports were heard in the street. On coming out, he saw Mirwais in injured condition who was standing and holding by hand his belly whereas, Muhammad Ali was seen holding a pistol/revolver. In the report it is also stated that Muhammad Ali on seeing him went to his house and closed the door. He helped Mirwais in bringing him to the house but on reaching door steps Mirwais fell unconscious. He raised alarm which attracted his brother Mir Hassan and neighbours Muhammad Saleem, Farooq-ul-Haq and others. In his unconscious condition Mirwais was brought to hospital in the vehicle of Muhammad Saleem. According to complainant, his brother sustained bullet injury in his stomach. The motive for the occurrence is stated to be that in the morning Muhammad Ali's maternal-nephew Imran was given slap by Mirwais for which reason Muhammad Ali has fired on his brother with intention to kill him. He accordingly requested for report and action. A case being Crime No.147 of 2000 Police Station Sariab under section 324, P.P.C. was accordingly registered on the basis of Fard-e-Bayan. It is stated that injured Mirwais succumbed to his injuries at 1-30 a.m. Inquest was held in respect of deceased vide Exh.P/10-B. During investigation, site plan was prepared vide Exh.P/10-A, the blood-stained clothes of deceased were taken into possession vide recovery memo. Exh.P/5-A, one led of bullet was taken into possession stated to have been recovered from the body of deceased, statements of witnesses were recorded under section 161, Cr.P.C. appellant was arrested. After usual investigation, the accused/appellant was sent to face his trial while the name of one Imran was shown in Column No.2 of the challan in red ink.

3. On 13-6-2000 charge under sections 302, 34, P.P.C. was framed by the learned Additional Sessions Judge-III, Quetta against the appellant to which, he pleaded not guilty and claimed trial.

