2020 M L D 1557
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar
and Abdul Hameed Baloch, JJ
FAIQ ALI and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No.(S)43 of 2019 and Criminal Revision No.(S)15 of 2019, decided on 23th
October, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention ---Appreciation of evidence ---Benefit of
doubt ---Contradictory statements ---Contradiction in ocular and medical evidence---Delay in
sending recovered articles to Forensic Laboratory ---Effect ---Prosecution case was that the
accused persons fired at the deceased in the presence of witnesses ---None other than the
deceased had sustained injury, despite being at a distance of two feet ---Eye -witness es had
contradicted each other regarding the manner in which the incident was committed and
regarding the time of death of the deceased ---Conduct of the witnesses was unnatural as they
remained calm and did not resist or make hue and cry--- Eye-witness had stated that the firing
was made from a distance 2/3 feet while the medical officer had stated that the distance was
10/15 feet ---Bloodstained earth and blood stained clothes were received in Forensic
Laboratory after more than 45 days and it was not disclosed as to where were these articles kept and in whose custody---False implication of accused could not be ruled out, in circumstances ---Prosecution had failed to prove its case against the accused beyond shadow
of doubt ---Appeal against conviction was accepted, in circumstances.
Gul Mir v. The State 2018 PCr.LJ 1216; Muhammad Arif v. The State 2019 PCr.LJ 337; Abdul Samad v. The State 2018 YLR 2053 and Ali Bakhsh alias Ali Dost v. The State 2018 PCr.LJ 866 ref.
Muhammad Rafique v. The State 20 14 SCMR 1698 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302 & 34---Qatl -i-amd, common intention ---Recovery of weapon---Open place---
Failure to send recovered weapon to Forensic Laboratory---Effect ---Investigating Officer had
recovered the crime weapon fr om the bushes on the pointation of the accused after more than
three months of the incident ---Weapon was recovered from an abandoned place which was
neither in the possession nor in the ownership of accused---Weapon was not sent to the
Forensic Laboratory- --Prosecution could not take benefit from such recovery, in
circumstances.
(c) Criminal trial ---
----Witness ---Scope ---Statement of a witness has to be considered as a whole and not in
pieces.
Jehan Bahadur v. The State 2013 YLR 2772 ref.
(d) C riminal trial ---
----Witness ---Scope ---Numerous infirmities are not required to disbelieve a witness, if there
is one which impeaches the credibility of the witness and makes the entire statement doubtful.
(e) Criminal trial ---
----Absconsion--- Evidentiar y value ---Scope ---Mere absconsion of accused has never been
considered as a corroborative piece of evidence.
Muhammad Farooq v. The State 2006 SCMR 1707 ref.
(f) Criminal trial ---
----Benefit of doubt ---Scope ---Accused cannot be deprived of the benefit of doubt merely
because only one circumstance creates doubt in the prosecution story.
Ayub Masih v. The State PLD 2002 SC 1048 ref.
Barkat Ali for Appellants
Jameel Akhtar, Additional Prosecutor General and Inayatullah Marghazani for the
Complainant.
Date of hearing: 26th September, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---Through this common judgment we intend to
dispose of criminal appeal No.(s) 43 of 2019 filed by the appellants against their conviction, and criminal revision petition No.(s) 15 of 2019 filed by the petitioner for enhancement of
the sentence awarded to the appellants vide judgment dated 6th February, 2019 (impugned Judgment) passed by learned Additional Sessions Judge, Naseerabad (trial court).
2. Precise facts of the case are that on 16th February, 2018, complainant Hidayatullah
gave written report to SHO Police Station Saddar, Dera Murad Jamali to the effect that on
the said date the complainant along with his brother Muhammad Sadiq, Attaullah and mother Sakina were si tting in their house and were taking tea. At 5:35 a.m., Faiq Ali duly armed
with TT pistal came there with Abdullah and Muhammad Salah and shout that Muhammad
Sadiq is Siakar with his wife Bibi Zahida and fired at Muhammad Sadiq, due to which he
became inj ured. It is further alleged that due to empty handed and fear he and his brother
could nothing. It is further alleged by the complainant that after this the accused also made
firing on Bibi Zahida due to which she died. It is further, alleged that injured Muhammad Sadiq shifted to hospital, but he succumbed to the injuries. With these averments FIR No. 12 of 2018, under Section 302, 34 Pakistan Penal Code (P.P.C.) was registered at Police Station Saddar, Dera Murad Jamali.
3. After registration of the case investigation was carried out and after completion of the
same challan was submitted before the trial court.
