ABDULLAH BALOCH, J.---This common judgment disposes of Criminal Appeal No.238 of 2016 and Criminal Revision Petition No.25 of 2016.
The Criminal Appeal No.238 of 2016 has been filed by the appellant Abdul Rashid Son of Abdul Zahir , against the judgment dated 31st May, 2016 (hereinafter referred as, "the impugned judgment ") passed by learned District and Sessions Judge, Mastung (hereinafter referred as, "the trial Court "), whereby the appellant was convicted under section 302(b), P.P.C. and sentenc ed to suffer life imprisonment and to pay compensation of Rs.200.0001- (Rupees two hundred thousand) to the legal heirs of deceased Haji Abdul Samad as envisaged under section 544- A, Cr .P.C. and in default thereof to further suf fer one (01) year's S.I., with the benefit of section 382-B, Cr .P.C.
The Criminal Revision Petition No.25 of 2016 has been filed by the petitioner (complainant) Abdul Nasir son of late Abdul Samad for enhancement of senten ce of the appellant from life imprisonment to that of Capital punishment of death.
2. Facts of the case are that on 21st August 2014, the complainant Abdul Nasir son of Haji Abdul Samad, lodged FIR No.43 of 2014 at Police Station City Mastung, under sections 302, 34, P.P.C., stating therein that on the day of occurrence at about 10.30 a.m. he was informed through phone that near new Bus Adda his father was murdered by means of making firing upon him. On such information, he immediately reached at the spot and saw his father lying in the pool of blood and was died. It is further averred in the FIR that on the preceding day of occurrence i.e. 20th August 2011 his father informed him and his brothers Zeshan, Imran and Hafiz Jameel Ahmed that Rashid son of Abdul Zahir (appellant) through mobile phone No.0335-0818424 extended threats to him for killing, while through the said mobile phone number Imran was also threatened by Rashid. Hence, on the day of occurrence accused Abdul Zahir along with his sons Muhammad Rashid and Muhammad Amir made firing upon his father with T.T. pistol and committed his murder .
3. Initially , no one arrested in the case, thus on completion of investigation in absentia; proceedings under section 512, Cr.P.C. were carried out and the challan was submitted in the trial Court. Subsequently on arrest of the appellant and co-accused Abdul Zahir , they were subjected to investigation and on completion thereof, challaned before the trial Court, while the accused Muhammad Amir was declared as proclaimed offender and accordingly proceedings under sections 87 and 88, Cr .P.C. were carried out against him.
4. At the trial, co-accused Abdul Zahir was acquitted of the charge by the trial Court under section 265-K, Cr.P.0 vide order dated 21st April, 2016, while to the extent of appellant the prosecution has produced thirteen (13) witnesses, whereafter the appellant was examined under section 342, Cr.P.C. However , he 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 learned trial Court convicted and sentenced the appellant as mentioned above.
Whereafter the convict filed Criminal Appeal, while the complainant filed Criminal Revision Petition for enhancement of sentence from life imprisonment to that of Capital punishment of death.
5. Heard the learned counsel and perused the available record. In order to establish the charge the prosecution has produced the evidence of thirteen witnesses, perusal of which reflects that the prosecution has either produced circumstantial evidence, which are not sufficient to hold responsible the appellant for the murder of deceased Haji Abdul Samad or the direct evidence is lacking independent corroboration being produced through interested witnesses, who could not justify their presence at the relevant. The circumstantial evidence has been produced through the evidence of PW-1 Abdul Nasir (complainant), PW-2, PW-3, PW-6 and PW-11. According to PW-1 (complainant) at the time of occurrence he was present in his office, when he was informed that his father was murdered by means of firing. This witness has failed to mention the name of person who informed him on phone and disclosed about the occurrence and the name of assailant. However , this witness has placed his suspicion upon the appellant, as according to PW-1 on the preceding night of the occurrence his father had informed him and other PWs that he had received threats from the appellant to be murdered. Accor ding to PW-1 the appellant had made phone call through Cell No.0335-0 818424 to his father and extended threats. Similarly . PW-2 Hafiz Jamil Ahmed in his Court statement has brought on record that on 20th August 2014 the deceased was present with him, when on receipt of telephonic call the deceased became annoyed and informed him that the appellant had extended him threats. Likewise, PW-3 Muhammad Imran being the son of the appellant has brought on record that on 20th August B 2014 he also had received threats from the appellant from Cell No.03350818424. The statement of another son of deceased namely Zeeshan (PW6) is alike to the statement of PW-1 (complainant), who has also brought on record that his father had informed him and his remaining brothers that the appellant extended threats to him through phone. PW-11 Mst. Bibi Hajira is the mother of the deceased Abdul Samad and was residing in the house of accused party in Kharotabad Quetta. Her statement is alike to the statem ent of remaining witnesses with regard to extending threats to the deceased by the appellant on phone.
