2012 P Cr. L J 780 [Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Noor Meskanzai, JJ
TOR JAN alias JAG ---Appellant
versus
THE STATE---Respondent
Criminal Jail Appeal No.62 of 2008, decided on 29th December, 2011.
(a) Penal Code (XLV of 1860) ---
----Ss. 364/34--- Kidnapping or abducting in order to murder ---Appreciation of evidence ---
Benefit of doubt ---Delay in lodging F.I.R.--- Inimical witnesses ---Identification of accused ---
Improvements in witness statements ---Failur e to produce medical and documentary evidence ---
Contradictory findings of Trial Court ---Accused along with his co- accused was alleged to have
entered the house of the complainant and abducted his sister, whose dead body was later found with gunshot injurie s---Occurrence had been reported to the police station after an unexplained
delay of about thirteen days, when said station was situated at a distance of four kilometers from the place of occurrence ---Investigating officer had stated that proceedings under S.157(2),
Cr.P.C., 1898, were initiated and statements of witnesses were recorded but neither complainant nor any prosecution witness had stated anything or produced any document to substantiate such claim of Investigating officer ---Complainant was not an eye-witness of the occurrence and all
prosecution witnesses being closely related to the complainant and each other, were inimical to the accused ---Occurrence took place at midnight and in absence of light, claim of prosecution
witnesses, regarding identi fication of culprit could not be easily accepted--- Fact that accused and
co-accused opted not to conceal their identity, when they had chosen the cover of night for
abducting a woman, also raised serious doubts about genuineness of prosecution witnesses' c laim
regarding identification of accused---Admission of prosecution witnesses that on the very next day of occurrence , accused was present in his house situated adjacent to the house of the complainant, seemed an example of fabricated evidence as it was common knowledge that in cases of abduction or kidnapping, abductors make all possible efforts to conceal their identity from prosecution witnesses and the police ---Statements of prosecution witnesses had been
recorded after an unexplained delay of about thirteen days in which they had made dishonest improvements to strengthen the prosecution case ---One of the prosecution witnesses claimed that
dead body of abductee had been found in place 'A' with gunshot injuries on her mouth and neck but neither any medic al certificate nor any certificate issued by local administration of place 'A',
had been produced in evidence in order to substantiate such claim ---Findings of Trial Court were
self-contradictory as on the one hand Trial Court had given finding that prosec ution had failed to
prove unnatural death of abductee by means of firing, while on the other hand same Court concluded that since unnatural death of abductee had not been categorically challenged by the
accused's side during course of cross -examination, s ame had been proved --- Accused being
an old and poor person, had been made scapegoat in the case on account of a monetary
dispute between the parties ---Prosecution having failed to prove its case against accused,
beyond shadow of doubt, his conviction was set aside and he was acquitted.
(b) Criminal Procedure Code (V of 1898) ---
----S.154--- Information in cognizable cases ---Delay in lodging F.I.R.---Effect of ---Undue,
unreasonable and unexplained delay in filing F.I.R. leads to suspicion and reflects on the truth of
the prosecution case and earlier information of crime is required to be supplied in order to avoid criticism of the report as being manipulated and result of deliberation and consultation.
(c) Criminal trial---
----Burden of proof ---Standard---Burden of proof is always on the shoulder of the prosecution to
prove its case beyond shadow of doubt and prosecution cannot take benefits from weaknesses of the defence.
(d) Criminal trial---
----Benefit of doubt ---Scope ---Conviction must be founded on unimpeachable evidence and
certainty of guilt and, hence, any doubt, that arises in the prosecution case, must be resolved in favour of the accused and it is imperative for the court to examine and consider all the relevant proceedings and leading facts to the occurrence, so as to arrive at a correct conclusion ---If
circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, the
accused will be entit led to the benefit not as matter of grace and concession, but as of right.
Miss Shabana Azeem for Pauper Appellant.
Liaquat Ali for the State.
Date of hearing: 19th December, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Pauper appellant Tor J an alias Jag son of
Muhammad Zahir has challenged the validity of judgment dated 30th October, 2008, passed by the Additional Sessions Judge, Killa Abdullah at Chaman, by means of instant Criminal Jail Appeal No.62 of 2008 sent through Superintendent, Cent ral Jail, Mach, whereby he was
convicted and sentenced under section 364 of the P.P.C. to suffer life imprisonment and to pay a fine of Rs.100,000 (rupees one hundred thousand only) in default whereof to further undergo SI for three (3) years, with the benefit of section 382- B of the Cr.P.C.
