ABDUL HAMEED BALOCH, J.---Through this common judgment, we intend to dispose of Criminal Appeal No. (s) 151 of 2018 filed by the appellant against his conviction, and Criminal Revision Petition No. (s) 14 of 2019 filed by the petitioner for enhancement of the sentence awarded to the appellant vide judgment dated 11th September, 2018 (impugned Judgment) passed by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali (trial court).
2. Precise facts of the case are that on 1st June, 2017, the complainant Mst. Nawab Khatoon gave written report to SHO Police Station Saddar, Dera Murad Jamali to the effect that on the said date her son Mor Khan was present in the house, some one called him that he is waiting for him at Ghuffar Kot, reached there immediately. Her son inquired about that person who told that he is his friend. She stated io her son not to go, but he insisted and went away. At about 9:10 a.m., she received telephonic message that her son Mor Khan has been murdered by one Shahzada Khan by making firing with pistol. The motive alleged was Siakari.
3. After registration of the case investigati on 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 3rd August, 2017, to which the appellant denied and claimed trial. The prosecution in order to substantiate the charge produced six witnesses.
After close of prosecution side the appellant was examined under section 342 Cr.P.C., in which he once again denied the allegation levelled against him and pleaded innocence. Neither the appellant opted to record his statement on oath as mandated by section 340(2), Cr.P.C., nor produced any witness in his defence.
5. On completion of trial arguments were heard by the trial court and thereafter, passed the impugned judgment dated 11th September, 2018 whereby the appellant was awarded conviction under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life as Tazir. The appellant was also liable to pay compensation of Rs. 200,000/- to the legal heirs of deceased Mor Khan as envisaged under section 544-A, Cr.P.C., and in default thereof to further undergo six months simple imprisonment, while extending benefit of Section 382-B, Cr.P.C. Hence being aggrieved of the impugned judgment the appellant filed appeal for his acquittal. whereas the petitioner Mst. Nawab Khatoon preferred revision petition for enhancement of the sentence awarded to the appellant.
6. We have heard both the learned counsel for the parties as well as Additional Prosecutor on behalf of the State, and also gone through the material available on record. The prosecution has examined six witness in order to substantiate its case. It is evident from the record that unnatural death of deceased Mor Khan and receiving bullet injury are not disputed. The appellant pleaded his false implication in the case. PW- I Dr. Muhammad Ibrahim Medical Officer District Headquarter Hospital Dera Murad Jamali examined the deceased and confirmed that the deceased had received bullet injury. PW-1 issued death certificate Ex. P/1-A confirming unnatural death of the deceased.
7. Adverting to the statements of prosecution witnesses. Suffice to observe that the prosecution in order to substantiate the charge has produced evidence of six witnesses. The complainant appeared as PW-2, who reiterated the contents of Fard-e-Biyan and FIR. She made improvements in her statement. Though PW-2 was not directly witnessed the crime. She was informed by the son of PW-3 in respect of making firing upon her son by the appellant. PW-3 is the only ocular witness. He stated that the occurrence had taken place in the main bazaar where shops were open. Except recording statement of PW-3 eye-witness the prosecution did not record statement of any independent witness or nearby shopkeepers. PW-3 admitted that the deceased was his close relative. The complainant (PW-I) stated that the deceased was murdered due to previous enmity between the parties. The statement of eye-witnesses being inimical towards the accused, their statements should not have been accepted without independent corroboration and that the ocular testimony was in conflict with medical evidence. Reliance is placed on Muhammad Irshad v The State, reported in 1999 SCMR 1030.
8. PW-2 is not witness of occurrence. She was informed by the son of PW-3 at 9:30 a.m., on which PW-2 reached the spot. The application for registration of FIR was written. PW-2 in her court statement made dishonest improvement thai appellant had phone the deceased, whereafter, her son went towards him.
Although PW-2 is not ocular witness, the improvement further shakes her testimony. If a witness made improvement in deposition, his/her state ment cannot be taken into consideration. Reliance is placed on case law Ayub Masih v. The State PLD 2002 SC 1048.
