2020 M L D 841
[Balochistan (Sibi Bench)]
Before Hashim Khan Kakar and Abdul Hameed Baloch, JJ
ANWAR---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.(s) 4 and Murder Reference No.(s) 1 of 2016, decided on 29th October,
2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention--Appreciation of evidence ---Benefit of
doubt ---Night -time occurrence---Source of light ---Scope ---Contradictory evidence ---
Accused, along with others, were alleged to have entered the house of complainant at night
and murdered two of his sons ---Statements of witnesses revealed that the accused entered
into the house of complainant at a time when they were sleeping and they woke up on hearing the noise of firing which meant that they had not seen when the first fireshot was
made---Witnesses were resident of the same house but their statements were not in line with each other ---Witnesses stated that the accused had continuously fired for 10/15 minutes but
only 15 empties were secured from the spot ---Allegation of prosecution was that the accused
came on motorcycle but no motorcycle was recovered ---Witnesses admitted that several
people resided in their neighbourhood but none of them was cited as witness ---Witnesses
stated that after firing accused shouted that none would be spared but did not harm any
witness ---Witnesses narrated that they identified the accused in the light of the bulb but no
bulb was shown in the site inspection--- Prosecution, in circumstances, had failed to prove its
case against the accused beyond any shadow of doubt, therefore, impugned judgment was set
aside and the accused was acquitted of the charge---Appeal was allowed.
Muhammad Salah v. State 2018 YLR Note 284; Haroon Shafique v. The State 2018
SCMR 2118; Khalid alias Khalidi v. The State 2012 SCMR 327 and Rashid Khan v. The
State 2017 SCMR 564 ref.
Muhammad Akram v. The State 2009 SCMR 23 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention--Appreciation of evidence ---Benefit of
doubt ---Contradiction in ocular and medical evidence---Effect ---Accused, along with others,
was alleged to have entered the house of complainant at night and murdered two of his sons --
-Allegation against accused persons was that they were armed with sho tguns ---Medico Legal
Certificates revealed that each deceased person had sustained only one bullet injury and that
they had not sustained pellet injuries ---Prosecution, in circumstances had failed to prove its
case against the accused beyond any shadow of doubt, therefore, impugned judgment was set
aside and the accused was acquitted of the charge---Appeal was allowed.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention--Appreciation of evidence ---Benefit of
doubt ---Recovery of weapon---Delay in sending the recovered weapon--- Sending of empties
along with weapon for forensic analysis ---Effect ---Accused, along with others, was alleged
to have entered the house of complainant at night and murdered two of his sons ---Accused
had allegedly got recovered the crime weapon from an abandoned place with a delay of more
than 12 days ---Prosecution dispatched the crime weapon and casings together for forensic
analysis after more than one month without any reason ---Prosecution had failed to explain as
to where the recovered material was kept and in whose custody--- Sending of firearm along
with empties lost its evidentiary value, as such report could not be considered as corroborative evidence ---Prosecution, in circumstances, had failed to prove its case against
the accused beyond any shadow of doubt, therefore, impugned judgment was set aside and the accused was acquitted of the charge---Appeal was allowed.
Haroon Shafique v. The State 2018 SCMR 2118 ref.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Qanun- e-Shahadat (10 of 1984), Art. 22--- Qatl-i-amd, common
intention-- Appreciation of evidence ---Benefit of doubt ---Identification parade conducted by
police officer ---Effect ---Accused, along with others, was alleged to have entered the house of
complainant at night and murdered two of his sons ---Accused persons were nominated in the
FIR with parentage and specific role, despite that identification parade of accused was
conducted--- Conducting of identification parade meant that the accused was not known to
the complainant and other witnesses ---Had the accused been identified during firing then the
identification parade could not have been conducted ---Identification parade was supervised
by DSP (Deputy Superintendent of Police) instead of a Judicial Magistrate which was not permissible ---Statements of occular witnesses were liable to be discarded, in circumstances --
-Accused was acquitte d of the charge and appeal was allowed.
Khalid alias Khalidi v. The State 2012 SCMR 327 ref.
Muhammad Sadiq Ghuman for Appellant.
Abdul Mateen, Deputy Prosecutor General for the State.
Date of hearing 25th September, 2019.
