2020 M L D 1477
[Balochistan]
Before Naeem Akhtar Afghan and Nazeer Ahmed Langove, JJ
ABDUL MANAN and another ---Appellants
Versus
The STATE--- Respondent
Criminal CNS Appeal No.137 of 2017, decided on 30th December, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Accused were charged for committing murder of father of the complainant by firing-
--Incident was stated to be witnessed by complainant/real son of t he deceased ---Dead body of
the deceased was shifted to hospital by the accused, which was against the human conduct
and did not appeal to logic and reason--- If complainant was the eyewitness of the case, the
dead body of the deceased should have been shift ed to the hospital by him instead of the
accused ---Such a conduct of real son being beyond comprehension of man of a prudent mind,
in fact, made his presence on the spot doubtful ---Story narrated by the prosecution was not
believable, nor supported from any independent and unimpeachable source ---Important eye
witness of the incident was examined under S.161, Cr.P.C. on the very first day of the incident but his name was not included in the calendar of witnesses ---Said fact showed
biased conduct of the polic e as alleged by the defence--- Presumption, in circumstances,
could be that if said witness had entered the witness box,he would not have supported the prosecution case ---No finger prints of the accused persons were obtained for expert opinion
nor pistol wa s examined by finger print experts ---Other eyewitness who alleged to have
witnessed the incident to the extent of seeing the accused/appellants and absconding accused running towards adda was not worthy of reliance for the reason that his statement under S.161 Cr.P.C. was recorded after unexplained delay of five days and his version was not
supported by any independent and unimpeachable source ---False implication of accused after
deliberation and consultation could not be ruled out of consideration--- No pre vious enmity
existed between the deceased and the accused persons which could have resulted into death of the deceased at the hands of the accused persons ---Circumstances established that the
prosecution had failed to prove its case against the accused per sons beyond reasonable
doubt ---Appeal against conviction was allowed, in circumstances.
Abdul Jabbar v. State 2017 SCMR 1155 and Kamal Hussain v. State 2004 PCr.LJ 813 rel.
(b) Criminal trial ---
----Benefit of doubt ---Principle ---Defence was no t required to create a series of dents and
doubts in prosecution case but for giving the benefit of doubt if a single doubt created even
then the defence would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of r ight.
Muhammad Akram v. The State 2009 SCMR 230 and Sher Umer Khn v. Khan Pur
alias Khaney and 2 others PLD 2015 Pesh. 143 rel.
Syed Ayaz Zahoor for Appellants.
Habibullah Gul, Additional Prosecutor General (APG) for the State.
Date of hearing: 23rd November, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---This appeal has been filed against the
judgment dated 24.05.2017 (hereinafter the "impugned judgment") passed by Additional Sessions Judge, Pishin, (hereinafter called as "the trial Court"), whereby the accused/appellants were convicted under section 302(b)/34 P.P.C. and sentenced to suffer imprisonment for life with payment of Rs.2,00,000/ - (Rupees Two Lac Only) each as
compensation under section 544- A Cr.P.C. which after realization be equally distributed
among the legal heirs of deceased and in case of default of payment of fine to further suffer S.I. for six (06) months each. However, benefit of section 382- B, Cr.P.C. was extended in
their favour.
2. Brief facts of the case are that in pursuance of repor t submitted by the complainant
Muhammad Aryan son of Gul Muhammad with the levies of Pishin the instant FIR having No.130/2014 was registered, wherein he alleged that on fateful day of incident at about 7:37 p.m. he along with his father were present at by pass road, received a telephonic call of Abdul
Manan (accused) who asked about the father of complainant. No sooner he along with Abdul Razique, Ain -ud-Din and Zain -ud-Din arrived and launched an attack upon his father who at
the relevant time was sitting in his car, the accused Abdul Manan caught him hold from
backside while Ain- ud-Din aimed pistol at complainant whereas Zain -ud-Din fired upon his
father, after committing crime the accused persons fled away from the scene of occurrence, the injured was shi fted to hospital where he succumbed to his injuries. Hence this case.
Levies laid hands on culprits and arrested the accused/appellants. On completion of investigation challan of the case was submitted and trial commenced.
