ABDULLAH BALOCH, J.---This judgment disposes of Criminal Appeal No,(S)74 of 2015 filed by the appellant Sanaullah son of Ali Bakhsh, against the judgment dated 7th May, 2015 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge, Usta Muhammad (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 302(b), Qisas and Diyat Ordinance (P.P.C.) and was sentenced for capital punishment of death as Tazir and he was directed to be hanged by neck till his death and to pay compensation of Rs,200,000/- (rupees two lacs) to the legal heirs of deceased Shah Nawaz as provided under section 544-A, Cr.P.C. or in default thereof to further suffer six months' S.I. Murder reference No,(S)06 of 2015 has been forwarded by the trial Court for confirmation of death sentence or otherwise.
2. Facts of the case are that on the basis of statement of injured Shah Nawaz FIR No,07/2014 dated 8th January, 2014 was lodged at Police Station City Usta Muhammad, under section 324, P.P.C., stating therein that on the day of occurrence at about 6.00 p.m. he along with his uncle Bashir Ahmed and brother Muhammad Afraz were going to Bazaar on his Mehran motorcar bearing Registration No,BAP-871/Sindh, when they reached Jacobabad Railway Phattak Usta Muhammad, his relative Sanaullah son of Haji Ali Bakhsh (the appellant) came there on XLI Motorcar, stopped the same and started firing with pistol at him, due to which he received bullet injures on his abdomen and arm while accused escaped from the spot. The motive behind the occurrence was that accused Sanaullah had demanded Rs,10,00,000/- (rupees ten lac) from him for purchase of a vehicle and he told him that presently he has no money and that he will pay the amount to him by tomorrow due to which he became annoyed and went.
After registration of FIR, the injured/complainant Shah Nawaz died on his way to Larkana. Hence, section 302(b), P.P.C. was inserted in the FIR.
3. In pursuance of the above FIR, investigation was entrusted to PW-7 Shah Nawaz, SI/I0, who during investigation visited the site and prepared site sketch; carried out proceeding under section 174, Cr.P.C. and prepared inquest report of deceased; recorded the statements of witnesses under section 161, Cr.P.C.; took into possession the Mehran vehicle, blood stained articles from the vehicle and seven empties of 9 mm; took into possession the blood stained clothes of deceased; obtained post mortem report of deceased; arrested the appellant and subjected him to investigation; on completion of investigation submitted the challan in the trial Court.
4. The appellant was put on trial. During the trial, the prosecution produced seven (07) witnesses, whereafter; the appellant was examined under section 342, Cr.P.C. The appellant neither recorded his statement on oath nor produced any witness in his defence. After concluding evidence and hearing arguments, the trial Court awarded conviction to the appellant as mentioned in para-1 above. The appellant has preferred the instant criminal appeal, whereas the trial Court has awarded Murder Reference for confirmation or otherwise of the death sentence awarded to the appellant.
5. Learned counsel for the appellant stated that the prosecution has failed to substantiate the charge against the appellant beyond any shadow of doubt; that the statements of interested and related witnesses are lacking independent corroboration as it is not believable to a prudent mind that the appellant has murdered the deceased in front of his blood relations and let them free to depose against him; that the ocular account of testimony is in conflict with medical evidence; that the statements of the prosecution witnesses are not consistent and same are suffering from material contradictions, dishonest improvements and infirmities rendering their testimony doubtful, but the benefit of doubt has not been extended in favour of the appellant.
6. Learned Additional Prosecutor General assisted by learned counsel for complainant while supporting the impugned judgment stated that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant beyond any shadow of doubt; that the prosecution evidence is not suffering from material contradictions, infirmities or dishonest improvements; that there are no mitigating circumstances to award lesser punishment to the appellant and that after proper appraisal of the evidence available on record the trial Court has rightly awarded penalty of death to the appellant, which is not open for any interference.
7. Heard the learned counsel, and perused the available record. Perusal of record reveals that the unnatural death of deceased Shah Nawaz is not disputed. Even the defence has admitted the unnatural death of deceased, but pleaded his false implication. Soon after the occurrence, the deceased was shifted to Civil Hospital Usta Muhammad, where after giving him first aid, he was referred to Larkana, but on his way to Larkana, he succumbed to the injuries. The dead body was brought back to Civil Hospital Usta Muhammad, where PW-5 Dr. Amanullah Chishti, Medical Officer, Civil Hositpal , Usta Muhammad conducted after post mortem of deceased and issued Post Mortem Report Ex. P/5-A. According to postmortem report the deceased had received multiple fire arm injuries on his person and the death of deceased occurred due to damage to the vital orgains, liver, right kidney, small and large intestines, blood vessels and shock. The prosecution case is also supported by the blood stained articles i,e, seat cover and Kameez of deceased and the FSL report.
8. Now adverting to ocular testimony, the prosecution has produced seven witnesses. The FIR was lodged on the basis of alleged fard-e-bayan of injured Shah Nawaz, which was reduced into writing by Sikandar Ali, ASI, who appeared at the trial as PW-2. In his deposition PW-2 stated that on receipt of information with regard to receiving bullet injuries by a person and his shifting to hospital, he along with other police officials rushed to hospital, where he recorded the Fard-e- bayan of the injured Ex. P/1-A, which contains the thumb impression of the injured and he sent a Marasala to Police Station for registering FIR. PW-6 Sajjad-ud-Din, Constable was along with PW-2 on patrolling the area and had rushed to the place of occurrence. He has also narrated the above story.
