2021 M L D 1286
[Balochistan]
Before Jamal Khan Mandokhail, CJ and Rozi Khan Barrech, J
Mst. ARBAB KHATOON ---Appellant
Versus
IMAM BAKHSH and 3 others ---Respondents
Criminal Acquittal Appeal No.(s)76 of 2015, decided on 15th October, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Appeal
against acquittal ---Delay of about one and half hours in lodging the FIR ---Effect ---Accused
were charged for committing murder of brother of the compl ainant by firing ---Record
transpired that FIR was lodged with a delay of one and a half hours without any explanation-
--Fact remained that the distance between the place of occurrence and the police station was only four kilometres ---Said unexplained delay was fatal for the prosecution case, in
circumstances. [p. 1291] A
(b) Penal Code (XLV of 1860)---
----Ss.302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Appeal
against acquittal ---Benefit of doubt ---Accused were charged for committing murder of
brother of the complainant by firing--- Motive behind the occurrence was that a few days ago,
hot words exchanged between the deceased and father of the accused persons ---Prosecution
in order to prove its case produced complainant, who was brothe r of the deceased and cousin
of the deceased as eyewitnesses ---Said witnesses stated that they identified the accused
persons in the light of the electricity bulb--- During cross -examination said witnesses stated
that the accused made firing upon the deceas ed from a close range of 5/6 steps and they were
also present with the deceased ---Witnesses also alleged that all the accused made firing upon
the deceased for two or three minutes ---Mode and manner of the occurrence were shrouded
in mystery and if the acc used were to kill the deceased then why they left the witnesses alive
as they had ample opportunity to do away with them ---Witnesses were within the firing
range of the accused that too when accused were allegedly armed with pistols and Kalashnikovs, which were automatic weapons ---So escaping unhurt of the witnesses did not
appeal to the prudent mind despite the fact that the distance between the deceased, the witnesses and the accused were given as 5/6 steps, from such a short distance how the witnesses re mained safe ---Prosecution had failed to point out any defect in the impugned
judgment passed by the Trial Court ---Appeal being devoid of merits was accordingly
dismissed.
(c) Penal Code (XLV of 1860)---
----Ss. 302 & 34--- Qatl-i-amd, common intention---Ap preciation of evidence ---Appeal
against acquittal ---Benefit of doubt ---Night time occurrence ---Source of light ---Scope ---
Accused were charged for committing murder of brother of the complainant by firing---In the
present case, the witnesses stated in their statements that they identified the accused in the
light of electricity bulb, however, the site plan revealed that no light bulb was shown in the same---No light bulb was taken into possession by the Investigating Officer during the investigation---Identi fication of the accused was doubtful, in circumstances.
Sardar Bibi v. Munir Ahmed and others 2017 SCMR 344; Rashid Khan v. The State
2017 SCMR 564 and Gulfam and another v. The State 2017 SCMR 1189 rel.
(d) Penal Code (XLV of 1860)---
----Ss.302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Appeal
against acquittal ---Benefit of doubt ---Non -justification for the presence of witnesses at the
place of occurrence--- Chance witnesses ---Scope ---Accused were charged for committing
murder of br other of the complainant by firing ---Record showed that the alleged occurrence
took place at the house of the deceased, however, the eyewitnesses were not residents of the locality/place of occurrence---Said witnesses, when appeared before the court, expla ined that
they were factually not residing at the place of occurrence, but they stayed with the deceased overnight ---Both the witnesses were chance witnesses, in circumstances ---Said witnesses had
claimed that they came to see the deceased but did not tell why and more importantly did not
give any reasons for staying overnight ---In the absence of some confidence- inspiring
explanation regarding their presence at the crime scene, the chance witnesses and their testimony could simply be termed as suspect evide nce--- Circumstances established that the
prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court ---Appeal being devoid of merits was accordingly dismissed.
