2020 M L D 1492
[Balochistan]
Before Muhammad Kamran Khan Mulakhail
and Abdul Hameed Baloch, JJ
NAQEEBULLAH and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No.375 and Criminal Revision Petition No.37 of 2019, decided on 31st
March, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----S. 161 --- Supplementary statement --- Scope --- Supplementary statement of complainant
has no evidentiary value in the eyes of law and cannot be termed as a piece of evidence more
than a statem ent recorded under S. 161 Cr.P.C.
Khalid Javed v. The State PLD 2003 SC 1419 rel.
(b) Penal Code (XLV of 1860) ---
----S.302 (b) ---Qatl-i-amd---Appreciation of evidence ---Weapon and empties ---Sending to
Forensic Science Laboratory together ---CDR data ---Proof ---Empties so recovered from the
spot and sent to expert were of megaroof pistol, which could not match with 30 bore pistol ---
Forensic Science Laboratory report contained an entry of 9mm empties but the entire record
was silent about recov ery and use of such weapon ---Such fact had created further doubt in
prosecution version ---Delay so caused in sending recovered alleged crime weapon for
chemical analysis was unexplained ---No explanation was on record in respect of safe custody
of crime wea pon within the custody of investigating authority --- Sending crime empties
along with alleged recovered pistols, created a serious doubt as why the crime empties were
retained by investigation officer till recovery of pistols ---Sending them together create d
serious doubts when possibility of manipulation could not be ruled out ---Even if the last call
was made by accused to deceased, the same could have been for any other reason and not for
the offence ---Just by placing mobile data on record was not of any u se to prosecution ---CDR
produced and relied upon by prosecution was neither attested nor signed by issuing authority
nor any witness as either associated during investigation nor produced before Court
therefore, such data could not be relied as a valid pie ce of evidence ---High Court set aside
conviction and sentence awarded to both the accused persons by Trial Court and they were
acquitted of the charge ---Appeal was allowed in circumstances.
Ali Sher v. The State 2008 SCMR 707; M.D. Nazir Huss ain Sarkar and another v.
The State 1969 SCMR and Advocate General, Government of East Pakistan v. Majid alias
Abdul Majid 1970 SCMR 12 rel.
(c) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Circumstantial evidence --- Scope ---
Conviction can be recorded on the basis of circumstantial evidence ---Even death sentence
can be awarded, provided the circumstances constitute continuous chain without missing any
link, combined effort of which establishes guilt of accused beyond shadow of doubt.
Muhammad Ishaq v. The State 2009 SCMR 135 rel.
(d) Criminal trial ---
----Benefit of doubt ---Scope ---One substantial doubt is enough for acquittal of accused ---
Rule of benefit of doubt is essentially a rule of prudence, which cannot be ignored while
dispensing justice in accordance with law.
Muhammad Akram Shah and Ayub Achakzai for Appellants.
Hassan Sherani and Usman Yousafzai for the Complainant.
Abdul Karim Malghani, State Counsel.
Date of hearing: 2nd March, 2020.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---This common judgment
shall dispose of Criminal Appeal No. 375 of 2019 and Criminal Revision Petition No. 37 of
2019. as both these cases arise out of the same FlR and Judgment.
2. In Criminal Appeal No. 375 of 2019, the appellants have assailed the judgment dated
04th October 2019, (impugned judgment) passed by learned Sessions Judge, Killa Abdullah
at Chaman (trial court) hereby the they have been convicted in the following manner:
"In the wa ke of above discussion although the offence leveled against the accused
persons proved but as the incident was an unseen one and on the surface nothing
appeared to fix that who made fatal shots therefore accused persons namely
Naqeebullah son of Juma Khan, Siddiqullah and Qudratullah sons of Rehmatullah are
convicted under section 302 (b) R/W 34 P.P.C. for committing Qatl -e-Amd of Jailani
son of Agha Muhammad and sentenced to suffer R.I for life. The accused persons are
also liable to pay an amount of Rs. 1 50,000/ - each as compensation to the legal heirs
of deceased as provided under section 544 -A Cr.P.C and in default whereof they
would suffer simple imprisonment for six months. However, benefit of section 382(B)
Cr.P.C is also extended in favour of accused persons.
The Criminal Revision Petition No. 37 of 2019 has been filed by the complainant for
enhancement of the sentence recorded against the appellants by the trial court.
