2012 Y L R 533
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
ABDUL REHMAN---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.(S)62 of 2007, decided on 22nd September, 2011.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Prosecution had failed to prove its case
against accused beyond reasonable doubt as not a single bit of tangible evidence could be found
in support of the charge against accused, connecting him with the commission of offence ---Both
the witnesses were closely related to each other and were inimical to accused ---Alleged eye -
witnesses who had contradicted each other on material aspects of the case, had failed to inspire confidence ---Evidence of one prosecution witness was of no avail to the prosecution being
hearsay evidence; as he had not seen the occurrence and was informed about the incident by other two prosecution witnesses and that too after considerable delay of about six days of the occu rrence without any plausible explanation--- Accused was husband of deceased, but her dead
body was not found in his house ---F.I.R. though was promptly registered in which accused was
nominated, but there was double version of the prosecution story, which ha d created serious
doubt in the case of prosecution---Presence of alleged eye- witnesses in the house of the
complainant was also doubtful ---One prosecution witness who had resiled from his statement
and was declared hostile, though thoroughly cross -examined , had not stated a single word
against accused and had exonerated him from the commission of the offence ---Medical evidence
in the case was not of much help to the prosecution case as the same could not identify or locate
the perpetrators of the offence, w hen presence of alleged eye -witness itself was found to be
doubtful ---Prosecution had failed to prove the alleged motive ---Impugned judgment of
conviction being not sustainable was directed to be set aside ---Accused was acquitted of the
charge and was set at liberty, in circumstances.
(b) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Conviction could be based on the
evidence of a solitary witness, but subject to the condition that witness should be found to be
truth ful and confidence inspiring.
(c) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Medical evidence---Medical evidence
was only of supportive nature and the same would lose all its value in a case where no other
reliable evidence was available to give support to it.
(d) Penal Code (XLV of 1860) ---
----S.302( b)---Qatl-e-amd---Appreciation of evidence ---Unless direct evidence was available,
conviction could not be based on any other type of evidence, howsoever, convincing it could be.
???????????
Muhammad Noor and another v. Member -I Board of Revenue Balochis tan and others 1991
SCMR 643 rel.
(e) Qanun -e-Shahadat (10 of? 1984) ---
----Art. 129, Illustration (g) ---Penal Code (XLV of 1860), S.302(b) ---Qatl -e-amd---Withholding
of best piece of evidence ---If a best piece of evidence, available with a party was w ithheld, then
it should be presumed that said party had some sinister motive behind it for withholding such
piece of evidence---Presumption under Illustration (g) of Art.129 of the Qanun- e-Shahadat,
1984, in such a situation,? could clearly be drawn that had the said piece of evidence been brought on record, same would have been unfavourable to the said party.
(f) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Motive ---Prosecution, no doubt was not
required to disclose or set up a motive, but once it would choose to do so, then it would become
its obligation to prove the same by cogent evidence; and failure to do so would not only damage the credibility of the prosecution case beyond repair,? but? it? would? also? be? fatal for it.
???????????
1998 PCr.LJ 990 rel.
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Kamran Murtaza for Appellant.
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Abdullah Kurd, Addl: P.G.? for the State.
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Date of hearing: 11th August, 2011.
JUDGMENT
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MUHAMMAD HASHIM KHAN KAKAR, J. ---Th is appeal is directed against the judgment
dated 11- 5-2007, passed by the Additional Sessions Judge, Dera Allah Yar, whereby appellant
Abdul Rehman was convicted and sentenced under section 302(b) read with section 34 of the
P.P.C. to suffer life imprisonm ent as ta'zir and to pay an amount of Rs.50,000 as fine, in default
whereof to further undergo S.I. for six months and in case of recovery, the amount of fine was
ordered to be paid to the legal heirs of the deceased, with the benefit of section 382- B of t he
Cr.P.C.
2. ????????The relevant facts, arising out of instant appeal, are that on 22 -10-2005, a case
vide F.I.R. No.245? of ? 2005? (Exh.P/6- E), under section 302 of the P.P.C. was registered at
Police Station Dera Allah Yar on the report of complainant Wali Muhammad, wherein he alleged
that about 5/6 months back, he contracted marriage with Mst. Sakina Bibi, whereas the hands of his sister Mst. Naz Bibi was given to his brother -in-law i.e. the appellant Abdul Rehman, in
exchange of that marriage. He further alleged that on 21 -10-2005, he, along with his wife Mst.
