ABDUL HAMEED BALOCH, J.---This Criminal Appeal has been filed by the appellants against the judgment dated 16.03.2017 ("the impugned judgment ") passed by the learned Sessions Judge Usta Muhammad ("the trial court "), whereby the appellant was convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 ("P.P.C.") to suffer life imprisonment as Tazeer and to pay compensation amounting to Rs.2,00,000/- (two lac) each to the legal heirs of deceased Mst. Husna Bibi and Ali Hassan each as per provisions contained under section 544-A, Cr.P.C., or in default whereof to further undergo S.I for six (06) months. The benefit of section 382-B of the Criminal Procedure Code, 1898 (" Cr.P.C.") was also extended in favour of the appellant.
2. Brief facts of the prosecution case are that on 25.01.2014 the complainant Ghulam Rasool lodged an FIR No.24/2014 with Police Station Usta Muhammad, alleging therein that about six months ago his son marriage was solemnized with the daughter of Ghulam Qadir and his son was residing in the house of his father-in-law situated in Soomra Muhallah Usta' Muhammad. On the aforesaid date he along with his nephew Pir Muhammad and relative Gul Muhammad went to the house of his son, when at about 1:00 pm, accused persons Ghulam Qadir , Muhammad Bakhsh along with an unknown person armed with firearm and knife came there and. Ghulam Qadir while declaring his wife Mst. Husna as Sihakar with Ali Hassan, started firing at his son, who received bullet injuries and died at the spot while the unknown persons aimed firearm at them and warned them do not come forward. Thereafter accused Muhammad Bakhsh went to the room and cut the neck of Mst. Husna with knife, due to which she also died.
3. After completion of investigation, challan was submitted before the trial Court. Thereafter , on 09th May, 2016 charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. During the trial, the prosecution produced following nine witnesses:- I) PW -1, Ghulam Rasool (complainant), who produced written report Ex. P/1-A .
II) PW-2, Pir Muhammad, eye-witness of the occurrence, who produced site map Ex-P/2-A, recover memo blood stained cotton of deceased Ali Hassan and Mst. Husna Ex.P/2-B and Ex.P/2-D, recovery memo of three empty round and knife Ex-P/2-C and Ex-P/2-E, seal parcels, sample of seal, empty rounds and knife as Article P/1 to Article P/12.
III) PW -.3, Dr . Abdul Jabbar (Medical Of ficer) who produced postmortem report Ex-P/3-A.
IV) PW -4 Mst. Samina, eye-witness of the occurrence.
V) PW-5, Abdul Samad Constable (recov ery witness), who produced recovery memos of blood-stained clothes of deceased Ali Hassan and Mst. Husna as Ex-P/5-A, ExP/5-B, sealed parcels and samples of seals as Article P/13 to P/18, VI) Dr. Raheela Samejo, Lady Medical Officer, who produced postmortem report of deceased Mst. Husna as Ex- P16-A which is according to register record is Ex-P/6-A-I.
VII) PW -7, Abdul Haleem Constable (disclosure witness), who produced disclosure memo Ex-P/7-A.
VIII) PW-8 - Ghulam Akbar SI (1st Inves tigation Officer). Who produced the FIR Ex.P/8-A, site plan as Ex-P/8-B, inquest reports Ex.P/8-C and Ex.P/8-D, incomplete challan Ex.P/8-E, FSL report Ex.P/8-F and incomplete challan Ex.1348-G.
IX) PW-9 Abdul Ghani (2nd Investigation Officer). Who arrested the appellant and produced incomplete challan Ex- P/9-A.
4. On conclusion of prosecution evidence, the appellant was examined under section 342 of the Cr.P.C. wherein he once again professed his innocence. He neither recorded his statement on oath as envisaged under section 340(2) of the Cr.P.C. nor produced any defence witness in his favour . The learned trial, court, on conclusion of the trial, convicted and sentenced the appellant as mentioned hereinabove, hence this appeal.
