ROZI KHAN BARRECH, J.---Through this Criminal Appeal No. 208 of 2019 Ali Muhammad son of Jan Muhammad (appellant) has assailed the judgment dated 30.05.2019 (hereinafter "the impugned Judgment") passed by learned Additional Sessions Judge/MCTC, Lasbela at Hub, (hereinafter "the trial Court") whereby the appellant has been convicted and sentenced in the following manners: "Convicted under section 302(b) read with section 149, P.P.C. and is sentenced him to suffer Rigorous Life Imprisonment. The accused is further directed to pay Rs.2,00,0001- (Rupees Two Lacs Only) as compensation under section 544-A, Cr.P.C., to the legal heirs of the deceased Abdul Aziz.
In default of payment of compensation the accused/convict shall further suffer SI for a period of one (01) year.
The accused is also convicted under section 149, P.P. C. to suffer Rigorous Imprisonment for one
(01) year and to pay fine of Rs.5,000/- (Rupees Five Thousand Only) on in default of payment of fine to suffer SI for five (05) days. The benefit of section 382-B, Cr.P.C., is extended in favour of accused".
2. Brief facts as unfolded by PW-1 Haji Kora Khan son of Khamisa in his complaint (Ex.P/1-A) are that he had purchased a mountainous land from one Attar son of Lashkari by caste Surkhail. On 05.09.2017, his brother Abdul Aziz and cousin Rafique were collecting/taking stones/chips from said mountain when the accused persons namely Ali Muhammad (appellant), Ali Dost, Allah Waraya, Allah Rakhiya, Siddique, Niaz and Talib sons of Jan Muhammad attacked upon them. They made firing upon Abdul Aziz in his abdominal area and a bullet passed over the head of Rafique and injured him. Hence crime report.
3. After completion of investigation, challan was submitted before the trial Court, charge was framed against the accused/appellant to which the accused/appellant pleaded not guilty and claimed trial.
4. At the trial, the prosecution produced nine (09) witnesses to prove the charge against the accused/appellant. After close of the prosecution evidence, statement of accused was recorded under section 342, Cr.P.C., in which he denied the allegations levelled against him and claimed to have been falsely charged. The appellant/accused neither opted to record his statement nor produced any witness in his defence.
5. The trial Court believed the prosecution's evidence on basis of ocular account which was supported by medical evidence, and recovery of crime weapons and other circumstantial evidence, and the accused/appellant was convicted and sentenced as mentioned in the opening paragraph of this judgment.
6. We have heard the learned counsel for the parties and gone through the available record with their able assistance.
7. The prosecution's mainstay was on the testimony of Haji Kora Khan (PW-1/complainant) brother of deceased Abdul Aziz, Muhammad Rafique (PW-2) cousin of the complainant and Shah Nawaz (PW-3). PW-1 and PW-2 are closely related to each other as well as the deceased. The complainant while appearing in the witness box deposed that on 05.09.2017 at 3:3Q p.m., he was present at his tube-well and his brother Abdul Aziz and cousin Muhammad Rafique were loading stones and A chips, when the accused persons namely, Ali Muhammad (appellant), Ali -Dost, Allah Waraya, Allah Rakhiya, Siddique, Niaz and Talib sons of Jan Muhammad came to spot and started firing upon his brother Abdul Aziz who received injuries on his abdomen and fell down while his cousin Muhammad Rafique received injuries on his head. He stated during cross-examination that the distance between the place of occurrence and his tube-well is two kilometers, that firing had stopped when he reached the spot. He is not eye-witness of the occurrence. The alleged occurrence took place on 05.09.2017 at 3:30 p.m., and the FIR B was lodged at 6:40 p.m., with delay of about three hours without any plausible explanations.