4 The trial court after codal formalities framed charge on 4th July 2018, to which the
appellants denied and claimed trial. The prosecution in orde r to substantiate the charge
produced 11 witnesses. After close of prosecution side the appellants were examined under Section 342 Cr.P.C, in which they once again denied the allegation leveled against them and pleaded innocence. Neither the appellants opt ed to record their statements on oath as
mandated by Section 340(2) Cr.P.C, nor produced any witness in their defence.
5. On completion of trial arguments were heard by the trial court and thereafter passed
the impugned judgment dated 2nd April, 2019, wher eby the appellants were awarded
cnviction under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life
as Tazir on two counts. The appellants were also liable to pay compensation of Rs.200,000/ -
each separately to the legal heirs of deceased Muhammad Sadiq and Bibi Zahida as
envisaged under Section 544- A Cr.P.C and in default thereof to further undergo six months
for each default. The punishments awarded were ordered to run concurrently with benefit of Section 382 B Cr.P.C. Hence bein g aggrieved of the impugned judgment the appellants filed
appeal for their acquittal, whereas the petitioner Hidayatullah preferred revision petition for enhancement of the sentence awarded to the appellants.
6. We have heard both the learned counsel for t he parties and Additional Prosecutor on
behalf of the State, and also gone through the material available on record. The prosecution has examined eleven witnesses in order to substantiate its case. The case of prosecution hinges on testimony of ocular witnesses, recovery of blood- stained earth, crime shell,
medical certificates, abscondence, recovery of crime pistol on disclosure and pointation of accused/appellant No.1 and FSL Report. The case of prosecution in nutshell is that the complainant along with h is brothers Sadiq (deceased); Attaullah and mother Bibi Sakina
were sitting in the house in early morning. The appellants came there. The appellant No.1 shouted that he declared his wife as Siakar with Sadiq, fired upon Sadiq. After the occurrence they lef t the house. The appellant No. 1 also killed his wife by making firing. The
testimony of ocular account is not in line with each other, rather they contradicted each other. The witnesses alleged that they were sitting together along with deceased in kitche n
and taking tea. Meanwhile the accused/ appellant No. I appeared along with companions,
fired at deceased. Except Sadiq (deceased) no other has sustained injury despite they all were sitting together with a distance of two feet. PW -1 stated that four bull ets were fired. The
accused hold the neck of deceased and fired. Thereafter, they put the deceased on ground and also made fire on him, while PW -2 and PW -3 did not state so. PW -1 stated that he had taken
Sadiq to police station with brother Azad Khan and uncle Baloch. They kept the injured
outside Thana. We went in Thana for registration of FIR and remained there for 10/15
minutes. Ex: P/1 -A was written by Arbab Ali SI. Thereafter they took the deceased and
reached hospital at 7:00 a.m. At that time the deceased was alive. PW- 2 mother of the
deceased narrated the story differently. PW -2 stated that she along with complainant went to
police station. The injured was with them. She also went inside Thana. She has no knowledge where Sadiq was kept. PW -3 replied the question in cross -examination that they
proceeded to Thana by foot for registration of FIR. When we proceeded to Thana at that time Sadiq was expired.
7. The testimony of ocular witnesses is contradictory to each other on material points. If
it is believed that the complainant and PW -1 were with the deceased, then their conduct does
not appeal to prudent mind, as the deceased who was brother of complainant and PW -3 was
being done to death they remained calm and do not resist or make hue and cry. Whereaf ter
simply went to police station for registration of FIR. It is also not believable that by killing a person in presence of his close relatives the accused would not attempt to cause any injury to the PWs for their evidence to be hanged. Reliance is placed on case law Gul Mir v. The State, reported in 2018 PCr.LJ 1216 and Muhammad Arif v. The State, reported in 2019 PCr.LJ 337.
8. Suffice to mention here that complainant registered the FIR at 6:35 a.m., at police
station; his Fard -e-Biyan was written by a police officer. In cross -examination the brother of
the complainant PW- 3 replied to a question:
9. The mother of the deceased PW- 2 stated that her statement was recorded at her house
in the morning by Investigating Officer. The statement of PW -3 belies the statement of other
ocular witness. If the statement of PW- 3 is considered then all the proceedings conducted by
Investigating Officer before registration of FIR. At the same time stated that he recorded her statement on the fateful day at 12:00 a.m. The dead body was examined by PW -9, who stated
that the patient was expired within 15 minutes at hospital. From the above over all contradictions it appears that the complainant and PWs did not witness the incident. Reliance is placed on case law titl ed Abdul Samad v. The State, reported in 2018 YLR 2053.
