2012 Y L R 442 [Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
BASHIR AHMED and another ---Appellants
Versus
THE STATE and others ---Respondents
Criminal Appeal No.(S) 58 of 2009 and Criminal Revision No.(S) 26 of 2009, heard 28th July, 2011. (a) Penal Code (XLV of 1860) ---
----S. 302(b)/34---Qatl -e-amd---Apprecia -tion of evidence ---Widow of deceased was sole and
star witness of the prosecution, but she failed to inspire confidence as ocular account furnished by her (solitary witness) remained uncorroborated by any independent piece of evidence ---No
weapon was recovered from possession of accused and no report of Forensic Science Laboratory which could not corroborate the ocular evidence ---Dead body having not been examined by
Medical Officer, no medical evidence therefore, could corroborate the same---Civil dispute over the properties existed between the parties and sole eye -witness had direct interest in seeing that
accused was somehow or the other convict ed---Said witness had made full improvement in
evidence in order to strengthen the case of prosecution---No reliance could be placed on such kind of evidence ---Reliance of prosecution on the alleged abscondance of accused was also not
well placed, because abscondance per se was not sufficient to prove the guilt of accused; it could equally be consistent with the innocence of accused---Abscondance as a piece of conduct of accused was to be judged in the light of other evidence on the record ---Co -accused on t he
evidence of witnesses was acquitted of the charge and such finding had got finality being not challenged before High Court ---Accused, in circumstances, could not be convicted on that
evidence which had already been rejected by the Trial Court ---No justi fication was available to
record the finding of conviction by the Trial Court against accused for murder of deceased ---
Conviction and sentence awarded to accused being untenable, he was acquitted by setting aside the impugned judgment of the Trial Court wi th direction to release him from custody.
Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Amir Zaman v. Mehboob and others 1985 SCMR 685; Haji Bakhsh v. The State PLD 1963 Kar. 805; Qaim Din and others v. The State 1971 PCr.LJ 229 and Fazla and another v. The State PLD 1960 Lah. 373 rel
(b) Penal Code (XLV of 1860) ---
----S.302---Qatl -e-amd---Appreciation of evidence ---In order to sustain a conviction on capital
charge, evidence must come from independent and unimpeachable source, rather than tainted and
inimical witness without any independent corroboration---Mere relationship of the witness with
the deceased, was not sufficient to brush aside her evidence, but as a precaution, the court had to seek independent corroboration. (c) Crimi nal Procedure Code (V of 1898) ---
----S. 342 ---Examination of accused ---Law required that every part of incriminating evidence,
circumstances, etc. sought to be used against accused should be put to him under S.342, Cr.P.C.
for having his explanation---Any piece of evidence, which was not put to the accused in his examination under S.342, Cr.P.C., could not be considered against him for conviction.
Zahid Ali alias Babo v. The State 2004 YLR 3342 rel. (d) Qanun- e-Shahadat (10 of 1984) ---
----Art. 129(g) ---Withholding best piece of evidence ---If a best piece of evidence was available
with party and the same was withheld, presumption would be that the party had some sinister motives behind it in not producing the said evidence ---Presumption under Illustration (g) of
Art.129 of Qanun -e-Shahadat, 1984 could fairly be drawn in such circumstances.
Muhammad Wasay Tareen for Appellant (in Criminal Appeal No.(S) 58 of 2009).
Abdullah Kurd for the State (in Criminal Appeal No.(S) 58 of 2009).
Muhammad Qahir Shah for the Complainant (in Criminal Appeal No.(S) 58 of 2009).
Muhammad Qadir Shah for Appellant (in Criminal Revision No.(S) 26 of 2009).
Abdullah Kurd for the State (in Criminal Revision No.(S) 26 of 2009).
Muhammad Wasay Tareen for Appellant No.2 (in Criminal Revi sion No.(S) 26 of 2009).
