2018 M L D 1190
[Balochistan (Sibi Bench)]
Before Abdullah Baloch, J
SOOMAR KHAN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(s) 127 of 2017, decided on 18th December, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 324 & 34---Attempt to commit qatl- i-amd, common intention ---Appreciation of
evidence ---Benefit of doubt ---Charge against accused was that he, along with co- accused
persons, armed with Kalashnikov fired upon son of complainant, who received bullet i njury
on his arm and fell down---Ocular account was furnished by complainant of the case, who
reiterated the contents of fard -e-bayan ---Statement of the complainant was silent with regard
to specific time of the occurrence---Complainant had mentioned the date of occurrence as 10th April, 2017 in her fard -e-bayan and said date was also recorded in the FIR ---
Complainant, in her cross -examination had admitted that she firstly took the injured to the
hospital ---Complainant, thereafter went to Tehsil Office, but did not find present the
Tehsildar and on the following day again she went to Tehsil Office and met with the Tehsildar by submitting fard -e-bayan for registration of FIR ---Admittedly, the occurrence
had taken place on 10th April 2017 and according to the statement of the complainant the FIR could not be lodged on the said date due to absence of Tehsildar but the same was registered on the following day, but the date of occurrence and the date of registration of FIR as mentioned in the FIR was 10th April, 2017--- Said aspect created doubt in the case of
prosecution that if the complaint was filed on the following day of occurrence, then under such circumstances how it was possible to lodge the FIR prior to filing of complaint ---
Statement of complainant reflec ted that all the investigation proceedings were carried out by
the Investigating Officer on the following day of the occurrence and till that time, the injured was discharged from hospital ---Injured witness contradicted the statement of complainant by
deposing that on the day of occurrence, the Tehsildar took him to hospital for treatment in his official vehicle ---Injured witness, during his cross -examination stated that he was taken to the
hospital by police ---Injured witness stated that Tehsildar visited the site at 5.00 p.m. while
complainant had stated that the Tehsildar visited the site at about 3.00 p.m.--- Investigating
Officer contradicted the statements of complainant and injured by deposing that on 10th April 2017, he visited the site and took into possession one empty, blood stained earth and blood-stained clothes of injured and thereafter took the injured to hospital ---Statements of all the
witnesses established the facts that not only the witnesses contradicted each other on material counts, but a lso they narrated different stories with regard to occurrence ---Statement of either
of the witnesses was not helpful to the case of prosecution---Witnesses had admitted that previously civil and criminal disputes existed between the parties and FIR had bee n lodged
by the accused party against the complainant party, thus false implication of the accused could not be ruled out for consideration---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of whi ch would resolve in
favour of accused---Appeal was allowed and accused was acquitted in circumstances by
setting aside conviction and sentence recorded by the Trial Court.
Tariq Pervez v. The State 1995 SCMR 1345 rel.
(b) Criminal trial ---
----Witness ---Impartial and independent witness ---Scope ---Not necessary that an impartial
and independent witness, who was neither related to complainant nor inimical towards the accused, always spoke true ----Court was duty bound to scrutinize the statement of witness
with utmost care and caution.
Muhammad Saleem v. The State 2010 SCMR 374 rel.
Shah Muhammad Jatoi for Appellant.
Jamil Akhtar Gajani, D.P.G. for the State.
Date of hearing: 30th November, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.(S)127
of 2017 filed by the appellant Soomar Khan son of Haji Khan, against the judgment dated 19th September 2017 (hereinafter referred as, "the impugned judgment") passed by the
learned Additional Sessions Judge, Jhal Magsi at Gandawah, (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under Section 324, P.P.C. and sentenced to suffer eight (08) years R.I. and to pay Rs.50,000/ - as Arsh to the victim Khalid Hussain,
with the benefit of Section 382- B, Cr.P .C., while acquitted accused Abdul Majeed son of
Kala Khan.
2. It is the case of prosecution that on 10th April 2017 at about 5.00 p.m. the
complainant Mst. Jameela wife of Shafi Muhammad, lodged FIR No.07/2017 at Levies Thana Gandawah, under section 324/34, P.P.C., stating therein that she is resident of Peer Chattal Shah Noorani. On the day of occurrence, the accused persons Soomar Khan son of Haji Khan, Abdul Majeed son of Kala Khan and two other unknown persons came at her home and called her son Khalid Hussain, who when came out from his house, the accused
Soomar Khan armed with Kalashnikov fired upon his son, who received bullet injury on his arm and fell down. On hearing fire shots, other people came on the spot. whereas the appellant and others escap ed from the place of occurrence.