3. Brief facts of the case are that on 09th May 2016 one Agha Muhammad registered the
FIR No. 31 of 2016 at about 01:00 p.m. with Levies Station Chaman under Section 302 Qisas
and Diyat Ordinance, read with Section 34 Pakistan Penal Code (P.P.C.), with the averments
that on 06th May 2016, at about 03:30 p.m. his son namely Jailani aged about 25 years was
present at home, when he received a phone call from unknown accused persons, whereupon
his son Jailani left the house, but did not return ever since. On 09th May 2015, he was
informed that his son Jailani had been murdered by unknown ac cused persons, and his dead
body was found lying in a Shella, which was brought to Civil Hospital Chaman by levies
officials of Abdul Rehman Naka by Incharge Asghar Khan Ashezai and buried at College
Road graveyard, consequently the instant FIR was lodged against unknown persons.
Subsequently on 08th June 2016 the complainant filed his supplementary statement and
nominated the appellants, as such, they were arrested in the instant case.
4. On registration of FIR Ex -P/14 -A the investigation was initially ent rusted to PW -14
Muhammad Younas Tehsildar Chaman, who conducted investigation, prepared site plan EX -
P/14 -B, sent a letter to the Zong Company for provision of Data in respect of mobile
No.0312 -0836855 Ex -P/14 -C, prepared memos, recorded statements of witn esses, thereafter
the investigation was transferred to the Crimes Branch, Quetta and entrusted to PW -11
Muhammad Ayub, Inspector ® Crimes Branch, Quetta, who conducted investigation,
arrested the appellants, recovered the pistols from the possession of app ellant Sidiqullah,
dispatched the crime weapon for chemical examination, prepared incomplete challan Ex -
P/11 -A received the FSL report Ex -P/11 -B, prepared incomplete challan EX -P/11 -C and
recorded the statements of witnesses.
5. At the trial, charge was fr amed against the appellants, to which they did not plead
guilty and claimed trial. During the trial, the prosecution produced following six witnesses: -
I) PW-1. Agha Muhammad (complainant), who produced his report as Ex -P/I -A, his
supplementary statement as Ex -P/1-B and affidavit as Ex -P/1-C.
II) PW-2. Kakar, circumstantial witness.
III) PW-3 Salah -ud-Din Circumstantial witness.
IV) PW- IV Muhammad Gul, Circumstantial witness.
V) Asghar Khan, Dafadar, Incharge Killi Malak Abdul Rehman Chowki, who produced
the recovery memo of dead body of deceased as Ex -P/5-A.
VI) PW-VI, Haji Ghulam Sarwar, who produced the recovery memo of mobile data as
EX-P/6-A, mobile data as Art -P/6- 1 and Art/ -P/6-2 and also produced the recovery
memo Ex -P/6-B, through which recovery memos and statements of witnesses in FIR
No. 39 of 016, were taken into possession.
VII) PW-7 Muhammad Shafiq Dafadar (Recovery witness), who produced recovery memo
of 8 empties of TT Pistol and 7 empties of Megaroof pistol as Ex -P/7-A, and also
produced t he same as Articles.
VIII) PW -8, Abdul Baqi witness to the recovery of dead body and empties from the place
of incident.
IX) PW-9, Saadullah, who is witness to the recovery of pistol No. 33337 along with two
magazine and 10 live cartridges and two Nokia phones from the possession of
appellant Sidiqullah.
X) PW-lO, Watan Yar, Khasadar, is witness to the recovery memo of pistol.
XI) PW-11 Muhammad Ayub, IP(R) Crimes Branch, is the second Investigating Officer
of the case.
XII) PW-12 Wazir Muhammad ASI, who is witness to the disclosure memo of appellant
Qudratullah.
XIII) PW -13, Dr. Zia ud Din Medical Officer, Civil Hospital Chaman, who inspected the
dead body and issued death certificate Ex -P/13 -A.
XIV) PW -14, Mhammad Younas, Ex -Tehsildar, who is first Inves tigating Officer of the
case.
XV) Abdul Jabbar, Risaldar Levies Headquarter, Chaman, who produced
incomplete challan EX -P/15 -A.
6. On conclusion of prosecution evidence, the appellants' statements under Section 342
of the Cr.P.C. were recorded, in which they once again professed their innocence, however,
they did not opt to record their statements on oath as envisaged under Section 340(2) of the
Cr.P.C. and also did not opt to produce any defence witness in their favour. The learned trial
court, on conclu sion of the trial, convicted and sentenced the appellants as mentioned
hereinabove, hence this appeal.
