' MUHAMMAD HASHIM KHAN KAKAR, J.---This appeal is directed against the judgment dated 6-10- 2009, passed by the Additional Sessions Judge, Naseerabad at Dera Murad Jamali, whereby appellant Abdul Sattar son of Wahid Bakhsh was convicted and sentenced under section 302(b) of the P.P.C. To suffer life imprisonment as ta'zir and to pay an amount of Rs,100,000 as compensation to the legal heirs of deceased Abdul Qadir, with the benefit of section 382-B of the Cr . P. C
2. The relevant facts, arising out of instant appeal, are that on 11-10-2005, a case vide F.I.R. No, 112 of 2005 (Exh.P/1-B), under section 302 read with section 34 of the P.P.C. Was registered at Police Station City Dera Murad Jamali on the Fard-e-Bayan (Exh.P/1-A) of complainant Sher Muhammad, wherein he alleged that on above date, he, along with his brothers Abdul Qadir, Moula Bakhsh and Jamal-ud-Din son of Ghulam Qadir, after attending a hearing in the Court of Additional Sessions Judge, was coming towards their house on foot. At about 12-30 p.m., when they reached National Highway near Shah Petrol Pump, suddenly, accused persons Abdul Wahab, his brother Abdul Sattar (appellant), Abdul Hakim and Gul Muhammad, equipped with pistols, appeared and raised 'Lalkara' that "Abdul Qadir be ready for death" and started indiscriminate firing upon him, due to which, he sustained bullet injuries and expired at the spot. The complainant further alleged that in the meanwhile police also reached there, who arrested accused Abdul Wahab along with pistol, whereas accused Abdul Sattar, Abdul Hakim and Gul Muhammad ran away from the crime scene.
The motive behind the incident was disclosed matrimonial dispute, as the wife of co-accused Abdul Hakim, namely, Mst. Hooran, after obtaining 'Talaq' from him, contracted marriage with Abdul Qadir. Consequently, the aforesaid F.I.R. Was registered.
3. It may be noted that co-accused Abdul Wahab, as stated above, was arrested and after completion of the investigation, challan to his extent was submitted before the trial Court, where, on conclusion of the trial, he was convicted and sentenced by the trial Court by means of judgment dated 7-8-2006, however, the appellant and co-accused persons could not be arrested, therefore, case to their extent was kept in dormant. Subsequently, the appellant, was arrested in the present case and after completion of the investigation, challan to his extent was submitted before the trial Court and he was sent up to face the trial.
4. On the stated allegations, a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to prove the accusation, produced six witnesses. P.W.1 Sher Muhammad is complainant of the case, who produced his Fard- e-Bayan Exh.P/1-A, on the basis whereof F. I. R. Exh. P/1-B was registered. P.W.2 Jamal-ud-Din and P.W.3 Moula Bakhsh are alleged eye-witnesses of the occurrence. P.W.4 Dr. Qadir Tunia, Medical Officer, DHQ Hospital, Dera Murad Jamali examined the dead body of the deceased and issued medico-Legal Certificate Exh.P/4-A. P.W.5 Muhammad Yousaf, constable, soon after the incident, on hearing fire report, reached at the spot along with. Sepoy Mir Muhammad and saw co-accused Abdul Wahab along with a pistol, who was arrested and handed over to S.H.O. He is also witness to the recovery memo. Exh.P/5-A of the pistol. P.W.6 Jehangir, S.-I., conducted investigation of the case to the extent of co-accused Abdul Wahab, whereas P.W.7 Muhammad Rafique Sumalani, S.-I., conducted investigation to the extent of appellant. Then the prosecution closed its side. ,
5. Thereafter, the appellant was examined under section 342 of the Cr.P.C., wherein he denied the prosecution accusation and claimed to be innocent. He did not opt to record his statement on oath as envisaged under section 340(2) of the Cr.P.C., nor produced any witness in his defence, The trial Court, after close of the parties evidence, vide impugned judgment, convicted and sentenced the appellant, as mentioned hereinabove, hence this appeal.
6. We have heard learned counsel for the appellant as well as learned Additional Prosecutor- General and have also gone through the available record with their valuable assistance. It has been submitted by learned counsel for the appellant that' prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary, learned Additional Prosecutor-General has maintained that prosecution had succeeded in proving the guilt of the appellant to the hilt and, therefore, present appeal deserves dismissal.
7. Dr. Qadir Tunia, who conducted the external postmortem examination of the dead body of deceased Abdul Qadir came forward as P.W.4 and furnished the details of injuries observed by him on the corpse of the deceased as under:--
(1) "Entrance: On left lateral surface of backside of thorax near left lateral side of thorasic vertebra wound present (half) inch in size circular in shape margin is inverted.
(ii) Exit: On the left lateral surface of in front of thorax below the (3) three inch left nipple wound (1) one inch size opposite to entrance, oval in shape margin is everted.
(iii) Firearm wound present on left lateral surface of lumber region, size of wound is one and half inch in length and depth skin deep, touch only skin."
' In his opinion, death was caused due to severe bleeding, shock and haemorrhage. The above description of injuries would show that the ocular account furnished by the alleged eye-witnesses is contrary to the medical evidence qua the appellant Abdul Sattar. The deceased sustained only two firearm injuries, which were attributed to co-accused Abdul Wahab.