Mst. Sughra Begum and another v. Qaiser Pervez and other s 2015 SCMR 1442 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302 & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Appeal
against acquittal ---Benefit of doubt ---Medical and ocular evidence ---Conflictions ---Scope ---
Accused were charged for committing murder of brother of the complainant by firi ng---
Record showed that the medical evidence was in conflict with the ocular evidence and the seat of injuries hardly explained that they were caused by using firearms, i.e. Kalashnikov and pistols ---Medical Officer who examined the deceased appeared befor e the court and
stated that he noticed thirteen injuries on the dead body of the deceased---Said witness further stated that all the injuries sustained by the deceased were pallet injuries ---Injuries
were one cm in diameter and such injuries could be cause d due to .12 bore shotgun---On the
other hand, when eyewitnesses appeared before the court, they stated that the accused persons were equipped with Kalashnikov and pistols and they made firing upon the deceased ---None of the witnesses stated that any of the accused was armed with .12 bore
shotgun ---Investigating Officer recovered eight bullet empties of Kalashnikov and nine
bullets empties of .30 bore T.T pistol from the place of occurrence ---No empties of a .12
bore shotgun were taken into possession by the investigating Officer from the place of
occurrence--- Said shortcomings led to anomaly between medical and ocular evidence, which
could legitimately be resolved in favour of the defence ---Circumstances established that the
prosecution had failed to point out any defect in the impugned judgment passed by the Trial
Court ---Appeal being devoid of merits was accordingly dismissed.
Abdul Jabbar and another 2019 SCMR 129 rel.
(f) Penal Code (XLV of 1860)---
----Ss.302 & 34---Qatl -i-amd, common intention---Appr eciation of evidence---Appeal
against acquittal ---Benefit of doubt ---Recovery of weapons on the pointation of accused---
Reliance--- Scope ---Accused were charged for committing murder of brother of the
complainant by firing Record showed that the accused was arrested and during the
investigation, he disclosed about the commission of the offence and 30 bore pistol was recovered from his possession from the bushes in the jungle ---One T.T pistol was recovered
on the pointation of the co- accused from his house ---Both the pistols and crime empties were
sent to Firearm Expert who gave a positive report which was not possible in circumstances ---
According to medical witness, the deceased received injuries by means of a .12 bore shotgun, whereas Investigating Officer t ook bullet empties of Kalashnikovs and T.T pistols from the
crime scene and sent the alleged crime weapons recovered from the accused along with bullet empties of Kalashnikov and pistol to Forensic Science Laboratory who gave a positive report in that rega rd---No empties of the shotgun were recovered from the place of
occurrence---Circumstances established that the prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court ---Appeal being devoid of merits
was accordingl y dismissed.
(g) Penal Code (XLV of 1860) ---
----Ss.302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Appeal
against acquittal ---Benefit of doubt ---Delay of about three months in sending the weapon and
crime empties for analysis ---Scope ---Accused were charged for committing murder of
brother of the complainant by firing--- Record showed that the Investigating Officer secured
the empties on the day of occurrence from the place of incident, however, the accused were arrested after 22 days w hen the pistol was recovered ---Said pistol was sent to the Firearms
Expert along with the bullet empties together after three months' delay for analysis without any reason as to where the recovered material was kept and in whose custody ---Sending of a
firearm along with empty shell lost its evidentiary value, as such could not be considered as
corroborative evidence ---Circumstances established that the prosecution had failed to point
out any defect in the impugned judgment passed by the Trial Court ---Appeal being devoid of
merits was accordingly dismissed.
Haroon Shafique v. The State 2018 SCMR 2118 rel.
(h) Penal Code (XLV of 1860)---
----Ss.302 & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Appeal
against acquittal ---Benefit of doubt ---Motive was not proved--- Scope ---Accused were
charged for committing murder of brother of the complainant by firing--- In the present case,
the complainant forwarded the motive that few days from the occurrence a quarrel took place
between the father of the accused and the deceased, due to which the accused committed
murder of the deceased, however, no FIR whatsoever had been produced about the alleged quarrel between the father of the accused and the deceased ---Throughout the investigation,
nothing was brought on record to prove the motive ---Circumstances established that the
prosecution had failed to point out any defect in the impugned judgment passed by the Trial Court ---Appeal being devoid of merits was accordingly dismissed.
