ROZI KHAN BARRECH, J.---The appellant having been involved in case FIR No. 3/2016 dated 22.01.20 16 registered under section 302, P.P.C. at Levies Thana Killa Saifullah was tried by learned Sessions Judge, Killa Saifullah ("trial court") and on completion thereof by means of judgment dated 12.11.2016 ("impugned judgment") , convicted and sentenced the appellant in the following terms:-- "16. Keeping in view the decision made herein above, the accused is hereby convicted under section 302(b) of Pakistan Penal Code 1860 and sentenced to death."
Aggrieved from the impugned judgment the appellant has assailed his conviction and sentence through Criminal Appeal bearing No.353 of 2016, while the trial court forwarded Murder Reference No.09 of 2016 for confirmation or otherwise of death sentence inflicted upon the convict/appellant in terms of section 374, Cr.P.C. as both the cases are arising out one and the same judgm ent of the trial court, therefore same are being disposed of through this single judgment.
2. The prosecution story as disclosed in the complaint Ex.P/1-A recorded on the statement of PW-1 Akbar Shah son of Haji Khosti (complainant) is that on 22.01.2016 at 4:00 p.m. his brother namely Wali Khan (deceased) and his cousin Abdul Wahid were working in his field situated at Talag Haiderzai Killa Saifullah. In the meanwhile, the appellant Jalat Khan holding a rifle came there and made firing. Resultantly , his brother Wali Khan received bullet injuries, who died on the spot and the dead body was brought to Civil Hospital Killa Saifullah while his cousin luckily survived. Hence the criminal report.
3. After completion of the investigation the challan was prepared and submitted before the trial court. The trial court after observing the codal formalities as provided under the Code of Criminal Procedure, 1898 framed charge against the appellant to which he did not plead guilty and claimed trial.
4. In order to prove its case the prosecution produced as many as eight witnesses during trial. Akbar Shah (PW-1) was the complainant of the case. Zar Dad, Levies Sepoy (PW-2) was recovery witness of three bullet empties and blood-stained cow-dung (Ex.P/2-A). Abdul Wahid (PW-3) was the eye-witness of the occurrence. Muhammad Essa, Naib Risaldar Levies (PW-4) was witnes s of recovery of weapon of offence i.e. rifle 303 bore, along with live cartridges, allegedly recovered at the instance of the appellant, (Ex.P/4-A). Rafiullah, Levies Sepoy (PW-5) was recovery witness of blood-stained clothes of the deceased (Ex.P/5-A). Zainullah (PW-6-A) and Akhtar Khan (PW-7) are eye- witnesses of the alleged occurrence. The Medical Officer of DHQ Hospital Killa Saifullah (PW-6) examined the dead body of the deceased Wali Khan and produced the medial certificate Ex.P./6-A, wherein the following injuries were found on the dead body: "Firearm injury: A small circular wound of entry on front of chest left side above left. nipple and a larse [sic] would
[sic] of exist back of chest.
Duration: Fresh.
Weapon used: Hard and Blunt.
Cause of death: vital organ damage circulatory and aspiratory failure.
Nature: Fatal."
Muhammad Asadullah Khan, Tehsildar Levies (PW-8) was the investigation officer of the case, who stated about various steps taken by him during investigation of the case. He produced (Ex.P/8-A to Ex . P/8-H).
The statement of the appellant/accused was recorded under section 342, Cr.P.C. wherein he rebutted the allegation levelled against him and professed his innocence. The appellant neither opted to appear as his own witness under section 340(2), Cr.P.C. nor produced any defense witness. After hearing arguments advanced by learned counsel appearing on behalf of both the parties, the trial court while evalu ating the evidence available on record found the version of the prosecution proved beyond the shadow of reasonable doubt. Resultantly , recorded conviction to the appellant in the above terms.
5. Arguments advanced from both the sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. Admittedly it is an unfortunate incident in which brother of the complainant lost his life after sustaining firearm injuries, but to put the facts and circumstances in equilibrium with the touchstone of safe administration of justice, we have scrutinized the whole evidence available on record while weighing the same on judicial parlance. It has been observed by us that the prosecution has led evidence in the shape of ocular account, medical evidence, as well as investigation besides other attending circumstances.
