2013 P Cr. L J 62
[Balochistan]
Before Ghulam Mustafa Mengal and Muhammad Noor Meskanzai, JJ
GHULAM ABBAS alias HUSSAIN and another ---Appellants
Versus
THE STATE and others ---Respondents
Criminal Appeal No.201 and Criminal Revision No.20 of 2009 decided on 3rd September,
2012.
Penal Code (XLV of 1860) ---
----S. 302/34 ---Qatl-e-amd, common intention ---Appreciation of evidence ---Benefit of doubt -
--F.I.R. was lodged on the basis of statement of father of the deceased, who was not p resent
on the spot and prosecution witness informed father of the deceased about the occurrence ---
Conviction could be based on circumstantial and last seen evidence, but same must satisfy the
standard of quality of evidence that should satisfy the conscien ce of the court ---Statements of
both the prosecution witnesses were irreconcilable because the main fact i.e. the boarding or
making to sit the victim in the vehicle, was missing ---Evidence of last seen evidence
furnished by prosecution witnesses, was foun d having major flaws, which could not be
termed as of unimpeachable character ---Both the witnesses appeared to have not seen the
occurrence ---Prosecution witnesses had failed to prove that they were quite natural,
independent and truthful witnesses; and th at their presence at the place of occurrence at the
relevant time was justified ---Both the witnesses made improvements to bring their ocular
account in line with the prosecution story and made contradictory statement ---Both said
witnesses being interested their testimony was neither believable nor confidence -inspiring ---
Independent witnesses, who possibly had seen the occurrence, were not produced by the
prosecution, but were withheld ---Nothing incriminating was recovered from the possession or
on pointatio n of accused ---Medical evidence also did not corroborate the statements of the
witnesses ---After disbelieving the ocular testimony of the prosecution witness, conviction of
accused could not be maintained only on the basis of medical evidence, report of Fo rensic
Science Laboratory regarding blood -stained clothes of the deceased ---Benefit of doubt arisen
in the case would go to accused ---Prosecution having failed to prove its case beyond any
shadow of doubt, conviction and sentence of accused were set aside and he was acquitted of
the charge and was released from the jail, in circumstances.
Muhammad Amjad v. State PLD 2003 SC 704; Rab Nawaz v. Sikandar Zulqarnain
1998 SCMR 25; Muhammad Mushtaq v. State 2001 YLR 1164; State v. Muhammad Tausef
2000 PCr.LJ 1 729; Muhammad Amjad v. State PLD 2003 SC 704 and Khurshid v.
State PLD 1996 SC 305 ref.
Muhammad Aslam Chishti for Appellant (in Criminal Appeal No.201 of 2009).
Ali Ahmed Kurd for the Complainant (in Criminal Appeal No.201 of 2009).
Abdul Sattar Durrani Additional Prosecutor -General for the State (in Criminal Appeal
No.201 of 2009).
Ali Ahmed Kurd for Petitioner (in Criminal Revision No.20 of 2009).
Muhammad Aslam Chishti for Respondent No.1 (in Criminal Revision No.20 of
2009).
Abdul Sattar Durrani, Additional Prosecutor -General for the State (in Criminal
Revision No.20 of 2009).
Date of hearing: 1st August, 2012.
JUDGMENT
GHULAM MUSTAFA MENGAL, J. ---This appeal is directed against the judgment
dated 18th June, 2 009, passed by learned Sessions Judge (Ad hoc), Quetta whereby appellant
Ghulam Abbas alias Hussain was convicted under section 302/34, P.P.C. and sentenced to
imprisonment for life with a direction to pay Rs.2,00,000 as fine and in default whereof to
further undergo two years' S.I. The appellant was also directed to pay Diyat amount of
Rs.5,00,000 to the legal heirs of the deceased Hussain Dad. The complainant Ghulam Sakhi
is also aggrieved from the judgment of the learned trial Court and has filed Crimina l Revision
No.20 of 2009 for enhancement of sentence. Since both the appeal and Revision are the
outcome of one and the same occurrence and common judgment, therefore, the same are
being disposed of by this single judgment.
