ABDULLAH BALOCH, J. This common judgment disposes of Criminal Appeals Nos.208 and 230 of 2022, filed by the appellants Muhammad Ali son of Wazir and Ajab Khan son of Samand, respectively, against the judgement dated 23rd April 2022 ("the impugned judgment") passed by learned Additional Sessions Judge Killa Abdullah at Chaman ("the trial Court"), whereby the appellants were convicted under Section 302 P.P.C. and sentenced to suffer life imprisonment each and to pay compensation of Rs.300,000/- (Rupees three hundred thousand) each to the legal heirs of deceased Abdul Wasay and Naimatullah and in default thereof to further suffer six months S.I., with the benefit of Section 382-B Cr.P.C.
2. Facts of the case are that on 16th September 2020, the complainant Abdul Nafay, lodged FIR No.04 of 2020, at Levies Thana Zaraband Killah Abdullah, under Sections 302, 324, 34 P.P.C., with the averments that on the day of occurrence i.e. 16th September 2020 at about 10.00 a.m. the brother of complainant namely Abdul Wasay son of Abdul Wahid and cousin Naimatullah son of Haji Ali Muhammad were present at their Cart and Petrol Pump at Quetta-Chaman Road near Haji Muhammad Ali Baowri Chaman, when the -accused persons being armed with pistol arrived there and started firing upon one Muhammad Ashraf, due to which he sustained bullet injury and fell down, thus his brother Abdul Wasay and cousin Naimatullah were taking up the injured, which annoyed the accused persons and they started indiscriminate firing upon his brother and cousin, due to which they died at the spot, while the accused persons were caught red handed at the spot by the people along with pistols and motorcycle and handed over them to Levies.
The complainant through supplementary statement dated 20th September 2020 also nominated the acquitted accused Muhammad Ashraf, thus he was also arrayed as an accused in the case.
3. In pursuance of the above FIR, the appellants and acquitted accused were arrested, subjected to investigation and on completion thereof, they were challaned in the trial Court, which indicated the charge and after denial, the prosecution produced eight (08) witnesses. During trial the accused Muhammad Ashraf filed an application under Section 265-K Cr.P.C., which was allowed/accepted and he was acquitted of the charge, vide Order dated 7th October 2021. However, the appellants were examined under Section 342 Cr.P.C. They neither recorded their statements on oath under Section 340(2) Cr.P.C. nor produced any witness in their defence. On conclusion of trial and after hearing arguments, the learned trial Court convicted and sentenced the appellants as mentioned above. Whereafter, instant appeals have been filed.
4. Heard the learned counsel and perused the available record. Perusal of record reveals that the prosecution in order to establish the charge has produced the evidence of eight witnesses, but neither the statements of witnesses are convincing nor worth credence rather contradictory to each other. The complainant of the case Abdul Nafay appeared in the Court as PW-1, who contradicted his earlier statement Ex.P/1- A. The perusal of fard-e-bayan divulges that this witness was not present at the time of occurrence rather he was informed by someone else about the occurrence, but the Court statement of PW-1 transpires that he along with others overpowered and handed over the custody of appellants to the Levies along with pistols and motorcycle. Not only, this witness contradicted his earlier statement contained in the fard-e-bayan, but he also contradicted his examination in chief during cross-examination by stating that at the relevant time he was present in his field, when informed about the occurrence. The distance of place of occurrence from his fields is about 4-KMs and he arrived at the site by feet. This witness also admitted in his cross-examination that he has not directly witnessed the crime. Since, the witness also contradicted his own earlier statement and made dishonest improvements in his Court Statement, as such, his statement is not helpful to the case of prosecution.
