SAHIBZADA ASADULLAH, J.---Through this criminal appeal under section 410, Cr.P.C., appellants called in question the legality and propriety of judgment dated 21.05.2019, passed by learned Additional Sessions Judge-I, Bannu, whereby appellants have been convicted under section 324, P.P.C. and sentenced to 07 years Rigorous Imprisonment with fine of Rs.50000/- each or in default thereof, to further undergo six months S.I. They were further convicted under section 334, P.P.C. and sentenced to 04 years RI with Arsh Rs.1027968/- each to the injured/ complainant within the meaning of section 544-A, Cr.P.C. or in default thereof, to further undergo 06 months S.I, in case FIR No. 553 dated 12.10.2017 under section 324/334/34, P.P.C., Police Station Basia Khel, Distrkt Bannu. The complainant has also filed criminal revision for enhanceme nt of sentence awarded to the appellant, bearing Cr .R. No.42-B/2019.
2. According to first information report on 12.10.2017 at 1710 hours, the complainant Amjad Khan, in injured condition, reported the matter to the Shamsur Rehman ASI at Khalifa Gulnawaz Hospital, Township Bannu, to the effect that he came out of his house and reached at the common chowk of the village at about 0415 p.m., accused Misal Khan and Zahidullah, duly armed with Kalashnikovs were present there and on seeing the complainant, started firing at him, as a result of which he was hit and fell on the ground. The accused after commission of offence decamped from the spot. Motive for the offence was stated to be a dispute over construction of path.
Murasila to this effect was drafted and sent to the Police Station through constable Taj Muhammad No.1514, where Umer Saddique (PW -07) chalked out FIR and handed over the same to the Zabibur Rehman (PW-3), who proceeded to the spot prepared site-plan (Ex:PW 3/1), at the instance of PW Muhammad Naeem Khan, secured blood stained earth from the place of complainant vide recovery memo PW 3/2 and 25 crime empties from the place of accused vide recovery memo Ex:PW 3/3. On the day of occurrence, the S.H.O. Saadullah Khan arrested the accused, while from possession of accused Misal Khan Kalashnikov #1972 was recovered vide memo Ex: PW 3/4, for which a separate FIR No.554 was registered under section 15 Arms Act. F.S.L reports of blood-stained earth and fire arm expert were placed on file Ex:PK and PK/1. On completion of investigation the S.H.O. Saadullah Khan (PW-4) submitted complete challan before the learned trial Court. On commencement of trial, the learned trial Court after complying with provision of section 265-C, Cr.P.C, framed the charge against the accused, to which they pleaded not guilty and claimed trial. The prosecution in order to prove its case, examined as many as eight (8)
PWs, whereafter , statements of accused under section 342, Cr.P.C. were recorded, wherein they professed their innocence and false implication, however , they neither wished to produce evidence in their defence, nor opted to be examined under section 340(2), Cr.P.C. Learned trial Court after hearing arguments of learned counsel for the parties, vide impugned judgment dated 21.05.2019 convicted and sentenced the accused/ appellants, which judgment has been assailed before this Court through the instant appeal, whereas the complainant has filed criminal revision for enhancement of sentence bearing Cr.R. No.42-B/2019, therefore, both are being disposed of through this single order .
3. Parties were heard through their counsel and record perused.
4. The incident occurred on 12.10.2017 when the complainant received firearm injury where he charged the appellant/ convicts for commission 01 the offence. The complainant reported the matter in Khalifa Gul Nawaz hospital Bannu, who was hospitalized and the Investigating Officer visited the spot and on pointation of one Muhammad Naeem brother of the compla inant prepared the site plan and also recovered 25 empties of 7.62 bore from the spot. The learned trial Court on conclusion of the trial convicted the appellants/convicts on the strength of evidence produced by the prosecution. The prosecution mainly relied on the statement of the complainant who received injuries in the episode, the arrest of the accused on the day of occurrence and the recovery of Kalashnikov and its positive report.
5. This Court is to see as to whether the approach of the learned trial Court was based on proper appreciation of evidence and that as to whether the conviction awarded to the appellants was justified.
6. To begin with, this Court is to see as to whether the occurrence occurred in the mode, manner and the time and as to whether the eye-witness was present on the spot at the time of the incident. The complainant charged the appellants for a single injury and a genera l role of firing was attributed to both and also he stated that the firing was indiscriminate. The material aspect of the case was and is that whether the appellants shared a common intention and as to whether the complainant could prove on record that the interest of both the appellants was common. To determine this aspect it was incumbent upon the trial Court to see that the prosecu tion had brought on record both documentary and oral evidence in respect of the motive, but the trial Court did not pay attention to this aspect of the case. The Investigating Officer neither collected documentary evidence nor recorded the statement of any one from the locality in this respect and when so the motive went unproved. To determine the question as to whether the appellants shared common intention, the motive was an important factor , when it failed then this Court has to see the individual liability of each of the appellant.
7. It has been held in the case titled "Hakim Ali v. The State" (1971 SCMR 432), that the prosecution though not called upon to establish motive in every case, yet once it has setup a motive and failed to establish, the prosecution must suffer consequences and not the defence. The above view has been reiterated in the case of "Amin Ullah v.
The State" (PLD 1976 SC 629), wherein, it has been observed by their lordships, that motive is an important constituent and if found by the Court to be untrue, the Court should be on guard to accept the prosecution story . It was again re-enforced by the august Supreme Court in the case of "Muhammad Sadiq v. Muhammad Sarwar"
1997 SCMR 214). Again on the same principle, case laws titled "Noor Muhammad v. The State and another"
(2010 SCMR 997 ) and "Amin Ali and another v . The State" (2011 SCMR 323 ) can also be referred.