7. Learned counsel for the appellants contended that the impugned judgment suffers
from misreading and non -reading of evidence; that the incident is unse en and there is no
direct evidence connecting the appellants towards the commission of offence; that the alleged
recovered pistol has been dispatched for analysis with unexplained delay of more than four
months; that there is contradiction amongst the stat ements of the prosecution witnesses; that
there is no incriminating evidence available against the appellants to connect them with the
commission of the offence; that there are material irregularities and illegalities in the
impugned judgment, which is lia ble to be set -aside. He lastly urged for acquittal of the
appellants.
8. Conversely, learned Counsel for the complainant, assisted by the learned State
counsel strongly opposed the contention of learned counsel for the appellants and contended
that the pro secution has successfully proved its case against the appellants through
confidence inspiring evidence; that the appellant Qudratullah has admitted his guilt by
recording his disclosure before the prosecution witnesses during the course of investigation;
that the prosecution has produced sufficient incriminating evidence against the appellants
and the learned trial court has rightly convicted the appellants for commission of offence. He
lastly urged for dismissal of the appeal.
9. We have heard the learned counsel for the parties and have
perused the record with their able assistance.
10. Admittedly, this case squarely rests on circumstantial evidence. Initially, the incident
was reported by complainant Agha Muhammad himself on 09th May 2016, wherein he
charged unknown culprit for committing the murder of his deceased son, but after one month
of the initial report on 08th June 2016 the complainant filed is supplementary statement
before the Investigating Officer, wherein he nominated the appellants for commis sion of the
offence, stating therein that he was told by Salah -ud-Din that the deceased Jailani was going
on picnic with Naqeebullah, Sidiqullah and Qudratullah, while Kakar and Muhammad Gul
had also witnessed deceased with the appellants. In cross -examina tion he stated that he came
to know about the incident on 09th May 2016 and filed his report before the Tehsildar on the
same ay. Pw -2 Kakar, and PW -3 Salah -ud-Din, claimed to have witnessed the deceased in a
vehicle accompanying the appellants, however, t hey have not witnessed the commission of
offence by the appellants. They also stated that on 07th May 2016 they submitted a report
about missing of the deceased Jailani, but neither any such report was produced nor was
available on record. Though the learn ed trial court exhibited the supplementary statement of
the complainant, but the same has no evidentiary value in the eyes of law and cannot be
termed as a piece of evidence more than a statement recorded under Section 161 Cr.P.C. The
Hon'able apex Court i n a judgment reported in PLD 2003 Supreme Court Page /419 Khalid
Javed v The State held as under:
"As far as supplementary statement of a complainant is concerned its value is not
more than a statement under section 161, Cr.P.C. , in this behalf reference may be
made to the case of Falak Sher alias Sheru v. The State (1995 SCMR 1350). In this
report appellant Falak Sher was not nominated in the FIR. However, subsequently
complainant involved him by making supplementary statement deposing therein that
the u nidentified person was appellant who had earlier served with him for two years
and was on visiting terms. Accordingly he was put to trial and was convicted by the
trial Court and sentenced the accused to life imprisonment. In appeal the Federal
Shariat Cou rt maintained the conviction and sentence. As such appellant and two
others filed petition before this Court. Leave was granted only to appellant Falak Sher
whereas the same was refused to the co -accused. While evaluating the case of both
the sides it has been laid down that FIR is the document, which is entered into 154,
Cr.P.C. book maintained at the police station at the complaint of the informant. It
brings the law into motion. The police under section 156, Cr.P.C. start investigation
of the case. Any s tatement or further statement of the first informant recorded during
the investigation by police would neither be equated with First Information Report
nor read as part of it. Consequently it was held that as the name of appellant does not
appear in the FI R, resultantly he was acquitted of the charge. The dictum laid down in
this case has been followed by a Division Bench of Lahore High Court in the case of
Anees -ur-Rehman and another v. The State (PLD 2002 Lahore 110). It may be noted
that in this case a d istinction has been made by making observation that FIR is a
document which is entered into a book maintained at the police station and thumb -
marked or signed by the first informant while the supplementary statement is recorded
under section 161, Cr.P.C. a nd is not signed or thumb -marked. So is the position in
the instant case as well because FIR Exh.P/O was signed by P.W. Naveed Anwar
Naveed as it is evident from the footnote of the FIR Exh.P/O on which he put his
signatures whereas he has not signed the s upplementary statement Exh.D/B, therefore,
its value will be determined keeping in view verdict of the case -law noted
hereinabove.
