2012 Y L R 374
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
ABDUL WAHID ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal N o.67 of 2009 and Murder Reference No.5 of 2009, decided on 27th
October, 2011.
(a) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Benefit of doubt ---Entitlement ---
Principles ---Conviction must be founded on unimpeac hable evidence and certainty of guilt ---
Any doubt that would arise in the prosecution case, must, be resolved in favour of accused
and it was 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 ---For giving benefit of
doubt, it was not necessary that there should be many circumstances creating doubts ---If a
circumstance, which would create reasonable doubt in a prudent mind about the guilt of
accused, accu sed would be entitled to benefit thereof, not as a matter of grace and concession,
but as of right.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Benefit of doubt ---All the witnesses
had stated that there was no electric light in the house where occurrence took place ---Nothing
was in the statements of said witnesses which could show that either the electric light or any
other source of light was available at the time of occurrence to identify accused ---Even the
witnesses had not stated that accused was identified in the light of torch or moonlight ---
Identification of accused in the dark night being not possible, his identification in the court's
proceedings would be of no consequence ---Claim of witnesses that th ey had identified
accused had created doubts about its genuineness ---Prosecution had not been able to bring
any other evidence, direct or circumstantial, to connect accused with the crime ---Accused had
been roped in the case on the basis of mere suspicion of previous enmity existing between the
parties ---F.I.R. was lodged in the case without naming accused as culprit ---Claim of the
alleged eye -witnesses to have seen the occurrence, appeared to be a claim, which could be
accepted only with a lump of salt ---Said witnesses could not prove their presence at the place
of occurrence at the relevant time ---Glaring contradictions having been noticed in the
statements of witnesses regarding the recovery of crime weapon from possession of accused,
Ballistic Expert's r eport could not be relied upon ---Medical evidence in the case was also not
of much help/significance to the prosecution when said evidence could not identify or locate
the perpetrators of the offence, when the presence of eye -witnesses itself was found to be
doubtful ---Prosecution's story was full of inconsistencies, contradictions and improbabilities --
-Eye-witnesses had improved their statements materially on a number of crucial points ---
Conviction on the basis of evidence of such nature could not be reco rded on capital charge ---
Conviction as well as the sentence awarded to accused by the Trial Court, were set aside and
accused was acquitted of the charge extending him benefit of doubt and was set at liberty, in
circumstances.
Ashiq Hussain v. The State 1993 SCMR 417 and Bashir Ahmed v. The State 1999 SCMR
114 ref.
Bashir Ahmed v. The State 1999 SCMR 114 and State through Advocate General Sindh,
Karachi v. Farman Hussain PLD 1995 SC 1 rel.
(c) Criminal trial ---
----Appreciation of evidence ---Court w as not permitted to deviate from the principles and
guidelines laid in the law for appraisement of evidence ---To bring home guilt of accused,
legal evidence was required to be of incriminating nature to connect accused with the
commission of crime beyond t he shadow of reasonable doubt.
(d) Administration of justice ---
----Function of the court and duty of legislature ---Court was to administer the laws as were
operative in the country and if such laws failed to achieve the desired results, then it was t he
duty of the legislature to amend such laws suitably to make them effective.
Abdul Sattar Durrani, Addl. P.G. for the State (in Murder Reference No.5 of 2009).
Abdul Sattar Kakar for the Complainant (in Murder Reference No.5 of 2009).
Saleem Lashar i and Munir Langove for Respondents (in Murder Reference No.5 of 2009).
Saleem Lashari and Munir Langove for Appellants (in Criminal Appeal No.67 of 2009).
Abdul Sattar Kakar for the Complainant (in Criminal Appeal No.67 of 2009).
Abdul Sattar Durran i Addl. Prosecutor -General for the State (in Criminal Appeal No.67 of
2009).
Date of hearing: 19th October, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This judgment will dispose of Criminal
Appeal No.67 of 2009 and Murder Reference No.5 of 2009 , both arising out of judgment
dated 28th February, 2009, passed by the Sessions Judge Khuzdar, whereby appellant Abdul
Wahid son of Khan Muhammad was convicted under section 302(b) of the P.P.C. and
sentenced to death. The trial Court, however, acquitted the co -accused persons, namely.
Abdul Nabi, Syed Muhammad and Abdul Hakeem by extending them the benefit of doubt.
