2018 M L D 603
[Balochistan (Quetta Bench)] Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
BAZ MUHAMMAD and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No.121 and Criminal Revision Petition No.14 of 2016, decided on 15th
November, 2017.
(a) Penal Code (XLV of 1860) ---
---Ss. 302, 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapon, unlawful
assembly ---Appreciation of evidence ---Benefit of doubt ---Prosecution case was that the
accused part y assaulted on the complainant party, made firing, as a result of which, two
persons of the complainant party were injured and thereafter succumbed to the injuries ---
Ocular account of the occurrence had been furnished by six witnesses including complainant -
--Record showed that statements of all the said witnesses were contradictory to each other and the contents of the fard- e-bayan ---Some of the witnesses had claimed that they were
present at the time and place of occurrence, but they failed to establish or justify their
presence at the relevant place---All the said witnesses were interested and closely related with each other and had drawn a different sketch of the occurrence, which created doubts in the case of prosecution ---Contradictions in the statements of witnesses as well as the dishonest
improvements could not be ignored, which was sufficient to disbelieve the ocular testimony --
-Circumstances established that prosecution had failed to establish the charge against the
accused persons beyond shadow of doubt, benefit of which would resolve in favour of the accused persons ---Accused were acquitted in circumstances by setting aside convictions and
sentences recorded by the Trial Court.
(b) Criminal trial ---
----Benefit of doubt ---Scope ---Any reasonable do ubt arising out of the prosecution evidence,
pricking the judicial mind, was sufficient for acquittal of the accused.
Tariq Pervaiz v. The State 1995 SCMR 1345 and Ata Muhammad v. State 1995
SCMR 599 rel.
Kamran Murtaza and Adnan Ejaz for Appellants.
Abdul Khair Achakzai for the Complainant.
Abdul Mateen D.P.G. for the State.
Date of hearing: 2nd November, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.121 of 2016 filed by the appellants Baz Muhammad son of A sghar Shah and Sultan
Muhammad son of Dost Muhammad, against the judgment dated 31st March 2016
(hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge, Pishin (hereinafter as, "the trial Court"), whereby the appellants were convicted under section
302(b), P.P.C. and sentenced to suffer life imprisonment as Tazir and to pay compensation of Rs.200,000/ - (rupees two hundred thousand) each to the legal heirs of deceased Dilbar Khan
and Faiz Muhammad, whereas in default thereof t o further suffer six months S.I. each; they
were also convicted under section 143, P.P.C. and sentenced to suffer six (06) months each, with the benefit of section 382- B, Cr.P.C. The Criminal Revision Petition No.14 of 2016 has
been filed by the complainan t side for enhancement of the sentence of appellants from life
imprisonment to that of capital punishment.
2. Facts of the case are that on 12th December 2012 the complainant Abdul Shakoor
registered FIR No.36/2012 at Levies Thana Huramzai district Pishin under sections 337-ADF, 147, 148, 149, P.P.C., stating therein that on the day of occurrence at about 11.00 a.m. accused Dost Muhammad, Baz Muhammad, Haji Saleh Muhammad Sons of Asghar Shah, Sultan Muhammad, Taj Muhammad, Naik Muhammad Sons of Dost Muhamma d, Paidin Son
of Baz Muhammad, Niaz Muhammad, Gul Muhammad Sons of Wazir Muhammad, Bakht Muhammad, Faiz Muhammad sons of Saleh Muhammad were laying gravel/stones in their passage. The accused Niaz Muhammad was armed with pistol in his hand, whereas the remaining accused were equipped with spades. It is further stated that Dilbar Khan and Faiz
Muhammad Sons of Shahab- ud-Din tried to refrain them from laying down gravel/stones on
their passage/way. In the meanwhile, Abdullah and his son Amanullah also followe d Dilbar
and Faiz Muhammad, whereupon pursuant to exchange of hot words amongst them, accused Sultan Muhammad attacked Dilbar Khan with spade repeatedly, while Baz Muhammad and Haji Saleh Muhammad attacked upon Faiz Muhammad and caused them head injuries. Similarly, Taj Muhammad, Paidin and Bakht Muhammad inflicted injuries to Abdullah on his head and forehead. Besides, this Niaz Muhammad and Gul Muhammad caused injuries to Amanullah. Moreover, Faiz Muhammad and Naik Muhammad injured Shahab Uddin, Niaz Muha mmad while making firing escaped from the scene of occurrence along with his
accomplices. However, after registration of FIR the injured Dilbar and Faiz Muhammad were succumbed to the injuries and died, hence subsequently section 302, P.P.C. was inserted i n
the FIR.
