2018 M L D 1246
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
DUR MUHAMMAD--- Appellant
Versus
The STATE---Respondent
Criminal Jail appeal No.(s) 12 and Murder Reference No.(s) 2 of 2017, decided on 24th
January, 2018.
Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qanun- e-Shahadat (10 of 1984), Art. 46---Qatl -i-amd, common
intention ---Appreciation of evidence ---Dying declaration ---Scope ---Accused was charged for
the murder of complainant and his mother by firing ---Ev idence produced by the prosecution,
was the dying declaration, evidence of widow of deceased, member of police patrolling party, in whose presence, the alleged dying declaration of deceased was recorded and the statement of first Investigating Officer ---Sc rutiny of statements of all the said witnesses suggested that
they contradicted each other on all material counts ---Member of the patrolling party and
Investigating Officer deposed that deceased, who at the relevant time was in injured
condition, had state d that they were injured by the accused by means of firearm when they
were sleeping in their house ---Alleged dying declaration was silent with regard to motive of
occurrence as to why they were injured by the accused who was their uncle and was also residi ng in their house ---Statements of said witnesses as well as the alleged dying declaration
were fully contradicted and negated by the widow of deceased ---Statement of widow of
deceased reflected that the absconded sons of the accused made indiscriminate fir ing upon
her husband as well as her deceased mother -in-law, due to which they sustained injuries and
subsequently died---During her cross -examination, she had exonerated the accused from the
charge ---Sister of deceased lady stated that her sister at the relevant time was in injured
condition and disclosed that they had been injured by the brother of deceased---Said witness had not supported the case of prosecution, thus she was declared hostile and was cross -
examined by the prosecution, but she remained fir m in her deposition and exonerated the
accused from the commission of crime ---Widow, along with her deceased husband and
mother -in-law were allegedly the target of accused and other absconded accused, but her
husband and mother -in-law were hit and the wido w of deceased was let free---Said fact did
not appeal to the logic that by killing two persons in presence of their close relatives, accused would not attempt to cause any injury/kill the prosecution witnesses and would leave them for evidence to be hanged---Statement of accused was recorded on oath under S. 340(2), Cr.P.C., wherein, he had stated that alleged widow of deceased was residing with the deceased illegitimately without Nikkah and that was the reason that deceased was murdered --
-Prosecution had f ailed to produce any evidence establishing the motive behind the
occurrence---Plea taken by the accused was more plausible---Motive behind the occurrence was shrouded in mystery ---Circumstances established that prosecution had failed to prove its
case agai nst the accused beyond any shadow of doubt, benefit of which would resolve in
favour of accused---Appeal was allowed and the accused was acquitted in circumstances by
setting aside conviction and sentence recorded against him by the Trial Court.
Sarwan K umar for Appellant.
Jamil Akhtar Gajani, Additional P.G. for the State.
Date of hearing: 29th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Jail Appeal
No.(S)12 of 2017 filed by the appellant Dur Muhammad son of Wali Muhammad, against the
judgment dated 9th May 2017 (hereinafter referred as, "the impugned judgment") passed by
the learned Additional Sessions Judge -I Sibi (hereinafter referred as, "the trial Court"),
whereby the appellant was convicted under section 302( b), P.P.C. and sentenced to death as
Tazir and it was ordered that he shall be hanged by neck until he is dead. Besides, he was also
directed to pay Rs.400,000/ - as compensation to the legal heirs of deceased Qurban Shah and
Mst. Horan on equal basis as envisaged under Section 544- A, Cr.P.C. and in default thereof
to further suffer six (06) months S.I., with the benefit of section 382- B, Cr.P.C. The Murder
Reference No.(s) 02 of 2017 has been made by the learned trial Court for confirmation of death sentenc e or otherwise as envisaged under section 374, P.P.C.