8. Another important factor relevant to discussion is that PW-2 Muhammad Rafique, who is an eye- witness/injured who deposed in his statement that on 05.09.2017 at 3:30 p.m., he and Abdul Aziz were loading stones and chips, meanwhile the accused persons named above came there and attacked upon Abdul Aziz with sticks and in the meanwhile the accused Ali Dost (Acquitted accused) made firing and he received injuries and went unconscious. On the other hand, PW-3 Shah Nawaz has given the role of firing to accused Ali Muhammad (appellant). He deposed that on 05.09.2017 at 3:30 p.m., the accused attacked upon deceased with sticks and the accused Ali Muhammad armed with Kalashnikov made firing upon Abdul Aziz and that the accused also made firing upon Muhammad Rafique/PW-1 has given a role to all the accused persons of firing. As per PW-2's statement role of firing was attributed to acquitted co-accused Ali Dost but PW-3 assigned the role of firing to the appellant. PW-2 and PW-3 did not state a single word in their statements that all the accused made firing. There are material contradictions in the statements of the above witnesses and it seems from the above material contradictions that either both the cited witnesses were not present at the time and place of occurrence or they had falsely deposed against the appellant in order to suppress some real facts from the Court for the reasons best known to them.
9. The prosecution alleged that (Muhammad Rafique PW-2) received firearm injuries on his person to establish his presence at the venue of occurrence yet it cannot be lost sight of that Dr. Zafarullah, Medical Officer (PW-7) did not observe any firearm injuries on the Muhammad Rafique's person. Furthermore, his testimony did not receive any corroboration from the statement of Shah Nawaz (PW-3) with regard to the injuries sustained by him. According to PW-7 E Dr. Zafarullah, Muhammad Rafique PW2/injured was brought to Rural Health Centre (RHC) Dureji on 12.09.2017. He examined him and found almost healed wound on scalp frontal left side. During cross-examination he stated that he has not mentioned anything regarding the nature of injuries, as to whether the same was caused with a blunt or sharp weapon or otherwise. It does not appeal to the prudent mind that a person who F received injuries on 05.09.2017 would go to the doctor for treatment on 12.09.2017 after lapse of seven days.
10. PW-3 Shah Nawaz while appearing before the Court gave his address as tehsil Dureji where the alleged occurrence took place, which is a mountainous area. According to the site plan (Ex.P/5-C) the place of occurrence is a rugged terrain with rainy channels and there are no houses nearby which makes it clear that PW-3 Shah Nawaz is not resident of the said area nor the place of occurrence is situated near his house. The name of PW-3 the so-called eye-witness is not mentioned in the report (Ex.P/1-A) nor did PW-2/injured Muhammad Rafique state a single word with regard to his (PW-3's) presence at the place of occurrence. Statements of both the witnesses i.e. PW-2 and PW-3 were also recorded under section 161, Cr.P.C. on the next date.
11. In view of above facts, inference can be drawn that the statements of the above two witnesses is not worth as both these witnesses themselves did not see the occurrence nor for that matter the prosecution brought any substantial piece of evidence to establish their presence on the spot at the relevant time. That too, when PW-3's name does not find mention in the FIR. As stated earlier PW-2 Muhammad Rafique and PW-1 Haji Kora Khan also did not state a single word about presence of PW-3 at the place of occurrence. There is no house/village near the place of occurrence. The story narrated by the said witnesses seems to be fabricated and maneuvered subsequently just to support the injured witness. It is well settled principle by now that once there appears a. single doubt as to the presence of the claimed eye-witness at the crime scene, it would be sufficient to discard his testimony as a whole. A reference may be made to case. titled Mst.
Rukhsana Begum and others v. Sajjad and others 2017 SCM R 596, wherein it has been held as under:- "A single doubt reasonably showing that a witness/witness's presence on the crime spot was doubtful when a tragedy takes place would be sufficient to discard his/their testimony as a whole.
This principle may be pressed into service in cases such witness/witnesses are seriously inimical or appears to be a chance witness because judicial mind would remain disturbed about the truthfulness of the testimony of such witnesses provided in a murder case, is a fundamental principle of our criminal justice system".
11(sic.) PW-8 Dr. Muhammad Muzakir Toseef has examined the deceased who stated that on 06.09.2017 he was posted as Medical Officer in Surgical ICU of Jinnah Post Graduate Hospital, Karachi, on call duty. In the meanwhile e patient namely Abdul Aziz was brought from Operation Theater, who passed away in ICU later on. The reasons of his death are as under:- "1. Cardiopulmonary arrest.