5. Learned counsel for the appellant contended that the eye witnesses are inter se related to the deceased Ali Hassan then how three persons after committing murder of deceased' left them behind for evidence; that the entire prosecution is based on surmises and conjectures; that role of firing on Ali Hassa n was attributed to absconding, accused Ghulam Qader whereas murder of Ali Hassan took place in the court yard where witnesses were sitting with deceased; that at the time of incident, deceased Husna Bibi was in the room and none witnessed the incident of cutting of throat of Husna Bibi by appellant; that there is no eye-witness of the incident to the extent of murder of Mst. Husna Bibi by the appellant; that the statements of the prosecution witnesses are contradictory with each other; that the impugned judgment suffers from misreading and non- reading of evidence; that the eye-witness are - inter se related and interested witnesses ; that according to Ex-P/8-B PW-1 and PW-2 are away from the place where murder of sana Bibi 'took place; that the trial court has failed to appre ciate the evidence in his true perspective; that there are material irregularities and illegalities in the impugned judgment, which is liable to be set- aside. He lastly urged for acquittal of the appellant.
6. Conversely , learned DPG strongly opposed the contention of learned counsel for the appellant and contended that the prosecution has successfully proved its case against the appellant through confidence inspiring evidence; that despite lengthy cross-examination, the defence failed to shake the statements of the witnesses; that all the witnesses have recorded their statements in .line with each other; that the learned trial court has rightly convicted the appellant for commission of of fence. He lastly urged for dismissal of the appeal.
7. We have heard the learned counsel for the parties and have perused the record with their able assistance. The ease of prosecution rests upon testimonie s of three ocular witnesses, recovery of blood-stained cloths, recovery of blood-stained dagger , disclosure and medical evidence. It is the case of prosecution that the complainant, his nephew and close relative went to the house of his son, who was living with his father-in-law Ghulam Qadir . They were sitting at the courtyard of the house with his son on a bed, meanwhile Ghulam Hussain along with Muhammad Bakhsh came there and while declaring his wife Sihakar with Ali Hassan, took pistol and made firing upon Ali Hassan while Muhammad Bakhs h went inside the room and cut the neck of Mst. Husna with knife, due to which she died at the spot. Muhammad Bakhsh has thrown the knife inside the house. PW-1 during cross- examination stated that they all were sitting at bed along with Ali Hassan while firing was made from distance of 7/8 feet and none other sustained injuries. He further replied that: {{URDU TEXT}}
8. As per prosecution the PW-2 is ocular as well as recovery witness of blood-stai ned cloths of both the deceased as Ex-P/2-B and blood stained earth Ex P/2-D, recovery of three empties Ex-P/2-C, recovery of knife Ex-P/2-E.
PW-2 during cross-examination stated that the deceased Ali Hassan was sitting on another bed. Further stated that: {{URDU TEXT}} Statements of PW-1 and PW-2 manifest that at the time of occurrence PW-4 Mst. Samina was not present, even in the report Ex-P/1-A the presence of PW-4 was not shown. When the name of witness is not mentioned in the FIR, then presence of said witness become doubtful. Reliance is placed on the case of Haji Nader Khan v. State 2003 PCr.LJ 1205.
9. PW-8 (Investigating Officer) stated that he prepared site plan Ex-P/8-B on pointation of PW-1. The site plan does not disclose presence of the witnesses. Although the site plan is not substantive peace of evidence but it cannot be overlooked. The concept of preparation of site plan is that when the witnesses are cited in order to corroborate the version of ocular account, as the witness can change his version but site plan cannot be changed once prepared.
The omission to indicate in site place, position of witnesses at the time of occurrence, reflects on the possibility of witnesses not being present at the time of occurrence. Reliance is placed on the case of Abdul Sattar v. State 2008 PCr .LJ 869 .