The charge was framed against th e accused/appellants to which they pleaded not
guilty and claimed trial. The prosecution in order to prove its case, produced PW -1,
Muhammad Aryan (complainant/eye witness of the occurrence). PW -2, Haji Noor
Muhammad. PW -3, Naseeb -ur-Rehman, Patwari. PW -4, Ainuddin, ASI (witness of magazine
and four cartridges). PW -5, Jameel Ahmed, comtable (witness of pistol). PW -6, Gul
Muhammad (witness of recovery memo of blood stained clothes). PW -7, Dr. Mujahid Ali
Khan, Medical Officer (examined dead body of deceased and issued death certificate/MLC).
PW-8, Lal Muhammad. PW -9, Muhammad Jaffar Khan and PW -10, Javed Iqbal, SI
(investigating officers).
3. On examination, under section 342, Cr.P.C., the accused/appellants disputed the case
of prosecution and pleaded their innocence. Out of them the accused Abdul Manan recorded
his statement under section 340 (2) Cr.P.C. on oath with the averments that he is brother -in-
law of deceased Gul Muhammad who after abusing co -accused Zain -ud-Din slapped him and
snatched his mobile w hich was complained by the former to him, on which he (Abdul
Manan) tried to call him (deceased) on mobile which was switched off; hereafter called his
friend Naseebullah, who along with said Gul Muhammad were present at bypass. He visited them at bypass a nd tried to get him (deceased) realize of his improper conduct towards Zain-
ud-Din, his cousin, but the former provoked, brought his pistol and tried to make fire which
was intervened by Naseebullah, he was seated in his car having pistol in his hand. It w as
further stated that deceased Gul Muhammad left the place of quarrel, in the meantime, they were attracted of fire shot, perhaps it was triggered unintentionally and the vehicle collided with a nearby tree, the accused along with Naseebullah rushed towar ds the vehicle, found the
deceased in pool of blood and shifted him to hospital, subsequently he has falsely been involved in the instant case. He prayed for his acquittal. However, the accused persons did not produce any witness in their defence.
4. The t rial Court, after hearing the parties and evaluating evidence found the
accused/appellants guilty, as such, convicted and sentenced them for the period mentioned hereinabove, hence this appeal.
5. Learned counsel for the accused/appellants argued that the
judgment impugned passed by the trial Court is contrary to facts, law and principles of
natural justice, as such, is not sustainable under the law and is liable to be set aside; that initially name of the appellant No.2 (Zain- ud-Din) was not mentioned in t he FIR, and
inserted later on, but this important aspect of the matter went unattended by the trial Court. He further added that the case of the prosecution is not free from dents and doubts there are glaring illegalities and irregularities on the part of Levies and dishonest improvements and material contradictions in the statements of witnesses but not considered by the trial Court which ultimately caused miscarriage of justice. He prayed for setting aside the impugned judgment and acquittal of the appell ants/accused.
6. On the other hand, learned APG strongly opposed the appeal by submitting that the
judgment impugned passed by the trial Court is based on proper appreciation of the evidence which does not suffer from any legal infirmity or inherent defect or non- reading and
misreading of evidence warranting interference by this Court. He added that the learned counsel for the appellants/accused failed to point out any specific illegality, irregularity or non- reading and misreading of the evidence in the im pugned judgment, as such, the appeal
filed by the appellants/accused is liable to be dismissed.
7. We have heard the learned counsel for the parties and have gone through the record
with their assistance which reflects that the instant case was registered with the history of a
fateful incident and murder of deceased Gul Muhammad occurred on 02.12.2014 as per
prosecution story when he along with his son Aryan were present at bypass the accused persons including the appellants came, launched an attack and com mitted his murder by
making fire by the accused Zain -ud-Din and caught hold by the accused Abdul Manan. The
incident was stated to be witnessed by PW -1 Muhammad Aryan/complainant, son of
deceased. Surprisingly the dead body of his father was shifted to hos pital by the
convict/appellant Abdul Manan which is against the human conduct and does not appeal to logic and reason. If PW -1 Muhammad Aryan, the son of deceased was the eye witness of this
case the dead body of deceased should have been shifted to the Ho spital by him instead of
accused Abdul Manan (convict/appellant), which is manifest from the record vide, Death certificate (Exp/7 -A) wherein it has been mentioned that the dead body of deceased Gul
Muhammad was brought by Abdul Manan son of Abdul Khaliq. Such a conduct of real son is
beyond comprehension of a man of prudent mind, in fact makes his presence on the spot doubtful.
