2013 P Cr. L J 1452
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
NOOR AHMED ---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No.55 of 2012, decided on 11th March, 2013.
(a) Penal Code (XLV of 1860 )---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Prosecution witness, who had been
cited as eye -witness in the F.I.R. and claimed to be present at the spot when incident took
place, except giving an incomplete description of culprit, had not claimed that he identified
assailant or that he could identify the culprit who committed the offence ---Said witness had
not identified the culprit during the course of identification parade, at the strength of
description given in his statement ---Said witn ess had denied the suggestion that he had
earlier seen culprit and that culprit was known to him ---No ground existed to believe the
statement of said witness qua his capability to have identified accused ---Other prosecution
witness, who claimed to be eye -witness, had not been cited as eye -witness in the F.I.R. ---
Statement of said witness was recorded with unexplained delay ---Statements of said two
prosecution witnesses, could not be relied upon, on account of contradictions in their
statements ---Prosecution had failed to bring home the charge against accused beyond
reasonable doubt, and defence had succeeded to create dents and reasonable doubt in the
prosecution case ---Accepting appeal, impugned judgment passed by the Trial Court, was
set aside, accused was acquitted of the charge and was released, in circumstances.
(b) Islamic jurisprudence ---
----Crime and punishment ---Error of a Qazi in acquitting an accused was better than his
mistake in recording conviction against an innocent person.
(c) Crimin al trial ---
----Benefit of doubt ---Scope ---Various circumstances were not required to extend benefit
of doubt to an accused ---If a single circumstance was available, which according to a
prudent mind was sufficient to create reasonable doubt in the prose cution case and thereby
the veracity and the chastity of the prosecution case was rendered doubtful; then accused
would be entitled for the benefit of doubt as a matter of right, and not as matter of grace.
Muhammad Akram v. The State 2009 SCMR 230 rel.
Nouroz Khan Mengal for Appellant.
Miss Sarwat Hina, Additional P. -G. for the State.
Date of hearing: 6th December, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Instant appeal is directed against the judgment
dated 8th March, 2012 passed by the learned Sessions Judge, Noshki whereby the appellant was
found guilty and sentenced as under: --
"Under section 302(b), P.P.C. for life imprisonment as Ta'zir with fine of
Rs.300,000. In default of payment of fine to further suffer one year's R.I.
Bene fit of section 382 -B, Cr. P. C. was extended in his favour."
2. The brief facts, relevant for the disposal of the instant appeal are that on 21st May, 2011 F.I.R.
No.43 of 2011 was registered with Police Station, Noshki under section 302, P.P.C . It was
alleged in the F.I.R. that on the fateful night brother -in-law of complainant namely Agha
Muhammad was present in his shop situated at Mengal Road. Noshki along with his nephew Ali
Haider. At about 8 -20 p.m. a person came there and demanded drinki ng water. He was served
with water. After drinking water the said person set in front of the shop and abruptly took out
pistol and started firing upon his brother -in-law. The victim sustained serious injuries and died
instantaneously. After firing, the cul prit fled away. The complainant expressed that as his
brother -in-law hailed from Sindh where he had old enmity. May be he was assassinated on
account of said enmity.
3. After registration of case investigation commenced. During course whereof the appella nt was
arrested on 6th July, 2011 and on completion of investigation challan of the case was submitted
before the Sessions Judge, Noshki. On 14th September, 2011 charge was framed to which the
appellant did not plead guilty and claimed justice through tria l. The prosecution in order
substantiate the charge examined following P.Ws.: --
P.W.1. Dr. Abdul Rehman, Medical Officer, DHQ Hospital, Noshki, who produced
Exh.P/1 -A.
P.W.2 ?Shahnawaz (complainant) who produced report Exh.P/2 -A, and recovery memo.
Exh.P/2-B.
P.W.3 Ali Haider eye -witness, who produced Exh P/3 -A memo regarding identification
parade.
P.W.4 Noor Khan eye -witness, who produced Exh, P/4 -A memo regarding identification
parade.
P.W.5 Muhammad Hussain.
P.W.6 Ahmed Khan, who produced Exh.P/6 -B recovery memo of blood -stained clothes
of deceased. He also produced Exh.P/6 -C, memo regarding inspector or corpse and
Exh.P/6 -D receipt regarding receiving the corpse.
P.W.7 Karim Bakhsh, who produced Exh.P/7 -A recovery memo.