2. Facts of the case are that on 7th December 2015, the complainant Qurban Shah son of
Saleem Shah lodged FIR No.136 of 2015, at Police Station City Sibi, under sections 324, 34, P.P.C. It is averred that on 7th December 2015 at midnight, police personnel of City Sibi
were on patrolling duty, when reached at Allahabad near Mashkaf Jadid, when heard some noise and firing shots, hence the police rushed there and found a woman and a man lying injured having received bullet injuries, while another woman and a man (appellant) were also
present there. The complainant Qurban Shah while recording his dying declaration, stated that he along with his wife Sabira Bibi, children and mother Mst. Horan have migrated fr om
the area of Haft Wali and presently residing in Sibi New Mashkaf and by receiving donations from his followers ( ) as well as by doing labour work he spends his time. He further stated that about four -days ago, his uncle Dur Muhammad along with his sons came to his hut and
stated that he is suffering from a disease and wants his treatment from Sibi and requested for shelter for few days in his house, hence the complainant provided him shelter in his house and the appellant started living in his hut shape house, while his son Ganwar returned back.
On the night of occurrence, after taking meal he along with his family members were sleeping in their house, when at about 1.10 a.m. (night) he woke -up by hearing the feet slow
and found his uncle armed with T.T. pistol, who made Lalkara that he will not let him today
and started firing upon him, which hit on his chest. In the meantime, the mother of the complainant also woke -up and was coming towards the appellant, who also made firing upon
his mother Mst. Horan, due to which she also sustained bullet injuries. On hearing hue and
cries and firing shots, the police reached at the spot. Consequently, recorded the dying declaration of the deceased and the FIR was lodged under sections 324, 34, P.P.C., but after the d eath of complainant Qurban Shah, section 324, P.P.C. was converted into Section 302,
P.P.C.
3. Pursuant to the above FIR the investigation of the case was entrusted to PW -8
Maqsood Ahmed, IP/IO, who during investigation arrested the appellant from the spot ;
shifted the complainant and his mother to hospital; prepared site map; took into possession
the blood stained bad sheet, blood stained clothes of both the deceased; three empties of
pistol as well as the crime weapon i.e. pistol; after the death of complainant Qurban Shah and his mother Mst. Horan prepared the inquest reports under section 174, Cr.P.C.; recorded the statements of witnesses under Section 161, Cr.P.C. PW -9 Abdul Sattar, is the 2nd I.O., who
obtained the death certificates of deceased; obtai ned the warrants of arrest of co -accused and
on completion of investigation submitted the challan in the trial court.
On receipt of challan and after initiating proceedings under Sections 87 and 88,
Cr.P.C. the absconding accused were declared as proclaim ed offender.
4. At the trial, the prosecution produced nine (09) witnesses, whereafter; the appellant
was examined under section 342, Cr.P.C. and he also recorded his statement on oath under section 340(2), Cr.P.C., but did not produce any witness in his defence. On conclusion of trial and after hearing arguments, the trial Court awarded him death sentence as mentioned in
para- 1 above, against his conviction and sentence, the appellant has preferred the instant
Criminal Jail Appeal, whereas the trial Court has forwarded Murder Reference for
confirmation of death sentence or otherwise.
5. Learned counsel for the pauper appellant contended that the prosecution has
miserably failed to establish the charge against the appellant through solid or concrete evidence and the evidence of only interested witnesses have been recorded, while no
independent witness was produced, besides most of the witnesses have not witnessed the crime directly or declared hostile by the trial Court, thus no conviction can be awarded or maintained on the basis of shaky evidence; that the most important and star witness of the
prosecution i.e. PW -1 Mst. Sabira in her Court statement has altogether narrated a different
story with regard to occurrence and in this manner she also did not support the case of prosecution; that the case of prosecution is full of doubts and discrepancies, but the benefit of such doubts were not extended to the appellant and the appellant was treated very harshly; that recovery of crime weapon from the possession of appellant has not been proved through
solid evidence: that in existence of mitigating circumstances in the case of prosecution, award of capital punishment is unwarranted.
