2017 P Cr. L J 1113
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
Haji MUHAMMAD NAEEM ---Appellant
Versus
MUHAMMAD YOUNAS and others ---Respondents
Criminal Acquittal Appeal No. 381 of 2013, decided on 30th March, 2017.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence---Ocular account
not proved---Prosecution case was that two persons were riding on motorcycle, made firing with
pistol on the brother of complainant, which hit on his chest and he succumbed to the injuries at
the spot ---Accused persons after committing crime, tried to escape, but were chased and arrested
by Levies Force ---Ocular account was furnished by witnesses including complainant ---
Statements of all the witnesses were contradictory to each other by making dishonest
improvements to such extent that had changed the prosecution version---Testimony of said
witnesses was contradictory with regard to death of the deceased, whether he died at the spot or
succumbed to the injuries on way to the hospital ---All the witnesses made contradictory
statements with regard to the information of occurrence conveyed to the Levies Force or the seat
of injuries received by the deceased ---Statements of such witnesses had lost the credibility and
evidentiary value--- Facts and circumstances of the case showed that deceased was murdered by
the assailants in presence of his brother and two other close relatives but they did not try to
overpower the assailants and no efforts were made b y them to save the victim and assailants
went away safely without any resistance, which was very unnatural ---Circumstances established
that presence of the witnesses at the time of occurrence and witnessing the crime was highly
doubtful, benefit of which w ould resolve in favour of accused ---Appeal against acquittal was
dismissed in circumstances.
Muhammad Farooq v. State 2006 SCMR 1707; Dohlu v. State 2002 PCr.LJ 690 and
Ashiq Hussain v. The State 1993 SCMR 417 rel.
(b) Criminal trial ---
----Benefit of doubt ---Scope ---Where a single circumstance would create reasonable doubt in a
prudent mind, same would be sufficient for acquittal of accused, not as a matter of grace or
concession but as a matter of right.
Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The
State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.
(c) Criminal trial ---
----Medical evidence ---Scope ---Medical evidence was a corroborative piece of evidence, which
only indicated the number and seats of inj uries and the kind of weapon used--- In absence of
trustworthy and reliable ocular evidence, the medical evidence could not support the prosecution
case.
(d) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention---Appreciation of evidence--- Motive --- When
motive was alleged but not proved, then ocular evidence is required to be scrutinized with great
caution.
2010 SCMR 97 and 2009 SCMR 916 rel.
(e) Criminal trial ---
----Motive ---Scope ---Motive would cut both ways ---If enmity persuad ed a person to commit a
crime, it could also be sufficient to falsely implicate the accused in a crime.
(f) Penal Code (XLV of 1860) ---
----Ss. 302 & 34 ---Qatl-i-amd, common intention---Appreciation of evidence ---Record showed
that prosecution failed to e stablish the presence of any of the witnesses at the time of occurrence,
thus ocular account furnished by them was ruled out of consideration---When ocular account was
ruled out other circumstances of the case providing corroboration or support to the ocul ar
account would automatically collapse.
Faqeer Muhammad v. Shehbaz Ali 2016 SCMR 1441 rel.
(g) Criminal Procedure Code (V of 1898) ---
----S.417(2- A)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl -i-amd, common intention---
Appeal against acquittal ---Dou ble presumption of innocence ---Double presumption of innocence
was attached to the order of acquittal ---Interference in such situation was unwarranted unless the
acquittal order was arbitrary, capricious, fanciful or against the record ---In the present cas e, order
of acquittal passed by the Trial Court was neither arbitrary, capricious, fanciful nor contrary to
the evidence on record ---High Court declined interference ---Appeal against acquittal was
dismissed accordingly.
Siyal Khan Durrani and Rehmatullah Sadozai for Appellant.
Aizaz Hussain Baqri for Respondents.
Abdul Lateef Kakar, Additional Prosecutor -General for the State.
Date of hearing: 27th March, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Acquittal Appeal
No.381/2013 filed by the appellant Muhammad Naeem, against the judgment dated 10th
December, 2013 (hereinafter referred as, "the impugned judgment") passed by the learned
Additional Sessions Judge Pishin (hereinafter referred as, "the trial Court"), whereby the
accused/respondents were acquitted of the charge under section 302/34, P.P.C.
