ROZI KHAN BARRECH, J. The appellant, namely Khan'Muhammad, son of Ghulam Nabi, had allegedly committed the murder of Ahmed Ali, son of Sohbat Khan, on 27.11.2021 at 02:30 PM near Goth Siraj Mengal, by way of firing. For the commission of the said offence he was booked in FIR No. 76/2021, registered at PS Saddar, Dera Murad Jamali, on. 27.11.2021 at 03:10 pin. After a regular trial, the appellant was convicted vide judgment dated 17.06.2023 (herein "impugned judgment") passed by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali ("trial court") in Session Case No. 08/2022 and sentenced to suffer R.I for life with direction to pay Rs.500,000/- (Rupees Five Lac) under Section 544-A, Cr.P.C to the heirs of the deceased Ahmed Ali. In default of payment of the compensation amount of Rs.500,000/- (Rupees Five Lac), the accused was to suffer simple imprisonment for six (06) months. The benefit of Section 382-B, Cr.P.C was also extended in favour of the appellant.
2. Being aggrieved from the impugned judgment, the appellant filed the instant appeal through Superintendent District Jail Dera Murad Jamali.
3. We have heard the learned counsel for the appellant and learned APG and have gone through the record with their valuable assistance.
4. The whole prosecution case revolves around the statements of Maula Bakhsh (PW-1), who is the complainant as well as an eye-witness of the occurrence, Mehmood Khan (PW-3), who is also an eye-witness of the alleged occurrence, and Mst. Sharifa, who is the injured eye-witness of the occurrence. PW-1 and PW-3 are cousins of the deceased; therefore, for the safe administration of justice, their evidence will have to be appreciated with care and caution.
5. No doubt, the evidence of the related witnesses cannot be discarded on the grounds of its being related to the victim, but if it is found that the testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter as such, which cannot be expected from a prudent person, then under such circumstances the evidence furnished by related witnesses cannot be easily discarded.
6. We have observed that the deceased Ahmed Ali met with unnatural death near Goth Siraj Mehgal on the road, and according to PW-1 Moula Bakhsh on 27.11.2021 at 2:30 pm, he, along with his cousin Mehmood Khan (PW-2) and deceased Ahmed Ali came to Balan Shakh Bridge for their work.
After getting free from their, they departed towards Haq Bahoo, and when they crossed Siraj Mengal Cross, where a women was also -going ahead of them at some distance, three persons came on a motorcycle; one of them was Khan Muhammad (appellant) armed with T.T pistol whom they already knew, whereas the other two persons were unknown. The appellant, Khan Muhammad, told them to leave and disclosed that they had a family dispute. The appellant also threatened them that if they tried to intervene, they would be killed. Then the appellant, Khan Muhammad, made firing upon the deceased Ahmed Ali, and one bullet hit on his belly, on account of which the deceased Ahmed Ali fell down. The women who was going ahead of them tried to intervene, but she was beaten with fists and blows and the butt of the pistol, and due to hue and cry, the accused persons picked up their motorcycle. Then, the complainant went to the police station and lodged the report.
7. The pivotal question to be determined by us is whether the alleged eye-witnesses, i.e., PW-1 and PW-3, were present at the place of occurrence at the relevant time and had witnessed the tragedy as claimed by them and whether their conduct is acceptable to a common prudence? In an attempt to unearth the answer to this crucial question, we have minutely examined their statements and found that though they stated to be present time and to have witnessed the tragedy, but the prosecution side has absolutely failed to justify their own conduct at the spot. The complainant, namely, Moula Bakhsh, stated in his statement before the court that he took the injured Ahmed Ali to the police station and lodged the FIR. PW-3 also stated in his statement that PW-1/complainant took the injured to the police station. On the other hand, Hazoor Bakhsh, constable (PW-5), who is a recovery witness of the blood-stained earth and bullet empties recovered from the place of occurrence, when appeared before the court, stated during cross- examination that when they reached the place of occurrence, the injured was present there. He further stated during cross-examination that the injured were shifted to the hospital in a private vehicle. He further stated during the cross-examination that they reached the place of occurrence at 3:15 pm. On the other hand, Abdul Nabi SI (PW-9), who conducted the investigation of the case, stated that when he reached the hospital, he found Ahmed Ali and Mst. Sharifa is in injured condition. Dr. Shah Paree, Lady Medical Officer District Headquarter Hospital Dera Murad Jamali (PW-4), who examined the deceased (then injured) stated that on 27.11.2021, the injured was brought to the hospital by constable Belt No.1255. He was well oriented of time and place, meaning thereby that the complainant left the injured at the place of occurrence and went to the police station for lodgment of the FIR. It is also mysterious that why he did not take the injured to the hospital. According to the statement of the above witnesses, the occurrence took place at 2:30 pm, and the injured arrived at the hospital at 3:30 pm. The distance between the place of occurrence and DHQ Hospital Dera Murad Jamali is 12 kilometers. When the deceased was brought to the hospital, he was alive and well-oriented. He was referred to Combined Military Hospital Larkana, and on the way, he succumbed to injuries. The deceased had received injuries on his belly; however, still, he was not taken to the hospital. It is hard to believe and is against human conduct that a person who had received a firearm wound kept bleeding on the spot for such a long period and was brought to the hospital subsequently. According to PW-7 Dr. Naseer Muhammad, Medical Officer, Divisional Headquarters Hospital Dera Murad Jamali, the deceased Ahmed Ali (then injured) was brought to the hospital by a police constable. This fact also proves that neither the eye-witnesses, namely, Moula Bakhsh and Mehmood Khan, were present at the place of occurrence. Had they been present they would have necessarily taken the deceased to the hospital. It was human conduct that first they should have tried to shift the injured to the hospital in order to provide medical treatment. From the conduct of the witnesses, it could be judged that they were not present at the spot.
