2017 M L D 1808
[Balochistan]
Before Muhammad Hashim Khan Kakar and Nazeer Ahmed Langove, JJ
JALAL KHAN---Appellant
Versus
ABDUL RAUF and 4 others ---Respondents
Criminal Acquittal Appeal No.(s) 101 of 2016, decided on 10th, January, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Appeal against
acquittal ---Benefit of doubt ---Prosecution case was that unknown persons murdered the son of
complainant by cutting his neck through sharp edg ed weapon---Accused/appellant and
respondents were implicated in the case after the lapse of eleven months ---Validity ---Admittedly,
the unnatural death of deceased with sharp edged weapon was not a matter of dispute ---Record
showed that prosecution had int roduced two eye -witnesses of the incident after an unexplained
delay of eleven months, so inference could safely been drawn that the ocular evidence was
managed and said witnesses were planted after due deliberation and consultation---Conduct of said witne sses was against the human nature because they came forward with the claim that they
were close relatives of the deceased but at the time of incident, neither they resisted the unnatural death of deceased at the hands of culprits, nor intimated the matter either to the police or
complainant timely ---Said witnesses even did not shift the dead body of the deceased to the
hospital ---Record transpired that it was a blind murder with no evidence ---Alleged eye -witnesses
were planted later on, so reliance on their testimony without strong, independent and
unimpeachable corroboration was not safe ---Circumstances established that prosecution failed to
prove the case beyond reasonable doubt, therefore appeal against acquittal was dismissed accordingly.
Rahat Ali v. The State 2010 SCMR 584 rel.
(b) Criminal trial ---
----Benefit of doubt ---Scope ---Prosecution was duty bound to prove its case against the accused
beyond shadow of any reasonable doubt ---Benefit of doubt, if any, would be extended in favour
of accused.
Adeel and another v. The State 2016 YLR 2212 and Fazal Maula v. The State through
Additional Advocate General, Khyber Pakhtunkhwa and another 2016 MLD 42 rel.
Jameel Akhter Ganjani, D.P.G. for the State.
Date of hearing: 26th December, 2016.
JUDGMENT
NAZ EER AHMED LANGOVE, J. ---This Criminal Acquittal appeal has been filed
against the judgment dated 24th June, 2016 (hereinafter referred to as the "impugned judgment")
passed by Sessions Judge, Nasirabad at Dera Murad Jamali, (hereinafter referred to as the "trial court") whereby the respondents have been acquitted of the charge.
2. Brief facts of the case are that on 30th September, 2014 PW Jalal Khan(Complainant)
lodged a written report at PS 'Manjhoo Shori', with the averments that on 29.09.2014 his son namely Zafarullah, aged about 15/16 years after taking grain on bicycle went to Qadir Abad for
grinding the same but due to non- availability of electricity returned back to home. At about
02:00 PM his son again went to Qadir Abad for grinding grain, however, did not return back till
night. They searched him everywhere but could not find any clue. He further stated that today at about 10.30 PM his relative namely Abdullah informed him on phone about the fact that the dead body of his son named above is lying a t the bank of watercourse near Goth Noor Mohammad
Mengal. On receiving such information complainant along with his relative Abdul Nabi went to Goth Noor Muhammad Mengal, where he found the dead body of his son lying in pool of blood. According to the compl ainant his neck was cut by sharp weapon besides injuries on his back and
abdomen. Hence the registration of FIR No. 72/2014 with the PS 'Manjoo Shori', against the unknown accused.
3. On 30.08.2015, after lapse of about eleven (11) months, complainant recorded his second
statement wherein he nominated the accused persons including the respondents on the basis
whereof the accused were arrested, investigated and 'Challaned'.
4. On completion of investigation, `Challan' of the case was submitted, trial commenc ed,
charge framed and denied by the accused facing trial.
5. To prove its case the prosecution examined as many as ten (10) witnesses.
6. On examination under section 342, Cr.P.C. the accused have disputed the case of
prosecution and pleaded their innocenc e, with the submissions that they are innocent, have
falsely been involved in a heinous case of murder. They prayed for their acquittal, however, neither opted to record their statements on oath as envisaged under section 340(2), Cr.P.C., nor produced any witness in their defence.
7. After hearing learned counsel for the parties and evaluating evidence, the learned trial
court found the accused innocent as such, acquitted them of the charge as mentioned hereinabove.