6. If the statements of PW-1, PW-2, PW-3, PW-6 and PW-11 are taken into consideration together , it would become crystal clear that none of the witnesses have witnessed the crime directly . Such fact has also been admitted by the witnesses in their examination in chief and cross-examinations too that they are not the eye witness of the occurrence. It is evident from the statements of the said witnesses that their evidence is only with regard to advancing threats to the deceased by the appellant. However , except PW-2 Hafiz Jamil Ahmed the statements of remaining witnesses are silent about the time when the appellant made phone call to the deceased extending threats. It has also been observed that no complaint or FIR was lodged by the complainant or his sons before the concerned Police Station in such behalf. Even otherwise, the Investigating Officer has failed to collect the Call Detail Report of the Cell No.0335- 081842 from the concerned Cellular Company . No investigation was also made that either the Cell No. 0335-0818424 was registered in the name of the appella nt or that in what capacity the appellant was in possession of the said Cell number in absence of any incriminatory evidence it cannot be held that the appellant had made any phone call to the deceased or extended threats to him or that the said Cell number was in his name or in his possession.
7. Now adverting to direct evidence produced by the prosecution through PW-9 Saeed Ahmed, who is the paternal son of the deceased and PW-10 Muhammad Yagoob, who was the mason and was constructing the boundary walls of the house of the appellant. Accor ding to PW-9 on the day of occurrence at about 9.30 a.m. the deceased was present in his house and informed him that he is sending Cement etc throu gh Rickshaw and on receipt he should count the same. Whereafter , on receipt of cement he counted the same and started proceeding towards deceased Abdul Samad, when he observed firing shots making by the appellant upon his father . According to PW-9 since his house was located nearby the place of occurrence thus he started running towards his house to bring weapon, but on his return the appellant had decamped from the place of occurrence. The conduct of this witness appears to be unnatural, as it is not appealable to a logic that once father is being murdered in his presence and he instead of making an attempt to rescue him proceeded towards his house for bringing weapon. Even otherwise, PW-10 Muhammad Yaqoob Mason contradicted the statement of PW-9 and stated that the deceased himself had brought Cement and after bringing cement he returned back on his motorcycle, when he (PW-10) heard firing shots, thus he along with other labours proceeded towards the place of firing and found the deceased lying in the pool of blood. The perusal of statement of this witness reveals that he has not mentioned the presence of PW-9 even at the time of receiving of cements and making firing and even he has mentioned nothing that soon after the occurrence PW-9 arrived at the place of occurrence. Even otherwise, according to PW-1 soon after the occurrence he arrived at the place of occurrence, but the complainant has also stated nothin g about the presence of PW-9.
The statement of PW-10 is also silent with regard to identity of the assailants who who made firing upon the deceased. Accordingly , PW-9 has failed to establish his presence at the time and place of occurrence. Apparently , this witness is interested witness being the son of the deceased and his statement is lacking independent corroboration.
8. We are conscious of the fact that mere relationship of a witness with the deceased or the complainant party itself would not diminishes the evidentiary value of his statement, but for making reliance on such statement, especially in heinous crime of murder , it is to be seen whether the said witness has escaped from the acid test of cross examination undamaged, unshaken or the defence has succeeded in giving jolt to his .testimony . In the case in hand, the PW-9 being sole eye-witness of the occurrence has failed to establish his presence at the relevant time, as such, no implicit reliance could be placed upon the alleged direct testimony of alleged eye-witness, who otherwise is the son of deceased and is interested witness.
9. So far the confessional statement of the appellant under section 164, Cr.P.C. is concerned, the same also appears to be untrustworthy . The appell ant was arrested by the police on 20th July 2015 and accordingly his remand period was ending on 3rd August 2015, but he was detained in illegal confinement for a day and on 15th day of his arrest i.e. 4th August 2015 his confessional statement was recorded. In cross-examination PW-7 Amjid Khan, Judicial Magistrate in reply of a question admitted that on 3rd August 2015 the appellant was produced before him for remand, but it is incorrect that he was sent to judicial lock-up on 3rd August, 2015. Voluntarily stated that he was sent to judicial lock-up on 4th August 2015 and perhaps on 3rd Augus t, 2015 there was holiday , while infact 3rd August, 2015 was not holiday . No plausible explanation in such behalf has been tendered by the prosecution, thus the confessional statement of the appellant is neither true nor volunteer , as such the same is not helpful to the case of prosecution.
10. The medical evidence in this case has been furnished by PW-4 Dr. Naseer Ahmed Tareen, Medical Officer, who has confirmed the unnatural death of deceased. However , the fact remains that medical evidence is only used for confirmation of ocular evidence regarding seat of injury , time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability . Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866 ).
11. The reappraisal of the statements of all the witnesses being interested and closely related with each other have drawn a different sketch of the occurrence creating doubts in the case of prose cution. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reason able doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and acquit the accused. 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 that, "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 above reasons, the appeal is accepted. The impugned judgment 31st May, 2016 passed by learned District and Sessions Judge, Mastung is set aside and the appellant Abdul Rashid son of Abdul Zahir , is acquitted of the charge under section 302(b), P.P.C. The appellant being in custody; is ordered to be released forthwith, if not required in any other case.
Consequently , the Criminal Revision Petition No.25/2016 being devoid of merits is dismissed.