JUDGMENT
ABDUL HAMEED RALOC H, J .---This criminal appeal has been directed against
the judgment dated 31st December, 2015 (impugned judgment), passed by learned Additional
Sessions Dera Allah Yar, (trial court), whereby the appellant was convicted under section 302(b) Pakistan Penal Code and sentenced to death.
2. Succinct facts of the case are that on 15th May, 2015, the complainant Muhammad
Ali, lodged FIR No. 10 of 2015, with Police Station Sunhri Panhur, District Jaffarabad, under Sections 302, 34, P.P.C., alleging therein that on the said date after taking dinner the
complainant along with his wife, son Abdul Aziz with his wife Laila and sons Zahid Hussain and Sabir Hussain, Atta Muhammad, and daughter Mehtab went to sleep in courtyard of the house. At about 12:30 a.m., the compla inant and other family members woke up on hearing
fire shot and saw that Ghulam Akbar put hands on the mouth of Laila, while Ghulam Mustafa fired shot gun on Abdul Aziz, whereas Anwar fired shot gun on Atta Muhammad, while Ghulam Rasool was firing with sho t gun. It was alleged by the complainant that due to
firing his sons Abdul Aziz and Atta Muhammad became seriously injured and succumbed at the spot. It was further alleged that the accused persons were making lalkara that tonight they will not spare any one.
3. After registration of FIR the investigation of the case was carried out and after formal
investigation the challan of the case was submitted before the trial court.
4. At the trial after framing of charge the prosecution in order to substantiate the charge
produced as many as nine witnesses. After close of prosecution side the appellant was
examined under section 342, Cr.P.C., wherein he denied the allegation of prosecution. The appellant did not opt to record his statement on oath as envisaged under section 340(2),
Cr.P.C., however, he produced one defence.
5. On completion of the trial the learned trial court heard arguments and thereafter,
convicted the appellant in the terms as mentioned in para -1 supra vide impugned judgment,
henc e this appeal.
6. Suffice to add here that since the appellant was awarded death sentence, as such the
State filed Murder Reference for confirmation of death sentence awarded to the convict Anwar.
7. We have heard the learned counsel for the parties and pe rused the available record.
The prosecution produced nine witnesses in order to substantiate its case. PW -1 produced
Ex: P/1 -A. It revealed that the complainant along with his family was sleeping in courtyard
of their house. At about 12:30 a.m.; the accuse d duly armed with shotgun entered the house,
fired upon Abdul Aziz and Atta Muhammad, due to which they woke up. PW -1, PW -2, PW -3
and PW -4 had assigned specific role to each accused in commission of the offence. After
registration of FIR PW -9 proceeded tow ards the place of incident, prepared site plan Ex: P/9-
A, produced identification memo as Ex: P/9- E. On 17th May 2015 the blood stained earth of
deceased was taken into possession, produced as Ex: P/9- A and Ex: P/9- B. During
investigation on disclosure of appellant prepared disclosure memo as Ex: P/8 -A. On
pointation of appellant crime weapon was recovered, produced as Ex: P/8- B. The
Investigating Officer obtained FSL Report of blood stained earth and crime weapon, empty
shell and produced as Ex: P/9- H and Ex: P/9 -K.
8. The statement of ocular witnesses established that the accused entered the house of
complainant at the time when they were sleeping. They on hearing noise of firing woke up. It means that they did not see when firstly firing was made, how could specific role was assigned to each other. The testimony of ocular account find no support from Ex: P/7- A and
Ex: P/7 -B. The Medico Legal Certificates reveal that each deceased had sustained one bullet
injuries. The allegation was that the accused were armed with shotguns. The MLCs transpire that both the deceased have not sustained pellet injuries. All the eye -witnesses are residing in
the same house, but their statements are not in line with each other. The witnesses admitted that the night was dark, wh ile the Investigating Officer in cross -examination denied that the
night was dark. PW -1 and PW -3 further stated that the accused had fired continuously for
10/15 minutes, while PW -3 replied in cross -examination that firing continued for half an
hour. On si te inspection PW -9 secured only 15 empty shells despite repeated firing by four
accused persons for 10/15 minutes. The statements of the witnesses contradicted each other.
We analyzed the testimony of eye -witnesses, found the same contradictory to each oth er in
respect of distance of firing, identification of accused in dark night. From the above it is
established that the prosecution evidence is shaky, untrustworthy and not confidence inspiring. Reliance is placed on case law Muhammad Salah v. State report ed in 2018 YLR
Note 284.
