2020 M L D 1990
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
REHMATULLAH and 5 others ---Appellants
Versus
AZIZ ULLAH and another ---Respondents
Criminal Acquittal Appeal No.486 of 2019, decided on 29th June, 2020.
(a) Penal Code (XLV of 1860) ---
----S. 302 ---Qatl -i-amd---Appreciation of evidence ---Appeal against acquittal ---Benefit of
doubt ---Accused was charged for committing murder of the brother of complainant by
inflicting knife blows ---Record transpired that no one came forwa rd to furnish ocular
evidence of the incident ---No direct evidence available on record against the accused ---
Witness stated that he had seen a person lying in injured condition in a pool of blood in the
guest room of accused ---Witness and accused tried to take the injured to hospital on
motorcycle but due to his serious condition, they could not take him to hospital on motorcycle ---Later, they took the injured in the vehicle of a Thanedar/witness to hospital ---
Statement of said witness was further corrobora ted by Thanedar/witness ---Statements of said
two witnesses showed that the accused was the person who informed the witness about the injuries of the deceased and shifted the deceased to hospital in injured condition---Question, in circumstances, arose that if the crime was committed by the accused and the intention was
to murder the deceased then why did he (accused) called witness to help him to take the deceased to the hospital ---Not believeable that the accused first inflicted life threatening
severe kni fe blows on the person of the deceased that too in his own guestroom and
thereafter called his neighbour to take him/injured to hospital in order to save his life ---
Accused was not only trying hard to take the deceased to hospital but he managed to take the deceased in injured condition to hospital with Thanedar and others and above all remained at the hospital without any fear of being involved in the case ---Nothing came on record that
there existed any kind of enmity between the deceased and the accused ---Prosecution
obviously failed to set any motive, which could create reasonable dent in the veracity of the prosecution version--- Circumstances established that the prosecution had failed to establish
culpability of accused through reliable, trustworthy and confidence inspiring evidence ---
Appeal against acquittal was dismissed, in circumstances.
(b) Criminal trial ---
----Circumstantial evidence ---Scope ---If the case is based on circumstantial evidence, the
prosecution must ensure that the circumstances from which the inference of guilt was sought
to be drawn, must be cogently and firmly established ---Circumstances must unerringly point
towards the guilt of the accused and when taken cumulatively should form a chain so complete, that it must demonstrate in a ll probabilities that the crime is committed by the
accused ---Where the evidence was of a circumstantial nature, the circumstances from which
the conclusion of guilt was to be drawn was to be in the first instance be fully established and
all the facts so established were to be consistent only with the hypothesis of the guilt of the
accused ---Circumstances should be of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to be proved---Chain of evidenc e
had to be there, so far completed as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such to show that within all human probability the act must have been done by the accused.
Sheikh Muhammad Amjad v. State PLD 2003 SC 704 rel.
(c) Criminal trial ---
----Benefit of doubt ---Principle ---One circumstance, which created reasonable dent in the
veracity of the prosecution version, could be taken into consideration for giving benefit to the accused not as a matter of grace rather as a matter of right.
Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz Masih v. The State 1995
SCMR 1730 rel.
(d) Appeal against acquittal ---
----Double presumption of innocence ---Interference---Scope ---Acquittal ca rried with it
double presumption of innocence ---Acquittal order could be reversed only when found
blatantly perverse, resting upon fringes of impossibility and resulting into miscarriage of justice ---Acquittal order could not be set aside merely on the pos sibility of a contra view.
Mujeeb Ahmed Hashmi and Ajmal Lawod for Appellants.
Date of hearing: 23rd June, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---This criminal appeal was filed to call in question
validity of judgment dated 30.10.2019 ('impugned judgme nt") passed by Model Criminal
Trial Court/Sessions Judge, Killa Abdullah at Chaman (trial court) in P.P.C. Case No.19/2017, whereby the respondent No.1 namely Azizullah son of Musa Jan was acquitted of the charge.
2. Relevant facts for disposal of the inst ant appeal are that on 4th July 2017 at 11:30
a.m. the complainant Rehmatullah son of Haji Muhammad Kabir lodged FIR No. 79 of 2017 at Levies Thana Chaman under Section 302 P.P.C. with the averments that on the said date at
about 9:45 a.m. he was present a t his godown when he received telephonic information that
someone has injured his brother Attaullah by inflicting knife blows, who was lying in injured
condition in Baloch Khan Hospital. Thereafter the complainant reached the hospital and found his brother in a pool of blood. Due to critical condition the injured was shifted to Civil
Hospital Chaman but the injured (Attaullah) succumbed to injuries. On query a close
neighbor of respondent/accused Azizullah told that the deceased was guest in the house of
the accused and on hearing hue and cry of the children, he found the deceased in the guest
room of the accused in injured condition. Hence, the crime report.
After completion of usual investigation challan of the case was submitted before the
trial court. T he charge was framed against the accused to which he pleaded not guilty and
claimed trial. After full dressed trial the accused was acquitted of the charge by the trial
court. Hence, the instant appeal.
3. Arguments advanced from both the sides have been heard. We
have also minutely gone through the record available on file with the able assistance of
learned counsel for the appellants.
