2011 Y L R 3 0 5 5
[Quetta]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
ALI MUHAMMAD alias BABOO and another ---Appellants
Versus
THE STATE ---Respondent
Criminal A.T.A. Appeal No. (S) 3 of 2010, heard on 21st July , 2011.
(a) Penal Code (XLV of ' 1860) ---
----Ss. 302(b) & 202 ---Anti-Terrorism Act (XXVII of 1997), S.7 ---Qanun -e-Shahadat (10 of
1984), Art.38 & 39 ---Qatl-e-amd, intentional omission to give information of offence by
person bound to inform, terrorism ---Appreciation of evidence --Benefit of doubt ---Two Police
Officials, who appeared as prosecution witnesses, stated about two disclosures of accused
person; one made before them regarding murder of deceased; and second with regard to
concealment of the crim e weapon of offence/knife in the guest house of the complainant ---
Disclosure with regard to the murder of deceased by accused, which amounted to confession,
before Police, were inadmissible in view of the clog contained in Arts.38 & 39 of Qanun -e-
Shahadat, 1984; other disclosure, which related to the concealment of knife, was admissible
as alleged weapon was recovered in pursuance thereof ---Such evidence by itself being
evidence of purely corroborating nature, in absence of any direct or substantive evidenc e
alone, was not sufficient to bring home charge against accused person ---Witness during
cross -examination had admitted that the knife was not stained with blood ---Chemical
Examiner's report was not produced in evidence so as to prove that knife was staine d with
blood ---Unless substantive direct evidence was available, conviction could not be based on
any other type of evidence, howsoever, convincing it could be ---Ocular evidence was
furnished by the complainant and other prosecution witness ---Complainant h ad stated that he
involved the accused persons in the commission of offence as he suspected accused person in
"Balochi Hal -o-Ehwal " ---Capital punishment could not be awarded, simpliciter on account
of suspicions and "Balochi Hal -o-Ehwal" as suspicion coul d not take the place of proof ---
Accused had been convicted and sentenced on basis of inadmissible pieces of evidence ---
Prosecution having failed to prove the case against accused beyond any reasonable doubt,
they were entitled to the benefit of doubt ---Giving benefit of doubt, accused were acquitted of
the charge.
1991 SCMR 643 and 1997 SCMR 290 rel.
(b) Constitution of Pakistan ---
----Art. 28---Penal Code (XLV of 1860), S.302(b) ---Qatl-e-amd---Preservation of
language, script and culture ---Any secti on of citizens having a distinct language, script or
culture, had the right to establish institutions for protection of said culture, but by no stretch
of imagination, under the garb of any cultural event, a person could be found guilty of
murder ---„Baloch i Hal o-Ehwal" was a recognized method of communication, where
acquainted people asked about the well -being of each other ---Under the Balochi Culture, an
accused, while showing himself to be innocent, could pass through the fire; or could clear his
positio n by means of taking the oath on Holy Quran, but in no way could be found guilty
on account of "Balochi Hal -o-Ehwal".
Nouroz Mengal for Appellant.
Liaquat Ali for Respondent.
Date of hearing: 21st July, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KA KAR, J. ---Appellants Ali Muhammad alias Baboo
and Rasool Bakhsh have challenged the validity of judgment dated 3rd February, 2011
rendered by Special Judge, Anti -Terrorism Court, Dera Allah Yar, whereby they' were
convicted and sentenced under section 302( b) of the P.P.C. to suffer life imprisonment each
and fine Rs.350,000 each to be paid -to the legal heirs of deceased minor, in default whereof
to further undergo SI for six months, under section 202 of the P.P.C. to suffer six months
imprisonment and under section 7 -A of the Anti -Terrorism Act, 1997 to suffer life
imprisonment each and also to pay a fine of Rs.350,000 each to the legal heirs of deceased
minor, in default whereof to further undergo SI for six months. The benefit of section 382 -B
of the Cr.P. C. was extended in their favour and the aforesaid sentences were ordered to be
run concurrently.
2. On 8th October, 2010, a case vide Crime No.149 of 2010 (Exh.P/1 -B), under sections 302
and 202 of the P.P.C. read with section 7 -A of the Anti -Terrorism A ct, 1997 was registered
by the police' officials of City Dera Murad Jamali District Naseerabad police station on the
Fard-e-Bayan Exh.P/1 -A of complainant Dr. Dost Ali Javed. It was alleged by the
complainant that on 25th September, 2010 at about 2 -00 p.m. , when he reached home, he was
informed that about two hours back, his daughter Fatima Bibi aged about 5/6 years had gone
outside of the house, but she did not turn up, at which he searched his daughter on his own
and also made announcement through loudspe akers in different Masjids about missing of his
daughter, but in vain. The complainant further alleged that he had reported the matter to
police station city at about 8 -35 p.m. On 5th October; 2010 at about 4 -20 p-m., he, along with
his relatives Abdul Mal ik, Abdul Latif, Abdul Karim and others, in search of his daughter,
when reached to his guestroom, felt intolerable smell of human dead body from the drain of
his guesthouse, at which - they opened the cover of drain, in which the dead body of his
daughter was lying, which was taken to Civil Hospital, Dera Murad Jamali with the help of
police for conducting her postmortem examination and. on receiving postmortem
examination report, it transpired that some unknown accused persons have slaughtered his
daughter by means of sharp edged weapon, committed her murder and concealed her dead
body in the drain. Consequently, the aforesaid F.I.R. was registered against unknown accused
persons.