4. In support of its case, the prosecution examined as many as twelve witnesses. The brief description whereof, is as under:-- (i) P.W.1 Essa Jan, he is father of deceased Mirwais. According to him, on receipt of message, he reached Civil Hospital, Quetta where, his son was lying in injured condition in Surgical Ward No.3 and his relatives were also present in the hospital. He was told about the incident by his sons Sher Hassan and Mir Hassan. He has also stated that his two neighbourers Mani and Saifi also told him about the incident as they were present at the time of incident on the roof of their house. He received dead body of his son without conducting post-mortem examination. He produced blood-stained clothes of deceased to police. He also stated that accused persons approached him for compromise. He has identified the accused Muhammad Ali in the Court. In cross-examination, he has stated that when he reached hospital, his son was unconscious, his statement was recorded on 22-5-2000. He had not stated in his police statement that he was told by Sher Hassan and Mir Hassan about the incident. He has also admitted that in his police statement, he has not stated that Saifi and Mani also told him about the incident as they were eye-witnesses. The witness has however, voluntarily added that he stated only that two children told him about the incident. He has also admitted that accused Muhammad Ali has never contacted him personally for compromise. (ii) P.W.2 Sher Hassan, he is complainant and brother of the deceased who lodged report vide Exh.P/2-A. According to him, on 10-5-2000 at about 7-00 p.m., he along with Mirwais went to Balochistan Foundation Tuition Centre. He was studying in the Centre while his brother Mirwais was a tutor. At about 7-00 p.m., he along with Mirwais came out from the class room and was standing in the courtyard of tuition centre. According to him at that time Muhammad Ali was standing on the roof of his house and called his brother Mirwais to come out in the street. He has stated that he along with his brother Mirwais came out from tuition centre and proceeded toward the house of accused Muhammad Ali. He deposed that he along with his friends was standing in front of main gate of tuition centre. After a while, he heard two fire shots, he went toward the house of accused where, his brother Mirwais was standing in injured condition. His brother had received injury on left side of his abdomen. According to this witness, at that time accused Muhammad Ali was holding pistol in his hand and entered into his house. He brought his brother to his house by giving him support. He has added that on his hue and cry, his brother Mir Hassan came out from the house and other people of the Muhallah were attracted there. According to this witness Mirwais was brought to hospital by Mir Hassan and Farooq in the vehicle of Umer Saleem. He has stated that on the same day, in the morning, his brother Mirwais gave a slap to Muhammad Imran nephew of Muhammad Ali. According to him in order to take revenge accused Muhammad Ali attacked upon his brother Mirwais by means of pistol. He has added that on the same day police came to hospital and recorded his Fard-e-Bayan Exh.P/2-A. He has identified the accused Muhammad Ali in the Court. In cross-examination while replying certain questions put to him he has stated as under:-- (1) I was studying tuition from 6-00 p.m. to 7-00 p.m. (2) Along with me 3/4 boys were also studying in the tuition centre. (3) The center is situated within four walls. (4) It is correct to suggest that there is another house which is also situated within the same four walls. (5) The center is also situated in Spinzer Colony. (6) On the backside of the center, there is Raisani Road where, house of accused Muhammad Ali is situated. (7) When I heard voice of firing, two boys were standing with me. (8) The other two boys did not come along with me towards the side of firing. (9) Where I was standing, the corner of street would be at about 100 feet. (10) There was a distance of 8 feet between Mirwais and Muhammad Ali when I saw them. (11) It is correct that Mirwais was standing in the street situated in the Spinzer Colony. (12) The house from where Mirwais was called is situated in the street of Spinzer Colony. (13) It is correct that the house is double storey however, there is no roof of the second storey. (14) I do not know the height of wall of second storey. (15) Again stated that the height would be about 9 feet having two windows. (16) It is incorrect to suggest that there is no window in that walls. (17) It is incorrect to suggest that in the said house Imran along with his father Ali Akbar was residing at that time. (18) I do not know the distance between the place of incident and my house. (19) After firing nobody from the surrounding houses came out. (20) It is correct that there is a Chowkidar in the tuition centre, he also did not come out after firing. (21) No other child came there after firing. (22) After ten minutes my brother was taken in a vehicle towards the hospital. (23) I did not come along with my injured brother. (24) I went to hospital after one hour. (25) I went alone to hospital. (26) When I reached at hospital, my father was not present. (27) After half an hour my father came there after my arrival. (28) My uncles Muhammad Usman, Muhammad Ishaque and maternal-uncle Abdullah were present in hospital when my statement was recorded. (29) I have stated in my report Exh.P./2-A that I was standing in front of gate along with my friends (confronted so not recorded). (30) I remained in hospital till morning. (iii) P.W.3 Mir Hassan, he is also brother of deceased and stated to be present in his house on 10-5-2000 at about 7-15 p.m. According to him, on hue and cry, he came out and saw his brother Mirwais in injured condition. He stated that he rushed to his neighbour namely Farooq and asked him to take his brother to hospital. He has also stated that he requested Saleem who brought his vehicle. According to this witness, he along with his brother Sher Hassan and Farooq took his brother Mirwais to hospital where doctor told them to arrange blood. He has also stated that on the way to hospital, he asked his brother as to who had fired upon him to which, he replied that Muhammad Ali has fired upon him. According to him he gave his blood. In cross-examination, he stated that his brother was also with them on the rear seat. He stated that they reached hospital at about 7-30 p.m. whereas, his father came at about 8-30 or 8-45 p.m. He has stated that police came in his presence. His statement was recorded on 11-5-2000 in his house. He denied the suggestion that his statement was recorded on 17-5-2000. (iv) P.W.4 Muhammad Farooq-ul-Haq, he is resident of Spinzer Colony, Sariab Road, Quetta and has stated that Mir Hassan brought the vehicle of Umer Saleem. He along with Mir Hassan and Sher Hassan put the injured on the rear seat of vehicle. According to him, he along with Mir Hassan sat on rear seat with injured Mirwais. According to him on the way to hospital Mir Hassan repeatedly asked Mirwais as to who had fired upon him. He has stated that Mirwais after repeated enquiry slowly stated Muhammad Ali. He also stood as a marginal witness of receipt of Exh.P/4-A whereby, the dead body was handed over to the father of deceased. In cross-examination, he has stated that in the car Mir Hassan was sitting towards the head of injured. This witness has also stated that his wife was also sitting on the front seat of the car. According to him injured was conscious when they reached hospital/X-Ray Room. According to him he does not know Muhammad Ali whose name was taken by the deceased. According to him his statement was recorded by the police on 11-5-2000 at his house. (v) P.W.5 Muhammad Usman, he stood as marginal witness of recovery memo. Exh.P/5-A and produced blood-stained clothes as Article II. (vi) P.W.6 Muhammad Iqbal, he is also brother of deceased. His evidence is to the extent that on 10-5-2000 at about 4-00 p.m. accused Muhammad Ali met him in a petrol pump where he had gone for fueling his car. According to him Muhammad Ali told him that Mirwais gave slap to his nephew Imran and extended threat. In cross-examination, he has stated that accused resides on Sariab Road, two other persons were also accompanied with Muhammad Ali, one of them was Imran. He has also stated that he went to