2014 P Cr. L J 744
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
MANZOOR HUSSAIN a lias MAMA---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.31 of 2013, decided on 7th March, 2014.
(a) Penal Code (XLV of 1860)---
----S. 324---Attempt to commit qa tl-e-amd---Appreciation of evidence---Sentence---Scheme of
S.324, P.P.C.---Eye-witnesses had fully implicated accused in the case---Injuries caused to the
complainant by accused, having been proved by means of ocular evidence, and corroborated by medical testimony, requirement of motive and its di scovery, was totally irre levant---Plea of false
implication as well as alibi taken by defen ce, were left unattended by the defence---No
explanation was brought on record for not leadi ng the evidence on such crucial points, which
could have adversely affected the prosecuti on case, but same was not done---Case being of
attempt to commit "qatl-e-amd", S.324, P.P.C. ha d its own scheme of sentence, which had two
parts: By virtue of first part, the perpetrato r of crime would be punished with imprisonment,
which could extend to 10 years, if he did any act with such intention or knowledge, and under
such circumstances, that he by that act caused "q atl", he would be guilty of "qatl-e-amd"; there
was no punishment of "Arsh" or "Daman", provided for the offence falling within the ambit of first part of S.324, P.P.C., while in the second part , if any hurt was caused in the process of such
act, the offender would be liable to punishment provided for the hurt caused, in addition to the
imprisonment and fine, mentioned in the first pa rt of S.324, P.P.C.---Act of the attempt should be
with such intention or knowledge and the circ umstances under which the attempt had been made-
--Accused while carrying the intention of murder of the complainant, initially took a lethal
weapon with him, and slipped from his official duty and came to the place of occurrence, where
soon after his arrival, and without uttering a single word, he fired repeated gunshots upon the
complainant---Complainant survived, though he was seriously injured---Accused though could
not succeed in achieving the object of death of complainant, but by doing so, his intention was
not only shown, but was also completed---First part of S.324, P.P.C. would come into play, and
accused was liable to death within the purview of scheme of law---Accused, was rightly
convicted, which did not warrant any interfer ence by High Court---Impugned judgment of the
Trial Court was upheld, in circumstances.
Sarfraz alias Sappi v. The State 2000 SC MR 1758; Muhammad Hayat v. Abdus Salam
2001 PCr.LJ 557 and Haji Maa Din v. The State 1998 SCMR 1528 ref.
(b) Criminal trial---
----Motive---Scope---Absence of mo tive, was not helpful in presence of unimpeachable ocular
evidence, while the substitution of perpetrator of crime was very rare phenomenon---Motive was
not always necessary, but once it was alleged by the prosecuti on, then it was to be proved
beyond any doubt.
Wali Muhammad v. The State 1984 SCMR 540 ref.
(c) Criminal trial---
----Benefit of doubt---Sc ope---Extending benefit of doubt to accused, was his right and
withholding same was non-exerci se of jurisdiction for which the court would owe a duty to
explain as to why accused was not being given the benefit of doubt---Prosecution case could not
be strengthened on the basis of weaknesses of the defence; and the benefit of a minor doubt
would necessarily be extended in favour of accused.
(d) Qanun-e-Shahadat (10 of 1984)---
----Art. 129(g)---Criminal Procedure Code (V of 1898), S.265-F(7)---Giving up material
witnesses---Where material witnesses would be given up by the prosecuti on, inference could be
drawn that if they would have appe ared in the court, they might ha ve disclosed true picture of the
incident with reference to the absence of accu sed from the place of occurrence---Prosecution was
not legally bound to produce all th e witnesses because it was the qua lity of the evidence, but not
quantity which would matter---Defence was always at liberty to summon a prosecution witness,
who had been given up with an object to unearth true fact s before the court---Adverse
presumption as covered under Art.129(g) of Qanun-e-Shahadat, 1984, could be drawn against
accused that the given up witnesses were not ready to authenticate his plea of alibi.
Allah Bakhsh v. Shammi and others PLD 1980 SC 225 ref.
(e) Criminal trial---
----Evidence---Case was not to be adjudicated on the basis of surmises and conjectures, or
speculations drawn on basis of arti culate defence, but should stric tly be decided on the basis of
evidence available on record.
