ABDUL HAMEED BALOCH, J. This Criminal Appeal has been filed by the appellant against the judgment dated 15.03.2017 ("the impugned judgment") passed by the learned Session Judge, Pishin ("the Trial Court"), whereby the appellant was convicted and sentenced under Section 302(b) of the Pakistan Penal Code, 1860 ("PPC") to suffer life imprisonment as Tazeer and to pay compensation amounting to Rs. 5,00,000/- (five lac) to the legal heirs of deceased 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 his favour.
2. Brief facts of the prosecution case are that on 27th August, 2011, at about 10:55 p.m. the complainant Qari Abdul Karim lodged F.I.R. No. 73 of 2011 at Police Station Pishin, alleging therein that on fateful night at about 10:30 p.m., he alongwith his cousin Mera Jan and brother Lalai proceeded to Pishin Bazar for purchasing some household articles and when they reached near Tarnawa, meanwhile accused Tor and Khan who were boarded on a motorcycle came there and started chasing them and when they reached in front of college gate, accused Tor made firing with pistol due to which his brother. Lalai sustained bullet injury and later on succumbed to injuries at Civil Hospital Pishin.
The motive behind the occurrence was that previously some harsh words were exchanged between the elder brother of complainant namely Nasrullah and father of accused persons.
3. After completion of investigation, challan was submitted before the Trial Court. Thereafter, on 30th March. 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 six witnesses:--
(I) PW-1, Dr. Saleemullah, Medical Officer, who examined the dead-body of deceased Lalai and produced death certificate Ex-P/1-A.
(II) PW-2, Qari Abdul Karim (complainant), who produced Fard-i-Bayan as Ex.P/2-A.
(III) PW-3, Meera Jan, eye-witness of the occurrence.
(IV) PW-4 Abdul Sadiq, SI (Recovery witness). Who produced recovery memos. Ex-P/4-A, seal parcel No. 1 rt-P/1, sample seal Art-P/2, blood-stained soil Art-P/3, seal parcel No.' 2 Art-P/4, out of which sample seal produced Art-P/5, empty bullet Art-P/6.
(V) PW-5, Samiullah, ASI (recovery witness), who produced blood-stained apparel (clothes) of deceased and motorcycle as Ex-P/5-A and Ex-P/5-B. He also produced sealed parcel as Art-P/7, sample seal Art-P/8, blood-stained Qameez Art-P/9, Motorcycle Art-P/10, registration book of motorcycle Art-PR 1. He is also the witness of disclosure made by the accused. He produced disclosure memo of the accused Ex-P/5-C.
(VI) PW-6, Slier Muhammad IP (Investigation Officer). Who produced the F.I.R. Ex.P/6-A, proceedings u/s. 174, Cr.P.C. Ex-P/6-B, receipt of handing over dead-body to its legal heirs Ex-P/C, map of the place of occurrence Ex-P/6-D, incomplete Challan Ex-P/6-E, map Ex-P/6-F, FSL report Ex-P/6-G and supplementary challans Ex-P/6-H and Ex-P/I.
4. On conclusion of prosecution evidence, the appellant's statement under Section 342 of the Cr.P.C. was recorded, in which 'he once again professed his innocence, while he did not opt to record his statement on oath as envisaged under Section 340(2) of the Cr.P.C. and also did not produce 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 impugned judgment suffers from misreading and non-reading of evidence; that the eye-witness are inter se related and interested witnesses; that the prosecution has failed to prove the motive; that on the ' basis of mala fide intention the complainant nominated The appellant for commission of offence; that there is contradiction amongst the statements of the prosecution witnesses; that nothing has been recovered from the appellant nor there is any incriminating evidence available against the appellant to connect him with the commission of the offence; 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 and State counsel strong 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 the appellant has admitted his guilt by recording his disclosure before the prosecution witnesses during the course of investigation; that the prosecution has produced sufficient incriminating evidence against the appellant and the learned Trial Court has rightly convicted the appellant for commission of offence. 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 statements of PW-1 and PW-2 are not confidence inspiring evidence. The PW-3 tailed to explain his presence at the time of occurrence. He was residing 20 kilometer away from the place of occurrence. The PW-3 tried to lineup his statement with complainant stated that his statement was recorded at hospital while according to PW-6 (investigating officer) he reached to hospital at 11:00 p.m., whereby after completion of proceedings under Section 174, Cr.P.C. the corps was handed over to the relatives, thereafter he proceeded towards the place of occurrence, whereby he collected one casing/empty cartridge, blood-stained earth, prepared recovery memo and recorded the statements of witnesses. The question arises which one of the witness told truth and who recorded the statement of PW-2 at hospital. Record further reveals that complainant neither mentioned registration number of motorcycle nor colour in his Fard-e-Bayan. The motorcycle and blood-stained Qameez was handed over on 29.8.2011 after two days of the occurrence without any explanation. Even the complainant did not produce any document in respect of ownership of motorcycle. The PW-3 stated that the deceased was brought in a vehicle, however he did not know the person who brought them to hospital and the Fard-e-Bayan is also silent in this regard. It is the basic and established principle of administration of justice that it is the duty of prosecution to prove the guilt of the accused beyond any reasonable doubt in the prosecution case, its benefit must be extended to the accused not as a grace but as of right.
