ABDULLAH BALOCH, J.---This judgment disposes of Criminal Appeal No.(S) 57 of 2019 filed by the appellant Zaman Khan son of Kalay Bakhsh, against the judgment dated April 2019 (hereinafter referred as, "the impugned judgment") passed by learned Additional Sessions Judge, Bhag at Dhadar (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 302(b), P.P.C. as Tazir and sentenced to suffer imprisonment for life i.e 25-years on two counts for causing the murder of deceased Dad Muhammad and Muhammad Azeem and to pay Rs.100,000/- (One Thousand Rupees) each as compensation to the legal heirs of deceased as envisaged under section 544-A, Cr.P.C. and in default thereof to further suffers six (6) months'
S.I. each; under section 148, P.P.C. to suffer three (3) years' R.I. each with fine of Rs.10,000/- each or in default thereof to further suffer two (02) months' S.I. each, with the benefit of section 382-B, Cr.P.C.
2. Facts of the case are that on 25th July 2017, the complainant Rasool Bakhsh son of Musa Khan, lodged FIR No.06 of 2017 at Levies Station Sub-Tehsil Sunni district Kachhi under sections 302, 147, 148, 149, P.P.C. therein that on the day of occurrence at about 05.00 p.m., he along with Muhammad Azeem and Dad Muhammad were present in their lands. In the meantime, accused persons namely Qadan, Nabi Bakhsh, Muhammad Sadiq, Shah Nawaz, Muhammad Bakhsh, Zaman, Zahoor Ahmed along with their four unknown accomplices being armed with deadly weapons came there and started indiscriminate firing, as a result whereof Dad Muhammad son of Abdul Majeed and Muhammad Azeem son of Muhammad Umer, died on the spot. The incident was witnessed by Niazullah son of Muhammad Arif and Eidal Khan son of Muhammad Haroon.
3. After registration of FIR, initially the investigation was entrusted to PW-6 Abdul Raziq, Naib Tehsildar, who rushed to the place of occurrence, inspected the site, prepared site map; shifted the dead bodies to hospital; prepared inquest report; collected 49-empties of Kalashnikov from the place of occurrence; collected blood stained earth and blood stained clothes of deceased and sent the same to FSL for analysis; recorded the statements of witnesses under section 161, Cr.P.C.; obtained MLCs of deceased and on completion of investigation submitted the challan in the Court of Judicial Magistrate Dhadar, who initiated proceedings under section 512, Cr.P.C. The appellant was arrested on 2nd January 2019, who was subjected to investigation by PW-7 Muhammad Anwar, Naib Tehsildar/2nd I.O., who recorded the statements of accused and took into possession the affidavits of two witnesses produced by the appellant; receipt FSL report and on completion of investigation submitted the challan in the trial Court.
4. At the trial, the nominated accused Qadan, Nabi Bakhsh, Muhammad Saddiqe sons of Allah Bakhsh, Shah Nawaz, Muhammad Bakhsh son of Shahan and Zahoor Ahmed son of Zaman Khan were not arrested, thus proceedings under sections 87 and 88, Cr.P.C. were carried out and they were declared as proclaimed offenders,
5. To substantiate its case, the prosecution produced seven witnesses, whereafter the appellant was examined under section 342, Cr.P.C. He also recorded his statement on oath under section 340(2), Cr.P.C. and produced two defence witnesses namely DW-1 Bashir Ahmed Shah and DW-2 Shahzada. On conclusion of trial, the trial Court convicted and sentenced the appellant as mentioned above in Para No.1, whereafter instant appeal has been filed.
6. Learned counsel for appellant contended that the impugned judgment is result of mis-reading, non-reading and mis-appreciation of material available on record; that the case of prosecution is lacking independent corroboration as only , interested witnesses have been produced; that all the prosecution witnesses made contradictory statements to each other and did not support the case of prosecution; that the prosecution witnesses have failed to justify their presence at the crime scene; that the prosecution has failed to produce any iota of evidence connecting the appellant with the commission of crime; that no crime weapon was recovered from the appellant; that the prosecution has miserably failed to substantiate the charge against the appellant; that the defence so produced and established by the appellant has not been appreciated. Lastly, the learned counsel for appellant prayed for acquittal of the appellant.
7. Learned Additional Prosecutor General has supported the impugned judgment passed by the trial Court and strongly opposed the arguments so advanced by the learned counsel for appellant by contending that sufficient incriminating evidence is available on record connecting the appellant with the commission of crime and the appellant has failed to rebut his false implication by the prosecution witnesses; that the impugned judgment of the Court below is based upon proper appraisal of material available on record and is not open for interference by this Court.