11. Another circumstantial piece of evidence relied upon by the learned trial Court, is the
recovery of 8 empties of 30 bore TT pistol and 7 empties of megaroof pistol from the spot,
and two pistols, allegedly recovered from the shop of appellant Sadiqullah. As per
prosecution case two pistols 30 bore bearing No.33337 and TT pistol bearing No.31009244
were recovered from the pos session of appellant Sidiqullah on 24th May 2016, however,
from the place of incident 8 empties of TT pistol and 7 empties of megaroof pistol were
recovered. Both the recovered pistols and the empties were sent to the Punjab Forensic
Science Agency with th e delay of four months, but there is no explanation in respect of the
safe custody of the empties, alleged crime weapons in the Custody of the Investigating
Authority. Furthermore, it is noted that the FSL report contains the fact that the empties sent
for analysis have been identified to have been fired from the .30 bore pistol and TT pistol,
but astonishingly, the empties so recovered from the spot and sent to the expert were of
megaroof pistol, which cannot match with 30 bore pistol. It is also noted wit h grave concern,
that the FSL report also contains an entry of 9MM empties, but the entire record is silent
about the recovery and use of such weapon, which further creates serious doubt in the
prosecution version. The delay so caused in sending the recove red alleged crime weapon for
chemical analysis is unexplained and also there is no explanation in respect of the safe
custody of the crime weapon within the custody of the Investigating Authority. Moreover,
sending crime empties along with alleged recovere d pistols, created a serious doubt, as why
the crime empties were retained by the Investigating Officer till recovery of pistols, then
sending them together has created serious doubt when possibility of manipulation cannot be
ruled out. The Hon'ble apex Co urt in its judgment reported in 2008 SMCR Paze 707 Ali Sher
v. The State held that:
10. Three crime -empties of .7 m.m. rifle and two crime -empties of .12 bore gun had
been allegedly found at the place of occurrence which had been taken into possession
by Jehangir Khan, S. -1./S.H.O. (P.W.14). Even if it be presumed that the said crime -
empties were in fact available at the spot and had been rightly recovered by the
investigating Officer, it is a pity that the said crime -empties had been retained in the
polic e station for more than three weeks and had been sent to Forensic Science
Laboratory only on 14 -4-1995 and that also along with a .7 m.m. rifle and a .12 bore
gun which had been allegedly recovered at the instance of Ali Sher and Gohar Ali
respectively. No explanation had been offered as to why the crime -empties had not
been dispatched immediately to the Forensic Science Laboratory specially when one
Muhammad Mushtaq F.C. (P.W -13) and gone to Lahore on 28 -3-1995 carrying the
blood -stained earth found in thi s case for transmitting the same to the Office of the
Chemical Examiner.
11. The crime -empties having been allegedly found at the place of occurrence and
having been retained for so long the police station and having been sent to the F.S.L.
along with the crime weapons and that also 12 days after the alleged weapons of
offence had been allegedly recovered destroys and evidentiary value of the said piece
of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular
testimony.
12. Adverting to the other evidence in the shape of C.D.R data, it is noted that the
Investigating Authority has taken into possession the CDR data of the deceased's mobile, and
there is nothing on record in respect of the CDR of the appellant Qudratullah, who h ad
allegedly called the deceased. Furthermore, it was not clarified as to whether the
telephone/SIM number was in the name of the deceased Jailani, as the same fact has not been
established through record. Even assuming that the last call was made by the a ppellant to the
deceased that may be for any other reason and not for the offence, therefore, just by placing
mobile data on the record would hardly be of any use to the prosecution. It is also to add here
that the CDR produced and relied by the prosecutio n was neither attested nor signed by the
issuing authority, nor any witness was either associated during investigation, nor produced
before the court, thus also cannot be relied as a valid piece of evidence.
13. There is no cavil to the proposition that co nviction can be recorded on the basis of
circumstantial evidence and even death sentence can be awarded to an accused on
circumstantial evidence, provided the circumstances constitute a continuous chain without
missing any link, combined effect of which es tablishes the guilt of accused beyond any
shadow of doubt. This dictum has been laid down by the august apex court in case titled,
"Muhammad Ishaq v. The State" (2009 SCMR 135). The fundamental principle of universal
application in cases dependent on circu mstantial evidence, is that in order to justify inference
of guilt of accused, incriminating fact must be incompatible with innocence of accused or
guilt of any other person and incapable of explanation upon any other reason hypothesis than
that of his gui lt. In such cases it is imperative for the prosecution to prove the alleged
circumstances as of conclusive nature to exclude every hypothesis, but one proposed to be
proved. The circumstances from which an inference adverse to the accused is sought to be
drawn must be proved beyond all reasonable doubts and must be clearly connected with the
fact sought to be inferred therefrom. In order to justify an inference of guilt, the
circumstances from which such an inference is sought to be drawn must be incompatib le with
the innocence of the accused and incapable of explanation upon any other reasonable
hypothesis than that of his guilt. All the links of circumstances should be so interconnected
with each other as to form a continuous chain, one end of which should touch the dead body
and the other end should touch the neck of the accused. One single link missing in the chain
would entitle the accused to benefit of doubt.