2. The prosecution story as na rrated by the complainant Ghulam Sakhi (P.W.1) in the
F.I.R. is to the effect that he is a resident of Block No.1, Hazara Town, Quetta and runs a
Hotel at Alamdar Road, Quetta. On 11th March, 2008 he was present in his house
when at about 10 -30 p.m. Zahir Hussain (P.W.2) informed him that his son Hussain Dad
was done to death by accused Ghulam Raza alias Bachay(sic.) and his brother Ghulam Abbas
with fire arm near Safaid Pull. On this information, the complainant reached Bolan Medical
Complex H ospital, Quetta, where he found the dead body of his son Hussain Dad lying at
casualty department, who sustained head injuries. The complainant further stated that in the
Hospital, he came to know that his son was going towards the house of his brother -in-law
near Safaid Pull, accused Raza and his brother Ghulam Abbas came there in their vehicle and
scuffled with deceased Hussain Dad and forcibly got sat Hussain Dad in their vehicle and at a
some distance near Dairy, inside the vehicle made firing at Hussai n Dad and thereafter
thrown his dead body and made their escape good from the scene of occurrence.
3. After receiving information regarding the incident P.W.6 Muhammad Anwar, S.I
along with IP/S.H.O. Fayyaz reached the casualty department, Bolan Medical Complex
Hospital, Quetta, where he saw the father of the deceased namely Ghulam Sakhi and others
and got recorded his statement as Exh.P/1 and registered F.I.R. No.30 of 2008. Investigation
of the case was entrusted to him. He prepared the inquest report E xh.P/6 -A. The Doctor
present in the casualty department handed over him the last worn clothes of the deceased. A
T.T. Pistol loaded with five cartridges were recovered from the pocket of waist -coat of the
deceased, which was taken into possession vide memo ; Exh.P/5. in presence of the witnesses
Muhammad Shah , ASI and Muhammad Hussain, Constable and sealed the same in Parcel
Nos.1 and 2. He handed over the dead body to the legal heirs vide Exh.P/b -B for burial
without conducting Postmortem. Thereafter he re ached the scene of occurrence and prepared
the rough site plan as Exh.P/6 -C. He collected blood -stained earth from the spot vide memo;
Exh.P/5 -A. Meanwhile he received information that a 2 -D Car is lying in water drain situated
at Spiny Road. He along with Police officials reached at Spiny Road, Quetta, where he found
a 2-D Car white colour, bearing Registration No.AEG -558 lying in water drain. He took over
an empty magazine, two loaded magazines, bandolier and four empties and one led of
Megarof lying on t he front seat of the vehicle. On checking the dash board of the vehicle
driving license, waist -coat, two copies of interim bail and three photographs were found. He
also collected blood -stained mat and blood -stained broken pieces of glasses from front seat of
the vehicle vide memo; Exh.P/5 -B, attested by Muhammad Shah, ASI and Muhammad
Saeed, Head Constable. He recorded the statement of witnesses under section 161, Cr.P.C.
He prepared site plan Exh.P/6 -D. The vehicle was brought to the Police Station. He ar rested
the convict/appellant and recorded the statements of eye -witnesses namely, Munawar Ali,
Zahid Hussain, Raza Muhammad and Jumma under section 161, Cr.P.C. He sent Murasla to
F.I.A. for blocking the Passport of absconding accused. He obtained warrant of arrest of the
absconding accused. He sent the blood -stained cloths of the deceased to the F.S.L. for
chemical and serological examination and obtained death certificate of the deceased Hussain
Dad. After completion of formal investigation he shifted the convict/appellant to the judicial
lock-up and handed over the case file to IP/SHO, who after obtaining F.S.L report submitted
the incomplete challan in the trial Court, where formal charge was framed against the
convict/appellant, who denied the charge, pleaded not guilty and claimed trial.
4. During trial the prosecution in support of its case produced as many as six witnesses:
(i) P.W.1 Ghulam Sakhi, is the complainant of the case and father of the
deceased Hussain Dad. He deposed to prove the contents of his Fard -e-Bayan
Exh.P/1 -A and identified his signatures on it.
(ii) P.W.2, Zahir Hussain and P.W.3 Munawar Ali are the witnesses of last seen.
(iii) P.W.4 Dr. Shabir Ahmed Magsi, Medical Officer, Bolan Medical Complex
and Hosp ital, Quetta. On 11th March, 2008 at 10 -15 p.m. the dead body of Hussain
Dad was brought by Muhammad Shah, ASI of Police Station, Brewery, Quetta and he
examined the dead body of deceased and found the following injuries: -
"(1) Bullet entrance right occi pital mid 0.4 c.m.
