ABDUL HAMEED BALOCH, J .---Through this common judgment we intend to dispose of criminal appeal No.(s) 43 of 2019 filed by the appellants against their conviction, and criminal revision petition No.(s) 15 of 2019 filed by the petitioner for enhancement of the sentence awarded to the appellants vide judgment dated 6th February , 2019 (impugned Judgment) passed by learned Additional Sessions Judge, Naseerabad (trial court).
2. Precise facts of the case are that on 16th February , 2018, complainant Hidayatullah gave written report to SHO Police Station Saddar , Dera Murad Jamali to the effect that on the said date the complainant along with his brother Muhammad Sadiq, Attaullah and mother Sakina were sitting in their house and were taking tea. At 5:35 a.m., Faiq Ali duly armed with TT pistal came there with Abdullah and Muhammad Salah and shout that Muhammad Sadiq is Siakar with his wife Bibi Zahida and fired at Muhammad Sadiq, due to which he became injured. It is further alleged that due to empty handed and fear he and his brother could do nothing. It is further alleged by the complainant that after this the accused also made firing on Bibi Zahida due to which she died. It is further , alleged that injured Muhammad Sadiq shifted to hospital, but he succumbed to the injuries. With these averments FIR No. 12 of 2018, under Section 302, 34 Pakistan Penal Code (P .P.C.) was registered at Police Station Saddar , Dera Murad Jamali.
3. After registration of the case investigation was carried out and after completion of the same challan was submitted before the trial court.
4. The trial court after codal formalities framed charge on 4th July 2018, to which the appellants denied and claimed trial. The prosecution in order to substantiate the charge produced 11 witnesses. After close of prosecution side the appellants were examined under Section 342 Cr.P.C, in which they once again denied the allegation leveled against them and pleaded innocence. Neither the appellants opted to record their statements on oath as mandated by Section 340(2) Cr .P.C, nor produced any witness in their defence.
5. On completion of trial arguments were heard by the trial court and thereafter passed the impugned judgment dated 2nd April, 2019, whereby the appellants were awarded conviction under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life as Tazir on two counts. The appellants were also liable to pay compensation of Rs.200,000/- each separately to the legal heirs of deceased Muhammad Sadiq and Bibi Zahida as envisaged under Section 544-A Cr.P.C and in default thereof to further undergo six months for each default. The punishments awarded were ordered to run concurrently with benefit of Section 382 B Cr.P.C. Hence being aggrieved of the impugned judgment the appellants filed appeal for their acquittal, whereas the petitioner Hidayatullah preferred revision petition for enhancement of the sentence awarded to the appellants.
6. We have heard both the learned counsel for the parties and Additional Prosec utor on behalf of the State, and also gone through the material available on record. The prosecution has examined eleven witnesses in order to substantiate its case. The case of prosecution hinges on testimony of ocular witnesses, recovery of blood-stained earth, crime shell, medical certificates, abscondence, recovery of crime pistol on disclosure and pointation of accused/appellant No.1 and FSL Report. The case of prosecution in nutshell is that the complainant along with his brothers Sadiq (deceased); Attaullah and mother Bibi Sakina were sitting in the house in early morning. The appellants came there. The appellant No.1 shouted that he declared his wife as Siakar with Sadiq, fired upon Sadiq. After the occurrence they left the house. The appellant No. 1 also killed his wife by making firing. The testimony of ocular account is not in line with each other , rather they contradicted each other . The witnesses alleged that they were sitting together along with deceased in kitchen and taking tea. Meanwhile the accused/ appellant No. I appeared along with companions, fired at deceased. Except Sadiq (deceased) no other has sustained injury despite they all were sitting together with a distance of two feet. PW-1 stated that four bullets were fired. The accused hold the neck of deceased and fired. Thereafter , they put the deceased on ground and also made fire on him, while PW-2 and PW-3 did not state so. PW-1 stated that he had taken Sadiq to police station with brother Azad Khan and uncle Baloch. They kept the injured outside Thana. We went in Thana for registration of FIR and remained there for 10/15 minutes. Ex: P/i-A was written by Arbab Ali SI. Therea fter they took the deceased and reached hospital at 7:00 a.m. At that time the deceased was alive. PW-2 mother of the deceased narrated the story differently . PW-2 stated that she along with complainant went to police station. The injured was with them. She also went inside Thana. She has no knowledge where Sadiq was kept. PW-3 replied the question in cross-examination that they proceeded to Thana by foot for registration of FIR. When we proceeded to Thana at that time Sadiq was expired.
7. The testimony of ocular witnesses is contradictory to each other on material points. If it is believed that the complainant and PW-1 were with the deceased, then their, conduct does not appeal to prudent mind, as the deceased who was brother of complainant and PW-3 was being done to death they remained calm and do not resist or make hue and cry. Whereafter simply went to police station for registration of FIR. It is also not believable that by killing a person in presence of his close relatives the accused would not attempt to cause any injury to the PWs for their evidence to be hanged. Reliance is placed on case law Gul Mir v. The State, reported in 2018 PCr.LJ 1216 and Muhammad Arif v . The State , reported in 2019 PCr .LJ 337 .