3. It may be noted that the complainant through another application dated 1 3th October, 2010
addressed to S.H.O., P.S. City, Dera Murad Jamali, has nominated the appellants along with
absconding accused Ali Hassan to be the murderers of his daughter, at which, the appellants
were arrested and the investigation was entrusted to P. W.7 Ghulam Ali, S. -I., who inspected
the site, prepared site inspection note, also prepared site sketch Exh.P/7 -A. He received
postmortem examination report on 8th October, 2010. On 9th October, 2010, the complainant
handed over him the cloths of deceased minor and on 13th October, 2010, submitted an
application before him, nominating the accused persons. He recorded the statements of
P.Ws., collected the inquest report Exh.P/7 -B from Civil Hospital, Dera Murad Jamali,
arrested the accused persons on 21st O ctober, 2010, conducted their personal search vide
memo Exh.P/7 -C. On 4th November, 2010, accused persons made disclosure, at which
disclosure memo Exh.P/7 -D was prepared and on their pointation, recovery of crime weapon
i.e. knife was recovered from the g uestroom of the complainant and after completion of
investigation placed the papers before S.H.O., who prepared incomplete challan Exh.P/7 -E
and the appellants were sent up to face the trial.
4. On the stated allegation, charge was framed and read over t o the appellants, to which they
did not plead guilty and claimed trial. The prosecution, in order to prove the accusation,
produced 07 witnesses. P.W:1 Dost Ali Javed is complainant of the case and exhibited Fard e-
Bayan Exh.P/1 -A, F.LR. Exh.P/2 -B and appl ication, nominating the appellants, as Exh.P/1 -C
P.W.2 Abdul Malik and P.W.3 Abdul Latif alleged to have opened the cover of drain along
with the complainant and recovered the dead body. P.W.4 Ali Haider, HC, is witness to the
site inspection memo Exh.P/4 -A and recovery memo. Exh.P/4 -B of clothes of deceased.
P.W.5 Manzoor Ahmed, constable, is witness to the alleged disclosure of appellants and
recovery of crime weapon i.e. knife. He produced disclosure memo as Exh.P/5 -A. P.W.6 Dr.
Zahida Hospital, Lady Med ical Officer, DHQ Murad Jamali, conducted the postmortem
examination of the deceased and produced the same as Exh.P/6 -A and P.W.7 Ghulam Ali, S. -
I., is the Investigating Officer of the case. Then the prosecution closed its side.
5. Mr. Nouroz Mengal, lea rned counsel for the appellants, argued that there is no
incriminating evidence available on record, which could connect the appellants with the
commission of crime. The prosecution has badly failed to prove its case against them. The
incident is unseen, b ut the trial court, while convicting the appellants, has unnecessarily given
due weight to the unreliable evidence, therefore, appellants deserve acquittal.
6. Mr. Liaquat Ali, Advocate, appearing on behalf of Prosecutor -General, opposed the
arguments of appellants' counsel and contended that the trial Court, after proper appraisal of
evidence and record, has rightly convicted and sentenced the appellants.
7. 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.
8. So far as the homicidal death of deceased Fatima Bibi is concerned, postmortem
examination report Exh.P/6 -A of the dead body of deceased was conducted by P.W.6 Dr.
Zahida Haroon, Lady Medical Officer, DHQ Hospital, Dera Murad Jamali. She found the
following Injuries on the person of deceased: --
(i) The dead body was head less.
(ii) Slaughter of neck, cut of all major blood vessels.
(iii) Cut of both right and le ft ears.
(iv) Cut of the left forearm
(v) Sharp injuries on the right arm and upper part of the chest.
She found the said injuries on the dead body, which were all ante -mortem and caused by a
sharp edged weapon. According to the opinion of the doctor , death had resulted due to sharp
weapons slaughter of neck, which is ante -mortem in nature and homicidal in character. Even
otherwise, the defence has not disputed unnatural death of deceased.
9. The case of the prosecution regarding connection of the a ppellants with the crime is sought
to be established by the alleged joint disclosures made by the appellants and recovery of
crime weapon i.e. knife from their possession on their pointation from the guestroom of
complainant.