(i) Criminal trial ---
----Mo tive---Scope ---Motive was always a double -edged weapon which cut both ways.
Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.
(j) Appeal against acquittal ---
----Double presumption of innocence ---Interference---Acquittal carried with it double
presumption of innocence ---Acquittal order could only be reversed when found blatantly
perverse, resting upon fringes of impossibility and resulting in miscarriage of justice ---
Acquittal order could not be set -aside merely on the possibility of a contra vi ew.
Anwar -ul-Haq Chaudhry for Appellant.
Hasnain Iqbal Minhas for Respondents Nos.1 to 3.
Jameel Akhter Gajani, DPG for the State.
Date of hearing: 25th September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----This criminal acquittal appeal was filed to qu estion
the validity of judgment dated 30.04.2015 (hereinafter "the impugned judgment") passed by learned Additional Sessions Judge Dera Allah Yar (hereinafter "trial court"), whereby the accused/respondents were acquitted of the charge by the trial court i n FIR No. 165/2014
lodged with PS Dera Allah Yar under Sections 302 and 34, P.P.C.
2. Relevant facts for the disposal of the instant appeal are that on 31.08.2014 on the
complaint of Bashir Ahmed, son of Noor Muhammad the aforesaid FIR was lodged with the averment that on the said date at 2:30 am the complainant along with his brother namel y
Rasool Bakhsh and cousin Muhammad Amin resident of Daulat Ghari were present in
complainant's house. At about 2:30 am the complainant along with other family members
were awoken on barking of the dogs, when they saw in the light of bulb that accused pers ons
namely Bashir Ahmed, Imam Bakhsh and Mehboob, all sons of Kamal Din armed with deadly weapons entered in his house and started firing upon his brother namely Wazir Khan, who was sleeping at his cot. The complainant further, averted that his brother sus tained
injuries and died at the spot and thereafter the accused persons escaped away. The motive
behind the occurrence was that a few days ago, hot words exchange took place between the
deceased and father of the accused persons Kamal Din. Hence, the crime report.
3. After completion of the usual investigation, challan of the case was submitted before
the trial Court. After full dressed trial, the trial court acquitted the accused/respondents vide impugned judgment dated 30.04.2015, where -after the instant appeal has been filed.
4. We have heard the learned counsel for the parties and have gone through the record of
the case with their able assistance.
5. A variety of reasons weighed with the learned trial Judge to acquit the
accused/respondents from the charge, which includes; major contradictions between the ocular and the medical evidence, the prosecution witnesses were chance witnesses and the base of a case against accused/respondent with no evidence. None of the reasons cited by the learned trial Judge has been found by us as artificial or unrealistic. Even otherwise on independent analysis, the genesis of prosecution case does not appear to be free from doubt. The record transpires that the alleged occurrence took place o n 31.08.2014 at 2:30 am and
the FIR was lodged at 4:00 am with a delay of one and a half hours without any 'explanation despite the fact that the distance between the place of occurrence and the police station is
only four kilometers.
6. The prosecution in order to prove its case produced PW -1 who is complainant of the
case as well as eyewitness of the occurrence and is also the brother of the deceased and PW-2 Rasool Bakhsh who is eyewitness and cousin of the deceased. Only the above two witnesses were pro duced by the prosecution. Both of them stated in their statement that on
the day of occurrence, i.e. on 30.01.2014 at 2:30 am the accused/respondents namely Bashir Ahmed, Imam Bakhsh and Mehboob, equipped with firearms entered the house of the complainant and made firing upon the deceased Wazir Khan who sustained injuries and they
identified the accused persons in the light of the electricity bulb. Both the witnesses stated that they along with one Muhammad Amin and the deceased Wazir Khan were sleeping in the courtyard of the house of the deceased, when the accused persons came and made firing upon the deceased. During cross -examination they stated in their statements that the accused
made firing upon the deceased from a close range of 5/6 steps and they we re also present
with the deceased. It has also been alleged by the witnesses that all the accused made firing upon the deceased for two or three minutes.