hospital at about 8-00 p.m. and his statement was recorded by the police on 11-5-2000 at about 5/6-00 p.m. in police station. (vii) P.W.7 Dr. Fareed Ahmed, M.L.O. Civil Hospital, Quetta. According to him, on 10-5-2000 at about 7-40 p.m. Mirwais son of Essa Jan was brought by one Umer Saleem Jan in Casualty Department. He examined the injured and observed as under:-- "Circular wound on abdomen 5 c.m. below umbilicus left side. Patient is unconscious I.V. route maintain life saving drugs given to patient referred to S.U. II Leprotomy done by surgeon Abdul Latif Assistant, Dr. Khan Babar G.A. by Dr. Ghani and Dr. Muhammad Shah. X-Ray abdomen shows foreign metallic dencity seen bullet is recovered during operation and handed over to Investigating Officer (sealed)." From the examination of dead body of the deceased, the doctor is of the opinion that death occurred on account of injury to abdominal viscarious and major blood vessels (Illiec vessal), haemorrhage, shock and death by fire-arm injury. He has produced certificate Exh.P/7-A. In cross-examination, he has admitted that when Mirwais was brought in the Casualty Department, he was unconscious. He has also stated that no close relative was with the injured at that time when the injured was brought. There was no exit wound. According to the doctor, the bullet struck in iliac vessal (pelvic). He has admitted that the direction of bullet was from upward to downward. He has stated that the direction of bullet shows the person, who has fired, was upward while the injured was downward. According to doctor, this type of injury cannot be caused if someone fires by standing in front, because it would be through and through. He has also admitted that he had not observed any tattoo marks or any blackening around the wound. It is also stated that the distance of fire was not from close range but from a far distance. He has also produced casualty record and ward note Exh.D/1 and Exh.D/1-B respectively. (viii) P.W.8 Abdul Latif, Patwari who prepared site plan Exh.P/8-1 on 19-5-2000 on the pointation of S.H.O. Muhammad Tariq. In cross-examination he has stated that he did not go inside the house shown at Point No.4 in Exh.P/8-A. He has also expressed his ignorance as to whether the house was double storey or single storey. He has stated that the distance between Point No.1 and Point No.6 is about 800 feet. (ix) P.W.9 Yawar Abbas, A.S.-I. He is marginal Mashir of recovery memo. Exh.P/9-A whereby, one led of bullet (article 5) contained in a bottle (Article 4) was taken into possession in Civil Hospital stated to have been handed over to S.H.O. by one Ghulam Haider, Clerk. Parcel (Article 3) was prepared. In cross-examination, he has stated that the statement of Ghulam Haider was not recorded in his presence. (x) P.W.10 Muhammad Tariq, Sub-Inspector. He is Investigating Officer who has testified about various steps including arrest of accused/appellant. He has also produced Exh.P/10-A (site plan), Exh.P/10-B (inquest report), Exh.P/10-C, (F.S.L. report). He has also produced supplementary challan Exh.P/10-D and also identified the accused in the Court. The cross-examination of this witness being very important is reproduced below for the sake of facility:-- "I do not remember the exact time at which the information of incident was received to me. I reached at hospital at about 8-30 p.m. Many relatives of the deceased were present in the hospital, however, amongst them I only knew the father of the deceased who was also present there. It is correct that father of deceased is Inspector police. I remained at Hospital for about half an hour. I inspected the site on the pointation of complainant Sher Hassan. At the time of preparation of site Map Exh.P/10-A, I did not go inside the house which is shown as house of accused in Exh.P/10-A. However, later on I went inside the house of accused. It is correct that the house, which is shown as house of accused in Exh.P/10-A does not belong to accused Muhammad Ali. It is correct the house is of co-accused Imran. I also went on the roof of the house. It is incorrect that the house was double storey. It is correct that the house of accused Muhammad Ali is situated on Raisani Road. It is correct that the empty was not found at the place of occurrence. It is correct that the blood was also not found at the place of occurrence. I have not recorded the statement of neighbourhood to ascertain as to whether the occurrence has taken place or not. Voluntarily stated that no one has given statement due to neighbourhood. It is correct that there is no mention in the Zaminies that I tried to record the statements of neighbourers. I prepared the inquest report at about 1-30 a.m. It is correct that we narrate a brief history of the case. It is incorrect to suggest that while preparing inquest report we reproduce the statement of complainant and mentioned the name of accused if he is nominated in the case. It is incorrect to suggest that when inquest report was prepared, the F.I.R. was not registered. It is incorrect that we left one page of copy of F.I.R. blank. It is also incorrect we registered the case on next day after deliberation and consultation. I have not seen Muhammad Ali accused in the hospital. I recorded the statement of Essa Jan on 22-5-2000. It is correct that P.W.1 Essa Jan has stated in his statement under section 161, Cr.P.C. that two children have also seen the occurrence. I tried to record the statements of those two children, but I could not trace them. It is correct to suggest that Muhammad Essa stated in his statement under section 161, Cr.P.C. that we and other neighbourers have seen the accused Muhammad Ali in the hospital on the night of incident. I recorded statement of Mir Hassan on 11-5-2000 at about 9-00 a.m. near his house. It is incorrect that I have recorded the statement of Mir Hassan on 17-5-2000. I have recorded the statement of witness Naik Muhammad who was present with Sher Hassan just before the incident. The parcel of bullet was handed over to me by Babu Ghulam Haider on 22-5-2000. I have not recorded the statement of Babu Ghulam Haider. It is incorrect to suggest that, that Babu Ghulam Haider had not handed over parcel of bullet, that is why I have not recorded his statement. P.W.3 Mir Hassan has not stated in his statement under section 161, Cr.P.C. that on hearing hue and cry I came out from the house in the street. Mir Hassan has not told me that in his statement under section 161, Cr.P.C. that I along with my brother Sher Hassan and Farooq took Mir Waise to Hospital. It is correct that Mir Hassan has not stated in his statement under section 161, Cr.P.C. that his deceased brother has told him that Muhammad Ali fired upon him. However, he has stated that:-- Muhammad Farooq-ul-Haq in his statement under section 161, Cr.P.C. stated that after taking the name of Muhammad Ali he became unconscious. It is correct to suggest that during investigation he told me that he was not present at the place of occurrence. It is incorrect to suggest that accused also told me that at the time of incident he was present in a garage along with Hashim and Manzoor at Sariab Road, Quetta. I recorded the statement of Muhammad Iqbal on 11-5-2000 at 9 a.m. near the house of complainant. It is incorrect that I have carried out all the investigation in the police station. It is incorrect that accused has falsely been implicated in the instant case due to the reason that father of deceased is also a Police Officer. It is incorrect that I have deposed falsely. Re-NIL. (xi) P.W.11 Akhtar Hussain, he is Fire-arm Expert and has produced certificate Exh.P/11-A regarding examination of the bullet. According to him, the bullet was of .22 bore. In cross-examination, he has stated that the bullet which was sent to him was in deshape to some extent. He has also stated that bullet can be deshaped if it hit to some hard object. (xii) P.W.12 Gul Islam Khattak, Sub-Inspector. He is also the Investigating Officer who conducted the investigation in absence of P.W. Muhammad Tariq only for two days. According to him, he handed over the sealed parcel of one led of bullet to F.S.L. He has also stated that on 29-5-2000, the accused was remanded to judicial custody and incomplete challan Exh.P/12-A was prepared. After obtaining report from F.S.L., interim challan was prepared which he has produced as Exh.P/12-B. He has also identified the accused in the Court.

