2010 P Cr. L J 1326
[Quetta]
Before Ghulam Mustafa Mengal and Jamal Khan Mandokhail, JJ
Haji HASSAN and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No. 359 of 2008, decided on 20th November, 2009.
Penal Code (XLV of 1860) ---
----S. 302/34 ---Qatl-e-amd---Appreciation of evidence ---Complainant and other prosecution
witness being not the eye -witnesses, their evidence could not be believed to have intensive
value ---Extra judicial confession of co -accused before prosecution witness, was not far from
doubt as it was not corroborated by another strong piece of evidence ---Circumstantial
evidence brought on record by the prosecution did not lead to the conclusion that each chain
of incident was linked with the other t o prove the guilt of accused and prosecution evidence
was not consistent ---Unnatural death of deceased was not disputed by the defence in cross -
examination ---Prosecution had failed to prove the guilt of accused person beyond reasonable
doubt ---Impugned jud gment being not sustainable in the eye of law, was set aside and
accused were acquitted from the charge levelled against them and were set free.
Wazir Muhammad and another v. The State 2005 SCMR 277 ref.
Ehsan ul Haq and Abdul Nasir Kakar for Appella nts.
Zahoor Ahmed Shahwani P.G. for the State.
Date of hearing: 5th November, 2009.
JUDGMENT
GHULAM MUSTAFA MENGAL, J .---This appeal is directed against the judgment dated
17-12-2008 passed by learned Sessions Judge, Zhob in Murder Case No.08 o f 2007,
whereby appellants have been convicted under section 302/34, P.P.C. and sentenced to life
imprisonment. They have been extended benefit of section 382 -B, Cr.P.C.
2. Facts of the case in brief are that on 24 -8-2007 at about 4 -30 p.m. F.I.R. No.104 of 2007
under section 302/34, P.P.C. was registered with Police Station Zhob on the report of
Ubaidullah son of Bayak resident of Killi Murghail District Sherani stating therein that
his sister Mst. Zar Bakhat was married with Haji Hassan resident of Sher ani Bazar about
20 years ago, who had been usually beating his sister merely on petty matters. He further
stated that on the eventful day when he came from his Killi to Zhob Bazar at 9 -00 a.m. one
Hanif son of Haji Mir Salam informed him that his sister Ms t. Zar Bakhat had died. Upon
receiving the said information the complainant went to the house of his sister where he was
informed that his sister Mst. Zar Bakhat had committed suicide at 5 -00 a.m. At that time
brother -in-law of the complainant namely Haji Hassan was not present in his house Mst.
Kiyal Bibi wife of Saleh Muhammad, who undertook washing dead body came and
informed the complainant that his sister had not committed suicide but she had been
murdered by firing with gun shot and that there were injuries on her body. The injuries
were seen by the complainant himself along with Alif Khan, Haji Muhammad Gul and
Ghulam Haider and came to know that his sister had sustained gun shot injuries on her
right shoulders. They also found injuries on different p arts of her body. The complainant
alleged that his sister had been killed by her husband Haji Hassan Sherani and his son
Muhammad Qasim.
3. After recording statement of Ubaidullah, (P.W.8), Mushtaq Ali, S. -I. was entrusted the
investigation of the case, who immediately reached at the place of occurrence and initiated
the proceeding under section 174, Cr.P.0 prepared site sketch as Ex.P/8 -B and inquest report
as Ex.P/8 -C. Mushtaq Ali, S. -I., P.W.8 arrested the appellants on the same day. The
complainant, O baidullah, produced blood stained shirt of the deceased. Mushtaq Ali took
the shirt into possession through recovery memo. Ex.P/6 -A. Prepared a parcel No.1.
During inspection of the place of occurrence he also took pieces of mattress into possession
throug h recovery memo as Ex.P/6 -B and prepared seal parcel No.6. An empty cartridge was
also taken into possession through recovery memo. Ex.P/6 -C and parcel No.3 was
prepared by the I.O. Mushtaq Ali, S. -I., P.W.8 arrested the appellants on 26 -8-2007. On the
same day while in custody the appellants No.2 to the recovery Rifle 303 bearing
No.99672 which was taken into possession vide Memo Ex.P/6 -D. On the same day he
also led the recovery of Magazine No.2319 which was taken into possession vide Meo.
Ex.P/6 -E. On pe rsonal search of appellant No.2 a knife was recovered, which was taken into
possession as Ex.P/7 -A. During police custody the accused/appellant No.2 made
disclosure before P.W.8 on 5 -9-2007 in presence of DSP, which was produced by P.W.5
Abdul Ghafoor, A.S .-I. as Ex.P/6 -D. All the articles taken into possession by the
Investigating Officer, were sent to the F.S.L on 26 -8-2007 through D.P.O. After receipt of the
report the same was produced before the Court vide Ex.P/9 -A.