3. In pursuance of the above FIR, the investigation of the case was entrusted to PW -13
Muhammad Younas, Naib Risaldar, who during investigation went to the place of occurrence, prepared site sketch; prepared inquest report; took into possession the blood-stained stone, one spade; took into possession the MLCs of deceased and injured; took session the blood- stained clothes of deceased; on completion of investigation, challan was
submitted before the trial Court.
4. On receipt of challan, the trial Court declared accused Haji Shah Muhammad son of
Asghar Shah, Naik Muhammad son of Dost Muhammad, Pai Din son of Baz Muhammad,
Niaz Muhammad son of Wazir Muhammad, Bakht Muhammad son of Saleh Muhammad were declared as proclaimed offenders. Charge was fram ed to the appellants and accused
Dost Muhammad son of Asghar Shah, Taj Muhammad son of Dost Muhammad, Gul Muhammad son of Wazir Muhammad, Faiz Muhammad son of Saleh Muhammad, which
was denied, hence the trial was commenced and after recording some evidence the accused
Dost Muhammad son of Asghar Shah, Taj Muhammad son of Dost Muhammad, Gul
Muhammad son of Wazir Muhammad, Faiz Muhammad son of Saleh Muhammad jumped bail, thus after necessary proceedings, they were also declared as proclaimed offenders by the trial Court by initiating proceedings under sections 87 and 88, Cr.P.C.
5. At the trial, the prosecution produced thirteen witnesses, whereafter the appellants
were examined under section 342, Cr.P.C. They also recorded their statements on oath under
section 340(2), Cr.P.C., but did not produce any witness in their defence. On conclusion of
trial and after hearing arguments, the learned trial Court convicted and sentenced the appellants as mentioned above. Whereafter the convicts filed Criminal Appeal No.121 of 2016, while the complainant side filed Criminal Revision No.14 of 2016 for enhancement of their sentence.
6. Learned counsel for appellants contended that the impugned judgment is perverse and
contrary to the material available on record; that the pro secution has only produced the
evidence of interested witnesses being related with each, thus not worth credence; that the alleged eye -witnesses made contradictory statements with each other and also made dishonest
improvements from their earlier statements recorded by the Investigating Officer; that it is apparent from the statements of witnesses that they could not justify their presence at the and the place of occurrence, thus no implied reliance could be placed upon the same; that the prosecution has mi serably failed to establish the charge against the appellants, but the learned
trial Court while awarding conviction and sentence to the appellants has not considered the entire material on its true perspective. Lastly, the learned counsel for the appellan t prayed for
their acquittal.
7. Conversely, the learned Deputy Prosecutor General while supporting the impugned
judgment has mainly contended that the prosecution has succeeded in establishing the charge through confidence inspiring evidence and the appel lants have failed to rebut their false
implication. The ocular evidence is supported by medical evidence coupled with recovery of crime weapon spade, blood stained articles; that the learned trial Court has rightly convicted the appellant, however, he does not supported the criminal revision for enhancement of
sentence.
8. The learned counsel appearing on behalf of complainant side maintained that the
prosecution has produced six eye -witnesses, some of whom were injured by the appellants
along with their ab sconding accomplices, thus their presence at the place of occurrence and
even at the time of occurrence is natural, who otherwise are residing jointly and their testimony cannot be brushed aside merely on the basis of some minor contradictions, which other wise are natural and may occur with the lapse of time; that the fact remains is that all the
witnesses directly nominated the appellants and they have also been identified in the trial Court, thus there was no occasion for the learned trial Court to award lesser punishment to them. He lastly prayed for enhancing the sentence of the appellants from life imprisonment to that of death as there were no mitigating circumstances to award lesser punishment to the appellants.
9. 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 thirteen witnesses, out of whom PW -1 to PW -6 are claiming to be the eye -witnesses of the alleged
occurrence, while PW -7 and PW-8 are the recovery witnesses of blood stained clothes of the
deceased, whereas PW -9 to PW -11 examined the deceased and the injured witnesses. PW -12
is the recovery witness of spade and blood- stained stones recovered from the place of
occurrence. PW -13 is the Investigating Officer of the case, who counted the steps taken by
him during investigation. Prior to dilating upon the ocular testimony, it would be appropriate
to first discuss the medical evidence produced by the prosecution.