(f) Criminal trial---
----Plea of alibi---Scope---Plea of alibi being spec ial plea, was required to be introduced as soon
as possible, when there was sufficient evidence av ailable with the defence to prove its plea---
Such evidence was to be produced during course of investigation; in case of failure of
Investigating Officer to do the needful, same wa s to be brought on record with interference of
remanding court or thereaft er by the Trial Court.
Allah Wadhoyo v. The State 2001 SCMR 25 ref.
(g) Criminal trial---
----Evidence--- Contradictions in the testimonies of prosecution witnesses---Scope and effect---
Contradictions in the statements of prosecution witnesses were always fatal to the prosecution
case---Irrespective of veracity of the defence version, a distinction was always to be made
between minor inconsistencies or variance in the tes timony of witness from th e contradiction in
the evidence---Only such statements would be termed as contradictory, which were, either destructive of each other, or those were totally di fferent to the extent that two versions could not
be reconciled---Such contradictions would always l ead to the benefit of de fence, but the variance
of testimony of witnesses or inconsistencies on the point would not lead to such conclusion,
which were not material in natu re and did not introduce or suggest a totally differe nt version to
the prosecution case.
Sarfraz alias Sappi v. The State 2000 SCMR 1758 ref.
Adnan Ejaz for Appellant.
Dawood Khan Kasi for the Complainant.
Abdul Karim Malghani for the State.
Date of hearing: 29th November, 2013.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- The appellant in this appeal
has assailed the judgment dated 25th June, 2013 pa ssed by the learned Sessi ons Judge, (Ad hoc),
Quetta, whereby, he was convicted and sentenced under section 324 of the Pakistan Penal Code,
1860 (P.P.C.) for five years' rigorous imprison ment (R.I) with fine of Rs.5,000 in default
whereof to suffer simple imprisonment (S.I.) fo r two months', the benefit under section 382-B,
Cr.P.C. was extended in favour of the appellant/convict.
2. The stated facts, precisely are that the appellant was booked in a case registered vide
F.I.R. No.72 of 2011, under sect ion 324, P.P.C. with Quaid-e-Ab ad Police Station, Quetta on 12-
11-2011, on Fard-e-Bayan of complainant Syed Muhammad Hashim, wherein, it was alleged
that the appellant Manzoor Hussain was already extending threats to hi m on telephone and on
fateful day at about 10-20 p.m. he was sitting in front of his home with his friend Shoukat Ali,
when accused made firing upon him, resultantly he received three bullet injuries. The appellant
was arrested on next day and on completion of usual investigation, the challan was submitted
against him before the trial Court. The prosecution to substantiate the charge and to bring guilt at
home against him, produced as many as eleven (11) witnesses. On c onclusion of trial, the
accused was examined under section 342, Cr.P.C. wh erein once again he professed his innocence
and recorded his statement on oath under sectio n 340(2), Cr.P.C. Initially he intended to produce
defence witnesses but subsequently only one defence witness namely Zakir Hussain was
produced and examined. On conclusion of tr ial the appellant/accused was convicted and
sentenced for above stated term.
3. Mr. Adnan Ejaz, learned counsel for the appellant, at the ve ry outset contended that the
appellant was serving in the police department as constable and he wa s on duty at the time of
alleged occurrence, though, he did not dispute the injuries caused to the complainant and stated
that due to target killing of Hazara community in the city, the complainant was injured by some
unknown persons but just to settle the personal account the complainant nominated him in the
instant case. The learned counsel referred to the depositions of prosecuti on witnesses and certain
discrepancies in their court statements. He mainly relied upon deposition of prosecution
witnesses, who are police personnel. He finally referred the statement of Investigating Officer
and stated that the prosecution has given up the material witnesses whose names were initially
included in a calendar of witnesse s and Investigating Officer viz Abdul Ghaffar SI appeared as
P.W.11, admitted in cross-examination that gi ven up prosecution witnesses were favouring the
appellant/convict, thus, an a dverse presumption as provided under Article 129(g) of Qanun-e-
Shahadat Order, 1984 ("the Order, 1984") will be drawn against the prosecution, as such,
withholding the material evidence leads to the conclusi on that the given up evidence was not in
line with the allegation levelled by the pros ecution. He added that in view of glaring
contradictions and discrepancie s in the testimonies of witnesses, it can be concluded that
appellant was falsely roped towards commission of the offence that too, when no motive was
alleged by the prosecution/complainant, therefore, the trial Court instead of extending the benefit
of doubt to the appellant, convicted him agains t the norms of justice. He finally urged for
acquittal of the appellant/convict.