4. During trial prosecution produc ed as many as nine witnesses in support of its case. The
complainant along with his other relative Alif Khan appeared as P.Ws.1 and 2. They
supported the story given in the FIR. Dr. Shahbaz Khan, Medical Officer, Zhob, P.W.3 stated
that on 24 -7-2007 he con ducted the external post mortem of the dead body of Mst. Zar
Bakhat. According to him he found following injuries: -
"(i) One circular wound with inverted margin in the scapular region on right bone
side. This an entrance of wound;
(ii) One lacerated wo und on interior side of chest in the mid circular line at the level
of second ribs. This is an exit of wound;
(iii) One circular wound in left iliaefossa stab wound also in left iliaefossa, which
was muscular deep, which was proximately one day old;
According to his conclusion duration of stab wound was one day old and that she died
because of fire arm injuries.
5. P.W.4 to 7 and 9 are the marginal witnesses of recovery memos etc. who stated about the
arrest of the accused persons and recoveries at the instance of accused. While closing its
side the prosecution produced the report of Fire Arm Expert and Chemical Expert Report
FSL Crimes Branch, Quetta as Exh. P/9 -A and Exh.P/9 -B respectively. Thereafter the
statements of both the appellants were record ed under section 342, Cr.P.C. Both the
caused/appellants pleaded innocence. Neither they recorded their statements under section
340(2), Cr.P.C. nor they produced any witnesses in defence.
6. Learned counsel for the appellants contended that the appellan ts had been convicted
merely on the basis of alleged disclosure made by appellant No.1 on 26 -8-2007 before the
Police officer and on the basis of recoveries which were not worth reliable. He further
submitted that the appellants had been involved merely on account of suspicion for the reason
that the P.W.1, complainant, was not eye witness of the occurrence and secondly, the
recovery of Rifle 303 bore on the pointation of appellant is of no help to the prosecution.
According to him the same was sent to the Fire Arm Expert on 19 -7-2008 after delay of one
year. He further submitted that no conviction could. have been awarded on the basis of extra
judicial confession, which was always considered as weak type of evidence as the supporting
material was also lacki ng in this case. He has relied on the judgment reported in PLD
1974 Quetta 28.
7. Learned Prosecutor General supported the impugned judgment. He submitted that there
was overwhelming evidence on record that the appellants had committed the murder of
deceased which was supported by medical, evidence and recovery of crime weapon on
pointation of appellant No.2. It was also supported by the positive report of the Fire Arm
Expert.
8. We have heard the learned counsel for the appellants, the learned Prosecut or General for
the State and have also perused carefully the record including the statements of all the
prosecution witnesses. Admittedly P.W.1 Obaidullah and P.W.2 Alif Khan are not the eye -
witnesses so the evidence of these two witnesses cannot be believ ed to have intensive value.
So far as the extra judicial confession of appellant No.2, before the prosecution witness
Abdul Ghafoor, A.S. -I. and Mushtaq Ali, S. -I. on 5 -9-2007 are concerned these are not far
from doubt. The extra judicial confession consid ered a substantive piece of evidence, unless
it is corroborated by another strong piece of evidence. In the instant case all the prosecution
including recovery of crimes Rifle and other articles were taken into possession by the P.W.8
Mushtaq Ali, S. -I. on 26-8-2007; whereas, the circumstantial evidence brought on record by
the prosecution does not lead to the conclusion that each chain of the incident is linked with
other to prove the guilt of the appellant. We would like to reproduce the observations of t he
Hon'ble Shariat Appellate Court in the case of Wazir Muhammad and another v. The State
reported in 2005 SCMR 277 hereunder: -
"6. A careful scrutiny of the deposition of Muhammad Ashiq (P.W.2) would reveal
that extra judicial confession was made by the appellant when he was being
investigated by the police at Police Station, Sangjani and as such it cannot be
considered being in violation of the provisions as contained in Article 39 of the
Qanun -e-Shahadat Order 1984. . A n o t h e r reason for disbelieving the statement
of Muhammad Ashiq (P.W.2) that he is a "regular visitor" of police station, who
used to visit police station, according to his own statement, frequently and thus
can safely be termed as a "stock witness". Besides that the appellant had never
admitted the murder of taxi driver but on the contrary he had stated that "when
they reached Fateh Jang road some distance ahead' of Tarnol, they forcibly deboarded
taxi driver from taxi and after tying driver near the Railway Line they thrown him to
the gras s and proceeded back towards Peshawar". There is no cavil with the
proposition that the extrajudicial confession is a very weak type of evidence and no
conviction could have been awarded without having strong corroboration which
aspect of the matter hardly needs any comments because the statement of Muhammad
Ashiq (P.W.2) itself is not worthy of credence and once it is disbelieved no
corroboration could be sought from his statement and question of corroboration
becomes immaterial."
9. After perusal of the evidence on record, we are of the view that the prosecution evidence is
not consistent and circumstantial evidence does not lead us foxing the opinion that the
appellants were responsible for the commission of murder of the deceased. So far the
unnatural death of deceased is concerned the same was not disputed by the defence in cross -
examination. Only conclusion, which could be derived that the deceased had sustained one
bullet injury over her scapular region on right bone side.
10. We are of the affirme d opinion that the prosecution has failed to prove the guilt of the
appellants beyond reasonable doubt.
In view of the above facts and circumstances the impugned judgment being not sustainable
in the eye of law, is hereby set aside. The appellants are di rected to set free, if not required
in any other case.
These are the reasons of our short order dated 5 -11-2009 where by the appellants were
acquitted from the charge, leveled against them.
H.B.T./31/Q 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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