7. The mode and manner of the occurrence are shrouded in mystery and if the
accused/respondents were t o kill the deceased then why they left the witnesses alive as they
had ample opportunity to do away with them. The witnesses were within the firing range of the accused/respondents that too when allegedly the accused were armed with pistols and
Kalashnikov s, which were automatic weapons. So escaping unhurt of the witnesses does not
appeal to the prudent mind despite the fact that the distance between the deceased, the
witnesses and the accused/respondents were given as 5/6 steps, from such a short distance how the witnesses remained safe.
The witnesses stated in their statement that they identified the accused in the light of
electricity bulb while perusal of the site plan Ex.P/7 -B reveals that no light bulb was shown
in the same. Moreover, during the inves tigation, no light bulb was taken into possession by
the investigation officer; hence identification of the accused/respondents is doubtful. Reliance in this regard is placed on the cases titled as Sardar Bibi v. Munir Ahmed and others 2017 SCMR 344, Rashi d Khan v. The State (2017 SCMR 564) and Gulfam and
another v. The State (2017 SCMR 1189).
8. The alleged occurrence took place at the house of the deceased situated at Goth Haji
Noor Muhammad, however, the complainant/PW -1 and PW -2 Rasool Bakhsh are reside nts of
Daulat Ghari. They are not the residents of the locality/place of occurrence. When they appeared before the court, they explained that they were factually not residing at the place of occurrence, but they stayed with the deceased overnight. Both of them were chance witnesses. The law related to the above witnesses is well settled. Reference may be made to Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1442) wherein the Hon'ble Supreme Court of Pakistan held as under:
"A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was
not supp osed to be present on the spot but at a place where he resides, carries on
business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish h is presence at the crime scene at the relevant time. In normal course, the
presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot
are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."
9. In the i nstant case PW -1, namely Bashir Ahmed and PW -2 Rasool Bakhsh could not
justify their presence at the time of occurrence. Both the witnesses were residents of Daulat Ghari. They claimed that they came to see the deceased but did not tell why and more importantly did not give any reasons for staying overnight. In the absence of some confidence -inspiring explanation regarding their presence at the crime scene, the chance
witnesses and their testimony can simply be termed as suspect evidence.
10. The medical ev idence in a conflict with the ocular evidence, and the seat of injuries
can hardly be explained that they were caused by using firearms, i.e. Kalashnikov and pistols. When the PW -5 Dr. Muhammad Din, the medical officer who examined the deceased
appeared before the court and stated that he noticed thirteen injuries on the dead body of the
deceased. He stated during cross -examination that all the injuries sustained by the deceased
Wazir Khan were pellet injuries, the injuries were 1 cm in diameter and such in juries can be
caused due to shotgun .12 bore. But on the other hand, when PW - 1 and PW -2 appeared
before the court, they stated the accused persons were equipped with Kalashnikov and pistols
and they made firing upon the deceased. None of the witnesses sta ted that any of the accused
was armed with 12 bore shotgun. The investigation officer recovered eight bullet empties of
Kalashnikov and nine bullets empties of T.T pistol .30 bore from the place of occurrence,
which were taken into possession through recov ery memo Ex.P/3- D in the presence of PW- 3.
No empties of a .12 bore shotgun taken into possession by the investigation officer from the place of occurrence. All the aforementioned shortcomings lead us to anomaly between the medical and ocular evidence, whi ch can legitimately be resolved in favour of the defense.