2. Facts of the case are that on 20th July, 2011, the complainant Muhammad Naeem son of
Abdul Jabbar, lodged FIR No.14/2011 at Police Station Saranan Pishin under sections 302, 353,
186, 34, P.P.C., stating therein that on the day of occurrence at about 9.00 p.m. his brother
Muhammad Saleem son of Abdul Jabbar was present near Saranan old Saudi Hospital, when two
persons ri ding on Honda 125- CC motorcycle came there and fired upon his brother with pistol,
which hit on his chest and he succumbed to his injuries at the spot. He further alleged that
accused after committing the crime were trying to escape, but were chased and ar rested by the
Levies, whose names were revealed as Muhammad Younis and Rafiullah.
3. In pursuance of above FIR, the investigation of the case was entrusted to PW -7
Matiullah, Tehsildar/IO, who during investigation inspected the site and prepared site map;
brought the dead body of deceased Muhammad Saleem to Civil Hospital Pishin and after
medical examination handed over the dead body to the legal heirs; took into possession Honda
125-CC motorcycle; secured four empties from the place of occurrence; recovered T.T. pistol
along with four rounds from the possession of accused Rafiullah; took into possession the
bloodstained clothes of deceased; recorded the statements of witnesses under section 161,
Cr.P.C. and on completion of investigation submitted the chall an in the trial Court.
4. At the trial, the prosecution produced seven witnesses. The accused- respondents were
examined under section 342, Cr.P.C. However, the accused neither recorded their statements on
oath under section 340(2), Cr.P.C. nor produced any witness in their defence. On conclusion of
trial and after hearing arguments, the learned trial Court vide impugned judgment acquitted the
accused -respondents of the Charge under section 302, P.P.C. Whereafter, instant appeal has been
filed.
5. Learned co unsel for appellant contended that the impugned acquittal order passed by the
trial Court is perverse and contrary to material available on record; that consistent and
confidence inspiring evidence has been produced, but wrongly the same was discarded from
consideration mainly on the ground that the PWs have contradicted each other, but the trial Court
has ignored this important aspect of the case that the minor contradictions in the statements of
PWs are natural, which may occur due to lapse of time and fa ding of memory and being human
beings it is not expected from the witnesses to have furnished a tape -recorded statement; that the
accused -respondents caught red -handed soon after the occurrence by the Levies Authorities and
not only the recovery of crime w eapon, but also the motorcycle used in the crime has also been
recovered from the possession of the accused- respondents, who after committing the crime were
trying to flee away; that the medical evidence proved the guilt of the accused/respondents; that
the prosecution has succeeded in proving the charge against the accused- respondents on all
counts and there was no occasion for the learned trial Court to acquit the accused -respondent,
hence prayed for convicting the accused -respondents in accordance with l aw.
6. Learned counsel for the accused -respondents assisted by learned Additional Prosecutor
General, while supporting the impugned judgment contended that the prosecution has failed to
establish the charge against the accused -respondents on the basis of s olid, concrete or cogent
evidence; that all the witnesses made contradictory statements to each other, which rendered
their testimony as doubtful and the same does not amount to worth credence, whereas the learned
trial Court after considering all the pros and cons of the case has rightly acquitted the accused -
respondents through impugned judgment, which is not open for any interference by this Court.
7. Heard the learned counsel and perused the available record. Perusal of impugned
judgment and the record justifies the acquittal order passed by the learned trial Court. It is
evident from the record that the prosecution in order to establish the charge has produced the
evidence of seven witnesses, but all the witnesses made glaring contradictions from each o ther as
well as made dishonest improvements from their earlier depositions.
8. Admittedly, the law was set on motion on the basis of fard- e-bayan Ex.P/l of the
complainant, perusal of which disclose that the complainant in such complaint has clearly
mentio ned that two accused persons armed with pistol emerged at site on a Honda 125- CC
Motorcycle and fired upon his brother, due to which he was injured and succumbed to the
injuries, whereas the names of the culprits were later on revealed as Muhammad Younas and
Rafiullah.
9. We have at our outmost care and caution minutely scrutinized the contents of fard -e-
bayan and the wording so used in it, are suggestive of the fact that the complainant himself was
not present at the time of occurrence, otherwise he could have directly nominated the accused
with specific role and such fact has further been strengthened from the penultimate lines of such
Fard-e-bayan, whereby the complainant has specifically mentioned that after committing the
crime the accused were fleeing away, but were chased and arrested by the Levies Authorities and
their names were revealed as Muhammad Younas and Rafiullah, against whom he is lodging the
FIR. We have further scrutinized such fard- e-bayan Ex.P/1 and observed that the complainant
has not mentioned the name of any of the witness allegedly present at the time or place of
occurrence or witnessed the crime directly.