8. We have also noted that complainant/PW-1 and PW-3 alleged eye-witnesses recorded their statements before the court; they stated that when they and the deceased reached near Goth.
Siraj Mengal, at there the accused/appellant, acquitted accused and one unknown accused person came on a motorcycle and made firing upon the deceased. PW-5 stated during cross- examination that the bloodstained earth of the deceased was 4/5 steps away from the place of recovery of bullet empties. Allegedly, firing was made upon the deceased from a distance of 4/5 steps. According to the prosecution witnesses, the deceased, PW-1 and PW-3, were going towards their house together. It has also come on record that three bullet empties of a T.T pistol were also taken into possession from the place of occurrence by the investigating officer. Under such circumstances, which were narrated by PW-1 and PW-3 to the effect that three accused persons came on a motorcycle and made firing upon the deceased that too from a close range of 4/5 steps, there was no chance of the above PWs to escaping unhurt, and also, there was every possibility that the deceased received multiple bullet injuries, but the picture is quite different from the presumption and expectation as suggested by the circumstances when the deceased had only received one bullet injury on his person while by the above PWs escaped unhurt.
9. We have also noted with grave concern that it was claimed by the complainant and PW-3 that they were miraculously saved in the midst of the firing. Blessing them with such incredible consideration and showing them such favour is implausible and opposed to the natural behavior of any accused. It is all the more illogical than being perceptive of the fact that if the witnesses were left alive, they would depose against the accused; even then, the appellant and co-accused did not-cause any injury to them. Such behavior runs counter to natural human conduct and behavior on the part of the accused. PW-1 Moula Bakhsh and PW-3 Mehmood Khan are cousins of the deceased Ahmed Ali. They did not save the deceased from the clutches of the accused persons; however, both the above PWs stated in their statement that a women, namely, Mst.
Sharifa tried to save the deceased Ahmed Ali from the clutches of the accused persons, but the accused persons also attacked upon her and received injuries. Mst. Sharifa (PW-2) is neither related to the deceased nor inimical towards the accused. She tried to save the deceased from the clutches of the accused. The statement of the said witness will be discussed later on. However, PW- 1 and PW-3, being cousins of the deceased, did not try to save the deceased from the clutches of the accused persons. Article 129 of the Qanun-e-Shahadat Order, 1984 allows the courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case. We thus trust the existence of this fact by virtue of the Article 129 of the Qanun-e-Shahadat Order; 1984. The conduct of the assailants as deposed by the above PWs, namely Moula Bakhsh (PW-1), and Mehmood Khan (PW-3), as opposed to the common course of natural events and human conduct. Hence, we are holding that both Moula Bakhsh (PW-1) and Mehmood Khan (PW- 32) were not present at the place of occurrence at the time of occurrence and did not witness the occurrence. Reliance is placed on the cases of Tariq Mehmood v. The State and others (2019 SCMR 1170), Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596), Rohtas Khan v. The State (2010 SCMR 566), and Muhammad Farooq and another v. The" State (2006 SCMR 1707).
10. The record tells that the complainant/PW-1 and PW-3 had given no reason for their visit to Balan Shakh Bridge, and it was not a routine visit; we deem it appropriate to appreciate this particular aspect of the case in light of the collected evidence, so to understand that presence of the complainant/PW-1 and PW-3 with the deceased at the stated time was a natural phenomenon. We are to look for independent evidence in this respect, as we are conscious of the fact that if complainant/PW-1 and PW-3 fail to convince us in that respect, then in that eventuality, their status will transform to that of chance witnesses.
11. A part from the above, the most important witness, i.e., Mst. Sharifa (PW-2), who is injured/eye- witness to the alleged occurrence, fully exonerated the appellant from the commission of the alleged offence. When she appeared before the court, she stated that the appellant is innocent and had not committed the offence. She is an independent witness by all means because she is neither related to the accused nor inimical toward the complainant party; therefore, the learned DPP declared her hostile and requested the trial court to cross-examine her. An opportunity was provided to the learned DPP to cross-examine her, and the said witness was cross-examined at length, wherein she denied that the accused committed the offence.