9. After registration of the case the investigation of the case was entrusted to PW-6, who reached at the spot. The FIR was registered on the basis of Fard-e Biyan, which was written by a police official at the spot. The time of registration of FIR mentioned in Ex: P/6-A is 9:45 a.m. The Investigating Officer reached at the spot prior to registration of FIR, conducted investigation, recorded statements of only eye/ ocular witness, prepared site plan Ex: P/6-B. prepared memo of blood stained earth Ex. P/5-B, memo of recovery of empty shell Ex: P/5-C and 'remained at the spot till 9:45 a.m. The Investigating Officer commenced the investigation prior to lodging FIR. The FIR is corner stone of the case. Any doubt arise with regard to registration of FIR create suspicion in the case of prosecution. Reliance is placed on lftikhar Hussain v. The State 2004 SCMR 1185.
10. The statement of above referred witness including the statement of complainant established the fact that none of them directly witnessed the crime. In Ex: P/2-A the complainant did not mention that who informed her about the occurrence. The Investigating Officer prepared site plan Ex: P/6-B, in presence of PW-3, the alleged ocular witness, but he did not mention that where the said witness was standing. Though the site plan is not substantive piece of evidence, it shows the presence of witness. It cannot be lightly ignored. Reliance can be placed on Abdul Sattar v. The State reported in 2008 PCr.LJ 869. Similarly in case tilted as Mehr Ali v. The Slate reported in 1968 SCMR 161, at page 169, it was held that: The omission to indicate on the plan where Haku and Patti the alleged eye-witnesses were, when the shooting took place, thus gains significance and reflects on the possibility that Haku and Patti were not there at all when the shooting took place.
The same judgment of august Court was relied upon in case Khan v . The State reported in 1978 PCr .LJ 24.
11.
PW-6 dispatched the blood stained clothes Ex: P/5-A, crime shell Ex: P/5-C, TT pistol Ex: P/4-A to Forensic Science Laboratory (FSL) for analysis, received on 22.8.2017 respectively with positive report of crime weapon, empty shell as Ex: P/6-E and blood stained earth as Ex: P/6.-F. The referred to articles were received with delay of more than two months without reasonable justification. It is to be noted here that the crime weapon and empty shell were sent together. The positive report lost its evidentiary value as it has been held by august Court in case Asad Rehmat v. The State 2019 SCMR 1156.
12. Another aspect of the case is that the prosecution has failed to establish motive behind the occurrence. The complainant in her Fard-e-Biyan Ex: P/2-A had clearly alleged, the motive, but no evidence available on the record to substantiate the same. The conviction can be awarded even in the case where no motive is alleged, but once motive is alleged by the complainant it must be proved and on failure the benefit must go to the accused. Reliance is placed to the case Mst. Mir Shahbano v . Ahmed Khan 2011 YLR 1965 : "15. Another fact to be noted is the motive shown in the FIR which is blood feud enmity. This motive has not been proved at all in the evidence by the prosecution. No documentary proof has been filed. Normally motive is of no avail and in certain cases which are motiveless onviction can be recorded. But once motive is alleged by complainant in report it must beproved and in case of failure, the benefit must go to the accused."
13. The complainant alleged that on receiving telephone call the deceased had left the house. She further alleged in her court deposition that the appellant had telephone the deceased. While on arrest of appellant the mobile and sim were recovered and taken into possession as Ex: 1/5-D. The prosecution has neither collected the Call Data Record (CDR) of the recovered phone of the appellant to ascertain whether the appellant had call the .deceased nor not. Mere recovery of mobile has not substantiated the case of prosecution.
14. The reappraisal of the evidence reveals infirmities, contradictions and discrepancies in the case of prosecution. The impugned judgment reflects that the same is result of misreading and mis -appreciation of the evidence available on the record. The prosecution has miserably failed to prove the charge against the appellant beyond shadow of doubt. According to settled principle of law benefit of even a slightest doubt has to be extended in favour of the accused. Reliance is placed on Hussain Shah v. The State, reported in 2017 MLD 973.
15. In view of the above discussion, the prosecution has failed to prove its case against the appellant 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 appellant is accepted and the impugned judgment dated 11th September , 2018 passed by Additional Sessions Judge, Naseerabad at Dera Murad Jamali, pursuant to FIR No. 75 of 2017 Police Station Saddar , Dera Murad Jamali, is set aside and appellant Shahzada Khan son of Nandho Khan is acquitted of the charge under section 302(b), P.P.C. He is in custo dy, shall be released forthwith if not required in any other case.
These are the reasons of our short order made on 25th September , 2019. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.