6. Learned Additional Prosecutor General while supporting the impugned judgment has
vehemently opposed the arguments so advanced by the learned counsel for the appellant and contended that the appellant made indiscriminate firing upon the complainant and his mother, who initially received serious injuries and deceased Qurban Shah also re corded his dying
declaration, in which the deceased held responsible the present appellant for making firing upon him as well as on his mother, besides the appellant has absolutely failed to point out any ulterior motives and ill- will on the part of privat e witnesses or against the police officials
with regard to his false implication, hence the appeal deserves dismissal as the trial Court has rightly awarded penalty of death to the appellant through impugned judgment, which is not open for any interference by this Court.
7. Heard the learned counsel and perused the available record. Perusal of record reveals
that the unnatural death of deceased Qurban Shah and his mother Mst. Horan are not disputed. After the occurrence, both the injured were shifted to hos pital, where first aid was
given to them and thereafter they were referred to C.M.H. Hospital for further treatment by PW-5 Dr. Lal Muhammad Magsi, Medical Officer, D.H.Q., but during treatment in C.M.H.
Hospital both the injured succumbed to their injurie s and were died, who were again brought
to D.M.Q. Hospital Sibi for postmortem, but due to non- availability of facilities the
postmortem of deceased could not be conducted. Even otherwise, the unnatural deaths of
deceased were not disputed by the defence, thus there was no need for conducting the postmortem of both the deceased. PW -5 after external examination issued MLCs of both Mst.
Horan as Ex.P/5- A and Qurban Shah as Ex.P/5- B. Perusal of MLCs would reflect that the
deceased had received fire arm injuries and further it was opined that the death caused due to bleeding as well as shock by firearm.
8. Adverting to ocular testimony produced by the prosecution, which is in the shape of
dying declaration of deceased Qurban Shah, direct evidence of PW -1 Bibi Sa bira, who is the
widow of deceased Qurban Shah, PW -4 Muhammad Murad, who is the member of patrolling
party, in whose presence the alleged dying declaration of deceased Qurban Shah was recorded and PW -8 Maqsood Ahmed, SI, who is the first Investigating Offi cer of the case
and brought on record the dying declaration of deceased Qurban Shah, but minute scrutiny of statements of all witnesses would suggest the fact that they contradicted each other on all
material counts. According to PW -4 and PW -8 on the night of occurrence they along with
other police officials were patrolling the area, when they heard firing shots, thus they
immediately rushed to the place of occurrence, where they found the deceased Qurban Shah and his mother Mst. Horan in injured condition. According to both witnesses the deceased
Qurban Shah, who at the relevant time was in injured condition had stated that they were injured by their uncle Dur Muhammad (appellant) by means of fire arms when they were sleeping in their but shape house. The a lleged dying declaration is silent with regard to
motive of occurrence that as to why they were injured by the appellant being their uncle, who was residing in their house for his treatment. The statements of both the PW -4 and PW -8 as
well as the alleged d ying declaration were fully contradicted and negated by PW -1 Mst.
Sabira being the widow of deceased Qurban Shah. Perusal of her Court statements reflects
that she along with her husband and other family members including the appellant were sleeping in the ir house, when on hearing foot slow they woke -up and found the appellant
along with his absconding sons namely Habib. Ganwar and Ungli, hence her deceased husband inquired from the appellant that as to why he called his sons, due to which the absconding ac cused Ungli replied that they have come to serve ( ) him and thereafter the
accused Habib, Ganwar and Ungli made indiscriminate firing upon her husband as well as upon her deceased mother -in-law, due to which they sustained injuries and subsequently died.