6. As far as merits of the case are concerned, we have observed that the prosecutio n produced PW-3 Abdul Wahid, PW-6-A, Zainullah and PW-7 Akhtar Khan, who were eye-witnesses of the occur rence. Perusal of record shows that the prosecution has produced the above three witnesses in support of its charge but all the above three witnesses are closely related to the deceased Wali Khan. PW-3 Abdul Wahid and PW-6-A Zainullah are cousins of the deceased whereas PW-7 Akhtar Khan is brother of the deceased, therefore, for safe dispensation of justice, their evidence will have to be appreciated with care and caution. No doubt the evidence of the related witnesses cannot be discarded on the ground of its being related to the victim but if it is found that the testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter as such, which cannot be expected from a prudent person, then under such circumstances the evidence furnished by related witnesses cannot be easily discarded. At the touchstone of the above we now take in to consideration the testimonies furnished by the above witnesses in the case.
7. It reflects from the record that the occurrence took place at 4:00 p.m. allegedly in presence of the above three witnesses but the report was lodged at 6:30 p.m. by PW-1 Akbar Shah at DHQ Hospital Killa Saifullah who is not an eye-witness of the alleged occurrence. According to statement of PW-1 when he was informed about the incident by one Akbar he reached Shingai Grid Station where-after the decease d Wali Khan was taken to the hospital in one Abdul Aziz's vehicle. At the hospital he gave his report to Tehsildar Levies for registration of FIR.
The conduct of Abdul Wahid (PW-3), Zainullah (PW-6-A) and Akhtar Khan (PW-7), who are cousins and brother of the C deceased, who instead of shifting the deceased Wali Khan to the hospital kept waiting for Akbar Shah {PW-1) appears to be unnatural. According to PW-1, when he was informed about the alleged incident he was present at Talag Haidarzai which is at a distance of thirteen kilometers from the place of occurrence. According to PW-6-A Zainullah and PW-7 Akhtar Khan they were present at their home when they were informed on telephone that the deceased Wali Khan succumbed to the injuries. Even they did not go with the dead body of the deceased to the hospital.
Had they been present at the spot at the time of alleged occurrence they must have taken the deceased Wali Khan either to the hospital or to Levies Station, which admittedly was not done. For the sake of arguments, even if it is assumed for a moment that personally , they were unable to take the deceased either to the hospital or levies station, then they could at least have deputed someone else for the purpose rather than waiting for the complainant namely Akbar Shah on the spot for taking the deceased to hospital. Ordinarily , from PW-3 Abdul Wahid, PW-6-A Zainullah and PW -7 Akhtar Khan, being brother and cousins of the deceased, one does not expect such conduct.
8. It has been stated earlier that PW-1 Akbar Shah is not eye -witness of the alleged occurrence but the FIR was lodged by the said Witness. For the sake of argument, if it is presumed that PW-3, Abdul Wahid, PW-6-A Zainullah and PW-7 Akhtar Khan were present at the place of occurrence, then naturally they would have lodged the report promptly but they did not do so. It seems that they were not present at the place of occurrence. Furthermore, the FIR was lodged with delay of two and a half hours without any plausible explanat ion, which too creates doubt on the credibility of the above three eye-witnesses. Reliance in this behalf is placed on the case of Mehmood Ahmad and 3 others v . The State and another 1995 SCMR 127 .
It is, important to mention here that the occurrence took place on 22.1.2016 at 4:00 pm while PW-3, PW-6-A and PW-7 claimed to have seen the occurrence and they are also closely related to the deceased but the statements of PW-6-A and PW-7 were recorded under section 161, Cr.P.C. with delay of one day i.e. on the next day of the occurrence and statement of PW-3 Abdu l Wahid was recorded at night on the day of occurrence at his home, without any plausible explanation, therefore, the same is hit by the ratio decidendi given by august Supreme Court of Pakistan laid down in the case of Abdul Khalil v . The State (1996 SCMR 1553 ) wherein it was held as under: ".... It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay ."
Reliance is also placed on the dictum of law. laid down in the cases of Sahib Gul v. Ziarat Gul and others (1976 SCMR 236 ).