5. In his statement recorded under section 342, Cr.P.C. the appellant has disputed the case of the prosecution and pleaded his innocence. According to him, he has falsely been implicated in the case as the alleged culprit who is his nephew has fled away. According to him, on 10-5-2000, he was in garage of Manzoor and Hashim in connection with repairing of his vehicle from 4-00 p.m. to 9-00 p.m. which garage is situated at Sariab Road, Quetta. He has added that on his return, he came to know that Mirwais was injured. Thereafter, he along with Manzoor went to the house of Mirwais to see him and since Mirwais was taken to hospital, therefore, he then went to Civil Hospital where, he met with father and brother of Mirwais. According to him, he is not resident of Spinzer Colony, which house belongs to his nephew Imran. He has also stated that the house has no window towards Language Centre and there is no link road between Spinzer Colony and Raisani Road. He has also produced D.W.1 Arbab Muhammad Qasim, D.W.2 Manzoor Ahmed, D.W.3 Naseebullah and D.W.4 Muhammad Hashim. The statement of D.W.1 Arbab Muhammad Qasim is to the extent that he went to Hospital along with accused. D.W.2 Manzoor Ahmed has stated that the accused who is his neighbour was in his garage from 4-00 p.m. to 9-00 p.m. on the day of incident in connection with repairing of his vehicle. D.W. Naseebullah has deposed that on the day of incident Sher Hassan (P.W.2) was with him from 4-00 p.m. up to the prayer of Maghrib on Raisani Road where, one Nadeem came and informed about the incident. He has further added that on such information, he took P.W.2 Sher Hassan to his house. He has further added that at 9-30 p.m., he went to hospital where accused Muhammad Ali was present. According to him, he remained in hospital from 9-00 p.m. to 3-00 a.m. He has also stated that there is no link road between Spinzer Colony and Raisani Road. The evidence of D.W.4 is to the extent that accused brought his vehicle in the garage where, he remained present from 4-00 p.m. to 9-00 p.m. According to him Manzoor and Akbar were also in the garage when the accused brought the vehicle. He has also made his statement on oath as per provisions contained under section 340(2), Cr.P.C. by taking plea of alibi.