2 Complainant Pir Muhammad (P.W.1), in his Fard -e-Bayan (Exh.P/1 -A), alleged that
on 14th August, 2007 at about 11 -30 a.m. he, along with h is son Hussain Bakhsh and family
were sleeping in a mosquito -net in their house situated in Mouza Bhandur Tehsil Naal, when
suddenly he woke up on hearing gun fire and saw that a person, having Kalashnikov in his
hand, was running. Since there was darkness , therefore, he could not identify him, however,
he made a call behind him, but he did not reply and fled away from the venue. He tried to get
up his son, but he, after sustaining bullet injury, expired on the spot. In the meanwhile, people
of the vicinity gathered over there. He further alleged that he as well as his son has no enmity
with anyone. however, sometime back, his relatives Abdul Ghani and Abdul Majeed, after
committing the murder of their father Naik Muhammad, absconded from the area and falsel y
involved his deceased son Hussain Bakhsh in the commission of murder of their father and
on account of said reason, the above named accused persons with the collusion and
connivance of accused Abdul Nabi, Abdul Wahid, Said Muhammad, Khan Muhammad and
Abdul Hakeem, have hatched conspiracy and committed the murder of his son.
Consequently, a case vide Crime No.18 of 2007, under section 302 read with section 34 of
the P.P.C. was registered at Police Station Naal District Khuzdar.
3. After registration of F .I.R. Exh.P/11 -A, the investigation of the case was carried out
by P.W.11 Nisar Ahmed, S.H.O., who visited and inspected the site, prepared site sketch
Exh.P/11 -B, seized the dead body, secured blood -stained earth collected crime empties vide
memos, record ed the statements of P.Ws., prepared inquest report Exh.P/11 -E and released
the dead body of the deceased to the complainant on his application Exh.P/11 -C through
receipt Exh.P/11 -D. He arrested the nominated accused persons, out of whom he recovered a
Kalashnikov from the possession of accused Abdul Wahid, which was taken into possession
vide memo and a separate case under the Arms Ordinance was registered against him. He
further took into possession the blood -stained clothes of the deceased and sent it al ong with
other crime articles i.e. blood -stained earth, crime empties and Kalashnikov to FSL for
analysis and reports. After completion of the investigation, he prepared incomplete challan
Exh.P/11 -F and on receiving FSL report Exh.P/11 -G regarding blood -stained articles and
Firearm's Expert Report Exh.P/11 -J regarding Kalashnikov and crime empties, he prepared
challans Exh.P/11 -H and Exh.P/11 -K.
4. On the stated allegation, a formal charge was framed and read over to the appellant, to
which he did not pl ead guilty and claimed trial. The prosecution, in order to substantiate the
accusation, produced eleven witnesses. P.W.1 Pir Muhammad is complainant of the case,
who produced his Fard -e-Bayan Exh.P/1 -A. P.W.2 Muhammad Ashraf and P.W.3
Muhammad Ali, claimed to have witnessed the occurrence. P.W.4 Behram Khan is witness to
the securing of blood -stained earth vide memo Exh.P/4 -A. P.W.5 Muhammad Jan soon after
the occurrence reached at the site. He is witness to the collection of crime empties from the
place of occurrence vide memo Exh.P/5 -A. P.W.6 Allah Bakhsh also reached at the site soon
after the occurrence. P.W.7 Mubarak, constable, is recovery witness of unlicensed
Kalashnikov, which was taken into possession vide memo Exh.P/7 -A. P.W.8 Pasand Khan is
witne ss to the blood -stained clothes of the deceased, which were taken into possession vide
memo Exh.P/8 -A. P.W.9 Dr. Washoo Mall, Medical Officer, examined the dead body of the
deceased and issued death certificate Exh.P/9 -A. P.W.10 Lal Muhammad is witness to the
alleged disclosure of co -accused Abdul Hakeem, which was reduced into writing vide memo
Exh.P/10 -A and P.W.11 Nisar Ahmed S.H.O. is the Investigating Officer of the case.
5. In his examinations under sec -tion 342 of the Cr.P.C., the appellant den ied and
controverted each and every allegation of fact levelled against him by the prosecution and
professed his innocence. He also recorded his statement on oath under section 340(2) of the
Cr.P.C. and produced DW -1 Abdul Khaliq and D.W.2 Abdullah in hi s defence. The trial
Court, after hearing the learned counsel for the parties, convicted and sentenced the
appellant, as mentioned hereinbefore, hence this appeal and murder reference.
6. We have heard learned counsel for the appellant as well as learne d counsel for the
State duly assisted by learned counsel for the complainant and have also gone through the
available record with their valuable assistance.
7. Learned counsel for the appellant bitterly criticized the judgment impugned herein
and reitera ted that the claim of P.Ws. Pir Muhammad, Muhammad Ashraf and Muhammad
Ali, to have witnessed the crime, stands belied by host of circumstances. In this context, it
was submitted that the evidence on capital charge had not been collected from the
unimpeach able source and the eye -witnesses' account furnished in this case is so
unreasonable and inherently improbable that no amount of corroboration can rehabilitate it.