Sakina Bibi, went to the house of his in- laws in order to harvest the paddy crops, stayed there for
a night and next morning started harvesting the crops. In the evening, his relative Abdul Razaq also came there to meet them. In the night, he, along with Faqir Muhammad and Raja Khan, was chatting? in? the 'Autaq',? when? at? about? 10 -20 p.m., his brother -in-law Abdul Rehman came
there and told that he has committed the murder of his wife Mst. Naz Bibi by means of strangulation while declaring her siyahkar with his relative Abdul Razaq, whereas Abdul Razaq ran away. He f urther alleged that accused also ran away, whereas he, along with Faqir
Muhammad and Raja Khan, went to his in- laws house, where his sister's dead body was lying on
a cot. Consequently, the aforesaid F.I.R. was registered.
3. ????????After registration o f the F.I.R., investigation of the case was entrusted to P.W.6
Sikandar Khan, S.I., who visited the site situated at Goth Akbar, where he found the dead body
of deceased Mst. Naz Bibi, prepared inquest report Exh.P/6- F, sent the dead body to Civil
Hospital , Dera Allah Yar for postmortem examination and report, prepared site inspection memo
and site sketch Exh.P/6- G and Exh.P/6- H, recorded the statements of P.Ws., arrested accused
Abdul Rehman on 24- 10-2005, and on 26- 10-2005, on the pointation of accused, r ecovered and
seized crime weapon? i.e.? Dophata? vide? memo. On? 28 -10-2005, father of the deceased,
namely, Muhammad Hassan came to police station along with an application and an affidavit by nominating the complainant of the present case Wali Muhammad a nd brother of the appellant,
namely, Muhammad Akbar to have committed the offence along with the appellant. He obtained the warrants of arrest of the above named accused persons, however, they could not be arrested and were declared absconder and after com pletion of the investigation, he placed the papers
before S.H.O., who prepared incomplete challan Exh.P/6- J and on receiving medical report,
prepared supplementary challan Exh.P/6- K and appellant was sent up to face the trial.
4. ????????On the stated al legations, a formal charge was framed and read over to the
appellant, to which he did not plead guilty and claimed trial. The prosecution, in order to prove
the accusation, produced six witnesses. P.W.1. Muhammad Hassan is father of the deceased, who produced an application Exh.P/1- A and his affidavit Exh.P/1- B, by nominating the
complainant of the present case, namely, Wali Muhammad and brother of the appellant, namely,
Muhammad Akbar to have also committed the offence along with the appellant. P.W.2 Jan
Muhammad, soon after the occurrence, reached at the site, where he found the appellant and co-
accused persons along with dead body of the deceased, who told him that they have committed the murder of deceased by declaring her siyahkar with Abdul Razaq. P.W.3 Haji Khan, constable, is witness to the alleged disclosure of the appellant and recovery witness of the alleged
crime weapon i.e. Dophata on the pointation of the appellant from his house vide memo.
Exh.P/3- A. P.W.4 Ghulam Mustafa resiled from his statem ent and was declared hostile. P.W.5
Farah Naz Khoso, Lady Medical Officer, DHQ Hospital, Dera Allah Yar, examined the dead
body of the deceased and issued medico legal certificate Exh.P/5- D and P.W.6? Sikandar?
Khan,? S.- I., is the Investigating Officer of the case. Then the prosecution closed its side.
5. ????????Thereafter, the appellant was examined under section 342 of the Cr.P.C.,
wherein he denied the prosecution accusation and claimed to be innocent. He did not opt to
record his statement on oath a s envisaged under section 340(2) of the Cr.P.C., however,
produced DW -1 Faqir Muhammad and DW -2 Raja Khan in his defence. The trial Court, after
close of the parties evidence, vide impugned judgment, convicted and sentenced the appellant, as mentioned here inabove, hence this appeal.
