ABDULLAH BALOCH, J.---This judgment disposes of Criminal Appeal No.365 of 2018 filed by the appellant Zahir Shah son of Lal Shah, against the judgment dated 17th November 2018 (hereinafter referred as, "the impugned judgment ") passed by learned Sessions Judge Barkhan at Rakni (hereinafter referred as, "the trial Court "), whereby the appellant was convicted under Sections 302(b), 34, P.P.C. for committing murder of Akbar Jan son of Shah Jahan and sentenced to suffer imprisonment for life and to pay Rso.100,000/- as compensation to the legal heirs of deceased as envisaged under Section 544-A, Cr.P.C. and in default thereof to further suffer S.I. for Six (06) months, with the benefit of Section 382-B, Cr .P.C.
2. Facts of the case are that on 26th February 2017, the complainant Naseebullah son of Haji Abdul Ghani lodged FIR No.16 of 2017 at Levies Station, Daman Baghao, under Sections 302, 34, P.P.C. with the allegations that on the day of occurrence at about 6:45 p.m. he along with his relatives after takin g meal were gossiping in their drawing room, suddenly call was made from outside for him (complainant), hence he along with Muhammad Qasim and Akbar Jan came out from their drawing room, they found three persons boarding on two motorcycles, thus when they reached near to them, the accused persons Sher Jan, Sher Muhammad alias Shero and Zahir Shah suddenly took out their Kalashnikovs hidden behind their Chaddars and started firing upon them. The accused Sher Jan and Sher Muhammad alias Shero made firing and caused bullet injuries to Akbar Jan, who fallen down, while the complainant and others were saved luckily and they apprehended the appellant Zahir Shah, C.D. motorcycle, one Kalashnikov along with six live cartridges, while accused Sher Jan and Sher Muhammad alias Shero were decamped on their motorcy cle. Thereafter , they informed the Levie s Station Baghao and took the injured Akbar Jan to hospital, but in the way he succumbed to the injured. On arrival of levies, the appellant along with Kalashnikov and motorcycle were handed over to Levies Authorities.
3. In pursuance of the above FIR, investigation was conducted by PW-6 Muhammad Tariq, I.O., who during investigation prepared site map; arrested the appellant; took into possession the Kalashnikov and motorcycle; took into possession the blood stained earth and clothes of deceased; prepared inquest report; recorded the statements of witnesses under Section 161, Cr.P.C.; obtained death certificate of deceased and on completion of investigation submitted the challan in the trial Court.
4. At the trial, the prosecution produced six (06) witnesses. The appellant was examined under Section 342, Cr.P.C.
However , 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, the appellant was convicted and sentenced as mentioned above in para No.1, vide impugned judgement. Whereafter , instant appeal has been filed.
5. Learned counsel for appellant contend ed that the role of firing upon the deceased has not been ascribed to the appellant and mere his presence at the place of occurrence would not constitute any offence; that the conduct of the PWs is unnatural, as they could not justify their presence at the relevant time and place; that the recovery of crime weapon is doubtful being not directly effected from the personal and conscious possession of the appellant: that the entire case of the prosecution is doubtful and the story so narrated is not acceptable to a prudent mind; that the impugned judgement is suffering from misreading and mis-appreciation of evidence; that the conclusion so drawn by the learned trial Court is perverse and contrary to material available on record.
6. Learned Deputy Prosecutor General while supporting the impugned judgement contended that the prosecution through consistent and confidence inspiring evidence has proved the charge against the appellant beyond any shadow of doubt as not only the appella nt was caught red handed from the place of occurrence, but also the recovery of the crime weapon was effected from his possession; that the prosecution version has been corroborated by independent evidence as all the witnesses are firm in their deposition and no major contradiction has come on record; that the impugned judgement is based on proper appraisal of evidence and the same is not open for interference by this Court.
7. Heard the learned counsel for parties and perused the available record. In order to establish the charge the prosecution has produced the evidence of six witnesses, out of whom the complainant/PW -1 Naseebullah, PW-2 Shair Khan and PW-3 Muhammad Qasim are claiming to be the direct eye-witnesses of the occurrence. All the eye-witnesses have unanimously stated before the trial. Court that on the day of occurrence they accompanied by the deceased Akbar Jan were present in the drawing room of the complainant, when suddenly a call was made from outside of his drawing room, thus they came out from the drawing room, where all the three accused persons namely Shair Jan, Shair Muhammad alias Shairo and appellant Zahir Shah made firing upon them with the Kalashnikov . According to witnesses, only two bullets hit to the deceased, out of which only bullet hit from the firing of absconding Shair Jan and the other from the weapon of Shair Muhammad alias Shairo. After commission of crime both the absconding accused were decamped from the place of occurrence, while the appellant was caught red handed along with Kalashnikov . Subsequently , on arrival of Levies the appellant along with recovered crime weapon was handed over to the Investigating Officer. The assertions of the witnesses would establish the fact that no role of firing was attributed to the appellant rather such role has been ascribed upon the absconding accused persons.