9. So far as the recovery of empty shells are concerned. Later on the pointation of
accused/ appellant recovery of crime weapon was made. The alleged recovery was made from abandoned place from the bushes with delay of more than 12 days. The prosecution dispa tched the crime weapon and casing together for forensic analysis after more than one
month without any reason. The prosecution failed to explain where the recovered material was kept and in whose custody. The sending of firearm along with empty shell lost its
evidentiary value, as such could not be considered as corroborative evidence. In this regard reliance is Placed on Haroon Shafique v. The State 2018 SCMR 2118.
10. The allegation of prosecution is that the accused came by motorcycle. No motorcycle
was recovered. The witnesses admitted that so many people residing near their house, but
none of them were cited as witness. Although the witnesses stated that there was no boundary wall in their house. PW -2 stated that his father after registration of FIR at 6:00
a.m.; came along with police personnel, while the record reveals that Ex: PR -A was lodged at
6:05 a.m. The distance is 20 kilometer away from the scene of incident. PW -9 stated that
they reached the place of occurrence along with complainant at 7:30 a.m.; while PW -5
narrated that his statement was recorded at 8:00 a.m. These omission, discrepancies cannot be lightly ignored. Another angle of the case has to be considered. The accused were nominated in FIR with parentage and specific role, despite that the identification parade of
accused was conducted in supervision of DSP. Memo of identification parade was produced as Ex: P/9 -E. It means that the accused was not known to the complainant and other
witnesses. If the accused was identified during firing why the identification was conducted.
Secondly the identification parade was supervised by DSP, why the Judicial Magistrate was
not requested for supervision of the parade. If Ex: P/9 -E is considered then the statements of
ocular witnesses have to be discarded, as held in case Khalid alias Khalidi v. The State 2012 SCMR 327.
"----We are not inclined to accept the Identification Parade as a corroborative piece of
evidence as the features of the accused had not been mentioned by the eye -witnesses
in their statements before the police. Even otherwise the Identification Parade loses its veracity when it had been admitted by P. W. 4 Muhammad Gulzar while appearing in the Court that Sultan was previously known to the witnesses and also known to Mst. Jannat Bibi w ho had not been produced. In such circumstances Identification Parade
which had not been relied upon qua the involvement of Sultan Mehmood acquitted accused, the same could not had been relied upon against the present appellants as the witnesses had identi fied the accused who was previously known to them and it had
been disbelieved --"
11. The minute perusal of prosecution case from all angles reveals that the witnesses
implicated the accused in order to take revenge which has already admitted by the witness es.
The prosecution witnesses stated that after firing the accused shouted that no one be speared, but did not harm any witness. The witnesses narrated in their statements that they identified the accused in light of the bulb, while in Ex; P/9- B no bulb wa s shown. The identity of the
accused is mysterious on two aspects one from identification and other non- securing the
bulb. Reliance is placed on Rashid Khan v. The State 2017 SCMR 564.
12. It has been established that the case of prosecution is highly doubtful and no
conviction can be sustained on the basis of such type of shaky and untrustworthy evidence as
per settled principle and guidance of honorable Supreme Court and its benefit must go to the accused not as a matter of grace but of right. In the case Muhammad Akram v. The State
2009 SCMR 23, it has been held by the Honorable Supreme Court that:
"----It is an axiomatic principle of law that in case of doubt, the benefit thereof must
accrue in favour of the accused as matter of right and not of grace--- ."
In view of the above discussion, since the prosecution has failed to prove its case
against the appellant/accused beyond any shadow of doubt, therefore, the judgment dated 31st December, 2015 of Additional Sessions Judge, Dera Allah Yar, is set aside and the appellant Anwar son of Muhammad Ibrahim is acquitted of the charge under sections 302(b), 34, P.P.C. by extending benefit of doubt, in case pursuant to FIR No. 10 of 2015, Police Station Sunhri Panhur, District Jaffarabad. He be released at once if not required in any other
case. Since the appeal of the appellant against his conviction has been allowed, therefore, the Murder Reference filed by the State for confirmation of death sentence is answered in negative.
These are the reasons of our short order made on 25th September, 2019.
SA/149/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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