2020 M L D 2006
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ
BAHADUR KHAN--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.435, Criminal Revision Petition No.42 of 2019, decided on 30th April,
2020.
Penal Code (XLV of 1860) ---
----Ss. 302, 324 & 34--- Qanun- e-Shahadat (10 of 1984), Art. 40 ---Qatl-i-amd, attempt to
commit qatl -i-amd, common intention---Information received from accused to be proved---
Appreciation of evidence ---Benefit of doubt ---Scope ---Accus ed was alleged to have
murdered the father of complainant ---Prosecution case hinged on ocular account furnished by
complainant, disclosure of acquitted accused, disclosure statement of accused and medical/death certificate of deceased ---Facts mentioned in the FIR were reproduced in the
alleged disclosure of accused, therefore, it could not be considered as discovery of new fact within the meaning of Art.40 of Qanun- e-Shahadat, 1984--- Complainant could not justify his
presence at the spot ---Medical officer d eposed that deadbody of the deceased was brought to
the hospital by an Assistant Sub- Inspector of Police---Had the complainant witnessed the
occurrence, nothing prevented him to accompany the deceased to the hospital ---Prosecution
had failed to prove its c ase against the accused beyond any reasonable doubt ---Appeal
against conviction was allowed, in circumstances.
Mst. Askar Jan v. Muhammad Daud 2010 SCMR 1604; 2017 SCMR 596 and Javaid
Akbar v. Muhammad Amjad and Jameel @ Jeela and another 2016 SCMR 1241 rel.
Taj Muhammad Mengal for Appellant (in Criminal Appeal No.435 of 2019).
Habibullah Gul, Additional P.G. for the State (in Criminal Appeal No.435 of 2019)
Habibullah Gul, Additional P.G. for the State (in Criminal Revision Petition No.42 of
2019)
Taj Muhammad Mengal for Respondent (in Criminal Revision Petition No.42 of
2019).
Date of hearing: 20th April, 2020.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --The appellant Bahadur Khan son of Abdul
Rehman was tried by the learned Sessions Judge (Ad hoc)/ Model Cr iminal Trial Court- I,
Quetta (`the trial Court') in respect of FIR No.122 of 2010, dated 24th July 2010, at about
09:40 a.m. registered with Police Station, Sariab, Quetta under sections 302, 324/34, Pakistan Penal Code (P.P.C), wherein, the complainant As adullah alleged that on the above
date at about 09:10 a.m. he along with his father Faqir Muhammad was proceeding to City, via Sariab; Road, Quetta, when at about 9.00 a.m. they reached at the gate of Telephone and Telegram (T&T) Colony, all of sudden, fro m their behind firing started at them. He saw that
appellant (Bahadur Khan) was making firing with pistol, while his nephew Imdad Ali, was standing along with start Motorcycle, CD -70, without number plate. As a result of firing
shot, his father sustained f irearm injuries, fell down and succumb to the injuries. The
appellant after commission of offence, escaped from the place of incident on motorcycle towards Railway line.
2. The co -accused Imdad Ali was convicted by the learned Sessions Judge, Quetta, vide
judgment dated 28th March 2013, however, this Court while allowing Criminal Jail Appeal No.13 of 2013, vide judgment dated 27th October 2014, acquitted him of the charge.
3. After arrest of the appellant, on 6th May 2019, the trial Court framed charge, to which
appellant pleaded not guilty and claimed trial. Prosecution examined eight witnesses. When examined under Section 342 Cr.P.C., appellant denied the allegations levelled against him by the prosecution. He neither recorded his statement under Section 342 Cr.P.C., nor produced any evidence in his defence.
4. The trial Court, vide judgment dated 5th October 2019 ('the impugned judgment')
convicted the appellant, under Section 302(b) Pakistan Penal Code ('P.P.C.') and sentenced to suffer imprisonment for l ife and to pay compensation of Rs.5,00,000/ - under Section 544
Criminal Procedure Code ('Cr.P.C.') to be paid to the legal heirs of deceased Faqir Muhammad.
5. The appellant challenged the impugned judgment by way of filing Criminal Appeal
No.435 of 2019, while complainant filed Criminal Revision Petition No.42 of 2019 for enhancement of the sentence, both are being disposed of through this common judgment.
6. Learned counsel for the appellant contended that PW -1 (complainant) had failed to
prove his presence at the place of incident at relevant time; that co -accused Imdad Ali has
been acquitted, therefore, conviction of the appellant on the basis of same evidence is not sustainable; that prosecution has failed to establish charge beyond reasonable doubt and
impugned judgment is liable to be set aside.
7. Learned Additional P.G. contended that sole testimony of the
complainant has further been corroborated through disclosure of the co- accused, medical
evidence and motive alleged was also proved; that acquittal of co- accused would not enhance
the case of the appellant as no specific role of firing was ascribed to the co -accused; that
direct role of firing to the deceased on the part of appellant not only established his pre -
intend for committing murder of the deceased, but there was no mitigating circumstance,
therefore, appellant also deserves normal penalty.