10. PW-10 Dr. Muhamma d Jaffar, Medico Legal Officer, Causality Center Sandman
Provincial Hospital Quetta, who examined the deceased Faiz Muhammad and after examination issued MLC Ex.P/10- A. According to PW -10, initially the deceased was brought
to him in injured condition, hence he examined the deceased and found multiple injuries on his person, hence after giving first aid, he referred Faiz Muhammad to Combined Military Hospital Quetta, wherein on the following day he succumbed to the injuries. PW -10 also
examined the injured Abdullah and accordingly issued MLC Ex.P/10- B. PW -11 Dr. Al
Mardan Mengal, Police Surgeon Sandman Provincial Hospital Quetta examined the deceased
Dilbar Khan son of Shahab Uddin and issued MLC Ex.P/11- A and according to him when the
deceased was brought i n hospital he was already dead. PW -11 issued MLC, perusal of which
reflects that the deceased received multiple injuries on his persons and opined the probable
cause of death of the deceased was head injury and bleeding. Like PW -9, Dr. Allah Dad
Khan, Medi cal Officer District Headquarter Hospital Pishin, examined the injured Shahab
Uddin and Amanullah. Admittedly, the unnatural death of deceased Faiz Muhammad and Dilbar Khan are not disputed. Even otherwise, the defence has admitted the unnatural death of deceased, but pleaded their false implication.
11. Now adverting the ocular testimony produced by the prosecution as PW -1 to PW -6.
PW-1 is the complainant of the case, who lodged the FIR on the basis of fard- e-bayan Ex.P/1-
A. We have analyzed and compared both the fard- e-bayan and the Court statement of PW -1
and found the same contradictory on material counts with each other. Perusal of fard- e-bayan
Ex.P/1 -A reflects that the same is silent on material counts, while the PW -1 made certain
dishonest improvements in his deposition before the trial Court. PW -1 in his court statement
stated that the accused party by loading gravel/stones on the Tractor were laying the same in their passage/way, but in his fard- e-bayan PW -1 has not mentioned the loading of
stones/gravel in the Tractor. Even otherwise, in his cross -examination he admitted that he in
his fard -e-bayan has not mentioned about the Tractor. PW -1 in fard -e-bayan stated that Sultan
Muhammad attacked upon the deceased Dilbar Khan with spade and caused him injuries, but in he made dishonest improvement by st ating that the accused Dost Muhammad caught hold
of deceased Dilbar Khan and Sultan Muhammad attacked upon him with spade. While in his cross -examination he admitted that in the report Ex.P/1 -A he did not mention about hitting of
accused Sultan Muhammad wi th spade upon the head of deceased Dilbar Khan. PW -1 in his
fard-e-bayan stated that he along with Abdullah, his son Amanullah and Shahab Uddin also
followed the deceased Dilbar Khan and Faiz Muhammad to refrain the accused party from laying gravel in their passage, but in his Court statement he did not mention about him accompanying the others. PW -1 in his cross -examination admitted that both the accused Dost
Muhammad and Baz Muhammad are the elders of their family. However, he made his ignorance that the ages of both the accused are about 70 and 68 years.
12. PW-2 Abdul Malik and PW -3 are claiming to be the witness of alleged occurrence
and stated that on the day of occurrence they were present in their houses, when heard the hue and cries from outside, thus they came out of their houses and found accused Dost Muhammad, who initially attacked upon the deceased Dilbar and Sultan Muhammad attacked upon him with spade. The statement of both the witness are contradictory from the fard- e-
bayan Ex.P/1- A, wherein PW -1 did not mention the presence of PW -2 and PW -3 at the time
or the place of occurrence, whereas in his court statement PW -1 made dishonest
improvements about the presence of PW -2 and PW -3 and states that on arrival of PW -2 and
PW-3, the accused escaped from the place of occurrence. PW -2 further stated that accused
Baz Muhammad caught hold of deceased Faiz Muhammad and Saleh Muhammad was
beating him, while in his cross -examination he admitted that he did not mention in his
statement under section 161, Cr.P.C. that accused Baz Muhammad caught hold of Faiz Muhammad. The statement of this witnesses is contradictory not only from his own earlier deposition recorded by the Investigating Officer, but also contradictory from the the fard- e-
bayan Ex.P/1- A, hence w e have no hesitation to hold that the presence of PW -2 at the time
and the place of occurrence is doubtful and thus the PW -2 has failed to justify his presence at
the time or the place of occurrence or witnessing the crime. It has been observed that both t he
witnesses claiming their presence at the time of occurrence and even PW -3 is the son of PW -
1 and the brother of both deceased, while PW -2 is the cousin of PW -3, but both the witnesses
did not participate in the fight or even to rescue the deceased and t he injured from the
clutches of the accused party. Even otherwise, both the witness did not receive any injury in the alleged occurrence. Thus, both the witnesses did not justify their presence at the time and the place of occurrence, hence their testimoni es are not helpful to the case of prosecution.