10. While comparing the fard -e-bayan Ex.P/1 with the statement of complainant recorded in
the trial Court as PW -1, it has been observed that contrary to his earlier deposition contained in
the Fard -e-bayan Ex.P/1, the complainant in his Court statement has not only named the
witnesses namely Sattar and Fazal Muhammad as the witnesses of the alleged crime but also
assigned specific r ole to both the accused by stating that the accused Younis was riding the
motorcycle, while the accused Rafiullah was seated behind him having pistol in his hand and
made firing upon his brother, the PW -1 has made unsuccessful attempt to establish his pres ence
at the time of occurrence and at the place of incident, but in such like situation he has ruined the
entire prosecution story as doubtful.
11. The witnesses have also contradicted themselves with regard to information conveyed to
the Levies. The contents of fard -e -bayan Ex.P/1 is silent with regard to the information
conveyed to the Levies Authorities and simply it is mentioned that after commission of crime
and trying to flee away the accused were chased and arrested by the Levies, whereas to the
contrary PW -1 in his Court statement stated that after sustaining injuries by his deceased brother,
he was taking him to hospital, when in the way to hospital his brother succumbed to the injuries,
thus he was informed that the Levies arrested the accused per sons, whereas PW -2 contradicted
the Fard -e-bayan Ex.P/1 and also contradicted the statement of PW -1 by stating that soon after
the occurrence he went for a vehicle to take the injured/deceased to hospital, while the
complainant/appellant went towards Levie s Thana for lodging the report. In his cross -
examination, PW -2 stated that while taking the deceased to hospital, the complainant/appellant
was not accompanying him and he subsequently came to hospital. But, the PW -3 contradicted
both PW -1 and PW -2 by stat ing that PW -2 Fazal Muhammad telephoned the Levies and
conveyed information about the incident. However, to such extent PW -4 Syed Muhammad,
Khasadaar Levies contradicted the statements of all above referred witnesses and stated that he
had informed the Tehsildar that 2/3 persons had come to Levies Thana and informed about the
incident. PW -4 stated that none of the witness had informed the Levies through telephone and
further stated that the said persons have not nominated any of the accused. Be that as it m ay, if
the witnesses were present at the occurrence and seen the crime then as to why they did not
nominate the accused at the time of conveying information to the Levies. PW -7/I.O. stated that
prior to arrest of the accused/respondents, no witness was awa re about the assailants, who made
firing upon the deceased.
12. The comparative study of statements of all the witnesses has established the fact that they
have made contradictory statements to each other and simultaneously they made dishonest
improvements to such extent that has changed the prosecution version. None of the witness has
corroborated the statement of other. Their testimony is contradictory with regard to death of the
deceased whether he had died at the spot or succumbed to the injuries in the way while shifting
to the hospital. All the witnesses made contradictory statements with regard to the information of
the occurrence conveyed to the Levies or the seat of injuries received to the deceased. Hence, we
have no hesitation to hold that the pre sence of any of the witness at the time of occurrence or
witnessing the crime is highly doubtful and the prosecution has failed to establish their presence
at the time of occurrence, otherwise their deposition would not be contradictory to each other.
13. The Investigating Officer himself admitted that prior to the arrest of accused/respondents
none of the witness was aware about the culprits, who had attacked upon the deceased. All the
witnesses made dishonest improvements in their statements and in this manner thus have lost the
credibility and evidentiary value of their statements. Such deliberate and dishonest improvements
would cause serious doubt in the prosecution case as it is settled law that a single circumstance
creating reasonable doubt in a prudent mind is sufficient for acquittal of accused, not as a matter
of grace but as a matter of right. In the case of Ghulam Qadir and 2 others v. The State 2008
SCMR 1221, a bench of three Hon'ble Judges of Supreme Court held that for the purpose of
benefit of doubt to an accused single infirmity regarding the truth of charge makes the whole
case doubtful. The relevant portion thereof reads as under:
"It needs no reiteration that for the purpose of giving benefit of doubt to an accused
person, more than one i nfirmity is not required, a single infirmity creating reasonable
doubt in the mind of a reasonable and prudent mind regarding the truth of the charge -
makers the whole case doubtful. Merely because the burden is on the accused to prove his
innocence it does not absolve the prosecution from its duty to prove its case against the
accused beyond any shadow of doubt and this duty does not change or vary in the case. A
finding of guilt against an accused person cannot be based merely on the high
probabilities tha t may be inferred from evidence in a given case. Mere conjectures and
probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970
SC 10."
