2012 P Cr. L J 1691
[Balochistan]
Before Muhammad Noor Meskanzai and Abdul Qadir Mengal, JJ
SHEY MUREED and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No.255 of 2008, decided on 26th June, 2012.
Penal Code (XLV of 1860) ---
----Ss. 302(b), 109 & 149 ---Qatl-e-amd, abetment, common object ---Appreciation of
evidence ---Benefit of doubt ---Case was full of dou bts---One of the prosecution witnesses was
sister of the deceased and other one was mother of the deceased and their statements got no
support from other independent source ---Co-accused was not armed with any weapon nor he
played any effective role qua cau sing murder of deceased ---Statement of one of the
prosecution witnesses was also not in line with statement of other witness ---Medical
certificate also did not support the version of prosecution witnesses ---Ingredients of S.109,
P.P.C. were missing as accu sed could hardly be held responsible as an abettor in the incident -
--Nothing was available on record that at the time of progress of the commission of offence,
accused was present and he instigated anyone to kill the deceased ---No evidence was on
record to show about conspiracy for commission of alleged murder ---No recovery was made
from any of accused and no direct role was assigned to the accused persons for giving any aid
to the real culprits ---Impugned judgment was set aside extending the benefit of dou bt to
accused persons --- Accused were ordered to be released, in circumstances.
2012 PCr.LJ 281; 2012 YLR 374; 2012 YLR 498; 1998 SCMR 25; 2006 SCMR 1291; 2009
SCMR 230; PLD 2005 SC 40; PLD 2009 SC 916; 2003 YLR 777; 2003 PCr.LJ 2003; 2001
YLR 98 5; 1995 PCr.LJ 924; 2011 PCr.LJ 289 and 2006 SCMR 1251 ref.
Nadir Ali Chalgari, Mallag Dashti and Muhammad Farooq for Appellants.
Liaquat Ali for the State.
Date of hearing: 4th June, 2012.
JUDGMENT
ABDUL QADIR MENGAL, J. ---This appeal under sect ion 410, Cr.P.C. has been filed
against the judgment dated 30th August, 2008, passed by the Additional Sessions Judge,
Turbat, whereby the appellants were convicted and sentenced under section 302(b), P.P.C.
read with sections 109, 149, P.P.C. to suffer R. I. for life imprisonment each and also ordered
to pay compensation of Rs.1,00,000 (rupees one lac) each of the appellant to the legal heirs of
the deceased Assa and Imdad, in default each of the appellant was directed to undergo SI for
six (6) months. The benefit of section 382 -B, Cr.P.C. was extended to the appellants.
2. The facts of the appeal, as incorporated in the F.I.R. were that one Muhammad Ismail
son of Taj Muhammad on 30th September, 2006 at about 10 -30 a.m. lodged report with
Police Station Da sht Kuddan, vide F.I.R. No.11 of 2006 at about 10 -30 a.m., where in that he
alleged that he along with his Mhallah people were busy in burying a baby at their village
graveyard, when firing reports came from their houses. He went there and got information
that one Nisar son of Muhammad Ismail and Muheem son of Shey Mureed, residents of Chot
Bazar killed his sons Assa and Imdad through firearms. He found his sons Assa and Imdad
lying in pool of blood and they had received blood shots on their chest and abdom en. The
driver of dcceaseds namely Rashid was standing there. The driver Rashid told him that Nisar
armed with Kalashnikov and Muheem armed with Gurki Rifle (shotgun) came there, where
Nisar had fired indiscriminately through Kalashnikov. In the meanwhile Imam and Sher
Muhammad alias Sheruk sons of Muhammad Ismail also came in running from Maidan side.
Imam too came under the firing and received a bullet shot at his hand. Nisar, Muheem along
with their brothers Imam and Sher Muhammad alias Sheruk after comm itting murder
runaway, beside above, Shey Mureed too, is involved in murder of his sons, as an abettor,
because Shey Mureed had to owe his sons some amount. The bodies of his sons lying on spot
and he requested for taking necessary action against the culpr its.
