MUHAMMAD EJAZ SWATI, J.--The appellant Bahadur Khan son of Abdul Rehman was tried by the learned Sessions Judge (Ad hoc)/ Model Criminal Trial Court-I, Quetta ('the trial Court' ) in respect of FIR No.122 of 2010, dated 24th July 2010, at about 09:40 a.m. registered with Police Station, Sariab, Quetta under sections 302, 324/34, Pakistan Penal Code (P.P.C), wherein, the complainant Asadullah alleged that on the above date at about 09:10 a.m. he along with his father Faqir Muhammad was proceeding to City, via Sariab; Road, Quetta, when at about 9.00 a.m. they reached at the gate of Telephone and Telegram (T&T) Colony , all of sudden, from their behind firing started at them. He saw that appellant (Bahadur Khan) was making firing with pistol, while his nephew Imdad Ali, was standing along with start Motorcycle, CD-70, without number plate. As a result of firing shot, his father sustained firearm injuries, fell down and succumb to the injuries. The appellant after commission of offence, escaped from the place of incident on motorcycle towards Railway line.
2. The co-accused Imdad Ali was convi cted by the learned Sessions Judge, Quetta, vide judgment dated 28th March 2013, however , this Court while allowing Criminal Jail Appeal No.13 of 2013, vide judgment dated 27th October 2014, acquitted him of the charge.
3. After arrest of the appellant, on 6th May 2019, the trial Court framed charge, to which appellant pleaded not guilty and claimed trial. Prosecution examined eight witnesses. When examined under Section 342 Cr.P.C., appellant denied the allegations levelled against him by the prosecution. He neither recorded his statement under Section 342 Cr .P.C., nor produced any evidence in his defence.
4. The trial Court, vide judgment dated 5th October 2019 ('the impugned judgment') convicted the appellant, under Section 302(b) Pakistan Penal Code ('P.P.C.') and sentenced to suffer imprisonment for life and to pay compensation of Rs.5,00,000/- under Section 544 Criminal Procedure Code ('Cr.P.C.') to be paid to the legal heirs of deceased Faqir Muhammad.
5. The appellant challenged the impugned judgment by way of filing Criminal Appeal No.435 of 2019, while complainant filed Criminal Revision Petition No.42 of 2019 for enhancement of the sentence, both are being disposed of through this common judgment.
6. Learned counsel for the appellant contended that PW-1 (complainant) had failed to prove his presence at the place of incident at relevant time; that co-accused Imdad Ali has been acquitted, therefore, conviction of the appellant on the basis of same evidence is not sustainable; that prosecution has failed to establish charge beyond reasonable doubt and impugned judgment is liable to be set aside.
7. Learned Additional P.G. contended that sole testimony of the complainant has further been corroborated through disclosure of the co-accused, medical evidence and motive alleged was also proved; that acquittal of co-accused would not enhance the case of the appell ant as no specific role of firing was ascribed to the co-accused; that direct role of firing to the deceased on the part of appellant not only established his pre-intend for committing murder of the deceased, but there was no mitigating circumstance, therefore, appellant also deserves normal penalty .
8. We have heard the learned counsel for the parties and perused the record. The case of prosecution hinges on ocular account furnished by PW-1 Asadullah, complainant, who is real son of deceased Faqir Muhammad, disclosure of acquitted accused Imdad Ali Ex.P/4-A, disclosure statement of appellant Ex.P/5-A and medical certificate/death certificate of deceased Ex.P/3-A. The alleged disclosure of the appellant was recorded on 2nd April 2019, wherein all those facts mentioned in the FIR Ex.P/7-A registered on 24th July 2010 were reproduced.
