2017 P Cr. L J 1391
[Balochistan]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
SALEH MUHAMMAD and another ---Appellants
Versus
The STATE and another ---Respondents
Criminal Appeal No. 318 and Criminal Revision No. 26 of 2013, decided on 2nd May, 2017.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Ocular account was
not supported by medical evidence ---Prosecution case was that accused made firing with pistol,
due to which two bullets hit the f ather of complainant, who succumbed to the injury ---Ocular
account was furnished by witnesses comprising complainant, his brother and cousin---Said
witnesses allegedly claimed to be eye- witnesses but their statements created doubt with regard to
their pres ence at the place of occurrence and witnessing the crime---Record showed that FIR was
lodged on the basis of fard- e-bayan of complainant, but the complainant while appearing in the
court made his ignorance as to who had written the said fard- e-bayan ---Noth ing was available on
record that fard -e-bayan was written on the direction of complainant ---Contents of fard -e-bayan
and FIR were silent about the presence of cousin of complainant/eye -witness at the time and
place of occurrence ---Complainant and his brother/eye -witness were in government jobs but
nothing was on record to show that said witnesses were on leave from their offices on the day of
occurrence---Said witnesses deposed that alleged incident took place at 10.30 a.m. and two
bullets hit to the deceas ed but their statements were in conflict with the medical evidence ---
Medical Officer, who examined the deceased stated that dead body of the deceased was brought
to the hospital at about 10.00 a.m. and deceased had received only one bullet injury on his body --
-Medico -legal Certificate and inquest report of the deceased did not reflect the presence of
complainant and his brother/eye -witness ---Record showed that accused -appellant was an aged
man of about 70- years, whereas prosecution had alleged that in the presence of two sons and a
nephew, the accused -appellant came on cycle, committed the murder of deceased with fire shot
and fled away on cycle ---Said three persons/eye -witnesses did not resist even to save the
deceased or overpowered 70- years old culprit ---Conduct of said witnesses was unnatural and did
not appeal to the logic that an old man of 70- years committed the murder of the father of two
young men and uncle of the other eye -witness, but they played the role of audience by letting the
culprit escape-- -Evidence of interested and related witnesses lacked independent corroboration
on material aspects ---Circumstances of the case created doubt about the presence of eye-
witnesses at the time and place of occurrence and the medical evidence was not in line wi th the
ocular account, benefit of which would resolve in favour of accused--- Accused -appellant was
acquitted in circumstances by setting aside conviction and sentence recorded by the Trial Court.
Faisal Mehmood and others v. State 2010 SCMR 1025 and Ms. Najiba and others v. State
2015 SCMR 988 ref.
Muhammad Asif v. The State 2017 SCMR 486; Muhammad Farooq v. State 2006 SCMR
1707 and Dohlu v. State 2002 PCr.LJ 690 rel.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Criminal Procedure Code (V of 1898), S. 103---Qatl -i-amd---Appreciation of
evidence ---Recovery of weapon of offence ---Accused -appellant was arrested from a hotel and
T.T. pistol along with live cartridges were recovered from his possession---Evidence of official
witness showed that at the time of recovery proceedings, certain other persons were present in
the hotel, but none of the witnesses was associated in the recovery proceedings ---Investigating
Officer did not join any person to witness the recovery, hence the alleged recovery of crime
weap on lacked independent corroboration and suffered from non- compliance of S. 103 Cr.P.C.--
-Empties and crime weapon were dispatched together to Forensic Science Laboratory but said
corroborative piece of evidence by itself was not sufficient for conviction of the accused -
appellant ---Accused was acquitted in circumstances by setting aside conviction and sentence
recorded by the Trial Court.
Riaz Ahmed v. The State 2010 SCMR 846 rel.
(c) Criminal trial ---
----Benefit of doubt ---Scope ---Accused was entitled to be extended benefit of doubt as a matter
of right ---Accused could not be deprived of benefit of doubt, merely because there was only one
circumstance, which created doubt in the prosecution case.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Ali Ahmed Lehri for Appellants.
Rauf Atta and Baqir Bakhtiyar for the Complainant/Petitioner.
Muhammad Yahya Baloch, Deputy P.G. for the State/Respondent.
Date of hearing: 19th April, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Crimina l Appeal No.