4. Mr. Dawood Kasi, Advocate appearing on behalf of the complainant opposed the
contentions and stated that sinc e the plea of alibi was introduced by the appellant/accused during
the trial, therefore, he coul d not take the benefit of minor discrepancies and instead of
questioning the veracity of pros ecution witnesses, he had to pr ove his plea of alibi i.e. his
absence from the place of occurrence. In suppor t of his contentions he referred the reported
judgments of Sarfaraz alias Sappi v. The State 2000 SCMR 1758 and Muhammad Hayat v.
Abdus Salam 2001 PCr.LJ 557.
5. Mr. Abdul Karim Malghani, l earned counsel for the State, while, adopting the arguments
advanced by the learned counsel for the complainan t and in addition stated that the appellant has
failed to point out any misreading and non-reading of evidence by the trial Court to warrant any interference by this court, therefore, the appeal is liable to be dismissed.
6. I have heard the learned counsel for the pa rties and have gone thr ough the record, result
whereof reveals that the accused/appellant was serv ing as a police constable at the relevant time
and during the course of trial he introduced a special plea of alibi. The cross-examination
manifests that injuries by means of fire-arm su stained by the complainant are not disputed by the
defence. The plea of alibi was taken with the suggestion that the complainant might have got
injured by some unknown persons due to deteriorat ed law and order situa tion in the city, in
which the Hazara community is ma inly targeted. The appellant wa s on duty in special mobile
No.2 of Police Line, Quetta and they were on patr olling at the relevant time. However, the mala
fide of false implication was further suggest ed to the prosecution witnesses that the
complainant's brother viz Syed Muhammad was involved in human trafficking, whereas, he
received an amount of Rs.600,000 from two persons namely, Aziz and Ramzan and the appellant
once met the father of the complainant for negotia tion with demand to return the amount paid to
his said son Syed Muhammad, who had already gone abroad, when during the negotiation, some
altercation took place and hot words were exchanged, thus, due to anger of previous dispute he
was nominated in the case. Since, the injuries of complainant/P.W.1 are not disputed by the
defence, in addition the statemen t of Dr. Abdul Rasheed Jamali a ppeared as P.W.10 corroborated
the fire-arm injuries sustained by the complainan t. There are three other eye-witnesses namely
Shaukat, Mukhtar Hussain and Hussain Ali, who fully implicated the appellant/convict. The
perusal of record further reveal s that the learned trial Court vi de order dated 5th March, 2013 had
allowed the prosecution to give up certain prosecution witnesses as they were won over by the
defence. The application was strongly contested by the defence and the learned trial Court finally
allowed the prosecution to give up the said wi tnesses, however, with the observation that the
accused can produce them in his defence. When the appellant/convict was examined under section 342, Cr.P.C, in reply to question No.13 he answered that he wants to produce defence
witnesses but later, only one witness name ly Zakir Hussain was produced as D.W.1, who
deposed in favour of defence only to the extent that a brother of the complainant namely Syed
Muhammad was involved in human trafficking, as he too had paid an amount of Rs.300,000 to
him, but in respect of injuries of the complain ant the D.W. stated that he was informed by the
people that complainant was injured being an object of ta rget killing. Thus, th e statement of said
D.W. is of no avail to the appellant/convict be ing hearsay, which is not admissible in evidence.
7. The objection of the learned counsel for the appellant/convict in re spect of absence of
motive is to be dealt in view of dictum laid do wn by the Hon'ble Apex C ourt. It is established
principle of criminal administration of justice that the absence of motive is not helpful in presence of unimpeachable ocular evidence, while , the substitution of perpetrator of crime is
very rare phenomenon. Reference is made to th e reported judgment rendered by the Hon'ble apex
Court in Wali Muhammad v. The State 1984 SCMR 540.
No cavil is left in view of the obiter dicta of the Hon'ble apex Cour t that the motive is not
always necessary but once it is alleged by the prosecuti on, then it is to be proved beyond any
doubt. In the instant case, when injuries caused to the complainant by th e appellant are proved by
means of ocular evidence and corroborated by medical testimony, the requi rement of motive and
its discovery is totally irrelevant. I would like to observe at this very juncture that extending
benefit of doubt to acc used is his right and withholding it is non-exercise of jurisdiction for
which the court owes a duty to explain as to why accused is not being given the benefit of doubt
if it is oozing from the case in which the accused is involved. The prosecution case cannot be strengthened on basis of wea knesses of the defence and the benefit of a minor doubt shall
necessarily be extended in favour of the accused.