Similarly , the disclosure statement of co-accused Imdad Ali, Ex.P/4-A was discarded by this Court in Criminal Jail Appeal No.I3 of 2013, on the following grounds: "10. In the present case, the disclosure of appellant Ex.P1.5-A has been relied upon by the trial Court. The alleged disclosure of the appellant was recorded on 20th March 2012, wherein all those facts mentioned in the FIR Ex. P/6- A registered on 24th July 2010 were repro duced, therefore, whatever facts are A mentioned in the disclosure of the appellant, the police had previously learnt when the FIR was registered, thus Ex. P/S-A cannot he considered discovery of new fact within the meaning of Article 40 of the Qanun-e-Shahadat Order , 1984 (hereinafter the "Order , 1984"). In the case, of Mst. Askar Jan v. Muhammad Daud , 2010 SCMR 1604 , the Hon'ble Supreme Court in respect of application of Article 40 of the Order , 1984 held as under .- "Thus, in order to apply Article 40 of the Order , the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given by the accused. Reference is also invited 'to Jaffer Husain v. State of Maharashtra (AIR 1970 Supreme Court 1934). It is also important to note that the recovery of articles cannot be described as a discovery under Article 40 of the Order when they are not recovered from any hidden place and if in the normal course of investigation the investigation agency is bound to see them and take in possession without the accused making any statement of pointing them out."
9. In the above circumstances Ex.P/4-A and Ex.P/5-A, the alleged disclosures cannot be considered discovery of new facts within the meaning of Article 40 of Qanun-e-Shahadat Order , 1984.
10. Whereas, the sole testimony of ocular account furnished by PW-1 Asadullah (complainant) is concerned, his unnatural conduct could not justify his presence at the spot at relevant time. According to FIR Ex.P/7-A, the incident had taken place at 09/10 a.m. on 24th July 2010, at a place, one an half kilometer away from Police Station and the FIR was registered at about 09:40 a.m. According to PW-4 Abdul Rauf and PW-7 Ghulam Fareed, Investigating Officers, they reached at the place of incident at 10.00 a.m. and according to PW-3 Dr. Abdul Rasheed, the deadbody of the deceased Faqir Muham mad was brought on 24th July 2010, at 09:45 a.m. by Kamran ASI, of Sariab Police Station. PW-1 Asadullah who furnished the ocular account, if had seen the occurrence, nothing prevented him to accompany the decea sed Faqir Muhammad to the hospital for postmortem examination. The MLC Ex.P/3-A and inquest report Ex.P/7- C negate the presence of PW-1 Asadullah, either at the place of incident at the relevant time, or in hospital, when inquest report, according to PW-7 was prepared. Such unnatural conduct of PW-1 created doubt in their statements and cannot be made basis without any other independent corroboration for conviction of the appellant. In case reported in 2017 SCMR 596, the. Hon'ble Supreme Court of Pakistan, discarded the statement of an eye-witness as a whole on a single doubt about witness's presence on the spot. In case titled Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela and another , 2016 SCMR 1241 , the Hon'ble Supreme Court of Pakistan, discarded the statements of PWs on the ground, that none of them cared to carry the injured to hospital, rather , proceeded to Police Station for registration of FIR, and observed as under: "The appellate Court also seriously doubted the presence of eye-witnesses at the spot for the reason that while Shakir Akbar was dead and Naveed Akhtar was in injured condition, none of the PWs had cared to carry Naveed Akhtar , injured, to the Hospital rather the complainant/PW -8 proceeded to Police Station for registration of FIR.
Even the Driver of the private car, who was a witness, was not produced eithe r during investigation or trial to support the prosecution version so much so that his name was also not disclosed. PW-9 has stated that Naveed Akhtar was shifted in another car in injure d condition to DHQ Hospital, Okara, where he died after 4/5 hours of the occurrence. It was noted by the appellate Court that had these witnesses been present at the spot their natural conduct would have been to immediately remove the injured Naveed Akhtar to Hospital for saving his life in the vehicle which was available with them, as it appears such was not done by these PWs."
11. In the instant case, PW-1 (Asadullah) the real son of the deceased failed to bring anything on record to establish his claimed presence with the deceased at the relevant time and the prosecution has failed to prove case against the appellant beyond any reaso nable doubt, therefore, benefit of doubt is extended in favour of the appellant.
In view of the above, Criminal Appeal No.435 of 2019, is allowed, the impugned judgment dated 5th October 2019, passed by the trial Court is set aside, and the appellant Bahadur Khan son of Abdul Rehman alias Raees, is acquitted of the charge, in respect of FIR No.122 of 2010, registered with Police Station Sariab, Quetta, under Sections 302, 324, 34 P.P.C. He shall be released from the Jail, forthwith, if not required to be detained in connection with any other case.
Consequently Criminal Revision Petition No.42 of 2019 is dismissed.