5. Jan Muhammad appeared as PW-2, who is the witness of blood stained clothes of both deceased, which were handed over to the Investigating Officer, who took into possession the same through recovery memos. PW-3 Obaidullah is the recovery witness of empties, blood stained earth, which were taken into possession through recovery witness. Though PW-3 was only recovery witness, but made dishonest improvement from his earlier statement under Section 161 Cr.P.C. and narrated the whole story of the occurrence and thereby made certain dishonest improvements and contradictions. He stated in the Court that on the day of occurrence he was selling grapes in his Cart, while the deceased Abdul Wasay and witness Muhammad Siddique were also selling grapes, whereas the deceased Naimatullah was present in the petrol pump as Munshi. At about 10.00 a.m. the appellants arrived over there in a motorcycle, while the acquitted accused also came over there in a motorcycle, the appellants and acquitted accused Ashraf started quarreling with each other and the appellants made firing upon Muhammad Ashraf, who sustained bullet injury and fell down, thus he (PW-3) along with Abdul Wasay and Muhammad Siddique ran towards the injured to rescue him, when in the meantime the appellant Muhammad Ali started firing upon Abdul Wasay and Naimatullah, who sustained injuries. In the meantime, other people gathered, who overpowered the appellants, got recovered the T.T. pistols and subsequently the appellants were handed over to the Levies, while the acquitted accused Ashraf was rushed to hospital in injured condition. This witness categorically stated in his cross-examination that prior to the incident he did not know the accused persons. Thus question arises that if this witness was not acquaintance with the accused persons, then what steps were taken by the I.O. for identification of the accused persons through this witness and under the circumstances, the I.O. should have conducted the identification parade of the appellants through the said witness, but this was not done so, thus the identification of the appellants in the Court is entirely doubtful. In reply to question No.13, this witness stated that his 161 Cr.P.C. statement was recorded at about 12.00 Noon, while in reply to question No.19 he stated that his statement was recorded at about 11.00 a.m., while PW-8 Zarak Khan, I.O. stated that the investigation of the case was entrusted to him at about 01.15 p.m. and he arrived at the place of occurrence at about 02.00 p.m., thus question arises that as to how the statement of this witness was recorded prior to registration of FIR and even prior to arrival of I.O. at site, when this witness claims to have recorded his statement at 11.00 a.m., thus statement of this witness being contradictory is doubtful and not worth credence.
6. PW-4 Muhammad Siddique, is claiming to be the eye-witness of the occurrence and stated about arrival of appellants and acquitted accused Ashraf at the place of occurrence and injuring to the accused Muhammad Ashraf by the appellants and also making firing upon the deceased persons. This witness also stated that he twice recorded his statement before the I.O. i.e. first at the place of occurrence at about 12.00 Noon, while the other in Levies Thana, whereas as discussed above the investigation was entrusted to PW-8/I.O. at about 01.15 p.m. and he arrived at the site at about 02.00 p.m., then how the statement of PW-4 was recorded prior to registration of FIR and even prior to arrival of I.O. at the site. In reply to the question No.31 he contradicted his own statement and stated that his statement was recovered at 12.00 a.m. PW-4 further admitted that the complainant Abdul Nafay is his tribesman. This statement of this witness being contradictory in nature is also not helpful to the case of prosecution, because he has failed to justify his presence at the place of occurrence at the time when the occurrence was being taking place.
7. PW-5 Muhammad Ramzan, Naib Risaldar, stated in the Court that pursuant to receipt of information, he along with others reached at the place of occurrence, where at the spot the complainant handed over two pistols, magazine and motorcycle to him. PW-5 in reply to question No.10 admitted that he himself did not make direct recovery from the personal possession of appellants rather the said articles were handed over to him by the complainant Abdul Nafay. This witness further admitted that he met with the Investigating Officer on the following day of occurrence, thus question arises that if the pistols and motorcycles were handed over to PW-5 by the complainant, while the I.O. claims that the said articles were taken into possession on the said date, thus again doubts are being created with regard to recovery of said articles from the personal and exclusive possession of appellants. The statement of PW-7 Muhammad Ramzan, Levies Khasadaar is similar to the statement of PW-5, who claims to have accompanied PW-5 at the place of occurrence and he (PW-7) narrated the story of recovery of above mentioned articles.
Since, as discussed above the statement of PW-5 with regard to recovery is doubtful, thus the statement of this witness being on the same footings with the statement of PW-5, is not helpful to the case of prosecution. PW-8 Zarak Khan, I.O. counted the steps taken by him during the course of investigation and this witness fully contradicted the statements of other witnesses with regard to his arrival at the place of occurrence and the mode and manner, in which the recovery of blood stained earth, empties, motorcycles and pistol were taken place. PW-8 stated that on the said date PW-5 handed over him two pistols, motorcycles etc. to him, while as discussed above PW-5 stated that he met with I.O. on the following day of occurrence.