8. The learned counsel mainly contended that material witnesses were given up by the
prosecution, therefore, subject to the provision of Article 129(g) of the Order, 1984, inference
may be drawn that if they would have appeared in the court they might have disclosed true
picture of the incident with reference to the ab sence of the appellant/co nvict from the place of
occurrence. The arguments so advanced by the l earned counsel carry no weight, firstly for the
reason that the law governing the administration of criminal jus tice does not cast a duty upon the
prosecution to produce all th e witnesses because it is the quality of the evidence but not quantity,
which matters. Reference in this behalf is ma de to the case of Alla h Bakhsh v. Shammi and
others PLD 1980 SC 225. Thus, the defence is al ways at liberty to summon a prosecution
witness, who has been given up with an object to unearth true facts before the court. The relevant
provision of section 265-F(7) of Criminal Proce dure Code (Cr.P.C.) becomes applicable and it
would be helpful to reproduce the same to better understand the controversy:--
"265-F. Evidence for prosecution.
(7) if the accused or any one or several accu sed, after entering on his defence, applied to
the Court to issue any process for compelling th e attendance of any witn ess for examination of
the production of any document or other thing, the C ourt shall issue such process unless it
considers that the application is made for the pu rpose of vexation or delay or defeating the ends
of justice such ground shall be r ecorded by the Court in writing".
The provision of Article 129(g) of Qanun-e-Sh ahadat Order, 1984 is applicable in the
instant case, and it would be advantageous to reproduce the same it reads as follow:--
129. Court may presume existen ce of certain facts. Court ma y presume the existence of
any fact, which it thinks likely to have happene d, regard being had to the common course of
natural events, human conduct and p ublic and private business, in th eir relation to the facts of the
particular case.
Illustrations: (g) that evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it;
The Investigating Officer was subjected to cross-examination an d confronted with
statements recorded under sect ion 161, Cr.P.C. of given up witne ss resultantly, so me explanation
came on record in voluntary stated narra tions which are reproduced hereunder:--
The reasonable explanation offered by the Investig ating Officer for removing any confusion is to
be considered and resolved in accordance with the balance of circumstances, the voluntarily
stated narration (supra) are pr oviding a reasonable explanation for not producing the given up
witnesses, thus, it is not a st atement under section 161, Cr.P.C. but the statement on oath before
the Court subject to cross-examination from th e other side, which is to be considered for
recording the conviction or acquittal of the accu sed. Thus the adverse presumption as covered
under Article 129(g) of the Order, 1984 can be draw n against the appellant/convict that the given
up witnesses were not ready to authenticate his plea of alibi. Therefore, th e appellant/convict did
not produce the said witnesses nor requested the court as envisaged under section 265-F(7) of
Cr.P.C. for summoning said witnesses, even he di d not feel necessary to produce or to request
the court to summon any documentary evidence like Roznamcha or Koth register (Arm register)
of Police Line, Quetta to authenticate his special plea of alibi. The plea of false implication as
well as alibi were left unattended by the defen ce, even no reasonable explanation was brought on
record for not leading the evidence on such cruc ial points, which could ha ve adversely affected
the prosecution case, but the same was not done, ther efore, a lis is not to be adjudicated on basis
of surmises and conjectures or speculations draw n on basis of articulate defence but shall strictly
be decided on basis of evidence av ailable on record, thus, statemen t of Investigating Officer or
any other document when read in evidence sha ll be read in toto, hence, the statement of
Investigating Officer, which provided sufficient explanation is of no av ail to the defence.
The plea of alibi being special plea is require d to be introduced as soon as possible, when
there is sufficient evidence availa ble with the defence to prove it s plea. It is to be produced
during course of investigation, in case of failure of Investigating Officer to do the needful, same
is to be brought on record with interference of remanding court or thereaf ter by the trial Court.
Reference is made to the case of Allah Wadhoyo v. The State 2001 SCMR 25.