2. Complainant Abdul Rehman (P.W.1) in his Fard -e-Bayan Exh.P/1- A dated 5th September,
2007 alleged that on 23rd August, 2007 at about 3- 00 a.m., his sister Bibi Rabia, elder sister
Ruqqiya and younger son Ahmed Khan were present in their house situated at Jungle Pir Alizai
Camp, when accused Tor Jan alias Jag, along with his unknown companion, entered in a room of
the house and forcibly abducted Bibi Rabia and since it was a family honour, therefore, he only informed his uncle Haji Muhammad Akbar and cousin Lal Muhammad and started search on
their own. The complainant further alleged that accused Tor Jan was their neighbour and from the date of occurrence, he was found missing from his house. The complainant also alleged that
on 31st August, 2007, he came to know that accused Tor Jan along with his children while going
to Afghanistan in a Pick- up was apprehended by the police at Grang area and brought to Police
Station, Mezai Adda. The complainant stated that he is Afgh an national and, on receiving
information about an unclaimed female dead body, he, along with his uncle Muhammad Akbar
and cousin Lal Muhammad, went to Mail area situated in Afghanistan, where with the help of local administration, the de ad body of the deceased was exhumed and the same was
identified to be of Rabia Bibi and reburied. Consequently, a case vide Crime No.44 of 2007, under section 364 read with section 34 of the P.P.C. was registered at Police Station, Mezai Adda, District Killa Abdullah. 3. After registration of F.I.R., the investigation of the case was entrusted to P.W.5 (Muhammad Aslam), SI, who visited the site and prepared site sketch Exh.P/5- A, recorded the statements of
P.Ws., arrested the accused and on 22nd September , 2007 remanded him to judicial custody and
placed the papers before IP/SHO, who prepared challan Exh.P/5- B and the appellant was sent up
to face the trial.
4. On the stated allegation, a formal charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. To prove the accusation, the prosecution produced five witnesses. P.W.1 Abdul Rehman is complainant of the case, who placed on record his Fard- e-
Bayan Exh.P/1- A. P.W.2 Ahmed Khan and P.W.3 Ruqqiya alleged to have witnessed the
occurrence. P.W.4 Haji Akbar is uncle of the complainant, who was informed by the complainant regarding the occurrence and he also accompanied the complainant to Afghanistan for identification of the dead body of the deceased whereas P.W.5 Muhammad Aslam, SI, is the Investigating Officer of the case. Then the prosecution closed its side. 5. The accused was examined under section 342 of the Cr.P.C., wherein he once again denied the prosecution allegation. He did not opt to record his statement on oath as provided under section 340(2) of the Cr.P.C., nor produced any witness in his defence.
6. On conclusion of the trial, the trial Court found the prosecution's case against the appellant to have been proved beyond reasonable doubt and, thus, t he appellant was convicted and sentenced,
as mentioned and detailed above.
7. We have heard the learned counsel for the pauper appellant as well as the counsel for the State and have gone through the record with their valuable assistance. It has been argued by the learned counsel for the pauper appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. On the contrary the learned counsel for the State has maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt and therefore, the present appeal deserves dismissal.
8. The occurrence allegedly took place on 23rd August, 2007, at about 3- 00 a.m. (midnight),
whereas the same was reported at Police Station Saddar, Mezai Adda, District Killa Abdullah, on
5th September, 2007, situated at a distance of 4 kilometers from the place of occurrence, after unexplained delay of about thirteen (13) days, which adversely affects the prosecution case. It is a settled principle of law that undue, unreasonable and unexplained delay in filing F.I.R. leads to
suspicion and reflects on the truth of the prosecution case and earlier information of crime is
required to be supplied in order to avoid criticism of the report as being manipulated and result
of deliberation and consultation. In the present case, we find that the report has been filed after
unexplained delay of about thirteen (13) days. Although the I nvestigating Officer, in order to
cover the lodging of F.I.R. with delay, has made an attempt by stating that initially on account of suspicion about the truthfulness of the occurrence, proceedings under section 157(2) of the Cr.P.C. were initiated and sta tements of the witnesses were recorded, but, surprisingly, neither
the complainant and prosecution witnesses have uttered a single word regarding their statements, recorded during the course of proceedings under section 157(2) of the Cr.P.C., nor a single document has been produced in evidence to substantiate the said claim, as such, the same is not only a tall claim, but tall enough that it creates serious doubts about its genuineness. 9. Admittedly, complainant Abdul Rehman is not an eye- witness of the occurrence, whereas
P.W.2 Ahmed Khan and P.W.3 Mst. Ruqqiya are the brother and the sister of the alleged abductee. All the witnesses i.e. P.W.1 Abdul Rehman, P.W.2 Ahmed Khan, P.W.3 Mst. Ruqqiya and P.W.4 Haji Akbar are close ly related to each other and are, admittedly, inimical to the
appellant. After having gone through their evidence, we have no hesitation in observing that the eye-witnesses have failed to inspire our confidence.