3. After registration of the case F.I.R. Exh.P/10 -A, the I.O. SI Abdullah son of
Muhammad Hussain P.W.10, took the investigation of the matter and he went on the place of
incident, where he after inspection, prepared the sketch of Wardat Exh.P/10 -B. The brother of
Nisar, namely, Abul stated was present at the place of incident, but complainant initially had
not nominated him, as such, the complainant Muhammad Ismail recorded his second
statement through which he implicated him in the matter. Five emp ties and a live bullet were
recovered from the place of incident. The dead bodies of Assa and Imdad both were shifted
through ASI Khalil Ahmed to Civil Hospital, Turbat. The complainant did not opt for
postmortem of the deceased and in that respect his sta tement was recorded. The accused
Imam also had received a bullet shot by the hands of his brother Nisar, as such, he was sent
for medical treatment. The accused Nisar, after commission of murder had fled away,
however, he had handed over the Kalashnikov to one Alam Khan son of Shey Mureed. On his
disclosure the Kalashnikov and shotgun single barrel No.AO -1475, which were concealed in
earth, were taken into possession. 09 cartridges were also taken from the site. Due to the
recovery of shotgun and Kalashniko v, Alam Khan was implicated in the matter, but later on
he was acquitted. The I.O. after recording the statements of P.Ws. and receiving the analysis
report Exh.P/10 -F submitted challan of the matter vide Exh.P/10 -E.
4. The case was sent to the court of Additional Sessions Judge, Turbat for trial, where
the learned Additional Sessions Judge, Turbat after recording as many as 10 witnesses
namely, Mst. Waheeda wife of Fateh Muhammad P.W.1, Sharatoon wife of Muhammad
Ismail P.W.2, Rashid son of Faqir Muhamma d P.W.3, Constable Abdul Rehman son of
Ghulam Muhammad P.W.4, Muhammad Ismail son of Taj Muhammad (complainant) P.W.5,
Dr. Muhammad Afzal P.W.6, Dr. Yahya Khan, Medical Officer P.W.7, ASI Khalil Ahmed
P.W.8, Constable Rasheed son of Dad Muhammad P.W.9 and SI Abdullah son of
Muhammad Hussain P.W.10 (I.O. of the case), passed the impugned judgment.
5. We have heard Messrs Mallag Dashti, Nadir Ali Chalgari and Muhammad Farooq,
Advocates for appellants, while Mr. Liaqat Ali, Advocate was heard for the State s ide.
6. Learned counsel for the appellants mainly contended that Shey Mureed was not
present at the spot and there is a nothing from the side of prosecution that Shey Mureed gave
any assistance, aid or abetted in any way in the matter. The sole evidence which has come on
record in respect of abetment through Mst. Sharatoon, the mother of the deceased, that Shey
Mureed one day prior to the incident had come to their house along with Muheem, Imam and
Sher Muhammad alias Sheerok. They were armed with Lathies , who threatened them, if their
sons left towards Kolanch, they would kill them.
7. Learned counsel further argued that except above alleged statements which were
made by the interested witnesses, there is a nothing on record, which could show that Shey
Mureed played any role towards the commission of the offence by way of any conspiracy, aid
or assistance. The above sole un -corroboratory evidence gets no support from any side, which
makes the statement of the P.W.2 Sharatoon and her daughter unreliable. The learned
Additional Sessions Judge, Turbat did not consider this fact and in absence of evidence held
appellant Shey Mureed guilty of abetment. The learned counsel further argued that there is no
motive behind this murder. The facts show that the incide nt was taken place at sudden, when
the deceased Assa and Imdad both were migrating towards Kolanch and taking their wives.
So being at best in the present matter facts pointing out the guilt towards Nisar and Muheem,
but due to the interestedness and enmit y Shey Mureed along with his son Imam was
implicated in the present matter.