8. The complainant stated that both of the convicts/appellants fired at him but he could not specify the fatal injury to any of the appellants, as the firing was indiscriminate. The Investigating Officer collected 25 empties of 7.62 bore from the spot and this is astonishing that the complainant received a single injury and the eye-witness escaped unhurt. The presence of the eye-witness is not established from record, as the complainant at the time of report was fully conscious but he did not mention the name of his brother Muhammad Naeem to have witnessed the occurrence, neither the eye-witness has shown his presence in the hospital, had he been present at the time of report he would have verified the same. This is on record that soon after receiving injury the complainant was rushed to the hospital by the co-villagers, had the eye-witness been present on the spot he would have definitely rushed his brother to the hospital to save his life. The complainant was examined as PW-2, who stated that Muhammad Naeem (his brother) has witnessed the occurrence but when he was questioned that why he did not mention the same in his report and even to the Investigating Officer his reply surprised us, that as he was not asked for the same so he did not mention. It is the complainant to say that who witnessed the occurrence and it has nowhere been the practice that the police officials are to ask and then the complainant is to mention, rather this part of the statement is an improvement, which can rightly been taken as dishonest, with the sole purpose to strengthen the prosecution case. The prosecution did not produce the eye-witness during trial, he was simply abandoned being unnecessary . The prosecution is yet to explain that being the-most important witness why was he abandoned. It is yet to explain that the site-plan was prepared at the instance of the eye-witness and when the witness on whose pointation it was prepared was not examined, then what value this piece of evidence has? The non-production of Muhammad Naeem has created dents in the prosecution case and has questioned the integrity of the complainant. This is an admitted fact that both the complainant and eye-witness are brothers inter-se, when a brother does not support the case of his brother it tells otherwise. The learned trial Court heavily swayed that it is not the quantity but the quality of evidenc e that determines the fate of criminal cases, but it altogether ignored that if the best available' evidence is withheld it reacts upon the case of the prosecution and a negative inference is drawn. The learned trial Court did not appreciate that the withholding of this witness tells nothing but his absence on the spot, had he been produced he would not have supported the case of the prosecution. The logic behind Article 129(g) of the Qanun-e-Shahadat Order , 1984, was to cater for the like situation.
In case titled Tahir Khan v . The State ( 2011 SCMR 646 ), it was held by Hon'ble Supreme Court that:- "13. In the present case as observed abov e, the clouds over the veracity of the prosecution version began hovering with the substitution of the initially nominated persons in the FIR and also that complainant did not appear as a witness. It assumes relevance as he (Ghulam Hussain), Sultan Mehmood and Ghulam Abbas were given up by the prosecution and not produced. The only possible conclusion is that the prosecution sensed the risk of producing them that they might not support the said version. Their production thus was withheld leaving doubts spreading all around".
9. True, that the appellant Misal Khan was arrested from his house on the day of occurrence and a Kalashnikov was shown recovered from his possessi on which was later on dispatched to the Forensic Sciences Laboratory along with with the recovered empties for its opinion. True, that the FSL examine d the weapon and empties and opined that 4 out of 25 empties wedded with the weapon, but the prosecution cannot reap its benefits simply that it has got a positive report in its favour rather the Court is to see that when, where and how the empties and the weapon was recovered. The appellant Misal Khan was arrested on 12.10.2017 and the Kalashnikov was recovered from his possession, in which respect section 15 A.A was inserted, but surprisingly the empties and weapon were received by the FSL on 13.11.2017 i.e. after one month of its recovery , the prosecution is not absolved of the liability rather its liability to dislodge the impression begins to prove that the weapo n and empties were lying in safe custody and were dispatched to the F.S.L after observing all the legal formalities. The record is silent that where the incriminating articles were lying in the intervening period and no witness was produced in this respect. The Moharrar of the Police Station was not produced and so was the police official who took the empties and weapon to the Laboratory , so much so no extract from register No.19 was collected and placed on record. Again the prosecution is to answer that whether the recovery was proved against the appellants? The appellant was arrested from his house and the Kalashnikov was shown recovered from his possession but we do not see any independent witness to have been associated with the process of raid and recovery and the recovery was effected in utter disregard of section 103 of the Criminal Procedure Code. The evidentiary value of the F.S.L. report has lost its efficacy and in situation in hand it cannot be taken into consideration and as such cannot be relied upon to convict the appellants.
In case titled Hayat Ullah v , The State (2018 SCM1 2092), it was held that:- Much reliance was placed on the recovery of pistol from the appellant and empty from the place of occurrence, we observe that the empty was recovered on 11.02.2006 and pistol was recovered on 22.02.2006 and till the recovery of the pistol the empty was not sent to the firearm expert and the empty and the pistol both remained together in the Malkhana and thereafter transmitted to the office of the Forensic Science Laboratory . So the recovery is inconsequential. Even otherwise recovery alone is not sufficient for conviction and it is always termed as a corroborative piece of evidence. It is settled law that one tainted piece of evidence can't corroborate another tainted piece of evidence.
10. After thoroughly evaluating the evidence available on file this court reaches to an inescapable conclusion that the prosecution has miserably failed to prove its case a against accused/ appellants. Resultantly , this appeal is, therefore, allowed, the conviction and sentence of the appellants recorded by the learned trial court is set-aside and the may are acquitted of the charges by extending, them the benefit of doubt, they shall be released forth with from jail, if not required to be detained in connection with any other case. So far as the connected Criminal Revision No.42-B/2019 is concerned, the same stands dismissed for having become in fructuous.
11. Above are the detailed reasons for our short order of the even date.