8. Suffice to mention here that complainant registered the FIR at 6:35 a.m., at police station; his Fard-e-Biyan was written by a police of ficer. In cross-examination the brother of the complainant PW -3 replied to a question: {{URDU TEXT}}
9. The mother of the deceased PW-2 stated that her statement was recorded at her house in the morning by Investigating Officer. The statement of PW-3 belies the statement of other ocular witness. If the statement of PW-3 is considered then all the proceedings conducted by Investigating Officer before registration of FIR. At the same time stated that he recorded her statement on the fateful day at 12:00 a.m. The dead body was examined by PW-9, who stated that the patient was expired within 15 minutes at hospital. From the above over all contradictions it appears that the complainant and PWs did not witness the incident. Reliance is placed on case law titled Abdul Samad v . The State , reported in 2018 YLR 2053 .
10. It needs no many points to discredit the statement of a witness, only one point is enough to disbelieve the statement of a witness. It is worth to mention that the statement of a witness has to take into consideration as a whole and not in pieces. It is not permissible to partially accept and partially refuse, as held in case Jehan Bahadur v. The State, 2013 YLR 2772 . It is fundamental principle of criminal jurisprudence that to disbelieve a witness, it was not necessary that there should be numerous infirmities, if there was one which would impeach the credibility of the witness, that could make the entire statement doubtful.
11. Further , it is to be noted that the prosecution has secured empties from the place of incident, produced as Ex: P/8- B, while Ex: P/9-A transpires that the deceased received five bullet injuries. It trashes the evidence of prosecution, as from where the other three injuries were received despite the fact that the incident had taken place in the house of the complainant and exce pt family members no other person was present there. Another aspect of the case has to be considered. As per PW-3 firing was made from distance of 2/3 feet, while PW-9 stated that, the distance was 10/15 feet. The Investigating Officer visited the site, prepared site plan as Ex: P/10-B, which transpires that the deceased along with family members were at point 1 in kitchen where fire was made from point 2, which belies the statement of P.W.3. It is held by honourable Supreme Court in case Muhammad Rafique v.
The State 2014 SCMR 1698 : .....According to the medical evidence the firearm injury received by the deceased had blackening around it whereas according to the site-plan of the place of occurrence statedly prepared at the instance of the eye- witnesses a shot at the deceased had been fired from a distance of about eleven feet."
12. PW-5 is the witness of disclosure of accused/appellant No. 1. The Investigating Officer recovered the crime weapon from the bushes on pointation of accused/ appellant No.1 on 10th June, 2018, meaning thereby that after more than three months. It is to be noted that the place of recovery is abandoned place. Neither the place of recovery is in possession, nor in ownership of accused/appellant No. 1. It was an open place. The alleged recovered pistol was not sent to FSL. The prosecution could not take benefit from this recovery . The blood stained earth of deceased Ex:P/5-A, Ex: P/5-B and blood stained clothes of deceased Ex:P/8-A and Ex: P/8-C were received to FSL on 3rd April 2018, meani ng thereby that more than 45 days where these articles were kept and in whose custody . Reliance is placed on Ali Bakhsh alias Ali Dost v . The State 2018 PCr .LJ 866 . #TE##
13. As far as the absconsion of accused is concerned. Mere absconsion has never been considered to be a corroborative piece of evidence. Reliance is placed on case law titled as Muhammad Farooq v. The State reported in 2006 SCMR 1707 .
14. In view of the ocular testimony of the prosecution witnesses, contradictions, omissions and discrepancies in their statements, lacking of independent corroboration, the false implication of the appellants by the PWs cannot be ruled out. The perusal of impugned judgment shows that the same is suffering from mis-appreciation of the material available on the record. Even an accused cannot be deprived of benefit of doubt nor merely become only one circumstance which create doubt in the prosecution story , whereas in the case in hand there are series of doubts.
The honorable Supreme Court held in case Ayub Masih v . The State PLD 2002 SC 1048 : "....The rule of benefit of doubt, which is described as the golden rule, is essen tially a rule of prudence which cannot be ignored while dispensing justic e in accordance with law. This rule is based on that maxim: "it is better that ten guilty persons be acquitted rather than one innocent person be convicted."
In simple words it means that utmost care and caution should be taken by the court in convicting an accused.
15. In view of the above discussion, the prosecution has failed to prove its case against the appellants beyond shadow of doubt, as such the criminal revision petition filed by the petitioner for enhancement of sentence being devoid of merit is dismissed and the appeal filed by the appellants is accepted and the impugned judgment dated 2nd April, 2019 passed by Additional Sessions Judge, Naseerabad at Dera Murad Jamali, pursuant to FIR No. 12 of 2018 Police Station Saddar , Dera Murad Jamali, is set aside and appellants Faiq Ali and Abdullah both sons of Muhammad Yaqoob and Muhammad Salah son of Muhammad Faqir are acquitt ed of the charge under Section 302(b), 34 P .P.C. They are in custody , shall be released forthwith if not required in any other case.
There are the reasons of our short order made on 26th September , 2019.