Date of hearing: 28th July, 2011. JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---These appeal and criminal revision petition
are directed against the judgment dated 30th May, 2009, passed by Additional Sessions Judge -I,
Sibi, wher eby appellant Bashir Ahmed seeks his acquittal recorded under section 302(b) of the
P.P.C. read with section 34 of the P.P.C. to suffer life imprisonment as Ta'zir and to pay a fine of Rs.50,000, in default whereof to further undergo S.I. for six months, w ith benefit of section 382-
B, Cr.P.C; whereas the petitioner prays for enhancement of his conviction and sentence.
2. The concise facts, arising out of instant appeal, are that on 26th June, 1990, a case vide
Crime No.23 of 1990, under section 302 read w ith section 34 of the P.P.C. was registered at
Levies Station Bala Nari District Kacchi, on the written report of complainant Khuda Bakhsh
(Exh.P/1- A), wherein he alleged that a fight took place between Mir Bashir Ahmed and Mir
Afzal sons of Ghulam Haider Gohram Zai in Mouza Ghulam Haider, in result whereof Mir
Afzal Khan was killed.
3. After registration of the F.I.R. Exh.P /7-A, initially investigation of the case was entrusted
to P.W.6 Abdul Majeed, the then Inspector, who tried to arrest the accused persons, but could not
be successful. He visited the place of occurrence, prepared site sketch Exh.P/6- A, on the
pointati on of Mehboob Ali, raided the house of accused persons, but they were not available, at
which he prepared memo of search Exh.P/6- B and thereafter placed the papers before S.H.O.
Tajamul Shah, who prepared incomplete challan Exh.P/6- C.
Further investigati on of the case was carried out by P.W.7. Rahim Bakhsh, the then Naib
Tehsildar, who also inspected the place of occurrence and prepared site plan Exh.P/7- B, also
prepared memo. of injuries Exh.P/4- C, released the dead body of deceased to his legal heirs vi de
receipt Ex.P/3 -A, took into possession a single barrel shotgun along with 18 cartridges of S.G.
etc. vide memo Exh.P/D. He recorded the statement of Mst. Shakar Bibi (P.W.5), raided the house of accused persons, where the people informed him that accuse d Bashir Ahmed had left
for Sindh (this witness was declared hostile, as he resiled from his statement).
Lastly, investigation of the case was given to P.W.8 Abdul Jabbar, IP, who arrested the appellant Bashir Ahmed on 6th October, 2007, who made disclos ure before him to the effect that after the
death of his father, a dispute arose between the brothers over the property and thereafter he left for Sindh. He prepared incomplete Challan Exh.P/8- A and the appellant was sent up to face the
trial.
4. On the stated allegation, a formal charge was framed and read over to the appellant on
14th December, 2007, to which he pleaded not guilty and claimed trial. The prosecution, in order to prove the accusation, produced eight witnesses. P.W.1 Khuda Bakhsh is compla inant of the
case, who produced his written report Exh.P/1- A. P.W.2 Mehboob Ali stated to have received
information about the murder of his father at Quetta. P.W.3 Mullah Mitha after receiving information about the incident, went to the house of deceased, where the Naib Tehsildar released the dead body of deceased to him vide Exh.P/3- A. P.W.4. is Miran Bakhsh, in whose presence
the dead body of deceased was examined by Naib Tehsildar and released the dead body to Mst. Shakar Bibi vide receipt Exh.P/4- C. P.W.5. Shakar Bibi stated to have witnessed the
occurrence. P.W.6. Abdul Majeed, P.W.7. Rahim Bakhsh and P.W.8. Abdul Jabbar, IP, are the Investigating Officers of the case. Then the prosecution closed its side. 5. Thereafter, the appellant was examined under section 342 of the Cr.P.C., wherein he
denied the prosecution accusation and claimed to be innocent. He did not opt to record his statement on oath as provided under section 340(2) of the Cr.P.C., nor produced any witness in defence. The trial Court , after close of the parties' evidence, vide impugned judgment, convicted
and sentenced the appellant, as mentioned hereinabove, hence, this appeal. 6. Mr. Muhammad Wasay Tareen, learned counsel for the appellant, inter alia, contended
that as the longstanding civil dispute between the parties stands established on the record, therefore, the solitary evidence of the inimical and related P.W.5. Mst. Shakar Bibi needs to be
examined with utmost care and caution; specially, as the said witness had faile d to stand the test
of cross -examination, and, otherwise, bristles with improvements, contradictions and
improbability. He further submitted that independent corroboration of the ocular testimony was
lacking and the sole independent witness Malook has not been produced and given up by the prosecution without assigning any reason, which has created serious doubt in the evidence and
the prosecution story. He submitted that the trial Court has erred in relying upon the alleged
abscondance of appellant despite the fact that it was not proved at all. The question under
section 342, Cr.P.C. was not put to the appellant that after commission of alleged offence, he
remained absconder. Learned counsel further argued that the ocular account, which was not accepted against the acquitted accused Noor Jan, could not be relied upon qua the appellant.