14. Now we have to evaluate the case in hand at the touchstone of the principles settled
by the apex Court referred above. The first circumstance, which goes against the prosecution,
is the initial report of complainant wherein he charged unknown culprit for committing
murder of his son, but subsequently filed his supplementary statement after one m onth of the
initial report, nominating the appellants for commission of the offence. From the place of
incident, the investigating authority collected 8 empties of TT pistol and 7 empties of
megaroof pistol, and at the time of arrest two pistols bearing No . 33337 and 31009244
respectively were allegedly recovered from the shop of appellant Sidiqullah and sent for
chemical analysis along with the recovered shells, but surprisingly the FSL report contained
the number of one pistol as 31009244, but in respect of the second one it is mentioned that
the number is obliterated, and the report also contained the fact that the empties are fired
from both the pistols, while no reference weapon in respect of 9MM empties was shown to
have been filed. It is to point out here that as per recovery memos and site plan, neither any
weapon of 9MM was used, nor any shall were recovered, rather the empties of megaroof
were alleged to have been recovered, thus it altogether created very serious doubts. It is also
imperative to ad d here that the empties and recovered pistol were together sent to the
examiner and that too with the delay, without any explanation in respect of their safe
custody. The circumstances, discussed above, broke the chain of circumstances connecting
the appel lant with the commission of offence.
15. It is settled law that if the evidence does not establish a strong chain of circumstances
which could not be explained away on any hypothesis other than the guilt of the accused,
conviction in such eventualities wou ld not be legal, because circumstantial evidence should
point inevitably to the conclusion that the accused and the accused only is the perpetrator of
the offence and such evidence should be incompatible with innocence of the accused, which
is lacking in t he case in hand. Here I would refer the view of the Hon'ble Supreme Court
about circumstantial evidence in the case of "M.D. Nazir Hussain Sarkar and another v. The
State" (1969): -
"An accused cannot be found guilty unless all reasonable hypothesis, which are
consistent with his innocence, have been excluded.
Further held in case of Advocate -General, Government of East Pakistan v. Majid alias
Abdul Majid [1970 SCMR 12).
"If the evidence does not establish strong chain of circumstances which could not be
explained away on any hypotesis other than the guilt of the accused conviction under
section 302, P.P.C. would not be legal".
"A very high quality of evidence is required and chain of events has to be completed
with a view to establish guilt of accused be yond reasonable doubt and to make the
plea of his being innocent incompatible with the weight and quality of prosecution
evidence. Where the prosecution fails to prove circumstances in a manner to make it
beyond reasonable doubt, judgment of High Court in rejecting such evidence is in
accord with principles recognized for safe administration of criminal justice". (PLD
1986 SC 690).
"Law relating to circumstantial evidence that proved circumstances must be
incompatible with any reasonable hypothesis of the innocence of the accused" (1992
SCMR 1047 and 1999 SCMR 1034)."
16. For what has been discussed above, we are of firmed view that the prosecution has
miserably failed to bring home the guilt of appellant through cogent and confidence inspiring
ocular or ci rcumstantial evidence beyond shadow of reasonable doubt. The circumstantial
evidence relied upon by the prosecution does not make a chain so that its one end touches the
dead body of the deceased and other the neck of the appellant, but having ample doubts in
the prosecution case. It is settled law that one substantial doubt would be enough for
acquittal of the accused. The rule of benefit of doubt is essentially a rule of prudence, which
cannot be ignored while dispensing justice in accordance with law. Co nviction must be based
on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution
case, must be resolved in favour of the accused. The said rule is based on the maxim "it is
better that ninety -nine guilty persons be acquitted rather than one innocent person be
convicted."
Thus, in view of above the appeal is allowed. The impugned judgment dated 04th
October 2019, passed by the learned Sessions Judge Killa Abdullah at Chaman is set -aside.
Consequently, the appellants Naqeebull ah son of Juma Khan, Sadiqullah and Qudratullah
sons of Rehmatullah are acquitted of the charge under Section 302 Qisas and Diyat
Ordinance read with Section 34 P.P.C. in case FIR No.31 of 2016, Levies Thana Chaman.
The appellants being in custody are orde red to be released forthwith, if not required in any
other case.
Since no case is made out against the appellants, therefore the Criminal Revision
Petition No. 37 of 2019 is dismissed accordingly.
MH/54/Bal. Appeal allowed.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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