9. The learned counsel for the appellant has also contended that the co ntradictions in the
testimonies of prosecution witnesses shall necessarily be resolved in favour of the defence. I am
in agreement with the learned c ounsel for the appellan t/convict to the extent of the proposition
that contradictions in the statements of prosecu tion witnesses are always fatal to the prosecution
case. But irrespective of veracity of the defenc e version, a distinction is always to be made
between minor inconsistencies or variance in the tes timony of witness from th e contradiction in
the evidence. Only such statemen t shall be termed as contradictory, which are either destructive
of each other or they are totally different to th e extent that two versions cannot be reconciled.
Such contradiction shall always lead to the benefit of defence, how ever, the variance of
testimony of witnesses or inconsistencies on the point shall not lead to such conclusion, which
are not material in nature and do not introduce or suggest a totally different version to the
prosecution case. The minor discrepancies in the instant case ar e not of such nature which could
bring the case within th e exception supra. In rendering this view I am supported by the reported
judgment of Hon'ble apex Court Sarfaraz alia s Sappi v. The State 200 0 SCMR 1758. Relevant
passage whereof is reproduced hereunder:--
"In the cross-examination of both the P.Ws. i.e. Ahmed Khan and Sakhawat Hussain their
above version was not shaken at all inasmuch as concerning the incriminating portion of their
testimonies there was no sufficient impeachment . Resultantly, we have to form a positive
opinion that incriminating portion of the evidence is consistent, coherent, trust worthy as well as
natural i.e. free from any exaggeration. Howeve r, we may mention here that if in cross-
examination intrinsic value of incriminating ev idence of a witness has not been shaken his
statement cannot be discarded for minor contradi ctions reference may be made to the case of
Mushtaq alias Shaman v. The State PLD 1995 SC 46".
10. This is the case of attempt to commit "Qatl-e-amd" wherea s, section 324, P.P.C. has its
own scheme of sentence which has two parts. By virt ue of first part the perpetrator of crime shall
be punished with imprisonment which may extend to 10 years, if he doe s any act with such
intention or knowledge and under such circumstances that he by that act ca used "Qatl", he would
be guilty of "Qatl-e-amd". Ther e is no punishment of Arsh or Daman, provided for the offence
falling within the ambit of first part of section 3 24, P P.C. While in the second part, if any hurt is
caused in the process of such act, the offender sh all be liable to punishment provided for the hurt
caused, in addition to the imprisonment and fine, me ntioned in part first. The bare reading of
section 324, P.P.C. would confirm that the act of the attempt should be with such intention or
knowledge and under the circumstances in which th e attempt has been made. Thus, for awarding
Ta'zir in cases of hurt reference is made to the verdict of the Hon'ble Supreme Court in the case of Haji Maa Din v. The State 1998 SCMR 1528, relevant portion whereof is reproduced as
under:--
"8. .......... It is sufficient to refer to secti on 337-N(2) of P.P.C. which provides, amongst
other, the cases/circumstances in which punishment of imprisonment is to be awarded as Ta'zir.
The factor to be seen for awar ding Ta'zir punishment or the facts and circum stances of the case,
the nature of the injury /hurt caused, the weapon used and the brutal or sh ocking manner in which
the offence has been committed which is outrageous to the public conscience, or adversely
affecting harmony amongst differe nt sections of the people".
Thus, in view of dictum la id down by the Hon'ble apex Cour t in the case of Haji Maa Din
supra, the facts and circumstances in the instan t case coupled with the intention of the accused
are to be scrutinized wi th care and caution like sifting grai n from chaff, while doing so, then
again it is concluded th at the accused while carr ying the intention of murder of the complainant,
initially took a lethal weapon with him and then furtively slipped from his official duty and came
to the place of occurrence, where soon after his arrival and without uttering a single word, he
fired repeated gunshots upon the complainant. It was the sheer luck of the complainant that by the grace of Almighty Allah he survived, although he was seriously injured by sustaining injuries
on the left side of his chest and on his left arm and leg. Though the perpetrator could not succeed
in achieving the object of death of complainant, but by do ing so, his intention was not only
shown but was also completed. The first part of section 324, P.P.C. will come into play and the accused is liable to be dealt within the purview of scheme of law. This exercise was already
undertaken as according to the rule of prudence and scheme of law by the trial Court and the
appellant/convict was rightly c onvicted which does not warrant any interference by this Court.
Therefore, the judgment dated 25th June , 2013 passed by the learned Additional Sessions
Judge Ad hoc Quetta is upheld and appeal is dismissed accordingly.
HBT/22/Bal. Appeal dismissed.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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