PW-1 further stated that the appellant Dur Muhammad stated her that he will abduct her. PW -
1 further alleged that besides the appellant and the absconding accused two other accused persons were also accompanying them and she can identify them, if brought before. In her cross -examination, PW -1 again stated that firing upon the deceased was made by the
absconding accused Habib, Ganwar and Ungli and she fully exonerated the appellant from commission of charge. It has further been observed from the record of tr ial Court that the
Investigating Officer during investigation of the case got recorded the confessional statement of PW -1, wherein she had narrated the story as contained in her statement recorded by the
trial Court. Meaning thereby that the assertion of P W-1 was the same from very beginning,
though the statement of PW -1 was recorded under Section 164, Cr.P.C., but the same was not
made part of record for the reasons best known to the prosecution.
9. The case of prosecution has further been negated by PW -6 Noor Bano wife of Imam
Bakhsh, who in her Court statement stated that on receipt of information regarding injuring to her sister Mst. Horan and nephew Qurban Shah, she went to C.M.H. and met with her sister Mst. Horan, who at the relevant time was in injur ed condition and disclosed that they have
been injured by the brother of deceased Qurban and the brother -in-law of Mst. Sabira. Since,
this witness has not supported the case of prosecution, thus she was declared hostile and was
cross -examined by the Couns el appearing on behalf of State, but she remained firm in her
deposition and exonerated the appellant from the commission of crime.
10. The most astonishing feature of the case is that the PW -1 along with her deceased
husband and mother -in-law were alleged ly on the target of appellant and other absconding
accused but her husband and mother -in-law were hit and the PW -1 was let free. It does not
appeal to the logic that by killing two persons in presence of their close relatives accused
would not attempt to c ause any injury/kill the prosecution witnesses leaving them for
evidence to be hanged. Reliance in this regard is placed on the case of Muhammad Farooq v. State, 2006 SCMR 1707. Reference in this regard is also made to the case of Dohlu v. State 2002 PCr.L J 690.
11. It has further been observed that the appellant Dur Muhammad has not disputed his
presence in the house of deceased on the night of occurrence in his statement recorded on
oath under section 340(2), Cr.P.C. wherein he stated that he is ninety ye ars old and was
seriously ill, thus he came to the house of the deceased Qurban for his medical treatment and
the deceased Qurban had also taken him to hospital. He further stated that on the night of occurrence he heard firing shots when sleeping over cot and someone fallen him down from
the cot. In the meantime, the younger son of deceased Qurban taken him towards his father's dead body and hence he seated near the dead body and was crying, when after one or one and half hour the police came and shifted t he dead bodies to hospital. The appellant further stated
that PW -1 was residing with the deceased illegitimately without Nikkah and that was the
reason that Qurban was murdered.
12. The prosecution has failed to produce any single iota of evidence establis hing the
motive behind the occurrence. The plea so taken by the appellant is more plausible. The motive behind the occurrence is shrouded in mystery.
13. The assessment of the evidence adduced by the prosecution to establish the charge
against the appellan t reveals variations, dissimilarities and discrepancies. The statements of
the prosecution witnesses which are self -contradictory and the same could not be ignored in
any manner. The defence has succeeded in causing dents in the prosecution story.
All the above infirmities and contradictions, lead us to the conclusion that the
prosecution has failed to bring home the charge against the pauper appellant/convict beyond any shadow of doubt. There exists sufficient doubt in the case of prosecution. Accordin g to
settled principle of law benefit of slightest doubt has to be extended in favour of the accused.
For the above reasons, the jail appeal is accepted. The impugned judgment dated 9th
May, 2017 passed by the learned Additional Sessions Judge -I Sibi, is set aside and while
extending the benefit of doubt, the pauper appellant Dur Muhammad son of Wali Muhammad is acquitted of the charge under section 302(b) P.P.C. in FIR No.136 of 2015, Police Station City Sibi. The pauper appellant being in custody, is ordered to be released forthwith, if not required in any other case.
Consequent to the above, the Murder Reference No.(S)02 of 2017 is answered in
negative.
JK/11/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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