In continuation of above para, it has been observed that the conduct of all the three is totally unnatural and does not appeal to the logic in any sense. Allegedly , the appellant along with absconding accused being armed with sophisticated weapons arrives at the house of the complainant party , made firing upon them, which resulted into murder of deceased Akbar , who was the nephew of the complainant and thereafter on making an attempt to escape, the appellant was caught red handed along with his crime weapon and subsequently were handed over to the Levies. The assertions of the PWs appear to be unnatural and unreliable. Let us, first discuss the tunriatural conduct of the PWs. It has come on record that the deceased was the nephew of the complainant/ PW-1 and the close relative of the remaining two eye-witnesses, who soon after the commission of crime caught red handed to the appellant along with crime weapon, but it is surprising that they did not make any attempt to take the life of the appellant, when'astonishingly the deceased was lying in their front in the pool of blood, while on the other hand one C of the assailants i.e. appellant is in their possession in helpless conditions. Even otherwise, nothing has come on record that a single scratch was found on the person of the appellant rather the PWs handed over the appellant (assailant) to the levies authorities unhur t. The conduct of all the three witnesses depicts to be unnatural and not believable and even unreliable to a prudent mind.
8. Now adverting to unnatural conduct of accused persons, suffice to observe here that all the three accused persons were armed with sophisticated weapons, while to the contrary the complainant party were empty handed, but despite such fact the appellant was caught at the spot along with Kalashnikov , whereas the absconding accused persons let as spot to the appell ant at the mercy of complainant party to commit his murder . Even nothing has come on record that the absconding accused persons had made any attempt to rescue the appellant from the clutches D of the complainant party . The conduct of the accused persons also appears to be unnatural on another angle. Admittedly , all the PWs including the deceased were on the target of appellant and other absconding accused, but the deceased was hit and the PWs were let free. 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 SCMR 1707 . Reference in this regard is also made to the case of Dohlu v . State 2002 PCr .LJ 690.
9. An additional material aspect of the case is that after reporting the matter to Levies, the Investigating Officer arrived at the place of occurrence and collected 34 empties of Kalashnikovs. The collection of 34 empties from the place of occurrence is suggestive of the fact that indiscriminate firing was made. Admittedly , the deceased along with PW-1 to PW-3 were standing closely and after making indiscriminate firing there were no chances of PWs to escape unhurt and also there was every possibility that the deceased had received multiple bullet injuries, but the picture is quite different from the presumptions and expectations as suggests by the situation, when the deceased had only received two bullet injuries on his person, while all the PWs were escap ed unhurt. Again, the facts and circumstances of the case create doubts with regard to presence of the PWs at the time and place of occurrence and witnessing the crime rather at the best the circumstances suggests that it was a blind murder and the appellant was dragged in the case due to suspicio n otherwise the appellant could not be handed over to the Levies unhurt and alive.
10. As far as the recovery of crime weapon is concerned, suffice to observe here that the prosecution has failed to prove the recovery of the same from the exclusive or conscious possession of the appellant. According to PW-1 they handed over the Kalashnikov to Naib Tehsildar/ Investigating Officer, while PW-6 Muhammad Tariq, I.O. has contradicted the same and stated that the same was handed over to him by the Assistant Commissioner . Neither the name of said Assistant Commissioner has come on record nor he was cited as prosecution witness in order to attest the recovery . Even otherwise, the recovered Kalashnikov along with the recovered 34 empties were not sent to FSL for analysis in order to establish as to whether such empties were fired from the recovered Kalashnikov or otherwise. In absence of any solid evidence, it cannot be presumed that the recovery of the Kalashnikov was effected from the exclusive and conscious possession of the appellant. It appears that the recovery of Kalashnikov was foisted upon the appellant by the complainant party in order to strengthen the case of prosecution, while the prosecution has absolutely failed to establish the recovery whereof.
11. The medical evidence in this case has been furnished by PW-5 Dr. Majid Ameen, 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 ).
12. All the above infirmities and contradictions lead us to the conclusion that the prosecution has miserably failed to bring home the charge against the appellant beyond any shadow of doubt. There exists sufficient doubt, in the case of prosecution to the extent of appellant. It is settled principle of law that benefit of even a slightest doubt has to be extended in favour of the accused, whereas in the case in hand there exist series of doubts but benefit of same has not been extended to the appellant by the trial Court.
For the above reasons, the appeal is acce pted. The impugned judgment dated 17th November 2018 passed by the learned Sessions Judge Barkhan at Rakni, is set aside and the appellant/convict Zahir Shah son of Lal Shah 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.
Above are the reasons of our short order dated 10th April 2019.