(2) Bullet entrance right neck upper margin just below the occipital region 0.4
c.m.
(3) Bullet entrance right occipital lateral margin 0.4 c.m.
(4) Bullet exit left parietal region 2. c.m.
(5) Bullet exit wound left parietal reg ion 2 c.m.
(6) Bullet exit frontal area upper margin 2 c.m. left.
(7) Exit wound left parietal region 3 c.m.
(8) Bullet entrance left supra clavicular.
(9) Bullet entrance supra clavicular mid left.
No pulse, no respiration, no heart beat, pupil s were full dilated."
He opined that the probable cause of death injury due to the gun shot damaged the
brain matter, excessive hemorrhage shock and death caused by fire -arm, shock and death. In
cross -examination he deposed that there was no Tattoo mark s on the entrance wound.
(iv) P.W.5 Muhammad Shah. ASI, is marginal witness of recovery memos;
Exh.P/5, Exh.P/5 -A and Exh.P/5 -B through which last worn clothes of the deceased
and a T.T. Pistal .30 Bore along with 5 live cartridges were recovered during search of
jacket of deceased and various articles lying at the spot were taken into possession by
the Investigating Officer.
(v) P.W.6 Muhammad Anwar, ASI, is the Investigating Officer of this case. He
deposed to prove the details of investigation, condu cted by him.
5. After recording the statement of prosecution witnesses, appellant was examined under
section 342, Cr.P.C., wherein he denied the prosecution allegations and in answer to question
what else do you want to say in your defence, the appellant replied as under; --
"I am law -abiding citizen and holding public office as a General Councillor U.C.
No.60, Director of Kinder Model School and also serving as President of Anjuman Fatimia
Zahra. I am innocent and have been falsely implicated in case i n hand due to brother of
absconder accused Ghulam Raza."
6. The appellant neither opted to appear as his own witness in disproof of the
allegation levelled against him as required under section 340(2), Cr.P.C. nor produced
any witness in his def ence.
7. The learned trial Court after evaluating the material brought on record and hearing the
parties found the appellant guilty of the offence charged with and passed the above said
conviction and sentence through the impugned judgment, which has bee n assailed by the
appellant. While the complainant Ghulam Shaki, has filed Criminal Revision No.20 of 2009
for enhancement of sentence of Ghulam Abbas.
8. Mr. Muhammad Aslam Chishti, learned counsel for the appellant vehemently
contended that admittedly there is no eye -witness of the actual incident of firing and the case
of prosecution based on circumstantial evidence. He further contended that according to
P.W.5 and P.W.6 there was no back seat in the vehicle and main accused is absconding. He
further c ontended that no recovery whatsoever has been effected from the possession of
appellant. Reliance in this respect was placed on the following reported case -laws: --
(i) Muhammad Amjad v. State (PLD 2003 SC 704).
(ii) Rab Nawaz v. Sikandar Zulqarnain (19 98 SCMR 25).
(iii) Muhammad Mushtaq v. State (2001 YLR 1164) and
(iv) State v. Muhammad Tausef (2000 PCr.LJ 1729).
9. On the other hand Mr. Ali Ahmad Kurd, learned counsel for the complainant and Mr.
Abdul Sattar Khan Durrani, learned Additional Pros ecutor -General contended that although
the prosecution case hinges upon the circumstantial and evidence of last seen, yet the same
cannot be disbelieved when there is a strong piece of corroboration in the form of recovery of
empties, blood -stained clothes and medical evidence. They added that both the witnesses are
independent and truthful and their evidence cannot be discarded. Learned counsel for the
complainant lastly contended that the appellant deserve normal penalty of death. In support of
his argume nts he relied upon the cases of Muhammad Amjad v. State (PLD 2003 SC 704)
and Khurshid v. State (PLD 1996 SC 305), while learned Additional Prosecutor -General has
not supported the petition for enhancement of sentence and prayed for dismissal of the appeal
as well as criminal revision.
10. We have considered the arguments advanced by both the parties minutely and
examined the material available on record and also gone through the impugned judgment.
11. Perusal of the record reveals that the occurrence i n this case as per F.I.R. (Exh.P/6 -A)
occurred at 10 -30 p.m. and the report was lodged at 11 -15 p.m. on the same night of 11th
March, 2008. The F.I.R. was lodged on the basis of Fard -e-Bayan of Ghulam Sahki, father of
the deceased Hussain Dad, who was not present on the spot but P.W.2 Zahir Hussain
informed him about the occurrence. On this information the complainant went to B.M.C.