14. Now diverting to the medical evidence furnished by Dr. Saleemullah Pathan, (PW -06),
who ha d conducted medical examination of the dead body of deceased Saleem and issued MLC
Ex.P/6 -A, which provides the number of injuries sustained by the deceased as well as the fire
arm used in the commission of crime. So far as the contention of learned counse l for appellant
that the medical evidence proved the guilt of the accused/respondents, suffice to observe that
medical evidence is a corroborative piece of evidence which only indicates the number and seat
of injuries and the kind of weapon used, in absenc e of trustworthy and reliable ocular evidence,
the medical evidence could not support the prosecution case.
15. The above discussion establishes that the prosecution evidence appears to be shaky,
misconceived, untrustworthy and is not inspiring confidence. It is very shocking enough that the
deceased was murdered by the assailants in presence of his brother and two other close relatives,
but they did not try to overpower the assailants and no efforts were made by them to save the
victim and went away safely without any resistance which looks very unnatural. Reliance is
placed on the case of Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002
PCr.LJ 690. This shows that their presence at the scene of occurrence at the relevant time was
doubtful. W hen motive was alleged but not proved, then ocular evidence was required to be
scrutinized with great caution as held in 2010 SCMR 97 and 2009 SCMR 916 that motive cuts
both ways, if enmity persuades a person to commit a crime, then it is also sufficient t o falsely
implicate some person from the other side. Ocular version is inconsistent with medical evidence
hence not reliable and the presence of eye -witnesses at the spot is doubtful as held in the case of
Ashiq Hussain v. The State 1993 SCMR 417.
16. So far as the recovery of crime weapon along with the motorcycle used in the crime from
the possession of the accused- respondents is concerned, suffice to observe that for the above
reasons the trial Court had rightly concluded that the eye -witnesses produced before the trial
court were actually not present with the deceased at the time of occurrence and, thus, the ocular
account furnished by them was ruled out of consideration. After ruling out of the ocular account
the other circumstances of the case providin g corroboration or support to the ocular account had
automatically collapsed. Reliance, in this regard is placed to the case of Faqeer Muhammad v.
Shehbaz Ali 2016 SCMR 1441, whereby the Hon'ble Supreme Court has upheld the acquittal
order of the High Cour t by holding that after ruling out the ocular account the other
circumstances of the case providing corroboration or support to the ocular account had
automatically collapsed. The relevant portion of above referred judgment is reproduced herein
below:
"..the eye -witnesses produced by the prosecution before the trial court were actually not
present with the deceased at the time of occurrence and, thus, the ocular account
furnished by them was ruled out of consideration. After ruling out of the ocular account
the other circumstances of the case providing corroboration or support to the ocular
account had automatically collapsed. In these circumstances the High Court had extended
the benefit of doubt to respondent No. 1 and had acquitted him of the charge. Upon our
own independent evaluation of the evidence we have not been able to take any legitimate
exception to the said conclusion reached by the High Court. This petition is, therefore,
dismissed and leave to appeal is refused."
17. The minute perusal of the prosecution case from all angles, it has been established that
the case of prosecution is doubtful and no conviction can be awarded or maintained on the basis
of such type of shaky and untrustworthy evidence. According to the settled principles and
guidelin es provided by the Hon'ble august Court that in case of doubt, its benefit must go to the
accused not as a matter of grace but of right. Such proposition has come -up for consideration in
the case of Muhammad Akram v. The State 2009 SCMR 230, wherein it has been held that, "... It
is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of
the accused as a matter of right and not of grace. It was observed by this Court in the case of
Tariq Pervez v. The State (1995 SC MR 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 about 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."
18. If the entire prosecution evidence is taken into consideration together, it would become
crystal clear that the entire prosecution evidence shows that there is no solid or concrete evidence
against the accused/respondents connecting them with the commission of alleged offence. The
trial Court after proper appreciation of evidence in its true perspective has rightly acquitted the
accused -respondents of the charge. It is a settled principle of law that double presumption of
innocence is attached to the order of acquittal and interference is unwarranted unless the acquittal
is arbitrary, capricious, fanciful or against the record. In the instant case the order of acquittal
passed by the trial Court is neither arbitrary, capricious, fanciful nor contrary to the evidence on
record, warranting interference by this Court.
For the above reasons, the appeal being devoid of merits is dismissed.
Above are the reasons of our short order dated 27th March, 2017.
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