7. Mr. Muhammad Qahir Shah, learned counsel for the complainant and Mr. Abdullah
Kurd, Advocate, representing the State, have vehemently opposed the appeal and contended that there is preponderant evidence available on record, connecting the appellant with the commission of the offence, therefore, the trial court, after proper appraisal of evidence, rightly found the appellant guilty of the offence, whic h does not call for any interference by this Court.
8. We have carefully considered the respective contentions put forth by the parties' counsel
in the light of evidence available on record and also gone through the impugned judgment. 9. So far as the unnatural death of deceased Muhammad Afzal is concerned, nevertheless,
neither his postmortem examination was conducted, nor his dead body was examined by any Medical Officer, however, P.W.3 Mullah Mitha and P.W.4. Miran Bakhsh are the witnesses, in whose presence the dead body of deceased Muhammad Afzal, after preparing inquest -report, was
handed over to P.W.5. Shakar Bibi by the Investigating Officer vide memos Exh.P/3- A and
Exh.P/4- C. Even otherwise, the defence has not disputed the unnatural death of deceased on
account of firearm injuries. 10. Now the question arises as to who has caused injuries and was responsible for the death
of deceased Muhammad Afzal? The connection of the appellant with the crime is sought to be established by the evidence of P.W.5. Mst. Shakar Bibi, who is, admittedly, the wife of deceased. She is the sole and star witness of the prosecution, but, after going through her statement, we have no hesitation in observing that the said eye -witness has failed to inspire our confidenc e. On
a careful scanning of her statement, we are of the considered view that the conviction awarded to the appellant can hardly be sustained in law. In order to sustain a conviction on capital charge, evidence must come from independent and unimpeachable source rather than tainted and
inimical witness without any independent corroboration. We are conscious of the fact that mere relationship of the witness with the deceased is not sufficient to brush aside her evidence, but, as a precaution, the Court has to seek independent corroboration. Admittedly, civil dispute over the properties exists between the parties and the sole eye- witness Shakar Bibi, being concerned, have
some direct interest in seeing that the accused person is somehow or the other convicted. The ocular account, furnished by the solitary witness Mst. Shakar Bibi, remained uncorroborated by any independent piece of evidence. The appellant, though arrested, but recovery of crime weapon was not effected from his possession, therefore, naturally, there is no report of FSL, which could
corroborate the ocular evidence. Similarly, as already observed, the dead body was not examined
by any Medical Officer, as such, there is no medical evidence, which could corroborate the same.