9. The ocular evidence of both the above police officials is in contradiction to the medical evidence.
PW-5 Dr. Amanullah Chishti Medical Officer, Civil Hospital, Usta Muhammad gave first aid to the injured Shah Nawaz and thereafter referred him to Larkana PW-5 in his cross-examination stated that when Shah Nawaz was brought to hospital in injured condition, he was fully unconscious. PW-5 further admitted that the injured was produced after 20 to 25 minutes. PW-5 in his cross- examination has also brought on record that the firing was made from a distance of one or one and half feet.
10. The ocular testimony with regard to recording of fard-e-bayan/dying declaration of Shah Nawaz is in conflict with the medical evidence. If the deceased was brought to hospital within the period of 20 to 25 minutes after the occurrence and was fully unconscious, then under such circumstances the prosecution version of recording fard-e-bayan/dying declaration of deceased Shah Nawaz stands falsified. The conflict between the ocular testimony and medical evidence lead us to the conclusion that the fard-e-bayan/dying declaration of the deceased has falsely been prepared by the police at the behest of complainant party.
11. Now adverting to the testimony of alleged eye-witnesses of the occurrence, suffice to observe here that the prosecution has produced two alleged eye-witnesses i,e, PW-1 Bashir Ahmed and PW-3 Muhammad Afraz. According to both the witnesses the entire incident was witnessed by them. According to PW-1 on the day of occurrence he along with PW-3 Muhammad Afraz were accompanying the deceased Shah Nawaz in his Mehran motorcar, when their vehicle was intercepted by appellant Sanallah, who was on XLI Car and through 9 mm pistol he started firing upon his nephew Shah Nawaz and thereafter the appellant fled away from the place of occurrence. PW-1 in his cross-examination stated away from the place of occurrence. PW-1 in his cross-examination stated that he was sitting with the deceased on the front seat of the vehicle, while deceased was driving the car. It has further been brought on record on record by PW-1 that at the time of alleged incident the window glasses of their vehicle were shuttered-up. PW-3 being brother of deceased also claims to have accompanied the deceased in his vehicle when the alleged incident took place.
12. We with utmost care and caution scrutinized the statement of both the witnesses, but we do not find ourselves in agreement with the said statement of both the witnesses for variety of reasons.
Firstly, according to medical evidence as well as the statement of PW-1 and PW3, the firing was made from a very close range, but such firing only hit the deceased and both the witnesses seated in the vehicle did not receive any firearm injury nor any damage was caused to the vehicle.
According to the witnesses at the time of occurrence the window glasses of their vehicle were shuttered-up, but despite firing from outside, the said window glasses were not broken. It is an astonishing factor that both the witnesses were on the target of appellant, but only deceased Shah Nawaz was hit and PW-1 (being cousin) and PW-3 (being brother of deceased) were let free without any assault or an attempt to assault. It does not appeal to the logic that by killing a person in presence of his close relatives accused 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 SCM R 1707. Reference in this regard is also made to the case of Dohlu v. State, 2002 PCr.LJ 690.
13.The presence of both the above witnesses with the deceased at the time and place of occurrence is highly doubtful. Hence, we have no hesitation to conclude that the case of prosecution is lacking independent corroboration as only interested witnesses have been produced. PW-1 is the cousin and PW-3 is the brother of deceased Shah Nawaz. We are conscious of the fact that the statement of a witness cannot be discarded merely on the ground that he is related to the victim, but in order to remove any sort of ambiguity and for safe administration of justice independent corroboration is required to prove the version of interested and related witnesses.
14. Another important aspect of the case is that the prosecution has failed to establish the motive behind the occurrence. The motive so narrated was not so extreme that had provoked the appellant to kill his cousin. It appears that the prosecution had alleged a motive to strengthen the case, but has failed to prove the same. It is true that the conviction, can be recorded even in the cases where no motive is alleged, but once motive is alleged by the complainant it must be proved and in case of failure, the benefit must go to the accused. Reliance in this regard is placed to the case of Mst. Mir Shahbano v. Ahmed Jan, 2011 YLR 1965. Relevant portion is reproduced below: "15. Another fact to be noted is the motive shown in the FIR which is blood feud enmity. This motive has not been proved at all in the evidence by the prosecution. No documentary proof has been filed. Normally motive is of no avail and in certain cases which are motiveless conviction can be recorded. But once motive is alleged by complainant in report it must be proved and in case of failure, the benefit must go to the accused."
15.The prosecution has also failed to establish the recovery of crime weapon on the pointation of the appellant and it appears that the same was foisted upon him just to strengthen the case of prosecution. The crime empties along with firearm were not sent to the firearm expert. No explanation has been furnished by the prosecution in this regard.
16.The reappraisal of the evidence reveals of infirmities and discrepancies in the case of prosecution. The perusal of impugned judgment reflects that the same is result of mis-reading and misappreciation of evidence available on record. The defence has succeeded in causing dent in the case of prosecution. The circumstances have created doubt in the case of the prosecution. The prosecution has miserably failed to prove the charge against the appellant beyond any shadow of doubt. There exists sufficient doubt in the case of prosecution. According to settled principle of law benefit of even a slightest doubt has to be extended in favour of an accused.
For the above reasons, the appeal is accepted. The impugned judgment dated 7th May, 2015 passed by Sessions Judge, Usta Muhammad is set inside and while extending benefit of doubt, the appellant Sanaullah son of Ali Bakhsh is acquitted of the charge under section 302(b), P.P.C. in FIR No,7/2014 of Police Station City Usta Muhammad. The appellant/convict being in custody, is ordered to be released forthwith, if not required in any other case.
Consequent to the above, the murder reference No,(S)06/2015 is answered in negative.