6. The learned trial Court formulated the following points for determination:-- (i) Whether Mir Wais died violent death? (ii) Whether on 10-5-2000 at about 7-00 p.m. at Spinzar Colony Sariab Road, Quetta the accused fired upon Mir Wais by means of pistol, due to which he sustained bullet injuries on abdomen and succumbed to his injuries? (iii) Whether accused caused injuries to deceased with the intention to kill him? (iv) What offence if any has been committed?

7. The learned trial Court after assessment of the evidence came to the conclusion that Mirwais died unnatural death and there is evidence against the accused. The contradictions were considered to be minor and not fatal to prosecution case. The dying declaration was also believed. Regarding motive, it has been observed by the learned trial Court and it is very improbable that accused would take such an extreme step of killing the deceased only on a petty matter. The defence version has not been believed by the learned trial Court as according to trial Court if the accused was with the D.Ws. on the day of incident, then it was the duty of D.Ws. Manzoor and Hashim to have told this very fact to the police during investigation but it was not done so therefore, the plea of accused is shrouded in mystery.

8. The learned trial Court however, after assessment of evidence found the appellant guilty of the offence under section 302(b), P.P.C.. and sentenced him in the manner hereinabove mentioned. Strange enough the appellant has been sentenced to suffer imprisonment for life and also to pay a fine of Rs.1,00,000 (Rupees one lac) as Diyat.

9. Feeling aggrieved of the aforesaid conviction and sentence, the appellant has preferred an appeal under section 410, Cr.P.C. The father of deceased also filed revision for enhancement of sentence.

10. We have heard Mr. Muhammad Aslam Chishti, Advocate learned counsel for the appellant and Mr. Jaffar Raza, Advocate learned counsel representing the State while Mr. Muhammad Qahir Shah, Advocate has appeared for the complainant.

11. Learned counsel for the appellant contended inter alia that there is no reliable evidence on record to sustain conviction, that the prosecution case is highly discrepant and improbable, that motive advanced by the complainant is improbable and not proved, that the place of occurrence is doubtful, that medical evidence negates the plea of complainant, that the dying statement cannot be relied upon. In support of his contentions learned counsel for the appellant has relied upon the authorities reported in 1994 SCMR 1, PLJ 1975 Cr. Cases 98-B, PLD 1978 SC 298, PLD 1965 SC 151-154-C and 1973 SCMR 26.