3. In pursuance of above FIR, investigation was entrusted to PW -5 Muhammad Anwar
Naib Tehsildar Gandawa, who during investigation visited the place of occurrence and prepared site plan; took into possession the one empty of Kalashnikov, obtained blood stained
earth and blood stained clothes of injured; recorded the statements of witnesses under Section 161, Cr.P.C.; obtained medical certificate of injured and on completion of investigation, submitted the challan for trial of the accused.
4. At the trial, the prosecution produced five witnesses. The appellant and acquitted
accused were examined under section 342, Cr.P.C. However, neither they recorded their
statements on oath under Section 340(2), Cr.P.C. nor produced any witness in their defence.
On conclusion of trial and hearing the arguments, the trial Court convicted and sentenced the appellant as mentioned above, while acquitted the accused Abdul Majeed son of Kala Khan, whereafter the instant appeal has been filed.
5. Learned counsel for appellant contended that the impugned judgment passed by the
trial Court suffers from mis -reading and mis -appreciation of evidence available on record;
that all the witnesses made contradictory statements to each other and even made certain dishonest improvements, creating certain reasonable doubts, but the benefit of the such doubts have wrongly been withheld in favour of the appellant; that no recovery of crime weapon was effected from the possession of the appellant; that on the same set of evidence the accused Abdul Majeed was acquitted, but the same was illegally believed to the extent of the appellant, thus the appellant is entitled to be acquitted of the charge.
6. On the other hand, learned Deputy Prosecutor General while supporting the impugned
judgement contended that sufficient incriminatory evidence has come on record connecting the appellant with commission of crime and the learned trial Court after proper appraisal of material available on record has rightly convicted and sentenced the appellant through impugned judgment, which otherwise is not open for interference by this Court. When confronted with the contradictions and discrepancies in the statements of prosecution witnesses, the learned Deputy P.G. contended that the prose cution has produced impartial and
disinterested witnesses to substantiate the charge and the appellant has failed to point out any mala fide or ill- will against such witnesses to falsely implicate him, thus their testimony
cannot be discarded merely on the basis of minor discrepancies, hence prayed for dismissal of
appeal.
7. 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 five witnesses. The complainant of the case appeared as PW -1, who reiterated the contents of
fard-e-bayan Ex.P/1- A. According to PW -1 on the day of occurrence i.e. 10th April 2017 she
alongwith her son Khalid Hussain was present in her house, when the accused called her son and when her son came out of the house, accused Soomar Khan made firing upon his son. The statement of PW -1 is silent with regard to specific time of occurrence and simply stated
that it was day time, while she mentioned the date of occurrence as 10th April 2017 in her fard-e-bayan and also the said date was recorded in the FIR. However, in her cross
examination she admitted that firstly the injured was taken by her to Hospital, whereafter she went to Tehsil Office, but did not find present the Tehsilda r and on the following date again
she went to Tehsil Office and met with the Tehsildar by submitting fard -e-bayan for
registration of FIR. Admittedly. the occurrence had taken place on 10th April 2017 and according to the statement of this witness the FIR could not be lodged on the said date due to absence of Tehsildar rather the same was registered on the following day, but astonishingly the date of occurrence and the date of registration of FIR as mentioned in the FIR is 10th April 2017, which creates doubts in the case of prosecution that if the complaint was filed on the following day of occurrence i.e. 11th April 2017 then under such circumstances as to how it was possible to lodge the FIR prior to filing of complaint. The statement of complainant/PW -1 further reflects that all the investigation proceedings were carried out by
the Investigating Officer on the following date of occurrence and till that time the injured was discharged from Hospital. However, the date mentioned in the site map, recovery mem o. of
one empty and blood- stained clothes is 10th April 2017. It is not understandable that the FIR
was lodged on 10th April 2017 and also the other investigation proceedings were carried out
on 10th April 2017, when admittedly as per PW -1 she met the Tehs ildar on next day of
occurrence that might be 11th April 2017.
8. PW-4 Dr. Imran Shah deposed that on 10th April 2017 at 5.20 p.m. the injured was
brought by Levies at Hospital. It means the time and name of person mentioned by the PW -1
and PW -2 are contradictory to the statement of P.W.4.
9. The most important witness of the prosecution is the injured Khalid Hussain, who
appeared as PW -2, but this witness has completely contradicted the statement of PW -1 and in
his examination in chief he stated that on th e day of occurrence the Tehsildar took him to
hospital for treatment in his official vehicle, whereas according to PW -1 the injured was
taken to hospital by her (PW -1) as the Tehsildar was not present in his office on the day of
occurrence. PW -2 further co ntradicted his examination in chief in his cross -examination and
stated that he was taken to Hospital by Levies Chowki Incharge. PW -2 further contradicted
the statement of PW -1 and stated that the Tehsildar visited the site at 5.00 p.m. while PW -1
had stat ed that the Tehsildar visited the site at about 3.00 p.m.