Reliance is placed on the case of Abdul Jabbar and another (2019 SCMR 129) wherein it was observed as under:
"11 .... It is the settled principle of law that once a single loophole is observed in a
case presented by the prosecution much less glaring conflict in the ocular account and medical evidence or for that matter where presence of eye- witnesses is not free from
doubt, the benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
Surprisingly the accused/respondent Imam Bakhsh was arrested, And during the
investigation, he disclosed about the commission of the offence and 30 bore pistol was recovered from his possession from the bushes in the jungle on 21.09.2014 and one T.T
pistol was recovered on the pointation of the accused/respondent Mehboob Ali from his house. Both the pistols and crime empties were sent to firearm expert who gave a positive report, i.e. Ex.P/7- G. How can it be possible that accor ding to the medical witness, i.e. PW -5
the deceased received injuries by means of a 12 bore shotgun but the investigation officer took bullet empties of Kalashnikovs and T.T pistols from the crime scene and sent the alleged crime weapons recovered from the accused/respondents along with bullet empties of
Kalashnikov and pistol to FSL who gave a positive report in this regard and no empties of the shotgun were recovered from the place of occurrence? Even otherwise the occurrence took place on 31.08.2014 when the investigation officer secured the empties from the place
of occurrence, while the accused/respondents were arrested on 21.09.2014, when the pistol was recovered, which was sent to the firearms expert on 19.11.2014 along with the bullet empties togethe r after three months' delay for analysis without any reasons as to where the
recovered material was kept and in whose custody. The sending of a 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).
11. The complainant forwarded the motive that few days from the occurrence a quarrel
took place between the father of the accused and the deceased and due to which t he accused
committed murder of the deceased, however, no FIR whatsoever has been produced about the said alleged quarrel between the father of the accused and the deceased. Throughout the investigation, nothing was brought on record to prove the motive, but the motive is always a double -edged weapon which cuts both ways and this View was consistently held by the
Hon'ble Supreme Court, the case titled Muhammad Ashraf alias Acchu v. The State (2019
SCMR 652), wherein it is held that:
"The motive is always a double -edged weapon. The complainant Sultan Ahmad
(PW9) has admitted murder enmity between the parties and has also given details of
the same in his statement recorded before the trial court. No doubt, previous enmity can be a reason for the appellant to commit the alleged crime, but it can equally be a reason for the complainant side to falsely implicate the appellant in this case for previous grouse."
12. A keen look of the record unveils that the case in hands pertains to an occurrence,
having taken plac e on 31st August 2014 at 2:30 am at night, during which one person namely
Wazir Khan (deceased) lost his life. The burden of this murder was placed upon the shoulders of four persons out of whom three were nominated whereas one was unknown who was subseque ntly nominated as Ali Nawaz. Out of the four accused persons the accused
Bashir Ahmed, Imam Bakhsh and Mehboob were real brothers, whereas Ali Nawaz is a cousin of the accused/respondents. We are not oblivious of the fact that the dilemma of false implicat ion is unfortunately well embedded in our system of the criminal investigation,
prompting a litigant to implicate innocents along with guilty in homicide cases through the tool of the wider net. This means calls for making appraisal of evidence in such cas es with
extreme guardedness.
13. We have re- appraised the material available on record so as to determine, whether the
impugned judgment of acquittal, recorded by the trial court, suffers from any illegality of legal infirmity or is based upon misreading a nd non- reading of the evidence. In our
considered view, the impugned judgment does not suffer from any legal infirmity to warrant interference by this court. Therefore, we are of the considered view that the trial Court has
passed a well -reasoned order, which is neither perverse or fanciful nor ridiculous. Rather the
court has given valid reasons for its conclusion as there is absolutely nothing on record to connect the respondent/accused with the offence for which they have been charged in the alleged FIR.
14. 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 in miscarriage of justice. It cannot be set aside merely o n the
possibility of a contra view.
15. In our humble view, the trial court has considered all the material present on record
properly and arrived at the conclusion which is based on proper appreciation of the facts and law, thus does not need interference by this court.
The appellant has failed to point out any defect in the impugned judgment passed by
the trial court; therefore, the appeal being devoid of merits is accordingly dismissed.
JK/256/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,
let us know.