9. Apart from the above, PW-3 Abdul Wahid, PW-6-A Zainullah and PW-7 Akhtar Khan were highly interested, who have inimically deposed against the appe llant. First reason for disbelieving them is that their presence on the spot was unnatural because had they been present at the spot they would have received some injuries by the shots fired by the appellant. It appears that they have tried to suppress their interestedn ess. All the three witnesses did not justify their presence at the time and place of occurrence. It does not appe al to the logic that the persons whose' brother and cousin had been murdered, neither made any resistance nor raised hue and cry for help despite the fact that the alleged occurrence took place near the house of one Razo. As per PW-3 Abdul Wahid on 22.01.2016 at 4:00 p.m. he and deceased Wali Khan were in their fields, meanwhile the appellant Jalat Khan armed with a rifle came to the spot and aimed at them; that he and Wali Khan ran toward the house of Razo and the appellant followed them and started firing upon them; that luckily he escape d unhurt but We Khan received injuries on ills chest.
On the other hand according to Zainullah (PW-6-A) and Akhtar Khan (PW-7) on 22.01.2016 they along with' Abdul Wahid (PW-3) and deceased Wali Khan were working in the fields at 4:00 pm, when the appellant came to the spot with a rifle and started firing upon them; that they ran towards the house of one Razo and the appellant followed them and again made firing, whereby the deceased W ali Khan received bullet injuries.
If the statements of the above witnesses is believed to be true for a moment, then the question arises as to why and how the appellant spared them and did not even try to kill them, when he could have easily killed them because they were empty handed and at his mercy , coupled with the fact that they could depose against him as eye-witnesses being brother and cousins of the deceased. The mode and manner of the occurrence, advanced by the prosecution witnesses is not appealab le to the prudent mind. Another interesting feature of the case is that the appellant had no motive to fire at the deceased, armed with a rifle once at the agriculture field and again near the houses. According to statements of the above so-called eye-witnesses they escaped unhurt and did not even receive a scratch in the alleged incident, despite the fact that they were empty handed and were totally at the mercy of the appellant, but they were left alive and the appellant selected to kill the brother of the complainant and PW-7 Akhtar Khan, with whom they have no direct motive and so it may be inferred that the incident did not take place in the way and manner , as it was alleged.
10. The presence of PW-6-A Zainullah and PW-7 Akhtar Khan becomes further doubtful, because the complainant did not mention the names of the said witnesses in his report Ex.P/1-A and did not state a single word in his report as well as in his statement that they were present at the time of alleged occurrence. The statement of PW-3 is contradictory with the statements of PW-6-A and PW7. According to PW-3 Abdul Wahid, he and deceased Wali Khan were working at the agriculture field and he did not mention the names of PW-6-A and PW-7 but on the other hand, according to PW-6-A and PW-7, they along with Abdul Wahid (PW-3) and deceased Wali Khan were working at agriculture fields. Statement of the above witnesses becomes further contradict ory because, according to PW-3 Abdul Wahid, appellant Jalat Khan came at the place of occurrence and pointed rifle upon them. On the other hand according to PW-6-A and P W-7, they were working at the field when the appellant came to the spot and made firing when they ran away but the appellant followed them and again made firing when they reached near the houses. All these material contradictions in the statements of the above eye-w itnesses would lead to obvious inference that the occurrence was not witnessed by them and their presence at the spot was doubtful.
11. According to the eye-witnesses the appellant made firing near the houses and according to the complainant (PW-1) he was informed by one Akbar and the deceased was taken to the hospital in a vehicle of one Abdul Aziz.
No impartial evidence could have come from the neighborhood to corroborate the prosecution case, which of course could have been available due to gunshots fired. Such being the case, the indication and production of only interested and inter-related persons and non-production of Muhammad Akbar and Abdul Aziz as witnesses before the court further makes the prosecution case doubtful under Article 129(g) of Qanun-e-Shahadat Order 1984.
Reliance is placed in the case of Pathan v . The State (2015 SCMR 315 ).
12. It is worthwhile to mention here that the medical certificate itself is contradictory with ocular evidence. PW-6 produced the medical certificate of the deceased as Ex.P/6-A according to which the weapon used was "hard and blunt", however it is also mentioned in injury No.1 that there is "arm injuries", which create reasonable doubt in prosecution case because PW-6 did not explain as to how he mentioned the words "hard and blunt" with regard to weapon used.
