2011 YLR 2843
[Quetta]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
SHAH NAWAZ and 2 others ---Appellants
Versus
THE STATE---Respondent
Criminal Jail Appeal No. (S) 10 of 2010, decided on 4th August, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 302 (b)---Qatl -e-amd---Appreciation of evidence---Not a single tangible evidence
could be found in support of the charge against accused persons, connecting them with the
commission of offence ---One of the prosecution witnesses was cousin of the deceased while
other one was real brother of the deceased ---Both of them were not only related, but were
chance, interested and inimical witnesses ---Ocular account furnished by said witnesses was
neither confidence -inspiring nor straightforward---Conduct of the prosecution witnesses was
not normal, as they had not tried to save the life of the deceased; and also had not tried to catch
the culprits, in spite of the fact that the complainant party and accused persons were equal in
number and according to their version, accused were unarmed---Occurrence havi ng taken place
at odd hours of the night, had gone un witnessed and no independent corroboration was
available in support of the ocular account ---Prosecution had failed to prove the alleged motive -
--No evidence was on record to show that the crime weapon, allegedly, recovered on the
pointation of accused, was used during the occurrence, as same was not sent to Forensic
Science Laboratory ---Such piece of evidence, was of no significance and the Trial Court
was not justified to place reliance upon the sane ---Prosecution evidence had been
disbelieved qua the acquitted accused persons ---Same evidence, without material
corroboration, could not have been considered against the accused persons, when their case
was at par with that of co - accused ---Prosecution havin g failed to establish the presence of
both the witnesses at the time and place of incident beyond any reasonable doubt, it was
very unsafe to rely upon such witnesses on capital charge ---After excluding the evidence of
ocular testimony, corroborative piece s of evidence of alleged recovery of crime weapon
Wanda' on the pointation of accused and medical evidence furnished by the doctor, by
itself were insufficient to convict accused in absence of substantive piece of evidence---
Conviction and sentence awarded to accused persons, were set aside and they were
acquitted of the charge and were released, in circumstances.
Noor Muhammad v. State 2010 SCMR 97 ref.
(b) Penal Code (XLV of 1860) ---
----S.302(b)---Qatl -e-amd---Appreciation of evidence---Motive ---Prosecution, no doubt,
was not required to disclose or set up a motive, but once it chose to do so, then it would
become its obligation to prove the same by cogent evidence; and failure in doing so would
not only damage the credibility of the prosecution ca se beyond repair, but it would also be
fatal for it.
1998 PCr.LJ 990 rel.
Haji Liaquat Ali for Appellants.
Abdullah Kurd for P.G. for the State.
Date of hearing: 28th July, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J .---This appeal is directed against the
judgment dated 13th February, 2010, passed by Sessions Judge, Dera Allah Yar, whereby
appellants Shah Nawaz and Gul Nawaz were convicted and sentenced under section
302(b) of the P.P.C. to suffer life imprisonment an d appellant Muhammad Nawaz was
convicted and sentenced for 14 years' R.I. and to pay Diyat amount to the legal heirs of
deceased Zulfiqar Ali, with benefit of section 382 -B of the Cr.P.C.
2. The relevant facts, arising out of instant appeal, are that on 12th January, 2009 at about 12 -20
a.m., a case vide Crime No.10 of 2009, under section 302 read with sections 147 and, 149, P.P.C.
was registered at Police Station Dera Allah Yar, District Jaffarabad on the report of complainant
Habibullah son of Faqir Muhammad, alleging therein that he, along with his family members, is
residing at Goth Haji Elahi Bakhsh Khosa and by profession is an agriculturist. Tonight, he, his
brother and relatives, namely, Zahid Hussain son of Niamatullah and Khadim Hussain son of
Allah Dad, after taking thresher machine, went to their landed property, whereas his brother
Zulfiqar Ali went to the house of their Buzgars, namely, Gahi Khan son of Muhammad Umar,
Gul Nawaz, Muhammad Nawaz, Shah Nawaz, Shoukat Ali sons of Gahi Khan, so as to bring
them to work on thresher machine. It was alleged that when his brother Zulfiqar Ali did not turn
up after sometime, he, along with Zahid Hussain and Khadim Hussain, at about 11:00 p.m., went
to the house of Gahi Khan, where they saw that accused persons, namely, Gul Nawaz and Shah
Nawaz were pulling his brother by roping his neck, whereas accused Gahi Khan and Shoukat
Ali were holding his legs and accused Muhammad Nawaz beating him by means of 'Danda'. It
was further alleged that on seeing them, ac cused Muhammad Nawaz told them that since
Zulfiqar Ali had illicit relations with his wife, namely, Sorat, therefore he is 'Siyahkar' and has no
right to live. It was further averred that, unpredictably, he died on the spot and accused persons
ran away fro m the crime scene. Resultantly, aforesaid F.I.R. was registered.