13. PW-4 is claiming to be the witness of occurrence, but he did not support the
prosecution story. The statement of this witness is silent about the story of laying gravel/stones by the accused party or their refraining by them, but simply this witness has
narrated the story of attacking upon them by the accused party. Likewise, PW -5 Abdullah,
who is the brother of complainant and allegedly he was injured in the alleged incident. He also did support the case of prosecution in specific terms and made certain dishonest
improvements and contradictions. According to PW -5 at the time of alleged incident he was
sitting in the adjacent garden, but in his earlier statement before I.O. he did not mention such fact. In h is Court statement he mentioned about loading of gravel on the tractor, but such fact
was also not mentioned in his earlier deposition. PW -6 Shahab- ud-Din is the claiming to be
the witness of occurrence, who narrated the story of alleged occurrence and com mitting the
murder of deceased Dilbar and Faiz Muhammad by the appellants along with others, but in his examination in chief he did not identify any of the accused in the Court due to his week eye-sights being an old age person of more than 100- years. Now question arises that an old
age person of 100- years due to his week eye sight did not identify the accused present in the
Court, then under such circumstances as to how it is possible that he sighted the entire occurrence at the relevant time, which depict s the fact that the names of accused persons were
tutored to him, thus his testimony is also not trust worthy or reliable to award conviction to the appellants.
14. We at utmost with care and caution analyzed the statement of each witness jointly and
separ ately from all angles and found the same doubtful. The statements of all the witnesses
are contradictory from each other and the contents of fard -e-bayan Ex.P/1- A. Some of the
witnesses are claiming to be present at the time and place of occurrence, but th ey failed to
establish or justify their presence at the relevant place. All the witnesses being interested and closely related with each other have drawn a different sketch of the occurrence creating doubts in the case of prosecution. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and acquit the accused. It is a well embedded principle of criminal justice that there is no need of so many doubts in the prosecution case rather any
reasonable doubt arising out of the prosecution evidence, pricking the judicial mind is
sufficient for acquit tal of the accused. 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 matte r of grace and
concession but as a matter of right."
15. Thus, the prosecution has failed to establish the charge against the appellants beyond
the shadow of reasonable doubts. The contradictions in the statements of witnesses as well as the dishonest impr ovements on such extreme height cannot be ignored or taken lightly, which
facts itself sufficient to disbelieve the ocular testimony. The learned trial Court while delivering the impugned judgment has failed to sift the grain from chaff and extend the
bene fit of doubts to the appellants. Reliance in this regard is placed on the case of Ata
Muhammad v. State 1995 SCMR 599. Relevant portion is reproduced as under:
"...The finding of the guilt should be rested surely and firmly on the evidence
produced in the case and plain inference that may irresistibly be drawn from the
evidence. If a criminal case is to be decided merely on surmises and conjectures or high probabilities to prove the guilt of an accused, the golden rule of benefit of doubt to the accused whi ch is deep -rooted in our country and has been dominant feature of
administration of justice with consistent approval of this Court, will be reduced to naught.
17. The prosecution case is pregnant with serious doubts and is full of confusions. The eye-witne sses have shown reckless disregard for the truth and have thrown the noose
wide enough to implicate as many persons from the side of the accused as they wished. The case of the appellants is at par with the case of Nazir acquitted accused. There is chaff and chaff all around and not a grain to sift.
18. The upshot of the above discussion is that there being no judicial certainty and
circumstantial guarantee of the participation of the appellants in the occurrence to uphold their conviction, the appeal is a ccepted, the conviction and sentence of the
appellants is set aside and they are acquitted of the charge. They shall be released forthwith if not required to be detained in any other case. "
For the above reasons, the appeal is accepted and the appellants Baz Muhammad son
of Asghar Shah and Sultan Muhammad son of Dost Muhammad, are acquitted of the charge. They being in custody; are ordered to be released forthwith, if not required in any other case.
Consequently, the Criminal Revision Petition No.14/2016 being devoid merits of is
dismissed.
JK/179/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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