10. The statements of prosecution witnes ses are unnatural. Their conduct is not above the board. The conduct of the ocular witnesses (who are father and nephew) did not appeal the prudent mind, as how the accused spared the ocular witnesses to give statement again st them to put them into gallow . The Hon'ble apex Court in a judgment reported in 2017 SCMR 2002 also discarded such fact and in this respect this Court in the case of Muhammad Arif v. State 2019 PCr .LJ 337 also held as under: "Similarly , all the witnesses have admitted in their cross-examination that the injured Raees Muhammad Hussain is their elder , meaning thereby that all the persons were belonged to the party of injured Raees Muhammad Hussain, thus all the witnesses could also easily be targeted by the accused party , but only the deceased Muhammad Salah and his father Raees Muhammad Hussain were hit and all the remaining witnesses including the brothers of deceased i.e. PW-1 and PW-10 were let free by accused party . The presence of all the witnesses especially the presence of PW-1 and PW-10 being the sons of injured PW-3 at the place of occurrence is absolutely doubtful for the reasons that the complainant/PW -I along with his brother PW-10 Muhammad Wafa including the deceased were on the target of the appellant having pistol and Kalashnikov in their hands, but the deceased brother and injured father of the complainant were hit and the complainant along with his brother PW-10 were let free. It does not appeal to the logic that by killing a person in presence of his real brothers, the appellant would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged."
11. Another aspect which does not appeal to the prudent mind that the PW-1 being real father did not take his son to the hospital rather left him at the place of occurrence and rushed to the Police Station for lodging of FIR.
Reliance is placed on the case of Qamar-uz-Zaman v . Haji Allah Bakhsh 2012 SCMR 1281 .
12. Now adverting to the disclosure stated to have been made by the appellant in presence of PW-9, it is to be noted that the Investigation officer had already visited the place of occurrence and prepared site plan, recovered blood stained knife, meaning thereby that all the facts were in the knowledge of the Investigation Officer, under such circumstances the disclosure did not benefit to prosecution even otherwise under Articles-38 and 39 of the Qanun-e-Shahadat Order , 1984 (the Order 1984 ) the disclosure before the police is not admissible. Reliance is placed on the case of Hayatullah v . State 2018 SCMR 2092 .
13. As per PW-1 he along with his nephew and Gul Muhammad were present when the unfortune incident had been occurred, but the said Gul Muhammad was not produced before the trial court despite the fact that he was not related to the complainant and deceased formally , rather he was independent witness. It is settled principle of law when the statement of material witness is withheld without any reasons, under Article 129(g) of the Order 1984 presumption goes against the prosecution. Reliance is placed on the case of Lal Khan v . State 2006 SCMR 1846 .
14. The medical and recovery are corroborative piece of evidence, which itself cannot identified the culprit. The ocular testimonies of the prosecution witnesses are full of discrepancies and contradictory to each other . Tainted piece of evidence cannot corroborate other tainted piece of evidence, as such conviction and sentence cannot be sustained on the basis of such like evidence. It is well settled principle of Criminal Administration of Justice that the accused is favorite child of law and benefit of slightest doubt goes to accused as matter of right. Reliance is placed on the case of Tariq Pervaiz v . State 1995 SCMR 1345 .
15. The case of prosecution stands on ocular account, FSL report, medical certificate, recovery memo and disclosure memo of appellant before police during investigation. The witnesses are related to deceased. On the basis of interested witnesses the conviction in capital charge cannot be sustainable, which requires independent corroboration which is lacking in the case of prosecution. Reliance in this regard is placed in the case of Zahoor Ilahi v . State 1997 SCMR 385 .
Thus, in view of above the appeal is allowed. The impugned judgment dated 16th March, 2017, passed by the learned Sessions Judge Usta Muhammad to the extent of appellant is set-aside. While extending benefit of doubt the appellant Muhammad Bakhsh son of Rasool Bakhsh is acquitted of the charge under sections 302/34, P.P.C. in case FIR No.24 of 2014, Police Station City Usta Muhammad. The appellant being in custody is ordered to be released forthwith if not required in any of her case.