4. Undeniably it is a case of blind murder which has been witnessed by none. PW -
1/complainant Rehmatullah is brother of th e deceased. PW- 2 Noor Khan, PW -7 Bakht
Muhammad, PW -8 Abdul Salam are not the eyewitnesses of the occurrence and according to
report of the complainant on the day of occurrence he was present in his godown when he received telephonic information that someone has injured his brother Attaullah by inflicting knife blows and was lying in injured condition in Baloch Khan Hospital. PW -2 Noor Khan,
who was neighbor of the accused Azizullah stated before the court that the accused took him to his guestroom where he saw the deceased in injured condition and that he and Azizullah
took the injured to hospital. PW -7 Bakht Muhammad alleged that on 4.7.2017 he met the
deceased at Bhawal Adda, who told him that he was going to meet Azizullah at his house. PW-8 Abdul Salam alleged that on 4.7.2017 he along with his son Abdul Manan and son- in-
law Hanifa were going to Chaman Bazar in a car and found one person lying in the street in injured condition; that they shifted the injured person to hospital.
5. A verity of reasons wei ghed with the learned trial judge to acquit the accused from
the charge, which include; contradiction in the statement of witnesses and the case of the respondent was based on circumstantial evidence and the trial court was found right that there are missi ng links in the chain of the prosecution story and the prosecution could not
successfully prove the charge beyond shadow of reasonable doubt against the accused. None of the reasons cited by the trial judge has been found by us as artificial or unrealistic . Even
otherwise on independent analysis, genesis of prosecution case does not appear to be free from doubt.
6. Record transpires that no one came forward to furnish ocular evidence of this
unfortunate. The material collected by the prosecution are: the de ceased was found in injured
condition in guestroom of the accused Azizullah, recovery of blood stained carpets, two canes of energy drinks, two pairs of shoes, cap green in color, blood stained clay, motorcycle
70-CC, last worn clothes of the deceased and medical evidence.
7. Before dilating upon the above referred circumstantial evidence, we are fully
conscious of the principle that if the case is based on circumstancial evidence, the
prosecution must ensure, that the circumstances from which the inference of guilt is sought
to be drawn, must be cogently and firmly established. The circumstances must unerringly point towards the guilt of the accused and when taken cumulatively, should form a chain so complete, that it must demonstrate in all probabilities that the crime was committed by the accused. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as
not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such to show that within all human probability the act must have bee n
done by the accused. In case titled Sheikh Muhammad Amjad v. State PLD 2003 SC 704, the august Supreme Court while dealing with circumstantial evidence, has been held that: -
"According to the standard of proof required to convict a person on circumstantial
evidence, the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent w ith the
innocence of the accused. The circumstances from which the conclusion of the guilt is to be drawn have not only to be fully established but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis
of the guilt of the accused and should not be capable of being explained by any other hypothesis, except the guilt of the accused and when all the circumstances cumulatively taken together should lead to the only irresistible conclusion that the accused alone is the perpetrator of the crime".
There is no direct piece of evidence available on record against the accused. PW- 2
Noor Khan stated in his statement that Azizullah told him to come to his guestroom, which was situated in front of his house, where he saw a person lying in injured condition in a pool of blood; that they should take the injure to hospital on motorcycle but condition of the injured was very serious, therefore he told Azizullah that due to Attaullah's (deceased) serious condit ion they cannot take him to hospital on motorcycle; that in the meanwhile they
stopped Thanedar Abdul Salam in the street, who was going in a vehicle and informed him about the situation and thereafter took the injured to Baloch Khan Hospital. The statemen t of
PW-2 is further corroborated by PW -8 who stated in his statement that he, Abdul Manan and
Hanifa were proceeding to Chaman Bazar in a car; that on their way they saw two young boys standing in the street who told them that one person was lying in the street in injured
condition; that they reached the place of occurrence and saw that a person was lying in injured condition in front of Azizullah's house; that when the injured was taken to the hospital accused Azizullah was also with them. According to the statement of both the said witnesses the accused Azizullah was the person who informed PW -2 about the injuries of the
deceased Attaullah and shifted the deceased to hospital in injured condition.
In such view of the facts, question arises that if the cr ime was committed by the
accused and the intention was to murder the deceased then why did he (accused) call PW- 2
to help him to take the deceased to the hospital. It is not acceptable to believe that the
accused first inflicted life threatening severe kni fe blows on the person of the deceased that
too in his own guestroom and thereafter call his neighbor to take him/injured to hospital in
order to save his life. The accused was not only trying hard to take the deceased to hospital
but he managed to take the deceased in injured condition to hospital with PW -8 and others
and above all remained at the hospital without any fear of being involved in the case.
Nothing came on record that there existed any kind of enmity between the deceased and the accused. The p rosecution obviously failed to set any motive.
8. All the above narrated facts and circumstances when evaluated on the judicial
parlance reflect that the prosecution has failed to establish the culpability of the accused/respondent in the instant case thro ugh reliable, trustworthy and confidence inspiring
evidence. It is an established principle of law that for extending benefit of doubt in favour of the accused so many circumstances are not required rather one circumstance, which creates reasonable dent in the veracity of the prosecution version, can be taken into consideration for
the purpose not as a matter of grace rather as a matter of right. Respectful reliance in this
regard in placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz M asih
v. The State 1995 SCMR 1730.
9. Furthermore, it is by now well settled that acquittal carries with it double presumption
of innocence; it is reversed only when found blatantly perverse, resting upon fringes of
impossibility and resulting into miscarri age of justice. It cannot be set aside merely on the
possibility of a contra view.
10. In our humble view, the trial court has considered all the material present on record
properly and arrived to the conclusion which is based on proper appreciation of the facts and
law, thus does not need interference by this court.
The appellants have failed to point out any defect in the impugned judgment,
therefore, the appeal being devoid of merit is accordingly dismissed in limine.
JK/99/Bal. Appeal dismissed.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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