Learned counsel also contended that the report of Firearm's Expert would not be of much
evidentiary value for the reason that the Kalashnikov attributed to the appellant and the
empties had remained in the custody of police for sufficient longtime, therefore, no reliance
can be placed on the report of Firearms expert, as the possibility of the su bstitution of the
empties cannot be ruled out. Learned counsel also challenged the prosecution case in respect
of the identification of the accused during odd hours of the night in absence of any source of
light and submitted that the appellant has been in volved mere on the basis of suspicion. In the
last limb of their arguments, they also referred to the testimonies of the alleged eye -witnesses,
according to whom they saw the appellant, shooting the deceased, but did not chase the
appellant, whose house, a ccording to the site plan, is situated at a distance of about 200 feet
from the place of occurrence. As per learned counsel, this was, indeed, a very strange
behaviour and not to be expected in the natural course of event. In support of these
submissions, learned counsel has relied upon a case of "Ashiq Hussain v. The State"
reported in 1993 SCMR 417 and "Bashir Ahmed v. The State" reported in 1999
SCMR 114. Consequently, learned counsel prayed that the impugned judgment be set aside
and the appellant be acquitted of the charge.
8. Mr. Abdul Sattar Durrani, learned Additional Prosecutor -General, appearing for the
State and Mr. Abdul Sattar Kakar, learned counsel for the complainant, on the other hand,
have fully supported the impugned ju dgment. They have submitted that the ocular evidence
on the record supported by recovery of crime weapon, positive report of expert and the
medical evidence, which fully established the guilt of the appellant, as such, the impugned
judgment, being wel l-reasoned, does not warrant interference by this Court.
9. The death of the deceased Hussain Bakhsh due to a gunshot wound is not an issue, as
according to the evidence of Medical Officer, Dr. Washoo Mall, Medical Officer RHC, Naal,
the deceased had re ceived a bullet injury on right side of the neck, which entered from
backside and exited from the right side of the neck. According to the opinion of the Medical
Officer, the injury was caused by firearm and death was caused due to excessive bleeding.
10. 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 occurrence, 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 thereof, not as a matter of grace and concession but as of right.
11. The sole evidence against the appellan t, brought by the prosecution on record, was the
alleged identification of the accused by Pir Muhammad (complainant), P.W.2 Muhammad
Ashraf and P.W.3 Muhammad Ali at the relevant time, who witnessed the occurrence and
identified the accused at the spot and , subsequently, in the Court. All the witnesses have,
categorically, stated that there was no electric light in the house, where the occurrence took
place. There is nothing in the statements of these witnesses, which could show that either the
electric lig ht or any other source of light was available at the time of occurrence to identify
the culprit(s). Even the witnesses have not stated that either the accused was identified in the
light of torch or moonlit. The identification of the appellant in the dark night, as stated by the
P.Ws., was not possible and, consequently, his identification in the Court's proceeding would
be of no consequence. The claim of the said witnesses is not only a tall claim, but tall enough
that it creates serious doubts about its g enuineness. The prosecution has not been able to
bring any other evidence, direct or circumstantial, to connect the appellant with the crime.
The sole evidence of identification of the appellant in the dark night at the time of
occurrence being highly d oubtful and having not been proved up to the required standard,
would not be attached any weight and with the exclusion of the evidence of identification, it
would be a case of no evidence.
12. We are of the considered view that the appellant has be en roped in the instant case on
the basis of mere suspicion on account of previous enmity existing between the parties
regarding the murder of Naik Muhammad. Admittedly, the alleged occurrence took place at
1-30 a.m., while the F.I.R. was lodged at 3 -00 a. m., that too, without naming the appellant as
culprit, rather it has been mentioned in the Fard -e-Bayan Exh.P/1 -A that due to darkness, the
complainant could not identify the culprit, who, after commission of the offence, was
running, as such, there was no occasion left for the prosecution witnesses to identify the
culprit during pitch dark in a running condition to opposite direction. Thus, the claim of the
eye-witnesses, to have seen the occurrence, appears to be a claim, which can be accepted only
with a lump of salt. In this context, we are also not unmindful of the usual human conduct
that an offender choosing night time for commission of an offence necessarily wants to keep
identity concealed. Thus, the culprit, choosing the cover of night for committi ng the murder
of the deceased, would surely have decamped from the scene of occurrence, immediately,
after commission of the offence. Therefore, the claim of these witnesses that they have
identified the appellant after commission of the offence during odd hours again appears to be
not only a tall claim, but tall enough to raise serious doubts about its genuineness.
13. The above named witnesses claimed to be present at the time of occurrence, but their
conduct and presence at the time of occurrence is hi ghly doubtful. From perusal of their
statements, it transpires that they have not been able to establish that as to how they were
present and what steps they had taken in order to save the life of their beloved one or catch
the culprit, whose house, admit tedly, situated adjacent to the place of occurrence at a distance
of 200 feet? Although hard and fast rules about the human conduct and behaviour are not
available, yet in the light of accepted standards of human behaviour, it can be safely said that,
in the normal course of events, they should have tried to chase and catch the culprit, who was,
allegedly, identified by them at the time of occurrence. Had they seen the occurrence, the
F.I.R. should have figured the name of the appellant as a perpetra tor. Thus, the conduct,
exhibited by the said witnesses, is offensive to the normal human behaviour and we find that
the ocular account is not trustworthy and confidence inspiring.