3. After registration of the F.I.R. Exh.P/6, investigation of the case was entrusted to P.W.6.
Abdul Hameed, S.- I., who inspected the site, prepared site inspection memo and site sketch
Exh.P/6- A, secured blood- stained earth vide memo, prepared inquest report Exh.P/6- B and
dispatched the dead body of deceased for postmortem examination to hospital, took into
possession the blood- stained clothes of deceased vide memo, recorded the statements of P.Ws.
and obtained certificate from the hospital. On 12th January, 2009, he arrested the accused
persons, namely, Shah Nawaz, Muhammad Nawaz and Shoukat Ali. On 14th January, 2009, he
received the death certificate of deceased. On 16th January, 2009, on the basis of disclosure
made by accused Muhammad Nawaz, he recovered 'Danda' used in the commission of offence.
Thereafter, he placed the papers before IP/S.H.O. Khawand Bakhsh, who prepared incomplete
challan Exh.P/6- C against the accused persons. On 6th March, 2009, the investigation of the case
was transferred to P.W.7 Habibullah, S.- I., who arrested the remaining accused persons, namely,
Gul Nawaz and Gahi Khan and after investigation, placed the papers before S.H.O., who
prepared incomplete challan Ex h.P/7. On receiving report from FSL Exh.P/7- A, complete
challan Exh.P/7- B was prepared.
4. On the stated allegations, a formal charge was framed and read over to the accused persons on
8th April, 2009, to which they did not plead guilty and claimed trial. The prosecution, in order
to prove the accusation, produced seven witnesses. P.W.1 Zahid Hussain, alleged to have
witnessed the occurrence and is also recovery witness of blood- stained earth and blood- stained
rope as Exh.P/1- A and Exh.P/1- B respectively. P.W.2 Abdul Hameed is witness to the recovery
memo. of blood- stained clothes of deceased. P.W.3 Habibullah is complainant of the case and
has exhibited his Fard -e-Bayan Exh.P/3. P.W.4 Muhammad Afzal, constable, is recovery
witness of `Danda', which he produced as Exh.P/4. P.W.5 Dr. Muhammad Din, Medical Officer,
examined the dead body of deceased and issued Medico- Legal Certificate Exh.P/5. P.W.6 Abdul
flamed, S.-I. and P.W.7 Habibullah, S.- I., are the Investigating Officers of the case. Then the
prosecution closed its side.
5. Thereafter, the appellants were examined under section 342 of the Cr.P.C. They denied the
prosecution allegation and claimed to be innocent. They did not opt to record their statements
on oath as envisaged under section 340(2) of the Cr.P.C., nor produced any evidence in
defence. The trial Court after close of the parties' evidence, vide impugned judgment, convicted
and sentenced the ap pellants, as mentioned hereinabove, hence, this appeal.
6. Mr. Liaquat Ali, learned counsel for the pauper appellants, contended that the
prosecution has failed to establish the charge against the appellants. He has challenged the
ocular testimony furnis hed by P.W.1 Zahid Hussain and P.W.3, Habibullah, on the ground
that the witnesses are closely related to each other and being a chance witness, their
presence at odd hours of the night at the place of occurrence is highly doubtful. He further
contended that on the same set of evidence; co -accused Shaukat Ali and Gahi Khan were
acquitted of the charge, therefore, the appellants deserve same treatment. He argued that
the incident went un- witnessed and that after getting information of the incident, the case
was prepared with the connivance of Police. He also argued that the trial Court has acted
illegally and with material irregularity while convicting the appellants and the order of
conviction needs to be set aside.
7. On the other hand, Mr. Abdullah Kurd, learned counsel appearing for the State, urged
that there are eye- witnesses of the occurrence, who have implicated the appellants in the
commission of the offence. He contended that the ocular account is also corroborated by the
other pieces of evidence a nd the trial Court has rightly convicted the appellants.
8. We have carefully considered the contentions put forth by the parties' learned counsel
and have also gone through the impugned judgment and evidence, gist whereof has already
been reproduced her einabove.
9. As far as unnatural death of deceased Zulfiqar Ali is concerned, the defence has not
disputed the same. It has been proved through the statement of P.W.5 Dr. Muhammad Din,
Medical Officer, that deceased Zulfiqar Ali met with unnatural death on account of injuries
mentioned in postmortem examination report Exh. P/5.