8. Story narrated by the prosecution is not believable nor supported from any
independent and unimpeachable source. Naseebullah an important eye witness of the incident
was examined under section 161 Cr.P.C. on 02.01.2014 i.e. on the very first day of incident
but his name is not included in the calendar of witnesses. It shows biased conduct of the
police as alleged by the defence. I t is presumed that if he had entered the witness box, he
would have not supported the prosecution case. In this respect, reliance is placed on a judgment titled Abdul Jabbar v. State 2017 SCMR 1155. Relevant portion is as under:
"Both the eye -witnesses pr oduced by the prosecution, i.e. Madad Ali complainant
(PW5) and Muhammad Abbas (PW6) were very closely related to Manzoor Ahmed deceased inasmuch as the complainant was the son of the deceased and the other eye-
witness was a nephew of the deceased. Both th e said eye- witnesses were chance
witnesses who had failed to establish the stated reason for their availability at the scene of the crime at the relevant time through any independent evidence. An FIR in respect of the incident in issue had not been lodged at the local Police Station giving rise to an inference that the FIR had been chalked out after deliberations and preliminary investigation at the spot. The Medico- legal Certificate issued in respect of
Manzoor Ahmed deceased when he was alive shows that t he injured victim was
brought to the hospital not by the above mentioned eyewitnesses but by a police official which showed that in all likelihood the said eyewitnesses had been procured and planted in this case at some subsequent stage. Post -mortem Examin ation report
pertaining to the dead body of Manzoor Ahmed deceased revealed that despite the deceased having breathed his last in the hospital post -mortem examination of the dead
body had been conducted after about 12 hours of his death which again indicat ed that
time had been consumed by the local police in procuring and planting eye -witnesses
and in cooking up a story for the prosecution. According to the FIR the place of occurrence shows that the murder of the deceased had been committed inside a compound of an Ihata which surely was not a proper place for cattlehead to graze. Apart from that the above mentioned eye -witnesses had claimed to have seen the
occurrence from a distance of about 117 and a half feet and still they had claimed to have witnessed e very detail of the incident including the different weapons being used
by the accused party which was a claim too tall to be accepted".
9. It is important to note here that no phone record or even cell phone/SIM of the
appellant Abdul Manan was taken into possession to prove that he had called PW -1
Muhammad Aryan as alleged by the latter. No finger prints of the appellants were obtained
for expert opinion nor pistol was examined by Finger Print Expert.
10. So far as the medical view furnished by PW -7 Dr. Mu jahid Ali Khan Medical Officer
Pishin vide report (Ex.P/7- A) is concerned it reveals of a single firearm injury on left side of
chest that of the deceased and it suggests that at the time of incident he was holding pistol in his right hand, which got triggered and caused him injury on left side of chest.
11. Now coming to the credibility of PW -9 Muhammad Jaffar who alleges to have
witnessed the incident to the extent of seeing the appellants Abdul Manan, Zain- ud-Din and
absconding accused Abdul Razzaq and Z ainullah running towards 'Adda' is not worthy of
reliance for the reason that his statement under section 161 Cr.P.C. was recorded on 07.12.2014 i.e. after unexplained delay of five (05) days and his version is not supported by any independent and unimpeac hable source. Therefore, false implication of appellant after
deliberation and consultation cannot be ruled out of consideration.
Reference, in this behalf, can be made to Kamal Hussain v. State 2004 PCr.LJ 813.