6. ????????We have heard learned counsel for the appellant as well as learned Additional
Prosecutor -General and have also gone through the available record with their valuable
assistance. It has been urged by learned counsel f or the appellant that P.W.1 Muhammad Hassan
is father of the deceased and P.W.2 Jan Muhammad is the grandson of P.W.1 Muhammad
Hassan, therefore, it would not be safe to rely upon their testimonies without independent corroboration. He further argued that the stay of the witness at the house of appellant on the fateful night was unnatural, therefore, his claim of having witnessed the occurrence was doubtful and further there was nothing on record to suggest that the appellant was unhappy with the deceased and, thus, the appellant would have no reason to commit the murder of Mst. Naz Bibi. On the contrary learned Additional Prosecutor -General has maintained that the prosecution had
succeeded in proving the guilt of the appellant to the hilt and, therefore, the present appeal deserves dismissal.
7. ????????After hearing learned counsel for the parties and having gone through the entire
evidence, we have arrived at a confident conclusion that the prosecution had, indeed, failed to
prove its case against the ap pellant beyond reasonable doubt. A careful reappraisal of the
evidence, produced by the prosecution, would show that not a single bit of tangible evidence could be found in support of the charge against the appellant, connecting him with the commission of the offence.
8. ????????The connection of the appellant with the crime in question is sought to be
established by the evidence of P.W.1 Muhammad Hassan and P.W.2 Jan Muhammad. Both the
witnesses are closely related to each other and are, admittedly, inim ical to the appellant. P.W.1 is
father of the deceased, while P.W.2 Jan Muhammad is grandson of P.W.1. After having gone through their evidence, we have no hesitation in observing that the alleged eyewitnesses have
failed to inspire our confidence and have contradicted each other on material aspects of the case.
The evidence of P.W.1 is of no avail to the prosecution being hearsay evidence, as he had not
seen the occurrence and was informed about the incident by P.W.2 Jan Muhammad and P.W.4 Ghulam Mustafa, that too, after considerable delay of about six days of the occurrence without any plausible explanation. Moreover, it is an admitted feature of the case that the appellant is the husband of deceased Mst. Naz Bibi, but the dead body of the deceased was not found in his
house.
9. ????????Though the F.I.R. was promptly registered on 22- 10-2005, in which the
appellant Abdul Rehman has been nominated, but the fact remains that there is double versions
of the prosecution story, which creates serious doubt to t he case of the prosecution. The F.I.R.
was registered by the complainant Wali Muhammad, by nominating the appellant with the commission of the offence, while on the other hand, subsequently, he was also involved in the commission of the offence by his own father i.e. P.W.1 Muhammad Hassan along with brother of the appellant, namely, Muhammad Akbar, by submitting an application Exh.P/1- A and an
affidavit Exh.P/1- B before the S.H.O. concerned. The presence of the alleged eye- witnesses i.e.
P.W.2 Jan Muhammad and P.W.4 Ghulam? Mustafa,? who? had? informed? P.W.1 Muhammad Hassan regarding the incident, in the house of accused/ complainant Wali Muhammad, is also
highly doubtful, particularly when the above named Ghulam Mustafa when appeared before the trial Court as P.W.4, he resiled from his statement and was declared hostile. It would be
advantageous to reproduce the statement of P.W.4 as under: --
"On 22- 10-2005, the dead body of deceased Mst. Naz Bibi was brought to Goth Chandar. The
dead body was brought by the brothers of deceased, namely, Wali Muhammad and Akbar, where
both of them told that they have committed the murder of deceased Mst. Naz Bibi by declaring her siyahkar."
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The above version of the witness clearly shows that he has not stated a single word against the appellant and has exonerated him from the commission of the offence. Though he was thoroughly cross -examined by the State counsel, but nothing incriminating was extracted against
the appellant. He also stated in cross -examination that he was not present at the time of incident,
nor had seen the occurrence, thus, in such view of the matter, he has ruined the entire story of the prosecution.