8. The most important feature of the case is that though the injured Muhammad Ashraf was the best witness of the occurrence as he himself sustained bullet injuries in his person. Initially, neither the complainant nor any other witness nominated him in the occurrence, but subsequently on 20th September 2020 without any justification, the complainant also nominated him in the case through supplementary statement and whilst doing so, the entire case of the prosecution was damaged, as nomination of Muhammad Ashraf in the case has negated the entire prosecution version and that was the reason that the trial Court during trial acquitted him of the charge by entertaining his application under Section 265-K Cr.P.C.
9. So far as the recovery of crime weapons are concerned, suffice to observe here that the eye- witnesses produced before the trial Court were not solid and worth credence, which otherwise are ruled out of consideration. After ruling out of the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed.
Reliance, in this regard is placed to the case of Faqeer Muhammad v. Shehbaz Ali, 2016 SCMR 1441, whereby the Hon'ble Supreme Court has upheld the acquittal order of the High Court by holding that after ruling out the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. The relevant portion of above referred judgement is reproduced herein below: "...the eye-witnesses produced by the prosecution before the trial court were actually not present with the deceased at the time of occurrence and, thus, the ocular account furnished by them was ruled out of consideration. After ruling out of the ocular account the other circumstances of the case providing corroboration or support to the ocular account had automatically collapsed. In these circumstances the High Court had extended the benefit of doubt to respondent No. 1 and had acquitted him of the charge. Upon our own independent evaluation of the evidence we have not been able to take any legitimate exception to the said conclusion reached by the High Court.
This petition is, therefore, dismissed and leave to appeal is refused."
11.(sic) So far as the unnatural death of deceased are concerned, the same is undisputed, the defense is also not disputing the unnatural death of deceased, but pleaded their false implication.
Soon after the crime, the deceased were taken to Hospital, where they were medically examined by PW-6 Dr. Abdul Nafay and after examination of dead bodies, the Medical Officer issued MLCs, perusal of which reflects that the deceased received bullet injuries on their person, but however, the fact remains that the medical evidence is not corroborating with the o.ai testimony. Even otherwise, the medical evidence is not substitute of direct evidence rather is only a source of corroboration in respect of nature and seat of injury, the kind of weapon used, the duration between the injury and death and may confirm the ocular account to a limited extent but cannot establish the identity of the accused or connect him with the commission of offence, therefore, if the charge of murder is not proved through the direct evidence, solely the medical evidence is not helpful to the case of ' prosecution. The Hon'ble Supreme Court in the case of Sikandar v. The State 2006 SCMR 1786 has held as under:- "The medical evidence is not substitute of direct evidence rather is only a source of corroboration in respect of nature and seat of injury, the kind of weapon used, the duration between the injury and death and may confirm the ocular account to a limited extent but cannot establish the identity of the accused or connect him with the commission of offence, therefore, if the charge of murder is otherwise proved through the direct evidence, the absence of medical evidence may not be fatal."
12., The reappraisal of the statements of all the witnesses shows that the prosecution has absolutely failed to establish the charge through concrete and solid evidence. All the witnesses including the complainant of the case have narrated the occurrence in different mode and manner, which has created reasonable doubts in the case of prosecution. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and acquit the accused. 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."
13. Thus, the prosecution has failed to establish the charge against the appellants beyond the shadow of reasonable doubts. The learned trial Court while delivering the impugned judgement has failed to extent the benefits of doubts to the appellant. The impugned judgement of the trial Court is suffering from mis-reading, non-reading and mis-appreciation of evidence in its true perspective.
For the above reasons, the appeals are accepted. The impugned judgement dated 23rd April 2022 passed by learned Additional Sessions Judge Killa Abdullah at Chaman is set-aside the appellant Muhammad Ali son of Wazir and Ajab Khan son of Samand, are acquitted of the charge. The appellants being in custody; shall be released forthwith, if not required in any other case.