Relevant portion therefrom reads as under:
"12. How and why these two P.Ws. chose to be away from the Investigating Agency for 7/8 days and even more is also not understandable. Though in their attempt to explain it they sought refuge in their supposed apprehension by the police in a case register ed against them at the instance of Qamar Abbas under section 324, P.P.C. but
this explanation, to say the least, is not plausible on any count as they were not
charged in the case metioned above during the relevant days. Even if it be so their evidence in a triple murder case was more important than their apprehension in a case registered against them under section 324, P.P.C. Their escapist attitude over and above their failure to give a prompt version of the incident beside giving rise to the inference th at the account furnished by them is fabricated, will also suggest that they
too one way or the other contributed to the tragedy resulting in death of the three and injuries to many.
13. Why the witnesses bearing the stamps of injuries on their persons wer e withheld
is again a question awaiting answer with much greater impatience and intensity. In an ordinary case their non- production could have been ignored but in view of the
partisan character of the examined P.Ws., their belated examination by the police , and
a glaring inconsistency between the ocular account furnished by them and the medical evidence, their production was all the more essential rather indispensable to prove the charges against the appellant and the acquitted co -accused beyond doubt. It i s here
that the law of evidence would call for drawing adverse inference against such non-production."
12. Evidence reveals that when the car driven by the deceased hit a
tree the lisenced pistol of the deceased, held in his hand, got triggered causing him the
firearm injury.
13. Adverting to the plea raised by the defence with regard to arrival of accused Abdul
Manan and annoyance of the deceased with the complaint of his cousin namely Zain -ud-Din
who had allegedly misbehaved with the deceased, is supporte d by the factum of taking out
pistol by the deceased, his leaving in car in angry mood, the collision of his car with a nearby
tree, recovery of Licensed pistol of the deceased and one empty shell from inside the car of the deceased. It is further observed that no previous enmity was existing between the
deceased and the appellants which could have resulted into the death of the deceased at the hands of the appellants.
14. When both the versions i.e. of the prosecution and defence are kept in juxta position ,
the plea raised by the defence is more convincing and nearer to real facts.
15. The infirmities in the case of prosecution have created reasonable doubt in the case of
prosecution. The accused is a blue- eyed favorite child of law and is entitled for benefit of
even a slightest doubt, but it should be "Reasonable".
16. Needless to men tion here that the defence is not required to create a series of dents
and doubts in prosecution case but for giving the benefit of doubt if a single doubt is created even then the defence is entitled to the benefit of doubt not as a matter of grace and
concession but as a matter of right. In this respect reliance is placed on the judgment titled as
Muhammad Akram v. The State Reported in 2009 SCMR 230. Relevant observation there
from are reproduced herein below: --
"The nutshell of the whole discussion is that the prosecution case is not free from
doubt. It is an axiomatic principle of law that in case of doubt, the benefit thereof must occur in favour of the accused as matter of right and not of grace. It was observed by this court in the cas e of Tariq Pervaiz v. The State 1995 SCMR 1345 that
for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which create reasonable doubt in a prudent mind about the guilt of t he accused, then the accused would be entitled to
the benefit of doubt not as a matter of grace and concession but as a matter of right".
Reliance can also be placed on ease titled as Sher Umer Khan v. Khan Pur alias
Khaney and 2 others reported in PLD 2015 Peshawar 143 wherein it held as under; --
"It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, 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 the charge so imputed against the accused has not been proved beyond reasonable doubt, then accuse d would become entitled for his release
on getting benefit of doubt in the prosecution case. 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 creat ed, benefit of the same must go to the
accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal. Moreover, accused is always considered as the most favorite
child of law and every benefit of doubt goes to him regardless of fact whether he has
taken any such plea or not. Reliance can be placed on case titled, "Fariad Ali v. State" 2008 SCMR 1086".
17. In view of what has been discussed hereinabove, we are inclined to hold that the
prosecution has failed t o prove the charge against the appellants beyond reasonable doubt.
For the above reasons, the judgment impugned dated 24.05.2017 passed by the
Additional Sessions Judge, Pishin, is set aside and while extending benefit of doubt appellants namely Abdul Manan son of Abdul Khaliq and Zainuddin son of Muhammad Din are acquitted of the charge under section 302(b), 34 P.P.C. in FIR No.130 of 2014 PS Pishin. The appellants being in custody are ordered to be released forthwith, if not required in any other case.
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