8. Learned counsel again forcefully argued that the P.Ws. are interested witnesses and
their evidence without corroboration cannot be accepted. Learned counsel again argued that
the medical reports do not corroborate the statements of P.Ws. and furthermore, the
statements of P.Ws. on this point also not convincing one that Imam caught hold the deceased
and Nisar fired upon him. Learned counsel in support of his contention relied o n a case
reported in 2012 PCr.LJ 281 Balochistan, stating that P.Ws. are interested and closely related
to each other, so their evidence cannot be accepted without any independent corroboration.
Learned counsel again argued that no motive has come on recor d for commission of the
offence therefore, the question of abetment does not arise in the present matter. Learned
counsel again relied on a case reported in 2012 YLR 374 Balochistan, in which one of
us (Mr. Justice Muhammad Noor Miskanzai) was a uthor, wherein that it was rightly held that
conviction must be founded on unimpeachable evidence and certainty of guilt, however, in
the present matter there is a doubt about involvement of appellants in the commission of the
offence, therefore, appellant s are entitled to be acquitted of the charge.
9. Learned counsel again relied on a case reported in 2012 YLR 498, stating that there is
no tangible evidence to support the prosecution's case, as such, the appellants are entitled to
be extended benefit of doubt.
10. Learned counsel for the appellants to establish his points further relied on the cases
reported in: --
1998 SCMR 25;
2006 SCMR 1291;
2009 SCMR 230;
PLD 2005 SC 40;
PLD 2009 SC 916;
2003 YLR 777 Peshawar;
2003 PCr.LJ 2003 Q uetta;
2001 YLR 985 Karachi;
1995 PCr.LJ 924 Lahore, and;
2011 PCr.LJ. 289 Lahore.
11. Learned counsel appearing for the State mainly contended that the names of the
convicts/appellants are incorporated in the F.I.R., there is an evidence that t he appellant
Imam was present on site and further he received bullet shot at his hand. The judgment is
well reasoned and there is a no defect or lacuna in the judgment of the learned Additional
Sessions Judge, Turbat at Makhran. The witnesses are natural o ne cannot be treated as
interested witnesses, therefore, a sound and well reasoned judgment has been passed in the
matter. The appeal is liable to be dismissed and the conviction and sentence passed by the
learned Additional Sessions Judge, Turbat be maint ained.
12. At the very outset, we may mention here, that the fate of present case mainly
consisting upon the three witnesses, who are claiming themselves the eye -witnesses of the
incident, they are Mst. Waheeda P.W.1, Mst. Sharatoon P.W.2 and Rashid P.W. 4, however,
before adverting to the evidences of the above witnesses, we think it appropriate to discuss
the rest of the evidence and its applicability in respect of the present appellants.
13. First P.W.5 Muhammad Ismail son of Taj Muhammad is the compl ainant, who is also
father of the deceased and he lodged the F.I.R. dated 30th September, 2006. He through his
written report has lodged the F.I.R. Exh.P/10 -A, stating that he got information that his sons
Muhammad Assa and Imdad, both were killed by Nisar son of Muhammad Ismail and
Muheem son of Shey Mureed. He further clarified that Nisar had a Kalashnikov and Muheem
had a Gurki rifle (shotgun). Nisar fired indiscriminately and in the meanwhile his brothers
Imam, Sher Muhammad alias Sherook came to help t he accused and Imam also had come
under the fires, he received a bullet shot at his hand. Nisar and others after committing
murder were fled away. He further told that they had killed the deceased at the abetment of
Shey Mureed. This statement itself s hows that the murderers were Nisar and Muheem
and further on report of fires, Imam and present appellant Sher Muhammad alias
Sherook and others came on site, due to intervene of Imam, he also received injuries,
however, the statemen t of this P.W. does not show, what was the abetment or role played by
Shey Mureed, for which he was held responsible and punished in the alleged offence.