12. Normally, a witness who becomes hostile or adverse to the party who produced their for recording evidence in their support is allowed to be cross-examined to impeach the credit of the witness by evidence of the kind mentioned in Article 151 of Qanun-e-Shahadat Order, 1984.
13. In order to make entitle a party to invoke Article 150 of the Oanun-e-Shahadat Order, 1984, it is necessary to establish that the witness is guilty of prevarication or that they are inconsistent in their statement or trying to suppress the truth or that they bear animosity towards the party who calls them. In the absence of any act on the part of the witness of the above nature, a party is not entitled to cross-examine its witness to impeach their credit.
14. It is stated earlier that PW-2 fully exonerated the appellant from the occurrence and did not deviate from the story as narrated by the prosecution; however, she denied having recognized or identified the appellant who was present before the court. The learned DPP cross-examined the said witness, but he could not extract anything from tier mouth to connect the present appellant with the commission of the alleged offence.
15. The trial court also found the appellant guilty on the basis of the alleged recovery of the crime weapon on his pointation. It was alleged by Ghazi Khan ASI (PW-6) that on 13.12.2021, the appellant made the disclosure during the investigation that he could recover the crime weapon. On the said disclosure, the appellant was taken to Goth Faiz Muhammad. At there, the appellant recovered a T.T pistol from beneath the bedding-clothes lying in a residential room which was taken into possession through recovery memo by the investigation officer in the presence of the witnesses. The said house consists of only one room in an open place and there was no boundary wall. It has come on record that in the said house, women folk, and children, and other persons were also residing, however, it has not come on record that, factually, the said house belonged to the appellant. This aspect of the matter also caused reasonable doubt in the prosecution case. Even otherwise, no private witness was associated at the time of alleged recovery.
16. The alleged occurrence took place on 27.11.2021, and on the same date, three bullet empties of a T.T pistol were also recovered from the place of occurrence, which were taken into possession by the investigation officer through a recovery memo and sealed in the parcel. The crime weapon, i.e., a T.T pistol, was allegedly recovered on pintation of the appellant on 13.12.2021 after, sixteen days after the alleged occurrence. Both the crime weapon and T.T pistol were not sent to the Firearms Expert to establish as to whether the alleged crime empties were fired from the alleged recovered T.T pistol and whether the recovered T.T pistol was in working condition or not; but on the other hand, according to recovery witness Ghazi Khan ASI (PW-6) the recovered crime weapon, magazine and cartridges were rusty . Since the alleged pistol was not in working condition, therefore, the same was not sent to the Firearms Expert. Therefore, the above piece of evidence is of no avail to the prosecution case.
17. Now, the only piece of evidence left with the prosecution is the evidence of motive. The motive of the occurrence, as stated by the witnesses, was the alleged threat given by the appellant to the deceased on the basis of a domestic dispute. The prosecution has failed to produce any - corroborative piece of evidence with the statement of PW-1 and PW-3 in respect of any domestic dispute between the deceased and the appellant. Even both the said witnesses did not state a single word in their statement about any relationship of the deceased with the appellant. No documentary prove in the shape of an FIR in respect of the alleged threat given by the appellant to the decease has been produced by the prosecution. No other independent witness was produced by the prosecution in respect of the alleged threat. In this way, the prosecution has miserably failed to prove the motive part of the occurrence. Although the prosecution is not under obligation to establish the motive in every murder case but it is also a well-settled principle of criminal jurisprudence that if the prosecution sets up a motive but fails to prove it, then it is the prosecution who has to suffer, and not the accused. Reliance is placed upon the cases titled as "Muhammad Ilyas and another v. Ameer Ali and another" (2020 SCMR 305), "Liaqat Ali and another v. The State and others" (2021 SCMR 780), "Najaf Ali Shah v. The State" (2021 SCMR 736) and "Khalid Mehmood and others v. The State and others" (2021 SCMR 810).
18. All the above-narrated facts and circumstances, when evaluated on judicial parlance, reflect that the prosecution has miserably failed to establish the culpability of the appellant in the instant case through reliable, trustworthy, and confidence-inspiring evidence.
19. From the facts and circumstances narrated above, we are persuaded to hold that the conviction passed by the trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per the dictates of law, the benefit of every doubt is to be extended in favour of the accused. Resultantly while setting aside the conviction and sentence recorded by the trial court in terms of the judgment dated 17.06.2023 passed by learned Additional Sessions Judge Naseerabad at Dera Murad Jamali in Session Case No. 08/2022, Crl. Jail Appeal No.(S) 11/2023 filed by the appellant is allowed as a consequence whereof he is acquitted of the charge in FIR 76/2021, registered at P.S. Saddar, Dera Murad Jamali. The appellant, Khan Muhammad, son of Ghulam Nabi, is ordered to be released forthwith if not required in any other case.