8. We are conscious of the fact that where the Court finds ocular account, furnished by a witness truthful and confidence inspiring, then it could not be discarded being contradictory to medical evidence, but in the instant case, the ocular account is neither straightforward, nor confidence inspiring, which remained uncorroborated. The connection of the appellant with the crime in question is sought to be established by the evidence of P. W.1 Sher Muhammad, complainant, P.W.2 Jamal-ud-Din and P.W.3 Moula Bakhsh. All the alleged eye-witnesses are closely related to each other and are, admittedly, inimical to the appellant. P.W.1 Sher Muhammad and P.W.3 Moula Bakhsh are real brothers of the deceased, while P.W.2 is cousin of the deceased.
9. After having gone through their evidence, we have no hesitation in observing that the alleged eye-witnesses have failed to inspire our confidence. The conviction awarded to the appellant can hardly be sustained in law. In order to maintain a conviction on capital charge, evidence must come from independent and unimpeachable source rather than tainted and inimical witnesses without any independent corroboration. We are conscious of the fact that mere relationship of the witnesses with the deceased is not sufficient to brush aside their evidence, but, as a precaution, the Court has to seek independent corroboration. Admittedly, a matrimonial dispute regarding the marriage of Mst. Hooran (divorced wife of absconding accused Hakeem) with the deceased exists between the parties, as such, possibility of false implication cannot be ruled out. Though the appellant was arrested, but no weapon of offence was recovered from his possession to corroborate the ocular account. Under such circumstances; his participation in the crime is highly doubtful.. In the present day's society, it has been noticed in most of the cases that witnesses of complainant party always throw net very wide to implicate a large number of actual culprit's family and due to this phenomenon, burden of Court in administering criminal justice has arisen and the Courts have to sift the chaff from grain. The record is indicative of the fact that initially co- accused Abdul Wahab was arrested and challan to his extent was submitted before the trial Court and after completion of trial was convicted and sentenced vide judgment dated 7-8-2006 passed by the Additional Sessions Judge, Naseerabad at Dera Murad Jamali. The statements of said, witnesses were believed qua the said accused. It is settled principle of law that where the statement of a witness is not believed against one accused, the same cannot be automatically discarded qua the other accused and can be used against him, if it transpired confidence, corroborated and rings true.
10. We have noticed that the set of injuries mentioned in medico-Legal Certificate Exh.P/4-A would show and suggest us to believe that the offence has not been committed in the mode and manner as prescribed by the prosecution witnesses. The offence seems to be the consequences of an act committed by one person, as the three empties, allegedly, secured from the place of occurrence, were fired from one and the same weapon. For facility of reference, the relevant portion of FSL report Exh.P/6-F is reproduced below:-- "OPINION. The examination of the case has revealed as under:--
(1) ' Three .30 bore crime empties now marked as CI, C2 and C3 were fired from the above mention .30 bore Pistol No,5046403 in question in view of the following major points i,e, striker pin marks, breach face marks, chamber marks and ejector marks, etc are similar."
' The record further reveals that co-accused Abdul Wahab was arrested from the venue of crime, immediately, after the occurrence and a .30 bore pistol was recovered from his possession. Three empties collected from the place of occurrence, along with the crime weapon, were sent to the office of the Assistant Inspector General of Police Criminalistics Division, Sindh, Karachi for examination and all the empties were found to be fired from the pistol recovered from the possession of co-accused Abdul Wahab and this fact alone is sufficient to create doubt regarding the participation of present appellant in the alleged offence. The sole independent witness of occurrence Muhammad Yousaf, who had arrested co- accused Abdul Wahab, has also not stated a single word about the presence of any other accused, except Abdul Wahab and negated the participation of present appellant in the crime in question.
11. Similarly, reliance of prosecution on the alleged abscondence of the appellant was also not well placed, because abscondence per se was not sufficient to prove guilt of the appellant.
Abscondence could equally consistent with the innocence of the appellant. Abscondence as a piece of conduct of the appellant was to be judged in the light of other evidence on the record.
Even otherwise, the trial Court has fallen in error while placing reliance on abscondence, as no question under section 342 of the Cr.P.C. Was put to the appellant regarding absconsion. Law requires that every part/piece of the incriminating evidence, circumstance etc. Sought to be used against him, should be put to the accused under section 342:of the Cr.P.C., for having his explanation: By holding the view, we are fortified by the dictum laid down in the case of Muhammad Khan and another v. The State reported in 1999 SCM R 1220, wherein it has been held that:-- "In any case abscondence can never remedy the defects in the prosecution case as it is not necessarily indicative of guilt. Moreover, abscondence is never sufficient by itself to prove the guilt."
12. It is settled principle of law that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, it must go to the accused and is sufficient to discredit the prosecution story and entitles the accused for acquittal. The said rule is based on the maxim:-- "It was better that ten guilty persons be acquitted rather than one innocent person be convicted, care should be taken by Court in convicting an accused."
13. Under the aforesaid reasons, we are of the confident view that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt, as such, while extending the benefit of doubt, this appeal is allowed, the conviction and sentence of the appellant recorded by the trial Court, are set aside and he is acquitted of the charge. He shall be released forthwith, if not required in any other case.
' These are the reasons of our short order dated 18-8-2011 announced in open Court.