14. The next piece of evidence on record is the Ballistic Expert report, which has been
produced by the Investigating Officer as Exh.P/11 -J, which shows that the empty, which was
collected from the scene of crime, wedded with Kalashnikov recovered from possession of
the appellant. However, in this connection, it would be seen t hat as per recovery memo
Exh.P/7 -A, the Kalashnikov was recovered on 14th August, 2007, whereas the same was sent
for the ballistic test on 6th November, 2007 after a considerable delay of about three months
without any plausible explanation or reason. In these circumstances, we are of the opinion
that the Ballistic Expert's report cannot be relied upon. In this connection, reference can be
made to a case of "Bashir Ahmed v. The State" reported in 1999 SCMR 114, wherein the
Hon'ble Supreme Court of Pakistan has held, inter alia, that the retention of the crime empties
in the malkhana for about a month before sending the same for the ballistic test raises an
inference that they might have been doctored in order to match the crime weapon. Even
otherwise, there is glaring contradiction among the statements of witnesses regarding the
recovery of crime weapon from possession of the appellant. As already been observed above
that the house of the appellant is situated adjacent to the place of occurrence and he was
arrested immediately after the alleged occurrence from his house, therefore, in such
circumstances, he was not so fool that he kept the alleged recovered Kalashnikov under his
control beneath the bed of a residential room, enabling the police to recover the same and to
create a piece of evidence against him. To our mind, this is a textbook example of a case of
fabricated evidence on the charge of murder, wherein the culprit himself disclosed his
identity to the prosecution witnesses and recovered crime weapo n.
15. Similarly, the medical evidence in this case is also not of much help/significance to
the prosecution, as the same cannot identify or locate the perpetrators of the offence in a case
where the presence of eye -witnesses itself is found to be doubt ful. Even otherwise, the
medical evidence is only of supportive nature and the same looses all its value in a case, like
the present one, where there is no other reliable evidence available on record to give support
to it.
16. The prosecution's story in this case is full of inconsistencies, contradictions and
improbabilities. The eye -witnesses have improved their statements materially on a number of
crucial points. On the basis of evidence of this nature, conviction cannot be recorded on
capital charge. B y holding this view, we are fortified from the judgment in a case of "State
through Advocate -General Sindh, Karachi v. Farman Hussain" reported in PLD 1995
Supreme Court 1, wherein it was held that while trying a criminal case, it is the duty of Court
to appraise evidence strictly according to the legal requirements described by law without
being swayed away emotionally for any other extraneous reasons, which fall outside the pale
of legal jurisdiction of appraisement of evidence. It was also observed by th e Hon'ble
Supreme Court in the said judgment that in the criminal jurisprudence, which is followed, it
is invariably the duty of the prosecution to prove the case against accused beyond doubt and
the accused is presumed to be innocent until the case is ful ly proved against him and in that
process not only if there is room for doubt, benefit thereof is to go to the accused but if any
legal provision, which is to be relied upon in the appraisement of evidence and is open to two
interpretations, one beneficial to the accused is to be adopted. The Court is to administer the
laws as are operative in the country and if such laws fail to achieve the desired results, then it
is the duty of the legislature to amend them suitably to make them effective. Court is not
permitted to deviate from the principles and guidelines laid in the law for appraisement of
evidence. To bring home guilt to the accused, legal evidence is required to be of
incriminating nature to connect accused with the commission of crime beyond the sha dow of
reasonable doubt.
17. In this case, as mentioned above, the eye -witnesses have clearly failed to establish
that they had actually seen the culprit clearly at the time of occurrence, in pitch dark night,
hence, subsequent identification of the accu sed during trial was without any legal importance.
The alleged recovery of crime weapon and the medical evidence are merely corroborative
pieces of evidence and in the absence of reliable ocular account, the same cannot be
considered corroborative pieces o f evidence and no conviction can be based upon them.
Prosecution story is full of improbabilities, doubts and improvements, thus, the conviction of
the appellant in this case cannot be upheld and is liable to be set aside.
In view of what has been stated above, Criminal Appeal No.67 of 2009 is accepted, the
conviction recorded as well as the sentence awarded by the trial Court to the appellant is set
aside and the accused/appellant is acquitted of the charge by extending benefit of doubt in his
favour. If not required in connection with any other case, he be set at liberty forthwith.
Sentence of death awarded to the appellant by the trial Court is not confirmed. Murder
Reference No.5 of 2009 is answered in negative.
H.B.T./149/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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