8. Feeling aggrieved and dissatisfied fro m the judgment passed by the learned trial court
appellant preferred instant appeal with the submissions that the judgment impugned passed by the trial court is contrary to law, facts and principles of natural justice. Ample evidence connecting the respondents with the commission of crime was available on record, particularly
the statements of eye -witnesses PW -2 Khuda Baksh and PW -3 Abdul Ghani, were not
considered on the ground of recording their statements with delay by ignoring the fact that delay
had be en explained by them properly while recording their statements. Similarly the crime
weapon i.e. "Knife" was recovered on the pointation of respondent No. 1, but this important factor was also not considered which caused grave miscarriage of justice to the appellant.
9. On the other hand the learned D.P.G., vehemently opposed the appeal with the
submissions that the judgment impugned passed by the trial court is based on appreciation of evidence. No misreading or non- reading of evidence could be pointed out by the appellant,
therefore, the judgment impugned is not liable to be set aside.
10. We have heard the learned counsel for the parties and gone through the record with their
assistance which reflects that the alleged incident took place between the night of 29th and 30th September, 2014. The FIR No.72 of 2014 without any delay was registered against the unknown culprits, however, on 30.08.2015 the complainant recorded his second statement wherein he nominated the accused persons including the respondents a s culprits and responsible for
unnatural death of his son, which too, by introducing PW -2 Khuda Baksh and PW -3 Abdul
Ghani as eye -witnesses of incident which was rightly not believed by the learned trial court
because if the above named PWs had witnessed t he incident themselves, there was no occasion
for them to keep quiet for eleven (11) months.
11. Brief narration of evidence put forth before the trial court is as under: --
PW-1 Jalal Khan is the complainant who reported the matter to the police on 30.09.2014
wherein he did not name any culprit vide written report Ex.P/1- A, however, after lapse of
about eleven (11) months he had recorded his second statement wherein he nomina ted the
accused persons with the version that his relatives Abdul Ghani and Khuda Baksh told
him that the accused persons/respondents had committed the murder of his son. PW -2
Khuda Baksh, an alleged eye -witness, in his testimony stated that on 29.09.2014 he along
with his relative Abdul Ghani were watering their 'paddy' crops. At about 08.30 PM they were attracted with hue and cry from the watercourse of 'Balan Shakh' side. They rushed there and found the accused persons/respondents Abdul Rauf, Muhammad As lam, Abdul
Karim and Muhammad Asif holding Zafarullah from his hands and legs, while Abdul Rauf was cutting his neck, after raising 'lalkara' by the witness and his fellow culprits left Zafarullah and fled away. Witness further deposed that he and Abdul Ghani decided that they would not inform the matter to any one because in case of doing so they would have to pay compensation to the opposite party as 'Balochi' custom and tradition, however, after lapse of about eleven (11) months, the father of deceased b rought the 'Holy Quran'
which was honored and witnesses came forward with the truth. PW -3 Abdul Ghani also
narrated the same story. PW -4 Abdullah, found the dead body of deceased Zafarullah
lying at the bank of watercourse and intimated the matter to PW Ja lal Khan, the father of
deceased. PW -5 Muhammad Ali, (constable) recovery witness of blood stained crime
weapon sickle and bicycle lying there, taken into possession through memo, produced and articled in the court. PW -6 Haji Khan Domki SI/SHO, the Investi gating Officer of
this case appeared before the trial court and deposed that in pursuance of FIR No. 72/2014, (Ex.P/6- A) he started investigation of the matter, prepared memo. of inspection
of the place of occurrence Ex.P/5 -B, site plan Ex.P/6- B, inquest r eport Ex.P/6- C,
recovery memos. Ex.P/5 - B to Ex.P/5- D, memo. of blood stained clothes Ex.P/6- D and
sealed them in parcels Art.P/8 to Art.P/9. PW -7 Saifullah (Constable) was also a formal
recovery witness of blood stained clothes of deceased taken into poss ession through
memo. Ex.P/6- A. PW -8 Dr. Mehmood Khan Umrani, ADHO, who examined the dead
body of deceased and found following injuries: --
"History of "Incised wound",
External Post Mortem Examination report.
A Dead body lying Hate.
Blood staining posi tive.
Rigor mortis positive.
INJURY:
1. An incised would 1" large lcm deep 1/4" wide of on the left side of the neck.
Blood vessels of the neck were cut.
2. An incised wound on the Epigastric region of the abdomen.
3. An incised would on the back of the left side of the chest.
Cause of Death: - Severe loss of blood due to damage of vital organs of Neck.
Probable time of death : 12 hours before arrival at the RHC Manjhoo Shori.