Reliance in this regard is placed in the case of Wajahat Ahmed v. State 2016 SCMR 2073.
8. It may be pointed out that the motive plays a very vital and important. The complainant narrated the motive in Fard-e-Bayan that hard words were exchanged between the elder brother of deceased namely Nasrullah and father of the appellant two years ago and the appellant and absconding accused had taken revenge and murdered the deceased but the statement of elder brother Nasrullah was not recorded nor any other piece of evidence was brought on record to prove the motive. Under such circumstances we are of the view that the motive as portrayed by the prosecution is having no sanctity as the motive part of the prosecution case remained unproved. In such view of the matter, we are of the considered view that prosecution miserably failed to get corroboration from motive part of its case it is not necessary every murder have motive but once a motive has taken then the prosecution is bound to prove the same. Reliance in this regard is placed in the case of Liaquat Ali alias Liaqi v. State 2018 YLR 550.
9. The case of prosecution stands on ocular account, abscondance, FSL report, medical certificate and disclosure memo. of appellant before police during investigation. The witnesses are related to deceased having enmity with the appellant. On the basis of interested and inimical 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.
10. The prosecution has brought on record the disclosure of the appellant made before the police but the disclosure reveals that the prosecution had totally ignored Articles 38 and 39 of the Qanun- e-Shahadat Order, 1984, according to which this type of evidence was inadmissible as no new facts were discovered , on the admission/disclosure of the appellant, even after arrest no fire-arm was recovered from the appellant as such mere recovery of empty cartridge prior to arrest of the appellant is not enough to prove the prosecution case. Thus, simply narrating the story, which was already in the knowledge of the police and the complainant party, cannot be termed admissible.
Reliance in this regard is placed in the case of Hayatullah v. State 2018 SCMR 2092.
11. Mere abscondence is no conclusive proof of guilt of accused. The Trial Court while recording the statement of accused under Section 342, Cr.P.C. has failed to put a question in respect of abscondence, when he was examined, question to be put to accused should be definite and specific, it is wholly against the provisions of Criminal Procedure Code and principle of natural justice that a person should not be convicted on the basis of something, to which lie was not given any notice. It is well-settled law that when an incriminating piece of evidence is not put to an accused and it has resulted in causing prejudice to Munir Ahmed alias Munni v. State NLR 2001 Criminal 510.
12. The deposition of complainant that he was driven the motorcycle, while PW-3 and the deceased were sitting in rear of the motorcycle, when the bullet hit the deceased and he fall down from the motorcycle, does not appeal to' prudent mind, why they were also not fallen down from the motorcycle, when the deceased was being fallen down from the motorcycle and why the motorcycle was not damaged. It is also to be noted that if complainant was present at the spot why accused/culprit spares him to give evidence against them. Such fact did not appeal to logic that a person present with his real brother and accused could not cause any injury to kill the prosecution witness leaving him for evidence to be hanged, 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. The State 2019 P.Cr.L.J 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-10 alongwith his brother PW-10 Muhammad KO 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 alongwith 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"
Thus, in view of above the appeal is allowed. The impugned judgment dated 15th March, 2017, passed by the learned Sessions Judge Pishin to the extent of appellant is set aside. While extending benefit of doubt the appellant Khan son of Sardar is acquitted of the charge under Section 302/34, PPC in case F.I.R. No. 73 of 2011, Police Station, Pishin. The appellant being in custody is ordered to be released forthwith it not requested in any other case.