14. P.W.4 is Constable Abdul Rehman, who arrested one Alam Khan and recovered
Kalashnikov and shotgu n from his possession. According to the statements of P.Ws. that
Nisar while fleeing away had handed over the weapon of offence to Alam Khan and he had
concealed them in the earth, which on his pointation were recovered. So the statement of
Abdul Rehman so n of Ghulam Muhammad also does not implicate the present appellants
in any manner for commission of the offence.
15. To come on the statement of P.W.6 and 7, Dr. Muhammad Afzal and Dr. Yayha
Khan. The both doctors at best in their statements hav e specifically mentioned that the
deceased had expired on account of bullet injuries.
16. The next witness of the incident is ASI Khalil Ahmed P.W.8 and according to him the
site was inspected in his presence, empties were recovered through various artic les and he
only supported the empties, which recovered from the place of incident.
17. P.W.9 Constable Rashid son of Dad Rehman is also witness of bloodstained clothes
of deceased and he produced the same before the court through Exh.P/9 -A, which then
marked as Articles 18 to 24, as such, the evidence of this witness also does not implicate the
present appellants in the commission of the offence.
18. P.W.10 the I.O. is an important witness of the matter after the eye -witnesses;
however, his statement sh ows that the complainant recorded his statement twice and he in his
second statement implicated Abul accused. This witness has stated that he after recording the
F.I.R., recorded the statement of eye -witnesses and they shifted to deceased Muhammad Assa
and Imdad to Civil Hospital for postmortem and examination. The I.O. found present
appellants Shey Mureed and Imam there, so arrested them. The accused Imam had received a
bullet shot, when he came under the firing. He was also sent for treatment. The accused Nisar
after committing the murder had fled away, however, he had handed over the Kalashnikov to
his brother Alam Khan, from whom, the same was taken into possession. The Kalashnikov
stated belongs to his father Shey Mureed, present appellant, which he had taken from the
house. He sent the Kalashnikov and other empties for analysis and report of the same has
been received, which he has submitted through a supplementary challan Exh.P/10 -G.
However, statement of this witness also does not give any support to the prosecution in
respect of the present appellants.
19. Thus in the light of the above discussion when adverting to the statements of eye -
witnesses, we are of the view that the case in respect of the present appellants at best is
one, which is full of doubt. Mst. Waheeda P.W.1, the sister of the deceased, who was stated
to be present on site, has stated that their uncle Shey Mureed and his son Muheem had
extended threats to her mother Sharatoon P.W.2 that if her sons migrated to Kolanch, they
would be killed. On the next morning it was about 8 -30 a.m. when Nisar armed with
Kalashnikov and Muheem armed with Gurki rifle (shotgun) came. Nisar Ahmed fired at his
brothers Assa and Imdad through Kalashnikov while Imam, Sher Muhammad alias Sherook
and Abul and Muheem were also accompanying with Nisar. Accused after commission of the
offence fled away. Actually the accused had killed his brothers at the instance of Shey
Mureed.
A bare perusal of the above statement shows that the murderers were Nisar and Muheem,
who having Kalashnikov and shotgun they fired and killed the deceased. According to this
witness Imam, Sherook and Abul were accompanying with them. Though, this statement gets
no support from other independent source, however, if same to be a dmitted as correct, even
then, in our view the presence of accused Imam on site making him not responsible for
commission of murder, as he had not played any role towards the commission of the offence.
The authority pointed out by the learned counsel for t he appellants, reported in 2006 SCMR
1251, the Hon'ble Supreme Court of Pakistan dismissed the appeal against an accused who
came on a motorcycle along with main or principal accused who fired and committed murder.
In that case the Hon'ble Supreme Court of Pakistan held that, as co -accused did not play any
active role towards the commission of the offence, so as no role attributed to him for
commission of the offence. Again the Hon'ble Supreme Court of Pakistan held in that case
that there is a missing of m otive about prior meeting of the minds of the accused to show
common intention, as such, co -accused was acquitted of the charge.