318/2013 filed by the appellant Saleh Muhammad son of Yaseen, against the judgment dated
10th October, 2013 (hereinafter referred as, "the impugned judgment") passed by learned
Additional Sessions Judge -III Quetta (hereinafter referred as, "th e trial Court"), whereby the
appellant was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for
life as Tazir, with compensation of Rs. 200,000/ - (Rupees Two Lakhs) as contemplated under
section 544- A, Cr.P.C., which in case of r ecovery was directed to be paid to the legal heirs of
deceased Syed Sikandar Shah and in default thereof to further suffer six months' R.I., with the
benefit of section 382 -B, Cr.P.C. The Criminal Revision Petition No.26 2013 has been filed by
the complain ant/petitioner Syed Akbar Shah for enhancement of the sentence awarded to the
convict/appellant Saleh Muhammad.
2. Facts of the case are that on 11th September, 2008, the complainant Syed Akbar Shah
lodged FIR No.232 of 2008 at Police Station Saddar Quetta under section 302, P.P.C., stating
therein that on the fateful day he along with his father and his brother Zahir Shah were standing
outside of his house situated at Killi Sheikh Hussaini. In the meanwhile, accused Saleh
Muhammad came there and made firin g with pistol due to which two bullets hit his father. After
firing the accused/appellant made his escape good from the place of occurrence in Cycle,
whereafter his father succumbed to the injures. The motive behind the occurrence is stated to be
a family dispute in between the parties.
3. Pursuant to above FIR, the investigation was entrusted to PW -7 Mehrab Khan, IP/IO,
who during investigation went to Civil Hospital Quetta and carried out proceedings under section
174, Cr.P.C. and prepared the inquest report; visited the site and prepared site map; recovered
empties of pistol from the place of occurrence; took into possession the blood stained clothes of
deceased; recorded the statements of witnesses under section 161, Cr.P.C.; took into possession
the death certificate of deceased and on conclusion of trial submitted the challan in absentia. PW -
8 Muhammad Hussain, IP, is the 2nd IO, who during investigation arrested the appellant on 7th
January, 2010 and effected the recovery of other weapon i.e. pistol fr om the possession of the
appellant and on completion of investigation, submitted the challan in the trial Court.
4. Suffice to state here that prior to arrest of the appellant, the challan was submitted in his
absentia before the learned trial Court for pr oceedings under section 512, Cr.P.C. and the
statements of all PWs were recorded. However, after his arrest the prosecution relied upon the
statements already recorded during the proceedings carried out under section 512, Cr.P.C. and
the witnesses were cro ss-examined. On conclusion of trial, the appellant was convicted and
sentenced for life imprisonment vide judgment dated 18th May, 2012, which was assailed before
this Court by the appellant by filing Criminal Appeal No.136 of 2012, which appeal was allowe d
and case was remanded to the trial Court with the directions to re -examine the witnesses afresh
in presence of appellant strictly in compliance with the requirements of section 353, Cr.P.C. and
thereafter to decide the case in accordance with law.
5. After remand, the prosecution produced afresh the said eight (08) witnesses, whereafter
the convict/appellant was examined under section 342, Cr.P.C. He also recorded his statement on
oath under section 340(2), Cr.P.C. and produced DW -1 Nouroz Khan in his def ence. On
conclusion of trial and after hearing the arguments, the trial Court convicted and sentenced the
appellant as mentioned above. Whereafter the appellant filed Criminal Appeal No.318/2013,
while the complainant/petitioner filed Criminal Revision No. 26 of 2013 for enhancement of
sentence.
6. Learned counsel for appellant stated that the impugned judgment is result of mis -reading
and mis -appreciation of material available on record; that the case of prosecution is lacking
independent corroboration as only interested witnesses have been produced; that all the
prosecution witnesses made contradictory statements to each other and did not support the case
of prosecution; that the prosecution has failed to produce any iota of evidence connecting the
appellant with the commission of alleged crime; that the medical evidence is in conflict with the
ocular testimony; that the prosecution has miserably failed to substantiate the charge against the
appellant; that the defence so produced and established by the appellant has not been
appreciated.
7. Learned counsel for complainant/petitioner while supporting the judgment stated that
brutal murder of the deceased committed by the convict/appellant does not warrant any leniency;
that once the trial court reached to th e conclusion that offence was made out against the
convict/appellant, then there was no occasion for the trial court to award lesser punishment
without having mitigating circumstance; that the offence entails capital punishment as the case is
also proved on all counts; that the convict/appellant is liable to be sentenced for capital
punishment. The learned counsel has placed reliance on the case of Faisal Mehmood and others
v. State 2010 SCMR 1025 and Ms. Najiba and others v. State 2015 SCMR 988.
8. Learned Deputy Prosecutor General appearing for the State has strongly opposed the
Criminal Appeal filed by the convict and adopted the arguments of the learned counsel for the
complainant for enhancement of sentence of the convict.