8. Heard the learned counsel and perused the available record. To substantiate the charge of dual murders against the appellant and absconding accused, the prosecution produced the evidence of seven witnesses, out of whom PW-1 Rasool Bakhsh (complainant), PW-2 Niazullah and PW-4 are claiming to be the eye-witnesses of the occurrence, while PW-3 Dr. Saved Ahmed, Medical Officer examined the deceased and issued MLCs, PW-5 Bahadar Khan is the recovery witness of empties, blood stained articles and site map, while PW-6 and PW-7 are the Investigating Officers, who counted the steps taken by them during the course of investigation.
9. As mentioned above, we observe that the case of prosecution rests upon the direct ocular account of the eye- witnesses mainly PW-J, PW-2 and PW-4, Perusal of statements of all the three eye-witnesses reflect that they made contradictory statements with each other on all material counts and even they have also contradicted the statements of other witnesses, besides they have made certain dishonest improvements from their earlier depositions. Admittedly, the FIR has been lodged on the complaint/fard-e-bayan (Ex.P/1-A) of the complainant, wherein the complainant/PW-1 has stated that on the day of occurrence at about 5.00 p.m. he along with deceased Dad Muhammad and Muhammad Azeem were working in their fields, when all of sudden the appellant along with the absconding accused persons arrived at site and started indiscriminate firing, resultantly deceased Dad Muhammad and Muhammad Azeem were murdered, According to the contents of fard-e-bayan PW-2 and PW-4 have also witnessed the crime. Undoubtedly, the complainant in his fard-e-bayan has not attributed or ascribed any specific role either to the appellant or to the absconding accused, but ' while appearing in the Court as PW-1, the complainant made dishonest improvements and stated that accused Qadan and appellant Zaman made firing upon the deceased, Though, the contents of fard-e-bayan are silent that in which part of their bodies they received bullet injuries and what he did after the occurrence, but in his Court statement this witness has mentioned that the deceased Dad Muhammad received bullet injuries upper side of his right eye, right leg and on his chest at left side while the deceased Azeem received upper side of his right eye and after the occurrence he went to Levies Thane for reporting the matter, while PW-2 and PW-3 stayed near the dead bodies. It is mentioned in the fard-e-bayan by the PW-1 that they were ploughing in their lands, while in his cross-examination he stated that they were working with Mattock and Spade. According to PW-1 he was working in his fields along with deceased at the distance of 5/10 paces.
10. Now adverting to the statement of second eye-witness of the occurrence i.e. PW-2 Niaz Ullah. This witness in his statement under section 161, Cr.P.C. has not ascribed any specific role to any of the accused rather general allegations of making firing was attributed upon all the nominated accused persons, but this witness while recording his statement in the trial Court made dishonest improvements from his earlier deposition and ascribed the role of firing to the appellant and absconding accused Qadan. PW-2 in his cross-examination has brought on record that at the time of occurrence they along with the deceased and the complainant were also cutting bushes. PW-2 has contradicted the statement of PW-1 and stated that at the time of occurrence the complainant was at the distance of about 100-spaces from the deceased persons. PW-2 further contradicted the statement of PW-1 and stated that after the occurrence PW-1 and PW-4 went to Levies Thana for reporting the matter, while PW-1 has stated that he alone went to Levies Thana while the PW-2 and PW-4 remained nearby the dead bodies.
11. The next eye-witness of the occurrence is PW-4 Eidal son of Haroon, who contradicted the contents of fard- e-bayan, the statement of complainant/PW-1 as well as the statement of PW-2. Likewise, PW-2 this witness in his earlier deposition recorded during investigation has levelled general allegations of firing upon all the accused persons, but during his examination in chief before the trial Court he attributed the role of firing only upon the accused Qadan and appellant Zaman. This witness has advanced a step forward and stated that the accused persons also launched attack upon the complainant/PW-1, while the entire statements of PW-1 and PW-2 are silent in such behalf. This witness has also stated that they were cutting the bushes, while to the contrary PW-5 being the witness of site inspection memo and recovery witness has contradicted the statements of all the three eye-witnesses of the occurrence and stated that at the time of occurrence the complainant along with eye- witnesses and the deceased were ploughing in the lands through Tractor and the tyres signs of tractor were also apparent. Voluntarily stated that the dispute in between both the parties arose due to ploughing.