10. The connection of appellants with the crime in question is sought to be established by
the evidence of P.W.1 Zahid Hussain and P.W.3 Habibullah. A careful and minute
reappraisal of the evidence produced by the prosecution would reveal that not a single bit
of tangible evidence could be found in support of the charge against the appellants,
connecting them with the commission of offence. P.W.1 Zahid Hussain is cousin, w hile
P.W.3 Habibullah is real brother of deceased Zulfiqar Ali and are related, chance,
interested and inimical witnesses. We are conscious of the fact that relationship of the eye -
witnesses inter se with the deceased is not sufficient to discard their evi dence, but it should
be cogent, natural, confidence -inspiring and corroborated by independent pieces of
evidence. The ocular account furnished by said witnesses is neither confidence -inspiring,
nor straightforward. Even otherwise, we find that the conduct of P.Ws. Habibullah, Zahid
Hussain and Khadim Hussain (not examined) was not normal, as they had not tried to save
the life of the deceased and had also not tried to catch the culprits in spite of the fact that
the complainant party and appellants were equ al in number and according to their version,
the appellants were unarmed. Although, hard and fast rules about human conduct and
behaviour are not available, yet in the light of accepted standards of human behaviour, it
can be safely said that in the normal course of events the said witnesses being nears and
dears of deceased Zulfiqar Ali should have tried to save his life. The conduct, allegedly,
exhibited by the said witnesses is offensive to normal human behaviour. We have no
hesitation to hold that the o ccurrence, being taken place at odd hours of the night, had gone
un- B witnessed and no independent corroboration is available in support of the ocular
account.
11. The motive is stated to be illicit relationship of deceased Zulfiqar Ali with the wife of
accused Muhammad Nawaz, namely, Mst. Sorat, but the record is silent regarding Mst.
Sorat, as to whether she had also been killed on account of honour killing or otherwise. The
prosecution has badly failed to prove the alleged motive. Prosecution, no doubt, is not
required to disclose or set up a motive, but once it chooses to do so, then it becomes its
obligation to prove the same by cogent evidence and failure in doing so would not only
damage the credibility of the prosecution case beyond repair, but it would also be fatal for
it. In this regard we are fortified our view to a judgment -reported in 1998 PCr.LJ 990.
12. The trial Court, while convicting the appellants, has also placed reliance on the
recovery of crime weapon, allegedly, made on the disclosure and pointation of appellant
Muhammad Nawaz from bushes. There is no evidence on record to show that the crime
weapon, allegedly, recovered on the pointation of appellant Muhammad Nawaz, was used
during the occurrence, as the same was not sent to Forensic Science Laboratory (FSL), as
such, this piece of evidence was of no significance and the trial Court has wrongly made
reliance upon the same.
13. Learned counsel for the appellants also drew our attention to the fact that the
prosecution evidence has been disbelieved qua the acquitted accused persons Shaukat Ali
and Gahi Khan and the same evidence, without material corroboration, could not have been
considered against the appellants. The contention has force, for the reasons E that the same
evidence, which was disbelieved qua acquitted accused persons Shaukat Ali and Gahi
Khan, has been believed against the present appellants despite the fact that the .case of the
appellants is at par to that of co -accused. As observed in the preceding para that the cr ime
weapon was not proved. to have been used in the commission of the alleged offence, thus,
their case was, admittedly, at par to that of acquitted accused persons, therefore, to our
mind, it can be concluded that it was the same evidence, on the basis whereof the
appellants were convicted and co -accused Shaukat Ali and Gahi Khan were acquitted of the
charge. The trial Court has disbelieved the ocular account qua acquitted accused persons
and without any justification and corroboration believed the same qua appellants.
14. After considering the material available on record, we are of the considered view that
the prosecution has failed to establish the presence of both the witnesses at the time and
place of incident beyond any reasonable doubt, therefore, it is very unsafe to rely upon
such witnesses on capital charge. After excluding the evidence of ocular testimony, we are
left with the corroborative pieces of evidence of alleged recovery of crime weapon "danda"
on the pointation of appellant and medical evidence furnished by P.W.5 Dr. Muhammad
Din. These are corroborative pieces of evidence, which by itself are insufficient to convict
the appellants in absence of substantive piece of evidence. Reference is invited to the case
of Noor Muhammad v. State reported in 20101 SCMR 97.
In the light of what has been discussed above, the convictions and sentences awarded to the
appellants Shah Nawaz, Muhammad Nawaz and Gul Nawaz, including the impugned
judgment are set aside and they are acquitted of the charge. T hey are in custody and be
released forthwith, if not required in any other custody case. Appeal accepted.
H.B.T./82/Q Appeal accepted.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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