13. As far as alleged recovery of rifle at the instance of the appellant and positive forensic expert report i.e. Ex.P/8- E are concerned, prosecution produced PW-4 Muhammad Essa, Levies Khasad ar. According to his version on 12.06.2016 at Levies Thana Killa Saifullah the accused disclosed during investigation that he can recover the crime weapon (rifle). On the said disclosure, the accused/appellant was taken to the house of one Abdul Ghafar , wherefrom the appellant got the rifle recovered, which was hidden beneath the pile of bed-sheets, which was taken into possession through recovery memo Ex.P/4-B. According to PW-4 the appellant was taken in a levies pickup, when the accused was sitting in the rear of the vehicle, whereas there was also a curtain hanging between the rear (back of the pickup) and front portion of the vehicle, under such circumstances how it is possible that when he was not sitting in the front portion of the vehicle rather in the rear of the vehicle (body of the pickup) and pointed the house of one Abdul Ghafar . It has further been stated by PW-4 that when they reached to the house of Ghaf far, and knocked the door, Abdul Ghaf far and his two sons came out of the house but the prosecution did not make the said two sons and Abdul Ghaf far as a witness and only produced PW-4 Muhammad Essa, levies sepoy as a witness of recovery . Despite the fact that private witnesses were present at the time of recove ry. Moreover , when, neither the said house belonged to the accused/appellant nor the said Abdul Ghafar is relative of the accused, then how it is possible, that he (accused) kept the rifle in the house of a stranger in a room beneath the pile of bed-sheets, which creates reasonable doubt in the prosecution case. Reliance is placed in this regard in the case titled as Sagan Solangi v . The State (2019 SCMR 872 ).
14. Allegedly the occurrence took place on 21.01.2016 and the accused/appellant was arrested on the next day.
The alleged recovery was effected on pointation of the appellant on 2.2.2016 after 11 days of his arrest. The alleged three empties were taken into possession by the prosecution through recovery memo on the date of occurrence i.e. 21.01.2016. As per record the allegedly recovered rifle and empties were sent to forensic expert together on 29.07.2016 and it was received by FSL on 12th August 2016 after eight months. It is important to mention here that the statement of recovery witness was recorded by the trial court on 2.5.2016 and rifle and bullet empties were produced before the court as Article P-7 and Article P-8, meaning thereby that the bullet empties and rifle were sent to Forensic Expert after eight months from the recovery as well as after recording statements of recovery witnesses and production of allegedly recovered bullet empties and rifle before the court. Sending of crime weapon (rifle) and bullet empties together with delay of eight months to Forensic Expert create reasonable doubt in the prosecution case, therefore, the forensic expert report in this regard is inconsequential to the prosecution case. Reliance is placed in the case titled as Nazir Ahmed v. The State (2016 SCMR' 1628) wherein it has been held as under: "...the crime-empty secured from the place of occurrence was sent to the Forensic Science Laboratory after recovery of the gun rendering such recovery to be legally unacceptable---"
Reliance is also placed on the case of Ali Sher and others v. The State (2008 SCMR 707) and Israr Ali v. The State (2007 SCMR 525). In the case of Muhammad Ashraf v. The State (2019 SCMR 652) the Hon'ble Supreme Court observed as under: "After scrutiny of evidence, it has been observed by us that no such corroboration is available on record because the empties secured from the spot and the .30 bore pistol allegedly recovered from the possession of appellant at the time of his arrest were sent to the office of FSL on the same day i.e. on 21.03.2002 after the arrest of appellant on 23.01.2002. In these circumstances, the report of FSL cannot be relied and is legally inconsequential."
15. All the above narrated facts and circumstances when evaluated on the judicial parlance reflect that the prosecution has failed to establish the culpability of the appellant in the instant case through reliable, trustworthy and confidence inspiring evidence. It is an established principle of law that for extending benefit of doubt in favour of the accused so many circumstances are not required rather one circumstance, which creates reasonable dent in the veracity of the prosecution version can be taken into consideration for the purpose not as a matter of grace rather as a matter of right. Respectful reliance in this regard is placed in the cases of Tariq Pervaiz v. The State (1995 SCMR 1345 ) and Riaz Masih v . State (1995 SCMR 1730 ).
16. From the facts and circumstances narrated above, we are persuaded to hold that conviction passed by the learned trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Resultantly while setting aside the conviction and sentence recorded by the trial court in terms of judgment dated 12.11.2016, Criminal Appeal No.353/2016 filed by the appellant is allowed as a consequence whereof he is ordered to be acquitted of the charge in FIR No. 3/2016 dated 22.01.2016 registered under section 302, P.P.C. at Levies Thana Killa Saifullah. He is directed to be released forthwith if not required in any other case.
The Murder Reference No. 09 of 2016 is answered in NEGA TIVE.