P.W.8 Muhammad Sharif, S.I. who produced Exh.P/8 -A disclosure memo.
P.W.9 Shabbir Ahmed, who produced Exh.P/9 -A recovery of disclosure memo.
P.W.10 Zahir Jan Jamaldini, D.C. Kharan. who issued certificate of identification parade
and
P.W.11 Muhammad Ali, I.O. who p roduced F.I.R. Exh.P/11 -A, map Exh.P/11 -B, marg
report Exh.P/11 -C, FSL, report Exh.P/11 -D and challan Exh.P/11 -E.
4. Thereafter, the appellant was examined under section 342. Cr.P.C. wherein he denied all
incriminating pieces of evidence. The appellant a lso opted to record his statement on Oath as
envisaged under section 340(2), Cr.P.C. The appellant also produced D.W.1 Zahir Shah in his
defence.
5. The learned trial Court alter hearing the parties and evaluating the evidence vide judgment
dated 8th Mar ch, 2012 found the appellant guilty under section 302(b), P.P.C. as such, convicted
and sentenced him as mentioned herein above, hence this appeal.
6. Learned counsel for the appellant argued with vehemence that the prosecution miserably failed
to bring home the charge against appellant but the learned trial Court by misreading the evidence
and mis -appreciating the facts, illegally and without any leg al justification recorded conviction
against the appellant. The learned counsel emphasized that during trial the defence has fully been
able to create serious dents and doubts in the prosecution case but while recording conviction the
learned trial Court f ailed to take into consideration the same. It was next argued that there are
material contradictions in the statements of prosecution witnesses. The learned trial Court ought
to have extended the benefit of doubt in favour of appellant but this was not don e in the case in
hand which has caused serious injustice to the appellant. Learned counsel canvassed that the trial
Court based its judgment solely on identification parade which was inadmissible. Learned
counsel submitted that though the trial Court accep ted the version of P.W.3 and P.W.4 (the
alleged eye -witnesses) but the trial Court failed to take into consideration that P.W.4 has not
been cited as eyewitness in the F.I.R. and there are material contradictions in the statement of
both the P.Ws. which ca nnot be basis for recording conviction.
On the other hand, learned Additional P. -G. strenuously opposed the appeal and argued that the
prosecution has fully been able to prove the charge against appellant to the hilt. Though there are
minor contradiction s and discrepancies in the statements of prosecution witnesses but the same
do not constitute grounds for acquittal of appellant. The prosecution produced P.W.3 and P.W.4
who are the eyewitnesses of the incident and both of them have fully supported the pr osecution
version. F.I.R. was lodged promptly and no illegality or material irregularity, vitiating the trial,
could be pointed out by the defence.
7. We have considered the arguments advanced by learned counsel for the parties and perused
the record of the case minutely. Though sufficient number of witnesses were examined by the
prosecution, but a meaningful analysis of the record reflects that the case of prosecution hinges
upon the statements of P.W.3 and P.W.4. According to prosecution both are eye -witnesses,
whom prosecution claims to be eye -witnesses. The record reveals that F.I.R. was lodged by
P.W.2 Shahnawaz but admittedly he is not an eye -witness. According to P.W.2, P.W.3 Ali
Haider has witnessed the incident. Admittedly the incident took place at 8-20 p.m. The site plan
is not reflective of the fact that any electricity was available at the site. Moreover, as per the
statement of P.W.6 the site was inspected with the help of head light of torch and search light of
vehicle. It means that admitted ly there was no electricity at the site at the time of inspection.
Furthermore, the prosecution case hinges upon the statements of P.W.3 and P.W.4. As far as the
statement l of P.W.3 is concerned, he has been cited as eye -witness in the F.I.R. and he claim s to
be present at the spot when incident took place. Statement of P.W.3 reflects that after
commission of the offence the witness chased the culprit and at some occasion overpowered him
but on his threat, the culprit was let off escort free, by the witnes s. A critical appreciation of
examination -in-chief reveals that P.W.3 except giving an incomplete description of the culprit
has never claimed that he identified the assailant or he can identify the culprit who committed the
offence. It will not be out of place to mention here that during the course of parade identification
the witness has not identified the culprit at the strength of description given in his statement.