Hospital, Quetta, where the dead body was shifted from the place of occurrence, which must
have consumed sufficient time. The distance between the place of occurrence and the Police
Station is shown to be one and half kilometers and in such like situation the delay is a natural.
A perusal of the record further reveals that in order to prove its case the prosecution relied
upon t he ocular testimony comprising statements of Zahir Hussain (P.W.2) and Munawar Ali
(P.W.3), medical evidence, and the recoveries of crime empties coupled with the positive
report of F.S.L regarding blood -stained clothes of the deceased.
12. No doubt conv iction can be based on circumstantial and last seen evidence but the
same must satisfy the standard of quality of evidence that should satisfy the conscience of
Court that accept the guilt of the accused there is no way out. According to P.W.2 there was
scuffle between deceased and the persons present in the vehicle and then the vehicle left. For
the sake of convenience relevant portion is reproduced as under: --
Whereas, P.W.3 states:
The statements of both P.Ws. are irreconcilable because the main fact i.e., the
boarding or making to sit the victim in vehicle is missing, hence if P.W.2 is believed that
belies the P.W.3 and vice versa, therefore, the principle of safe administration of justice
demands that this benefit of doubt must he extended to accused. Moreover, when any link in
the chain is missing in a case of circumstantial evidence it would not be safe to record
conviction. The burden to prove the case will always lie upon the prosecution and while
keeping this criterion in mind we scrutinized the statements of both th e witnesses of last seen
and found the same having major flaws and cannot be termed as of unimpeachable character.
It appears that both the witnesses had not seen the occurrence. According to P.W.2 Zahir
Hussain, watchmen coming under the Pull informed the m that a dead body is lying. On the
information he along with Munawar proceeded towards the dead body, meanwhile other
people and police reached there and he informed the father of deceased. During cross -
examination he admitted that his statement under section 161, Cr.P.C. was not recorded on
the spot but recorded on 12th March, 2008 in the police station.
13. Similarly, P.W.3, Munawar Ali deposed that a watchman running came to them and
told that a dead body is lying on the road. He along with Zahir Hussain went towards dairy
farm and saw that dead body of Hussain Dad was lying on the road. This witness is resident
of Mariabad, which is far away from the place at occurrence. During his cross -examination,
he deposed that his statement under secti on 161, Cr.P.C. was recorded on 12th March, 2008.
He further deposed that on 12th March, 2008 after taking lunch he along with Zahir Hussain
and father of deceased went to Police Station, where Police first recorded the statement
of Zahir Hussain and thereafter his statement under section 161, Cr.P.C. was recorded. The
scrutiny of the ocular evidence makes us to believe that both the witnesses failed to prove that
they are quite natural, independent and truthful witnesses, and that their presence a t the place
of occurrence at the relevant day and time was justified. Both the witnesses made
improvements to bring their ocular account in line with the prosecution story and made
contradictory statements. Both the witnesses are interested witnesses there fore, their
testimony is neither believable nor confidence -inspiring. The independent witnesses, who
possibly had seen the occurrence, were not produced by the prosecution, but they were
withheld by the prosecution. Nothing incriminating was recovered from the possession or
pointation of appellant. The medical evidence also does not corroborate the statements of the
witnesses i.e. P.W.2 and P.W.3, because according to their statements the deceased was shot
dead in the vehicle but the medical evidence reveal s that there was no tattoo marks on the
entrance wounds. After disbelieving the ocular testimony of the P.W.2 and P.W.3, we cannot
maintain the conviction only on the basis of medical evidence, report of F.S.L. regarding
blood -stained clothes of deceased. In this background doubt arises and benefit of doubt shall
go to the accused. For all the above mentioned reasons, we have found that the prosecution
has miserably failed to prove its case beyond any shadow of doubt.
14. For what has been discussed above , we, therefore, accept Criminal Appeal No.201 of
2009, the conviction and sentence of convict/appellant; Ghulam Abbas alias Hussain are set
aside and he is acquitted of the charge. He shall be released from jail forthwith, if not
required in any other cas e. The connected Criminal Revision No.20 of 2009 for enhancement
of appellant's sentence is hereby dismissed.
HBT/96/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,
let us know.