10. It needs no many points to discredit the statement of a witness, only one point is
enough to disbelieve the statement of a witness. It is worth to mention that the statement of a
witness has to ta ke into consideration as a whole and not in pieces. It is not permissible to
partially accept and partially refuse, as held in case Jehan Bahadur v. The State, 2013 YLR
2772. It is fundamental principle of criminal jurisprudence that to disbelieve a witnes s, it was
not necessary that there should be numerous infirmities, if there was one which would impeach the credibility of the witness, that could make the entire statement doubtful.
11. Further, it is to be noted that the prosecution has secured empties f rom the place of
incident, produced as Ex: P/8- B, while Ex: P/9 -A transpires that the deceased received five
bullet injuries. It trashes the evidence of prosecution, as from where the other three injuries were received despite the fact that the incident h ad taken place in the house of the
complainant and except family members no other person was present there. Another aspect of the case has to be considered. As per PW -3 firing was made from distance of 2/3 feet,
while PW -9 stated that, the distance was 10/15 feet. The Investigating Officer visited the
site, prepared site plan as Ex: P/10- B, which transpires that the deceased along with family
members were at point 1 in kitchen where fire was made from point 2, which belies the statement of P.W.3. It is held by honourable Supreme Court in case Muhammad Rafique v.
The State 2014 SCMR 1698:
"------. According to the medical evidence the firearm injury received by the deceased
had blackening around it whereas according to the site -plan of the place of occurrenc e
statedly
prepared at the instance of the eye -witnesses a shot at the
deceased had been fired from a distance of about eleven feet."
12. PW-5 is the witness of disclosure of accused/appellant No. 1. The Investigating
Officer recovered the crime weapon from the bushes on pointation of accused/ appellant No.1 on 10th June, 2018, meaning thereby that after more than three months. It is to be noted that the place of recovery is abandoned place. Neither the place of recovery is in possession, nor in ownership of accused/appellant No.1. It was an open place. The alleged recovered pistol was not sent to FSL. The prosecutor could not take benefit from this recovery. The blood stained earth of deceased Ex:P/5- A, Ex: P/5 -B and blood stained clothes of decea sed
Ex:P/8 -A and Ex: P/8 -C were received to FSL on 3rd April 2018, meaning thereby that more
than 45 days where these articles were kept and in whose custody. Reliance is placed on Ali Bakhsh alias Ali Dost v. The State 2018 PCr.LJ 866.
13. As far as the a bsconsion of accused is concerned. Mere absconsion has never been
considered to be a corroborative piece of evidence. Reliance is placed on case law titled as Muhammad Farooq v. The State reported in 2006 SCMR 1707.
14. In view of the ocular testimony of the prosecution witnesses, contradictions,
omissions and discrepancies in their statements, lacking of independent corroboration, the false implication of the appellants by the PWs cannot be ruled out. The perusal of impugned judgment shows that the same i s suffering from mis -appreciation of the material available on
the record. Even an accused cannot be deprived of benefit of doubt nor merely become only one circumstance which create doubt in the prosecution story, whereas in the case in hand there are ser ies of doubts. The honorable Supreme Court held in case Ayub Masih v. The
State PLD 2002 SC 1048:
"------. The rule of benefit of doubt, which is described as the golden rule, is
essentially a rule of prudence which cannot be ignored while dispensing just ice in
accordance with law. This rule is based on that maxim: "it is better that ten guilty
persons be acquitted rather than one innocent person be convicted."
In simple words it means that utmost care and caution should be taken by the court in
convicting an accused.
15. In view of the above discussion, the prosecution has failed to prove its case against
the appellants beyond shadow of doubt, as such the riminal revision petition filed by the petitioner for enhancement of sentence being devoid of merit i s dismissed and the appeal
filed by the appellants is accepted and the impugned judgment dated 2nd April, 2019 passed by Additional Sessions Judge, Naseerabad at Dera Murad Jamali, pursuant to FIR No. 12 of 2018 Police Station Saddar, Dera Murad Jamali, is set aside and appellants Faiq Ali and
Abdullah both sons of Muhammad Yaqoob and Muhammad Salah son of Muhammad Faqir are acquitted of the charge under Section 302(b), 34 P.P.C. They are in custody, shall be released forthwith if not required in any other case.
There are the reasons of our short order made on 26th September, 2019.
SA/145/Bal. Appeal acceptedThis 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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