9. Heard the learned counsel a nd perused the available record. Perusal of record reveals that
in order to establish the charge the prosecution has produced the evidence of eight witnesses, out
of which three witnesses allegedly are the eye -witnesses of the occurrence, but minute scruti ny
of the statements of said three witnesses i.e. PW -1/ complainant, PW -3 Izzatullah, the cousin of
PW 1/complainant and PW -5 is the son of deceased and brother of PW -1/complainant, creates
doubts with regard to their presence at the place of occurrence an d witnessing the crime. Besides,
the presence of PW -3 at the place of occurrence is doubtful. It appears from the record that the
FIR Ex.P/7 -A was lodged on the basis of fard- e-bayan of Ex.P/1- A of the complainant, but the
complainant while appearing in the Court made his ignorance that who has written the said
application/fard -e-bayan. Even otherwise, there is nothing on record that the contents of such
fard-e-bayan were written on the dictation of the complainant. The contents of fard- e-bayan as
well as t he contents of FIR would disclose the fact that the same are silent with regard to
presence of PW -3 Izzatullah at the time and place of occurrence and even PW -1 stated not a
single word with regard to the presence of PW -3 and even in his Court statement PW -1 stated
that on the day of occurrence he along with his brother PW -5 Zahir Shah and father Syed
Sikandar Shah were present in front of their house when the appellant came there and made
firing upon his father with pistol and two bullets hit his father. w hereafter the appellant flee away
from the scene of occurrence on cycle. To the contrary the brother of PW -1 namely Syed Zahir
Shah, who appeared as PW -5 mentions with regard to presence of PW -3 Izzatullah and stated
that besides him and his brother, PW -3 is also eye -witness of the occurrence. PW -5 also stated
that due to firing with pistol two bullets hit to his father and thereafter the appellant escaped from
the place of occurrence on Cycle. Anyhow, PW -3 while appearing in the Court stated the story
with regard to his arrival at the place of occurrence and witnessing the crime and in his cross
examination he stated that prior to arrival of accused- appellant he had reached at the place of
occurrence. Question arises that if PW -3 was already present prior t o commission of crime and
also met with the complainant and others then under such circumstances as to why his presence
was not shown in the fard- e-bayan and even nothing was stated by PW -1 in his Court statement
Thus, not only the presence of PW -3 at the place of occurrence, but also the presence of PW -1
and PW -5 is highly doubtful, when otherwise both the witnesses are in government jobs and PW -
5 is posted at Mastung. Even otherwise, nothing was brought on record that either both the
witnesses were on leave from their offices or otherwise.
10. It has been observed that all the three main witnesses i.e. PW -1, PW -3 and PW -5 have
specifically mentioned in their statements that the alleged incident took place at 10.30 a.m. and
that two bullets hit to the decea sed, but their statements are in conflict with the medical evidence.
PW-2 Dr. Ghulam Haider Samejo, MLO/RMO is the witness, who examined the deceased in
Bolan Medical Complex, Quetta and he in his statement stated that the dead body of deceased
Sikandar Shah was brought by one Syed Nasir Shah at about 10.00 a.m. Now question arises that
if the occurrence had taken place at about 10.30 a.m. and certainly some time was consumed in
shifting the deceased to hospital from his house then under such circumstances as to how it was
possible that the deceased was examined on 10.00 a.m. Furthermore, while contradicting the
statements of PW -1, PW -3 and PW -5, who have stated that the deceased had received two bullet
injuries, the Medical Officer/Officer after examining the deceased issued MLC Ex.P/2 -A and
opined that the deceased had received only one bullet injury on his body i.e. entrance left side
chest and exit back side of chest. In his cross examination PW -2 admitted that the reported
injuries in MLC are the entranc e and exit of single injury. Admittedly, not only the ocular
testimony is in conflict with the medical evidence, but also it has raised serious questions with
regard to presence of alleged three eye -witnesses at the time and place of occurrence. We are
conscious of the fact that the factum of murder of the deceased at the spot with firearm cannot be
denied, in the light of recovery of bloodstained last worn clothes of the deceased coupled with
medical report, but at the same time this fact cannot be ignored that none of the alleged eye -
witnesses had justified their presence with the deceased at the relevant time of the incident as the
MLC Ex.P/2 and inquest report Ex.P/7- B column No.4 did not reflect the presence of PW -1
Akbar Shah and PW -5 Zahir Shah, as such, their testimony reflects a reasonable doubt.