20. The next eye -witness of the case is Mst. Sharatoon P.W.2. The statement of this
witness, who happening mother of the P.W.1 Mst. Waheeda and so as the deceased, she in
her statement has stated that her sons were killed by Nisar and according to the statement of
this P.W. that Imam, Nisar, Sherook, Abul and Muheem were present at the time of incident.
Again this witne ss has stated that Imam had caught hold of her son, Assa and Nisar fired at
him, due to that Imam also received a bullet shot at his hand. This witness also has stated that
Shey Mureed prior to the incident had come and threatened her that she should not a llow her
sons to migrate Kolanch otherwise, they would be killed. The statement of Sharatoon can be
classified into two parts. One pertain to the incident, as far as this part of statement is
concerned, if, it is believed even then, it does not make out ca se attracting the Provisions of
section 302, P.P.C. qua accused Imam. Admittedly Imam was not armed with any weapon
nor did he play any effective role qua causing the murder of Assa. As far as catching hold of
deceased Assa is concerned, P.W.1 does not sup port the statement of P.W.2 to this extent.
Similarly the statement of P.W.3 Rashid is also not in line with the statement of P.W.2. The
evidence of this eye -witness shows that he specifically has stated that at the time of
commission of offence Nisar had a Kalashnikov and Shah Mureed had a Gurki rifle (shotgun)
with him. Accused Imam, Abul and Sher Muhammad alias Sherok, were present there, they
all caught hold Assa and Imdad. Nisar fired towards Assa and Imdad, which hit them and due
to that the both dece ased expired. However, this statement in our view gets no support in
respect to catch hold the deceased by present appellant, as sketch of Wardat does not support
the version of the P.W., so as the medical certificate also does not support the version of
P.W.3 qua beating. All the P.Ws. concur that appellant Imam was empty -handed and he
himself has sustained bullet injury, it may be that Imam had tried to intervene to settle the
dispute and restrain them from fighting, in that connection he had sustained bu llet injury. In
this respect, we have supported our view from the sketch of Wardat from Ex.P/10 -B, which
shows that accused Nisar and Imam including deceased, standing on different places. The
place of murder of deceased Assa and Imdad located at a distanc es from the place where
Imam was standing or receiving firearm injury and there is a ring of truth that Imam came
under the fires between the Nisar and Assa and Imdad. There is a probability that Imam tried
to intervene and stop Nisar not to fire upon the deceased and in that connection he received a
bullet shot at his hand.
21. Again, as we have narrated herein before that, prior meeting of minds and ingredients
of section 109, P.P.C. are missing, as the appellant Shey Mureed hardly can be held
responsib le as an abettor in the present incident. Admittedly there is nothing on record that at
the time of progress of the commission of the offence, appellant Shey Mureed was present
and he instigated anyone to kill the deceased. So as there is a no evidence abo ut conspiracy
for commission of the alleged murders, we also failed to find out any evidence from the side
of prosecution that Shey Mureed giving any aid to commit the murders of deceased. Simply
one day prior to the incident, threatening of the appellant Shey Mureed to Mst. Sharatoon or
his family members that, in case of deceased's migrating to Kolanch, they would kill
them, in our view not bring the case against the appellant Shey Mureed one which fall
under section 109, P.P.C., wherea s, we do of the opinion that section 149, P.P.C. does not
applicable in the present circumstances of the case.
22. Admittedly, there is a no recovery from any of the accused, so as, there is a no direct
role of the appellants for giving any aid to the re al culprits, as such under the above
circumstances, we are extending the benefit of the doubt to the present appellants by setting
aside the impugned judgment dated 30th August, 2008. The appellants are ordered to be
released forthwith, provided if not req uired in any other case. The appeal is allowed.
HBT/66/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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