12. Learned counsel representing the State has supported the impugned conclusion of the trial Judge and contended that the prosecution has established its case against the appellant beyond reasonable doubt and the impugned conviction and sentence awarded to him is the result of proper appreciation of evidence brought on record which needs no interference. The learned counsel appearing for the State has however, not supported the criminal revision filed by the father of deceased. According to the learned counsel for the complainant, the eye account of occurrence furnished by P.W. Sher Hassan is confidence inspiring and the same was also seeking ample corroboration from dying statement, medical evidence, recovery of led and motive. It has been contended that the unimpeachable character of direct and circumstantial evidence brought on record would establish the murder charge against the appellant beyond reasonable doubt and there was no mitigating circumstances for lesser punishment.

13. After hearing the learned counsel for the parties and perusing the relevant record with their assistance, we are of the view that the case of the prosecution is doubtful in nature in respect of present appellant. The evidence available on record is in no way sufficient to lead to a conclusion that the accused/appellant can be convicted of the offence alleged against him. We are not inclined to subscribe to the conclusion arrived at by the learned trial Judge that the prosecution has succeeded to bring home the charge against the accused beyond any reasonable doubt. The findings of the trial Court are not based on any valid evidence. The Court has to juxtapose both the conflicting evidence in order to arrive at conclusion as to which one of them to be chosen for reliance as true. In criminal trials under the general law, the onus always lies on the prosecution to prove its case and the prosecution has to succeed upon the strength of its own case and not on the weakness of defence. It is well-settled principle of the safe administration of criminal justice that an accused is only to show a dent having created in the case of the prosecution and that he is entitled to benefit of even a single doubt found in the evidence of the prosecution and that he has not to show that its case suffers from more than one doubt. The incident is stated to have taken place at about 7-00 p.m. but no resident of the area has come forward to have witnessed the occurrence. The sole statement of P.W. Sher Hassan regarding witnessing the occurrence is not inspiring confidence therefore, cannot be relied upon the same without corroboration from an independent source. The dying declaration being incomplete and has also not been validly established. There is also delay in recording statements of witnesses without any explanation. The motive has not been proved. The medical evidence also negates the plea of prosecution. The charge against the accused/appellant was to the extent that he with connivance of co-accused Imran fired upon Mirwais and section 34, P.P.C. was added in the charge but no such valid evidence has come on record which can indicate that he shared common intention with the absconding accused. The learned trial Court did not believe the defence version and observed that the plea of accused is shrouded in mystery. Even if an accused has failed to prove his plea raised in defence can neither reduce the burden of the prosecution to prove the case against him beyond reasonable doubt nor can it be taken into consideration as proof in support of the prosecution case. The cross-examination of the Investigating Officer also makes the prosecution case doubtful.

14. It is an established principle of law that a Court while convicting the accused person for an offence particularly in a case in which capital sentence is provided for, have to be fully convinced that the accused facing trial is the only person responsible for committing the offence and that there is not even a slightest doubt about his false implication. Keeping in view the aforesaid principle, we have to assess the evidence to find out whether the prosecution has been able to bring home the charge to the appellant without any shadow of doubt. The instant case mainly hings on the statement of Sher Hassan, complainant (P.W.2). He is admittedly the brother of deceased. He consequently falls in the category of interested witness and his testimony had to be scrutinized with great care and caution before it could be made the basis for the conviction of the appellant. The statement of this witness has been criticized by contending that the statement of Sher Hassan (P.W.2) is also not worthy of belief and suffers from contradictions. It is stated that as a sole eye-witness, his statement is not exceptional to form basis for conviction on capital charge. Complainant in his deposition has stated that appellant called out the deceased from the roof of his house and further added that there was no roof though it was double storey house. It is stated that this witness on the one hand is unable to state the height of parapet wall but in the same breath says that it was 9 feet. Learned counsel has submitted that the site plan does not go with and is inconsistent with ocular account. There are conflicting versions of how it was prepared.

15. The eye account given by the complainant regarding place where the appellant was standing and holding pistol/revolver is in conflict with the testimony of the Medical Officer. The medical evidence and documents negate the plea of P.W. Sher Hassan. In such-like cases mainly based on solitary interested witness, the prosecution is required to produce independent corroborative evidence, direct or circumstantial, before reliance can be placed on the deposition of such solitary witness. In the instant case, we do not find any independent corroboration of unimpeachable character. The other evidence also does not support the prosecution version rather in direct conflict with the same.