10. Admittedly, the occurrence took place at midnight during pitch dark hours, as such, in
absence of light, the claim of the eye -witnesses, regarding the identification of the culprits,
appears to be a claim, which can be accepted only with a lump of salt. In this context, we are not unmindful of usual human conduct that an offender choosing nighttime for commission of an
offence, necessarily wants to keep his identity concealed. Thus, the culprits, choosing the cover of night for abducting a woman, would surely conceal their identity, therefore, the claim of these witnesses that they identified the culprits during dark hours in absence of light again appears to be not only a tall claim, but tall enough to raise serious doubts about its genuineness. The P.Ws. have admitted that on the very next day of the occurrence, the appellant was present in his house
situated adjacent to the house of complainant. It is a question of common knowledge and is not in dispute that in cases of abduction or kidnapping, the culprits/abductors make all possible efforts to conceal their identity from the P.Ws. and the police. To our mind, this is a textbook
example of a case of fabricated evidence on the charge of abduction, in which the abductors themselves disclosed their identity to the P.Ws. The record is also indicat ive of the fact that the
statements of prosecution witnesses have been recorded after unexplained delay of about thirteen (13) days and they have also made dishonest improvements in order to strengthen the prosecution case.
11. Regarding the unnatural de ath of abductee Rabia, Haji Akbar, who happens to be the uncle of
the abductee, came forward as P.W.4 and stated that he came to know that a dead body of a girl was found in Afghanistan, which was buried. After receiving such information, he along with the
complainant went to Afghanistan and identified the dead body of Mst. Rabia, after its
disinterment by the local administration. He further alleged that the deceased had a gunshot
injury on her mouth and two gunshots injuries on the neck. The local adminis tration gave a
certificate in Pashto script, which was handed over to the police. We are afraid that neither any medical evidence, nor the certificate in question issued by the local administration of Afghanistan, has been produced in evidence in order to substantiate the allegation. The story of
the prosecution does not appeal to reasons and seems to be concocted in order to rope the
appellant in the instant case, on account of monetary dispute between the parties.
12. In this context, we have noticed that the finding of the trial Court regarding the death of Mst. Rabia is self -contradictory. On one hand, the trial Court has given finding to the effect that the
prosecution has failed to prove the unnatural death of Mst. Rabia by means of firing, while on the other hand, it has concluded that since the unnatural death of Mst. Rabia in Afghanistan has not been, categorically, challenged by the defence during the course of cross - examination, as
such, the same has been proved. We are afraid that capital punis hment awarded to the appellant
on the basis of such shaky and contradictory findings cannot be sustained. There is no cavil to the proposition that the prosecution has to stand on his own legs and the burden of proof is always on the shoulder of the prosec ution to prove its case beyond the shadow of doubt and the
prosecution cannot take benefits from weaknesses of the defence, specially in a case where the appellant was defended by a pauper counsel and needless to mention here that the appellant has challen ged his conviction through jail appeal. It seems that the appellant, who is an aged and
poor person, has been made escapegoat in the instant case on account of monetary dispute.
13. It needs no reiteration that conviction must be founded on unimpeachable evidence and
certainty of guilt and, hence, any doubt, that arises in the prosecution case, must be resolved in favour of the accused and it is imperative for the Court to examine and consider all the relevant
proceedings and leading facts to the occurren ce, so as to arrive at a correct conclusion. It is not
denied that for giving benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession, but as of right.
In view of what has been stated above, we are of the considered view that the prosecution has failed to prove its case against the appellant, beyond the shadow of doubt, as such, the impugned judgment dated 30th October, 2008 passed by the Additional Sessions Judge, Killa Abdullah at Chaman, is hereby set aside and appellant Tor Jan alia s Jag son of
Muhammad Zahir is acquitted of the charge. He is in custody, shall be released forthwith if not required in any other case. M.W.A./2/Q Appeal accepted.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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