10. The Investigating Officer of the case appeared as PW -5, who contradicted the
statements of both PW -1 and PW -2 and stated that on 10th Aril 2017 he visited the site and
took into possession one e mpty, blood -stained earth and blood- stained clothes of injured and
thereafter taken the injured to hospital. PW -5 in his cross -examination stated that the
complainant only one time at 5.00 p.m. came to him for registration of FIR. PW -5 denied the
suggestion that the Kameez of the injured was not stained with blood. However, on perusal
by the trial Court it was found that the Kameez was not stained with blood.
11. The comparison of the statements of all the witnesses would establish the facts that
not only the witnesses contradicted each other on material counts, but also they narrated
different stories with regard to occurrence and in such like situation it will be difficult for a prudent mind to ascertain that whose placing the actual facts, when othe rwise under the facts
and circummures of the case, all the witnesses are the star witnesses of the prosecution and being the central figures, the entire prosecution case revolves upon their testimony, but due to above mentioned glaring contradictions, thei r testimony cannot be termed to be worth
credence and no sentence can be based upon such glaring contradictions. Thus, in no way the statements of either of the witnesses is helpful to the case of prosecution and a serious and irreparable dent and damage h as been caused to the case of prosecution. Even otherwise, it
has been admitted by all the witnesses that previously civil and criminal disputes exist between the parties and also an FIR has been lodged by the accused party against the complainant party, t hus under such circumstances false implication of the appellant cannot be
ruled out of consideration.
12. So far as, taking into consideration the contention of learned Deputy Prosecutor
General that the prosecution has produced impartial and confident ins piring evidence to
establish the charge, thus their testimony cannot be discarded merely on the basis of minor
discrepancies; suffice to observe here that it is not necessary that an impartial and independent witness, who is neither related to complainant nor inimical towards the accused, always speaks true, but it is the duty of the Court to scrutinize the statement of such witness with utmost care and caution. In this regard, I am fortified by the dictum of the Hon'ble Supreme Court in the case of Muhamma d Saleem v. The State 2010 SCMR 374, wherein it
has been held, as under: --
" The acid test of veracity of a witness is the inherent merit of his town statement. It is
not necessary that an impartial and independent witness, who is neither related to the complainant nor inimical towards the accused would stamp his testimony necessarily
to be true. The statement itself has to be scrutinized thoroughly and it is to be seen as to whether in the circumstances of the case the statement is reasonable, probable or plausible and could be relied upon. The principle that a disinterested witness is always to be relied upon even if his statement is unreasonable, improbable and not plausible or not fitting in the circumstances of the case then it would lead to a very dang erous
consequence. Reference is invited to Muhammad Rafique v. State 1977 SCMR 457 and Haroon v. State 1995 SCMR 1627. ... Applying the test to the prosecution witnesses, we find that their statements do not come within the ambit of above' rule of acceptan ce of evidence, therefore, no implicit reliance can be placed on such type of
evidence without any corroboration which is lacking in the present case."
13. In the above referred judgment of the Hon'ble Supreme Court, it has also been held
that according to settled principle of appreciation of evidence, the statements of witnesses
should have been in consonance with the probabilities fitting in the circumstances of the case and also confidence inspiring in the prudent mind. If such elements are present, then the
statement of the worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, then statement of a pious man may be rejected without second thought.
14. It has been established from the facts and circumstances of the case discussed
hereinabove, that the prosecution has miserably failed to establish the charge against the appellant. The case of prosecution is defective on all counts as none of the witnesses has supported the prosecution case. In the instant case, the prosecution has failed to discharge its
responsibility of proving the case against the appellant. Sufficient and reasonable doubts have been created in the case of prosecution, but the same were overlooked by the learned trial Court. The Hon'ble Apex Court in a case titled Tariq Pervez v. The State reported in 1995 SCMR 1345, has held that "... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be
many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a mat ter or right."
For the above reasons, the appeal is accepted. The impugned judgment dated 19th
September, 2017 passed by the learned Additinoal Sessoins Judge, Jhal Magsi at Gandawah, is set aside and the appellant Soomar Khan son of Haji Khan, is acquitt ed of the charge. The
appellant being in custody, is ordered to be released forthwith, if not required in any other case.
JK/7/Bal. 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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