16. The complainant in his report has not stated about the dying declaration by the deceased. There is contradiction in between the statements of complainant and P.W. Mir Hassan. According to Sher Hassan, he did not accompany injured to hospital while according to Mir Hassan, Sher Hassan was with them. The statement of the doctor indicates that no close relative was with the injured at that time when the injured was brought. Adverting to M.L.C. Exh.D/1 which shows that the deceased was brought to the hospital by Umer Saleem. The name of Umer Saleem also finds place in the list of witnesses but he has not been examined by the prosecution. The mentioning of the name of Umer Saleem in the medical certificate in presence of his brother P.W. Mir Hassan seems to be some what unusual while the relationship of deceased and Umer Saleem is also not known. The said circumstances create doubt with regard to the presence of P.W. Mir Hassan with deceased while he was brought to the hospital. This also makes the statement of P.W. Mir Hassan doubtful with regard to dying declaration made by the deceased in injured condition while he was being taken to hospital in presence of P.W. Farooq-ul-Haq. There is also weight in the contention of learned counsel for appellant that the dying declaration being incomplete and has not been validly established cannot be relied upon for conviction of the appellant. He has also stated that even according to P.W. Sher Hassan, Mirwais became unconscious and the doctor has also stated that the injured was unconscious and on the way no first aid treatment was provided and there is no such evidence which can indicate that the injured regained senses and was able to talk. In 1973 SCMR 26 it has been observed that a dying declaration, which is incomplete upon its face, is inadmissible in evidence, because, no one can tell, what the deceased might have added. In view of above position, the evidence of P.Ws. Mir Hassan and Farooq-ul-Haq with regard to dying declaration cannot be relied upon for conviction of the appellant.

17. The other piece of evidence against the appellant was/is motive which has/is not proved positively. Even the trial Court has not given definite finding about the motive and has observed that it is very improbable that the accused would take such an extreme step of killing the deceased, only on a petty matter. It is also pertinent to note that no blood stains were seen at the alleged place of occurrence and no empty was recovered from the spot. According to Fire-arm Expert, the bullet (led) was deshaped and as a result of striking some hard object.

18. In the final analysis of evidence, we are of considered view that in this case prosecution has failed to prove the case against the appellant beyond doubt. No doubt, the occurrence had taken place in which Mirwais deceased was shot to death but not in the manner asserted by the prosecution. There is no corroborative evidence to supplement the prosecution version. Prosecution can seek support from motive, medical evidence and dying statement but each piece of evidence is defective and failing in intrinsic value therefore, the same cannot be relied upon to corroborate the prosecution story, which is itself defective. It is established principle of law that one piece of tainted evidence cannot corroborate another tainted piece of evidence. We, therefore, are of the opinion that it is a fit case in which benefit of doubt can be given to the accused.

19. The Honourable Supreme Court in the authority reported in 1995 SCMR 1345, has observed as under:-- "The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concessions, but as a matter of right."

20. The principles laid down and the observations made by the Honourable Supreme Court in another authority reported in 1999 SCMR 1220 are reproduced below for the sake of facility:-- "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence is examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective. It is unfortunate that neither the trial Court nor the High Court thoroughly studied the record so as to reach correct conclusion, rather they dealt with the matter in a very cursory manner which naturally resulted in miscarriage of justice. As noted above, the eye-witness account in this case is so unreasonable and inherently improbable that no amount of corroboration can rehabilitate it. "

21. Having regard to the above mentioned factors and circumstances of the case, we are of the considered opinion that the prosecution has failed to prove its case against the appellant beyond any shadow of doubt. So, while accepting the appeal, we set aside the conviction and sentences recorded against the appellant by the learned Additional Sessions Judge-III, Quetta dated 18-2-2002 and acquit him of the charge levelled against him. The appellant be set at liberty forthwith if he not wanted to be detained in any other case. The connected Criminal Revision No.17 of 2002 stands dismissed. Both the appeal and criminal revision stand disposed of in the above terms. N.H.Q./59/Q Appeal accepted.