12. We have analyzed the statements of all the three alleged eyewitnesses with utmost care, caution and weigh the same on all angles and observed that the same are not ringing true. None of the three ocular witnesses have justified their presence at the place of occurrence at relevant time and it appears from the statement of each witness that none of them have witnessed the crime. All the three eye-witnesses not only contradicted their earlier depositions, but also contradicted each other on material counts and each witness has uttered the occurrence in a different manner. Even otherwise, the witnesses have contradicted each other with regard to nature of work and the equipments through which the said work was being carried out and even they have failed to utter their exact locations in the fields at the relevant time of occurrence. None of the three alleged eye-witnesses have made any resistance or made an attempt to rescue the deceased. Even otherwise, according to the case of prosecution all the three witnesses including the deceased were present in the said place, while allegedly the accused persons armed with Kalashnikov made indiscriminate firing upon the deceased and the Investigating Officer collected 49-empties of Kalashnikov from the place of occurrence, but surprisingly only three bullets hit to both the deceased, while all the three alleged eye-witnesses escaped unhurt. More particularly all the witnesses are close relatives of deceased and belong to same tribe i.e. Ghulam Bolak. Hence, the conduct of the witnesses by not making resistance or rescuing the deceased or escaping unhurt from the hands of accused party has created a reasonable doubt with regard to their presence at the place of occurrence or witnessing the crime with their open eyes. The role of audience played by the three witnesses letting the culprits to murder the deceased and to escape unhurt is enough to create doubts in the case of prosecution. We are fortified by the dictum laid down by the Hon'ble apex Court in the case of Muhammad Asif v. The State 2017 SCMR 486, wherein it was held as under: "10. We fail to understand that in the presence of the two close friends accompanying the deceased and parents, how such tragedy with a son could happen without any intervention on their part to come to rescue of the deceased when they were not far away as shown in the site plan."
13. The presence of said three witnesses at the place of occurrence is also doubtful for the reasons that the complainant/PW-1 along with his remaining relatives i.e. PW-2 and PW-4 were on the target of the appellant and his co-accused having Kalashnikov in their possession, but both the deceased were hit and murdered, while the complainant and the witnesses were let free. It does not appeal to the logic that by killing persons in presence of his relatives, the appellant and co-accused would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged. Reliance in this regard is placed on the case of Muhammad Farooq v. State, 2006 SCMR 1707. Reference in this regard is also made to the case of Dohlu v.
State, 2002 PCr.LJ 690.
14. According to PW-3 Dr. Saeed Ahmed, Medical Officer, Civil Hospital Bhag, on the day of occurrence the deceased Dad Muhammad and Muhammad Azeem were brought in hospital in dead condition and after examination, he issued MLCs Ex.P/3-A and Ex.P/3-B, perusal of which though established the unnatural death of both the deceased. Anyhow, the medical evidence is only a supporting piece of evidence and the same cannot be the substitute of direct evidence.
15. It has further come on record that though the Investigating officer has collected 49-empties of Kalashnikov from the place of occurrence, but after the arrest of the appellant the I.O. has failed to recover the crime weapon. Furthermore, the Investigating Officer has also failed to record the disclosure or confessional statement of the appellant. Thus, in view of the ocular testimony of the related/interested prosecution witnesses, contradictions and dishonest improvements in their testimony, lacking independent corroboration in material aspect, the false implication of the appellant by the PWs cannot be ruled out of consideration as the appellant while recording his statement on oath has taken specific plea of his false implication by PWs and in such behalf he has not only examined himself on oath, but also produced two defence witnesses i.e. DW-I Bashir Ahmed Shah and DW-2 Shahzada, who have shown the presence of appellant to some other place. The perusal of impugned judgement reveals that the same is suffering from misreading, non-reading and mis-appreciation of material available on record. The above defects in the prosecution case were not considered while passing the impugned judgement. It is well settled principle of law that a wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and to society, because the real offender is not brought to justice, wrongly conviction undermine the credibility of the legal system, whenever witnesses are mistaken, it is rarely because they lie or misrepresent the facts. Needless to emphasize that accused was entitled to be extended benefits of doubt as a matter of right, but the same was withheld. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are series of doubts apparent from the statements of so-called eye-witnesses. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held that, "The concept of benefit of doubt to an accused is deep-rooted in our country. For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons the appeal is accepted, the impugned judgment dated 9th April 2019 passed by learned Additional Sessions Judge, Bhag at Dhadar is set aside and while extending the benefit of doubts, the appellant Zaman Khan son of Kalay Baldish, is acquitted of the charge under section 302(b), Q&D read with section 148, P.P.C. The appellant being in custody, is ordered to be released forthwith, if not required in any other case.