8. We have heard the learned counsel for the parties and perused
the record. The case of prosecution hinges on ocular account furnished by PW -1
Asadullah, complainant, who is real son of deceased Faqir Muhammad, disclosure of acquitted accused Imdad Ali Ex.P/4 -A, disclosure statement of appellant Ex.P/5 -A and
medical certificate/death certificate of deceased Ex.P/3 -A. The alleged disclosure of the
appellant was recorded on 2nd April 2019, wherein all those facts mentioned in the FIR Ex.P/7- A registered on 24th July 2010 were reproduced. Similarly, the disclosure statement
of co -accused Imdad Ali, Ex.P/4- A was discarded by this Court in Criminal Jail Appeal
No.I3 of 2013, on the following grounds:
"10. In the present case, the disclosure of appellant Ex.P/5- A has be en relied upon by
the trial Court. The alleged disclosure of the appellant was recorded on 20th March 2012, wherein all those facts mentioned in the FIR Ex.P/6- A registered on 24th July
2010 were reproduced, therefore, whatever facts are mentioned in the d isclosure of
the appellant, the police had previously learnt when the FIR was registered, thus Ex.P/5- A cannot he considered discovery of new fact within the meaning of Article
40 of the Qanun- e-Shahadat Order, 1984 (hereinafter the "Order, 1984"). In the case
of Mst. Askar Jan v. Muhammad Daud, 2010 SCMR 1604, the Hon'ble Supreme Court in respect of application of Article 40 of the Order, 1984 held as under.-
"Thus, in order to apply Article 40 of the Order, the prosecution must establish that information given by the accused led to the discovery of some fact deposed by him
and the discovery must be of some fact which the police had not previously learnt from any other source and that the knowledge of the fact was first derived from the information given b y the accused. Reference is also invited to Jaffer Husain v. State
of Maharashtra (AIR 1970 Supreme Court 1934). It is also important to note that the recovery of articles cannot be described as a discovery under Article 40 of the Order when they are not r ecovered from any hidden place and if in the normal course of
investigation the investigation agency is bound to see them and take in possession without the accused making any statement of pointing them out."
9. In the above circumstances Ex.P/4- A and Ex.P /5-A, the alleged disclosures cannot be
considered discovery of new facts within the meaning of Article 40 of Qanun- e-Shahadat
Order, 1984.
10. Whereas, the sole testimony of ocular account furnished by PW -1 Asadullah
(complainant) is concerned, his unnatural conduct could not justify his presence at the spot at relevant time. According to FIR Ex.P/7 -A, the incident had taken place at 09/10 a.m. on 24th
July 2010, at a place, one an half kilometer away from Police Station and the FIR was registered at about 09:40 a.m. According to PW -4 Abdul Rauf and PW -7 Ghulam Fareed,
Investigating Officers, they reached at the place of incident at 10.00 a.m. and according to
PW-3 Dr. Abdul Rasheed, the deadbody of the deceased Faqir Muhammad was brought on
24th July 2010, at 09:45 a.m. by Kamran ASI, of Sariab Police Station. PW -1 Asadullah who
furnished the ocular account, if had seen the occurrence, nothing prevented him to
accompany the deceased Faqir Muhammad to the hospital for postmortem examination. The MLC Ex.P/3 -A and inquest report Ex.P/7 -C negate the presence of PW -1 Asadullah, either at
the place of incident at the relevant time, or in hospital, when inquest report, according to
PW-7 was prepared. Such unnatural conduct of PW -1 created doubt in their statements and
cannot be made basis without any other independent corroboration for conviction of the
appellant. In case reported in 2017 SCMR 596, the Hon'ble Supreme Court of Pakistan, discarded the statement of an eye -witness as a whole on a single doubt about wit ness's
presence on the spot. In case titled Javaid Akbar v. Muhammad Amjad and Jameel alias Jeela and another, 2016 SCMR 1241, the Hon'ble Supreme Court of Pakistan, discarded the statements of PWs on the ground that none of them cared to carry the injured to hospital,
rather, proceeded to Police Station for registration of FIR, and observed as under:
"The appellate Court also seriously doubted the presence of eye -witnesses at the spot
for the reason that while Shakir Akbar was dead and Naveed Akhtar was i n injured
condition, none of the PWs had cared to carry Naveed Akhtar, injured, to the Hospital rather the complainant/PW -8 proceeded to Police Station for registration of FIR. Even
the Driver of the private car, who was a witness, was not produced either during investigation or trial to support the prosecution version so much so that his name was also not disclosed. PW -9 has stated that Naveed Akhtar was shifted in another car in
injured condition to DHQ Hospital, Okara, where he died after 4/5 hours of th e
occurrence. It was noted by the appellate Court that had these witnesses been present at the spot their natural conduct would have been to immediately remove the injured Naveed Akhtar to Hospital for saving his life in the vehicle which was available wit h
them, as it appears such was not done by these PWs."
11. In the instant case, PW -1 (Asadullah) the real son of the deceased failed to bring
anything on record to establish his claimed presence with the deceased at the relevant time and the prosecution ha s failed to prove case against the appellant beyond any reasonable
doubt, therefore, benefit of doubt is extended in favour of the appellant.
In view of the above, Criminal Appeal No.435 of 2019, is allowed, the impugned
judgment dated 5th October 2019, passed by the trial Court is set aside, and the appellant Bahadur Khan son of Abdul Rehman alias Raees, is acquitted of the charge, in respect of FIR No.122 of 2010, registered with Police Station Sariab, Quetta, under Sections 302, 324, 34 P.P.C. He shall be released from the Jail, forthwith, if not required to be detained in connection with any other case.
Consequently Criminal Revision Petition No.42 of 2019 is dismissed.
SA/66/Bal Order accordingly.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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