11. The presence of alleged three eye- witnesses of the occurrence is also doubtful on the
ground that the appellant is an aged man of about 70- years, whereas the prosecution alleges that
in presence of two s ons and a nephew the appellant came on his Cycle and committed the murder
of deceased by making firing with pistol and after commission of crime he fled away from the
scene of occurrence on his Cycle and the three young men did not resist even to save the
deceased or overpower 70- years' old culprit. The conduct of all the three witnesses is unnatural
and it does not appeal to the logic that an Oldman of 70- year is committing the murder of the
father of two young men and the uncle of PW -3, but they played the role of an audience by
letting the culprit to murder the decease and to escape on a Cycle and even no resistance was
made. On this point too, the presence of all the three witnesses are doubtful. We are fortified by
the dictum laid down by the Hon'ble ap ex Court in the case of Muhammad Asif v. The State
2017 SCMR 486, wherein it was held as under:
"10. We fail to understand that in the presence of the two close friends accompanying the
deceased and parents, how such tragedy with a son could happen without any
intervention on their part to come to rescue of the deceased when they were not far away
as shown in the site plan."
12. The presence of said three witnesses at the place of occurrence is also doubtful for the
reasons that the complainant/PW -1 along w ith his brother and cousin including, the deceased
were on the target of the appellant having pistol in his hand, but father of the complainant was hit
and the complainant and the witnesses were let free. It does not appeal to the logic that by killing
a person in presence of his real sons and nephew, the appellant would not attempt to cause 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 1 707. Reference in this
regard is also made to the case of Dohlu v. State, 2002 PCr.LJ 690.
13. The complainant/PW -1 and PW -5 are the sons of deceased, whereas PW -3 is the nephew
of deceased. The evidence of interested and related witnesses is lacking indep endent
corroboration in material aspects. Furthermore, the prosecution has also failed to establish the
recovery of crime weapon from the possession of the appellant. According to PW -4 the appellant
was arrested from a hotel and his personal search was res ulted into recovery of T.T. pistol along
with live cartridges and besides the appellant certain other persons were also present in the hotel,
but none of the witnesses was associated in the recovery proceedings. PW -4 admitted that in his
presence the SHO d id not ask any person to become the witness of the recovery. Hence, the
alleged recovery of crime weapon is also lacking independent corroboration and suffers from
non-compliance of section 103, Cr.P.C. Besides, the empties and crime weapon were dispatched
together to FSL and said corroborative piece of evidence by itself is not sufficient for conviction
of the appellant. In absence of substantive piece of evidence reference is invited to Riaz Ahmed
v. The State, 2010 SCMR 846.
14. The case laws so referred by the learned counsel for the complainant are distinguishable
because of the reason that initial burden was not discharged by the prosecution to prove its case
beyond any shadow of doubt.
15. In view of the ocular testimony of the related/interested pros ecution witnesses,
contradictions and dishonest improvements in their testimony, lacking independent corroboration
in material aspect, the false implication of the appellant by the PWs cannot be ruled out of
consideration as the appellant while recording his statement on oath has taken specific plea of his
false implication by PWs due to previous dispute of eloping his daughter Bibi Fareeda by the son
of the deceased Abdul Rehman. The perusal of impugned judgment reveals that the same is
suffering from mis -appreciation of material available on record. The above defects in the
prosecution case were not considered by trial Court and wrongly the benefit of such doubts was
withheld. Needless to emphasize that accused were entitled to be extended benefits of doubt as a
matter of right. Even an accused cannot be deprived of benefit of doubt, merely because there is
only one circumstance, which creates doubts in the prosecution story, whereas in the case in
hand there are series of doubts. Reliance in this regard is placed on the case of Tariq Pervaiz v.
The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held that, "The concept of
benefit of doubt to an accused is deep- rooted in our country. For giving him benefit of doubt it is
not necessary that there should be many circumstances creating doubt if there is a circumstance
which creates reasonable doubt in a prudent mind about the guilt of the accused then accused
will be entitled to the benefit not as a matter of grace and concession but as a matter of r ight."
For the above reasons the appeal is accepted, the impugned judgment dated 10th October
2013 passed by learned Additional Sessions Judge -III Quetta is set aside and while extending the
benefit of doubts, the appellant Saleh Muhammad son of Yaseen, i s acquitted of the charge under
section 302(b), P.P.C. The appellant being in custody, is ordered to be released forthwith, if not
required in any other case.
Consequent to the above, the Criminal Revision Petition No.26 of 2013 is dismissed
accordingly.
JK/73/Bal. Order accordingly.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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