P.W.3 has denied the suggestion that he had earlier seen the culprit and the culprit was known to
him. In such state of affairs, the identification of accused by P.W.3 requires due legal attention
and care. The statement reflects that the description of the accused has been stated to the witness
prior to the identification. For the sake of co nvenience relevant portion of the statement is
8. After such clarification by the P.W. there exists hardly any ground to believe the statement of
P.W.3 qua his capability to have identified the appellant at the strength of glimpse of appellant
observed a t the time of incident at darkness. Under such circumstances due to non -availability of
light at the spot to our perception, identification of accused was not possible particularly when
the witness does not claim to have identified the culprit at the time of over powering him.
9. As far as the statement of P.W.4 is concerned, though this witness claims to be an eye -witness,
yet he has not been cited as eye -witness in the F.I.R. Secondly, P.W.3 who, as per the F.I.R. is.
an eye -witness does not mention the presence of this witness at the place of incident at the time
of commission of the offence. According to P.W.3 he chased the accused, caught hold of him,
however, let him free on extension of threat by the culprit. Furthermore; the statement of P.W.4
was recorded with unexplained delay as transpires from the reply to a question, which is
reproduced herein below: --
10. The incident took place on 21st May, 2011 and P.W.4 returned from Sindh in the month of
July, 2011 and the identification parade was condu cted on 6th July, 2011.
11. Statement of P.W.3 and P.W.4 cannot be relied upon on account of contradictions in the
same. For instance P.W.3 says that the accused set in front of shop whereas according to P.W.4
accused laid himself, thereafter got up and demanded water. The deceased served him with water
and subsequently the assailant started firing. After firing the culprit ran away. He and Ali Haider
P.W.3 chased and caught hold of him but the culprit aimed pistol towards them and stated that
they will a lso be killed whereas; according to P.W.3 he caught hold of the accused. The `chadar'
lying on his head fell down and the accused aimed pistol towards him and stated that I have
killed one and you too will be killed but there is no such assertion in the st atement of ,P.W.4.
Besides, above glaring contradictions there are substantial improvements made by P.W.4. The
prosecution has failed to establish the presence of P.W.4 at venue at the time of commission of
offence, therefore, the statement of P.W.4 is lia ble to he rejected outright.
12. As far as identification of accused by P.W.3 is concerned, the same is of no help to
prosecution. The admission of P.W.3 that prior to identification parade the description of the
accused was disclosed to him by a third p erson is un -ignorable which vitiates the entire process
of identification. During course of identification parade, at one occasion the witness did not
identify the accused. Additionally the identification parade does not specifically disclose the role
played by the applicant. After discarding the statements of P.W.3 and P.W.4 rest of the witnesses
cannot improve the case of prosecution with the result that the appellant is entitled for extension
of benefit of doubt. Under Islamic Law, the error of a Qazi in acquitting an accused is better than
his mistake in recording conviction against an innocent person. The law on the subject stands
settled that various circumstances are not required to extend 1 benefit of doubt to an accused, if a
single circumstance is available which according to a prudent mind is sufficient to create a
reasonable doubt in the prosecution case and thereby the veracity and the chastity of the
prosecution case is rendered doubtful, then accused is entitled for the benefit of doubt as a ma tter
of right and not a matter of grace. Reliance placed on the case titled Muhammad Akram v. The
State reported in 2009 SCMR 230 (relevant at page -236), wherein it has been observed as under:
"The nutshell of the whole discussion is that the prosecution case is not free from doubt.
It is an exiomatic principle of law that in case of doubt, the benefit thereof must accrue in
favour of the accused as matter of right and not of grace. It was observed by the Court in
the case of Tariq Pervez v. The State 199 5 SCMR 1345 that for giving the benefit of
doubt. It was not necessary that there should be many circumstances creating doubts. If
there is circumstance which created reasonable doubt in a prudent mind above the guilt of
the accused, then the accused would be entitled to the benefit of doubt not as a matter of
grace and concession but as a matter of right."
In the light of what has been discussed hereinabove, we are of the view that prosecution has
failed to bring home the charge against appellant beyond reasonable doubt and the defence has
succeeded to create dents and reasonable doubt in the prosecution case, as such, the appeal is
accepted, judgment dated 8th March, 2012 passed by the learned Sessions Judge, Noshki is set
aside. The appellant Noor Ahmed son of Mirza Khan involved in case F.I.R. No.43 of 2011 is
acquitted of the charge. He be released forthwith, if not required in any other case or offence.
HBT/41/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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