Kind of weapon: (Sharp Cutting) "
PW-9 Abdul Raheem (constable) recovery witness of alleged crime weapon i.e. `Churri',
(recovered on the pointation of respondent No. 1), taken into possession through memo. Ext.p/9-
A and produced in the court as Art.P/12. PW -10 Ghulam Mustaf Meerali, SI/ 2nd I.O. of this
case investigated the remainin g part of investigation, sent blood stained clothes and earth to FSL
and obtained report Ex.P/10- A, submitted the same through `Challan' Ex.P/10- B.
12. Admittedly, the unnatural death of deceased Zafarullah with sharp edged weapon is not a
matter of disput e, however, the moot question is that who was/is responsible for the same. Deep
appreciation and re -evaluating of evidence indicates that PW -2 and PW -3, star witnesses of the
case for the first time were introduced as eye -witnesses after an unexplained del ay of eleven (11)
months, so inference can safely been drawn that the ocular evidence was managed and they were planted after due deliberations and consultations, therefore, the learned trial court rightly disbelieved their evidence. Conduct of above named witnesses was against the human nature
because they came forward with the claim that they are close relatives of the deceased but at the time of incident neither they resisted the unnatural death of deceased at the hands of culprits, nor intimated the matter either to the police or complaint timely, nor even bothered to shift the dead
body of deceased to the hospital, rather kept mum for about eleven months, which is against the
human nature and not convincing to a man of common sense.
12(sic) Perusal of r ecord indicates that it was even a blind murder with no evidence. The above
named PWs were planted later on so, reliance on their testimony without strong independent and
unimpeachable corroboration was not safe, rightly disbelieved by the trial court. In this regard reliance can be placed on judgment titled as Rahat Ali v. The State reported in 2010 SCMR 584. Relevant portion is reproduced as under: --
"----S. 161---Delayed examination of witnesses by police ---Effect ---Delay in recording
the statement of a witness by police without furnishing any plausible explanation, is fatal
to prosecution case and the statement of such witness is not to be relied upon.
Muhammad Sadiq v. The State PLD 1960 SC 223; Sahib Gil v. Ziarat Gul 1976 SCMR
236; Muhammad lqbal v. S tate 1984 SCMR 930 and Syed Muhammad Shah v. State
1993 SCMR 550 ref."
Similarly, reliance can also be placed on judgment titled as Mst. Shahnaz v. The State reported in 2015 YLR 771. Relevant portion whereof is reproduced as under: --
"This court has alrea dy held in 1993 SCMR 550 and 1995 SCMR 127 that if no plausible
explanation is offerred by prosecution to record the statement of eye -witnesses
immediately after the registration of the case then the evidence of such witnesses becomes incredible."
Admitted ly, the prosecution is always duty bound to prove its case against the accused beyond
the shadow of any reasonable doubt and benefit of doubt, if any, should be extended in favour of the accused. Reliance can be placed on judgment titled as Adeel and anoth er v. The State
reported in 2016 YLR 2212. Relevant portion is reproduced as under: --
"It is known and settled principle of law that prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trust worthy,
convincing and coherent evidence enabling the Court to draw conclusion whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that charges so imputed against the accused have not been proved beyond reasonable doubt, then the accused becomes entitled for his release on getting benefit of doubt in the prosecution case. In such situation the Court has no jurisdiction to abridge such right of the accused. To ascertain as to whe ther accused are
involved in the case or they are entitled to the benefit of doubt, the Court can conclude on considering agglomerated effect of the evidence available on record as held in the case of "Safdar Ali v. The Crown" (PLD 1953 FC 93) and "Muhamma d Luqman v. The State"
(PLD 1970 SC 10)."
Reliance can also be placed on judgment titled as Fazal Maula v. The State through Additional Advocate General, Khyber PakhtunKhwa and another reported in 2016 MLD 42. Relevant portion is reproduced as under: --
"It is well settled principle of law that prosecution primarily is bound to establish guilt
against the accused without shadow of reasonable doubt by producing trustworthy,
convincing and coherent evidence and if Court comes to the conclusion that the charge so leveled against the accused has not been proved beyond reasonable doubt, then the accused becomes entitled for his acquittal on getting benefit of doubt. In criminal case,
where more than one possibility appears in the case, then the possibility in favour of
accused is always to be preferred for simple reasons that benefit of doubt is never to be
extended to the prosecution and is always given to the accused."
Same principle was affirmed in another judgment reported in 2016 SCMR 1605.
13. In view of above we find no substance in the appeal, therefore, same is dismissed
accordingly.
JK/64/Bal Appeal dismissed.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.