It would be relevant to repr oduce herein below the relevant portion of the statement of P.W.5
Manzoor Ahmed, constable, which read as under: --
"On 4th November, 2010, during investigation, accused persons -Ali Muhammad and
Ghulam Rasool told the Investigating Officer that they can r ecover the knife means of which,
they slaughtered the minor Fatima and murdered her. Both the accused persons by turn
led the police to the guesthouse (Baithak) and by digging the earth, taken out the knife
and handed over to the Investigating Officer, whi ch was taken into possession through
recovery memo and he prepared its sealed parcel".
P.W.7 Ghulam Ali, S. -I. has produced the alleged joint disclosures of the appellants, which
speak as under: --
"After arrest, accused persons made a disclosure that s ince they were broke, therefore,
they hatched a conspiracy to take out the earrings of the daughter of Dr. Javed, who
was playing and when the earrings were removed, she started weeping and due to fear
that she may not tell the fact at home, they unwilling ly slaughtered her in order to
conceal the commission of crime ".
From perusal of the above portion of statement of P.W.5 and joint disclosures, it is quite clear
that the witnesses talk about two disclosures; one made before them regarding murder of
deceased Fatima Bibi and second with regard to concealment of the crime weapon of the
offence in the guesthouse of the complainant. So far as the disclosures made before them with
regard to the murder of Ghulam Fatima, which amounts to confessions, otherwise, were
inadmissible in view of the clog contained in Articles 38 and 39 of the Qanun -e-Shahadat
Order, 1984, as in pursuance thereof no new fact' was discovered. However, the second
disclosure, which relates to the concealment of knife is concerned, that wa s admissible, as
'the alleged weapon of crime was recovered in pursuance thereof. However, we are of
considered view that the evidence of the recovery of crime weapon by itself being evidence
of purely of corroborating nature, in absence of' any direct or substantive evidence, alone was
not sufficient to bring home charge against the appellants. P.W.5 Manzoor Ahmed, during
cross -examination, has admitted that the knife was not stained with blood. Needless to
mention here that in the instant case, chemical e xaminer's report was not produced in
evidence, so as to prove that the knife was stained with blood and if it was so, it had human
blood and was of the same group as was of the deceased. It is now established that, unless
substantive direct evidence is ava ilable, conviction cannot be based on any other type of
evidence, howsoever, convincing it may be. Reference may be given to the judgments -
reported in 1991 SCMR 643 and 1997 SCMR 290.
10. So far as the ocular account is concerned, it has been furnished b y P.W.1 Dost Ali Javed
(complainant), P.W.2 Abdul Malik and P.W.3 Abdul Latif, who have deposed that on 5th
October, 2010, they were present in the guestroom (Baithak) of complainant, when they felt
obnoxious smelling of putrefied dead body, on picking up the outer cover of gutter, the dead
body of the minor was found lying therein. P.W.1 further added that he involved the
appellants in the commission of offence, as B he suspected the appellants in "Balochi Hal o-
Ehwal". We are afraid with the finding of th e trial court that how a capital punishment can be
awarded, simplicitor, on account of suspicious and "Balochi Hal -o-Ehwal". Suspicion cannot
take the place of proof. Life and liberty of persons cannot be put in jeopardy only on the basis
of suspicion, how ever strong, and a person can be deprived of his invaluable right of personal
liberty only on the basis of proof beyond reasonable doubt. We are not unmindful of the
fact that Baloch have a rich culture and values protected under Article 28. of the Constit ution
of Islamic Republic of Pakistan, 1973, which speaks as under: -
"28. Preservation of language, script and culture. Subject to Article 251 any section
of citizens having a distinct language, script or culture shall have the right to
preserve and .pro mote the same and, subject to law, establish institutions for that
purpose".
It is crystal clear from the perusal of above Article of the Constitution and principles of
policy, as contained in the Constitution, that any section of citizens having a disti nct
language, script or culture have the right to establish institutions for promotion of said
culture, but by no stretch of imagination, under the garb of any cultural event, a person can be
found guilty of murder. "Balochi Hal -o-Ehwal " is a recognized me thod of communication,
where acquainted people asked about the well -being of each other. Under the Balochi culture,
an accused, while showing himself to be an innocent, can pass through the fire or can clear -
his position by means of taking the oath on Holy Qur'an, but in no way can be found guilty
on account of Balochi Hal -o-Ehwal. Moreover, the complainant has not claimed that the
appellants, at the time of "Balochi Hal -o-Ehwal", admitted their guilt, rather he has stated that
he only suspected them to be involved in the commission of the offence. He has further
admitted that, later on, the Holy Qur'an was brought by accused persons showing themselves
to be innocent.
In such view of the matter, we are of the opinion that the appellants have been convicted and
sentenced on the basis of inadmissible pieces of evidence. The prosecution has failed to prove
the case against the appellants beyond any reasonable doubt, therefore, they are entitled to the
benefit of doubt, which, was, accordingly, given to them at the time of passing short order
dated 21st July, 2011, by which we had allowed the appeal and acquitted them of the charge.
These are the reasons of our said short order.
H.B.T./84/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,
let us know.