11. P.W.5. Mst. Shaka r Bibi, while appearing before the Court, had deposed that on the
fateful day, accused Noor Jan (since acquitted) took his shotgun for commission of the murder of deceased and she followed him in order to save the life of her husband, meanwhile accused
Mum taz Ahmed and Bashir Ahmad (appellant) also came there, who were armed with
Kalashnikov and shotgun. They made firing, which resulted in the death of her husband
Muhammad Afzal. During cross -examination, when she was confronted with her previous
statement recorded under section 161, Cr.P.C., it was not found so recorded. It appears from the
cross -examination that the said witness had made full improvement in order to strengthen the
case of prosecution, as such, no reliance can be placed on such kind of evidence. Reference can be placed to the case of Saeed Muhammad Shah and another v. the State -reported in 1993 SCMR
550, relevant portion whereof is as under: --
"Secondly, statements of the witnesses in the Court in which improvements are made to strengthen the case of the prosecution are not worthy of reliance. It is held in the case of Amir
Zaman v. Mehboob and others (1985 SCMR 685) that testimony of witnesses containing material improvements are not believable. Reference can also be made to the cases of H aji
Bakhsh v. The State (PLD 1963 Kar. 805), Qaim Din and others v. The State (1971 PCr.LJ 229) and Fazla and another v. The State (PLD 1960 Lah. 373)."
12. Similarly, reliance of prosecution, on the alleged abscondance of the appellant, was also
not wel l placed, because abscondance per se was not sufficient to prove the guilt of appellant.
Abscondance could equally be consistent with the innocence of appellant. Abscondance as a piece of conduct of appellant 'was to be judged in the light of other evidenc e on the record. In the
instant case, as per appellant, prior to the alleged incident, he shifted to the Province of Sindh on account of persistent dispute between his two brothers viz. deceased Muhammad Afzal and co -
accused Noor Jan. Even otherwise, the t rial Court has fallen in error while placing reliance on the
abscondance, as even during course of examination of appellant under section 342 of the Cr.P.C, question in respect of his alleged abscondance was not put to him. Law requires that every part of incriminating evidence, circumstances etc, sought to be used against an accused, should be put
to him under section 342 of the Cr.P.C. for having his explanation. Any piece of evidence, which was not put to the accused in his examination under section 342 of the Cr.P.C, cannot be considered against him for conviction. This view finds support in case of Zahid Ali alias Babo v. the State -reported in 2004 YLR 3342 (b), wherein it was observed as under: --
"---S. 342--- Examination of accused ---All incriminating pieces of evidence appearing in the
statements of witnesses were required to be put to accused to obtain his explanation--- If any
piece of evidence was not put to accused, then said piece of evidence could not be used for conviction accused."
13. We have also noted that according to the version of P.W.5. Mst. Shakar Bibi at the time
of occurrence, she was accompanied by one Malook, when informed by a child about the killing of her husband, but surprisingly, neither the said kid, nor Malook has been produced and examined in order to substantiate her version. It is well -settled principle of law that if a best
piece of evidence is available with party and the same is withheld by him, then it is presume d
that the party has some sinister motives behind it in not producing the said evidence. As such, a
presumption under illustration (g) to Article 129 of the Qanun- e-Shahadat Order, 1984 can fairly
be drawn in such circumstances.
14. Similarly, there is a nother important aspect of the case, which has been over -sighted by
the trial Court, while convicting the appellant. It appears from the record that on the basis of
evidence of these witnesses, co -accused Noor Jan was acquitted of the charge by means of
judgment dated 30th April, 1995 and such finding has got finality being not challenged before
this Court. Thus, the appellant could not be convicted on that evidence, which has already been
rejected by the trial Court.
15. For the discussion made hereinabove, we are of the opinion that there was no justification
to record the finding of conviction by the trial Court against the appellant for the murder of deceased Muhammad Afzal, but, unfortunately, the trial Court, in flagrant violation of the basic law, convicted him and sentenced to life imprisonment, hence the conviction and sentence was untenable, therefore, vide short order dated 28th July, 2011, the appellant was acquitted by setting aside the impugned judgment of the trial Court with the direction to release him from
custody, if not required in any other case, and, resultantly, the Criminal Revision No.(S)26 of 2009 was dismissed.
These are the reasons of our short order.
H.B.T./86/Q Appeal allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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