2. Peritonal perforion.
3. Gun shot."
12. The alleged occurrence took place on 05.09.2017 and PW-8 Dr. Muhammad Muzakir Toseef stated that he examined the injured on 06.09.2017. There is no explanation on behalf of the prosecution as to whether on 05.09.2017 when allegedly the deceased received injuries by means of firearm was shifted to any hospital on the same date or else. There is also no medical or other documentary evidence available on record to show that the deceased Abdul Aziz was examined on 05.09.2017. The medical evidence also contradicted with ocular evidence. PW-8 Dr. Muhammad Muzakir Toseef only mentioned in his medical certificate about gunshot injuries but on the other hand the PW-2 Muhammad Rafique and PW-3 Shah Nawaz deposed in their statements that the deceased was beaten with sticks at first. The above contradiction also cast reasonable doubt in the prosecution's case.
13. Muhammad Bashir (PW-9) Tehsildar who conducted investi-gation of the case and secured three crime empties of Kalashnikov at the time of his first visit of the place of occurrence. He deposed that on 24.09.2017 he arrested the accused Ali Muhammad and recovered K Kalashnikov from him but the said witness did not state the place and time of recovery of Kalashnikov from the accused/appellant. PW-4 Abdul Hafeez who is recovery witness of Kalashnikov deposed before the trial Court that on 24.09.2017 he along with Tehsildar and levies constables Gul Muhammad, Abdul Nabi and Asadullah were on area patrolling, at about 9:30 a.m., the Tehsildar received spy information through telephone that the accused nominated in the FIR namely Ali Muhammad was going from area Luhi to Sarwana. On the said information they reached to the area Kotirah Tehsil Dureji and found the accused, going on foot, whom they apprehended and effected recovery of the alleged Kalashnikov from him. His statement is not corroborated by the other witnesses. PW-9 Bashir Ahmed only stated in his statement that he recovered Kalashnikov from the accused but he did not give detail in his statement when, how and from where Kalashnikov was recovered from the accused. Even otherwise, the occurrence took place on 05.09.2017 the alleged Kalashnikov was recovered from the accused on 24.09.2017 when he was going by foot. How can it be possible that the accused kept the said Kalashnikov for 19 days with him and thereafter the same was recovered from him. The bullet empties recovered from the place of occurrence and the alleged Kalashnikov were sent together to Firearm Expert on 17.10.2017 after recovery of Kalashnikov i.e. with delay of 24 days of its alleged recovery from the accused/appellant.
14. Anyhow, the dispatch of the crime empties and alleged Kalashnikov to the office of Firearm Expert Crime Branch Balochistan, Quetta, together after arrest of the accused/appellant with delay of 24 days of its securing, renders it to be legally unacceptable and, thus, in the circumstances the recovery of weapon of offence from the appellant remained inconsequential. Even otherwise, the report (Ex.P/9-E) is also doubtful to the extent of recovery of Kalashnikov and matching the empties and it's mentioned in the report (Ex.P/9-E) that "the three crime empty shell of 7.62 mm bore marked as C 1 to C3 had been fired from the 7.62 mm bore. Pistol present in parcel No.3". Reliance is placed on the case title Nazeer Ahmed v. The State 2016 SCM R 1628, wherein it has been held as under:- "The crime empty secured from the place of occurrence was sent to the office of Forensic Science Agency after recovery of the gun rendering such recovery to be legally unacceptable".
15. The co-accused Ali Dost was acquitted by the trial Court and no appeal against his acquittal has been filed by the complainant. After acquittal of co-accused Ali Dost to whom similar role as that of the appellant was attributed and who was given benefit of doubt, the ballistic expert's report has lost its evidentiary value and once this piece of evidence, as has already been discussed, is excluded from consideration then, the conviction of the appellant on the same set of evidence where the co-accused similarly charged was acquitted, was altogether unjustified in law.
16. We do not find any iota of evidence to connect the appellant with the murder in issue. It is well settled principle of law that the prosecution has to stand on its own legs to prove the charge against the accused and the benefit of doubt, even slightest, shall favour the accused. What to speak of a single doubt, the case in hand is replete with doubts, which is sufficient to tilt the scale of justice in favour of the appellant. Reliance is placed on case titled Muhammad Akram v. The State 2009 SCM R 230, wherein at page No.236, it has been held as under:- "It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right".
17. The nutshell of about discussion is that Criminal Appeal No.208 of 2019 filed by the appellant Ali Muhammad son of Jan Muhammad is allowed, his conviction and sentence awarded by the learned trial Court are set aside and he is acquitted of the charge by giving the benefit of doubt to him. He shall be released from jail forthwith, if not required to be detained in connection with any other case.