10. ??????There remains the statement of P.W.2 Jan Muhammad, who alleged to be the sole
eye-witness of the whole episode. He deposed before the trial Court that on 22- 10-2005, he went
to the house of his uncle Wali Muhammad situated at Goth Akbar Khan Khosa. At about 10- 20
p.m., on commotion, he went into the room of accused Abdul Rehman and saw the accused
Abdul Rehman, Wali Muhammad and Muhammad Akbar, standing there and the dead body of
deceased Mst. Naz Bibi was lying on the bed. The accused persons told him that they murdered
the deceased after declaring her siyahkar with a person, namely, A bdul Razaq. He further added
that he remained busy in the burial and death ceremonies of the deceased and after three days of
the incident, he informed his grandfather i.e. P.W.1 Muhammad Hassan about all the circumstances. The F.I.R. does not purport the name of said P.W. Jan Muhammad. He claimed his presence in the house of his uncle Wali Muhammad, while according to the site sketch Exh.P/6- H, the alleged incident took place in a room of the appellant situated at a distance of
10/15 paces from the house of Wali Muhammad. P.W.2 Jan Muhammad is resident of Goth Chandar situated at a distance of about 70/80 kilometers from the alleged place of occurrence, as such; his presence, in the house of his uncle, at the relevant time, is highly doubtful and his claim to have seen the occurrence appears to be not only a tall claim but tall enough to raise serious doubt about its genuineness.
11. ??????We are not unmindful of the fact that conviction can be based on the evidence of a
solitary witness, but subject to th e condition that the witness should be found to be a truthful and
confidence inspiring, while, in the instant case, the evidence of P.W.2 Jan Muhammad and his
claimed presence in the house of his uncle Wali Muhammad is replete of doubt. His statement under section 161 of the Cr.P.C. has also been recorded after 6 days of the occurrence and he has
made dishonest improvements in order to strengthen the case of prosecution, thus, on account of the above stated reasons, we have left with no option but to disbel ieve his version, which,
otherwise, does not appeal to a prudent mind.
12. ??????The medical evidence in this case is also not of much helpful to the prosecution
case, as the same cannot identify or locate the perpetrators of the offence? in? the? case? where?
the? presence? of? the? alleged? eye -witness? itself? is? found? to be doubtful. Even otherwise,
medical evidence is only of supportive nature and the same loses all its value in a case like the
present one where there is no other reliable evidence available to give support to.
13. ??????The other pieces of evidence are corroboratory in nature and are of no avail to the
prosecution after discrediting the ocular account, furnished by the solitary witness Jan
Muhammad. It is well established that unless substantive direct evidence is available, conviction cannot be based on any other type of evidence, howsoever, convincing it may be. Reliance in this regard may be placed on the case of Muhammad Noor and another v. Member -I Board of
Revenue Balochistan and others (1991 SCMR 643).
14. ??????There is another damaging aspect of the prosecution case, which has been
oversighted by the trial court, while passing the conviction order. The application and affidavit
Exh.P/1- A and Exh.P/1- B purport the names of Kamal Khan and Ghulam Mustafa as eye -
witnesses. Ghulam Mustafa, as stated above, had been produced and examined as P.W.4 and was declared hostile, whereas the evidence of Kamal Khan was withheld by the prosecution for the reasons best known to it. It is settled principle of law that if a best piece of evidence, available with a party, is withheld, then it would be presumed that said party has some sinister motive behind it for withholding such piece of evidence and in such a situation a presumption? under
illustration (g) to Article 129 of the Qanun- e-Shahadat Order, 1984 can clearly be drawn that had
the said piece of evidence been brought on record same would have been unfavourable to the said party.
15. ??????The motive has stated t o be illicit relationship of deceased Naz Bibi with one
Abdul Razaq, but the record is silent regarding Abdul Razaq as to whether he had also been
killed on account of honour killing or otherwise? The prosecution has badly failed to prove the alleged motiv e. Prosecution, no doubt, is not required to disclose or set up a motive, but once it
chooses to do so, then it becomes its obligation to prove the same by cogent evidence and failure in doing so would not only damage the credibility of the prosecution cas e beyond repair, but it
would also be fatal for it. In this regard, we are fortified our view to a judgment reported in 1998 PCr.LJ 990.
16. ??????In view of the reasons stated above the impugned judgment of conviction is not
sustainable and is directed to be set aside and appellant Abdul Rehman is acquitted of the charge.
He be set at liberty, if not required in any other case.
These are the reasons of our short order dated 11- 8-2011 announced in open court.
H.B.T./134/Q
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?????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,
let us know.