2017 P Cr. L J 713
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
SANAULLAH ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. (S) 74 of 2015 and Murder Reference No. (S) 6 of 2015, decided on 19th
December, 2016.
(a) Penal Code (XLV of 1860) ---
----S. 302--- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Ocular account did not
support medical evidence ---Prosecution case was that the accused fired with his pistol on the
deceased while he was going by car along with two witnesses ---Deceased was shifted to hospital
in injured condition---Police reached there, got recorded his statement ---Injured, however,
succumbed to the injuries ---FIR was lodged on the statement of the deceased ---Police
official/witness s tated that he along with other official witness reached hospital after receiving
information about the occurrence ---Dying declaration of deceased was recorded, which
contained his thumb impression---Other official witness narrated the same story ---Evidence of
said police officials was in contradiction to the medical evidence ---Medical Officer had deposed
during cross examination that deceased was brought to hospital within the period of 20 to 25
minutes, after occurrence, in injured condition and he was ful ly unconscious ---Circumstances
suggested that prosecution version about recording dying declaration of deceased stood falsified-
--Conflict between the statement of police officials and medical evidence established that dying
declaration of the deceased had falsely been prepared by the police at the behest of complainant
party ---Said circumstances cast doubt on the prosecution case, benefit of which would resolve in
favour of accused---Conviction and sentences recorded against accused by Trial Court were set
aside in circumstances.
(b) Penal Code (XLV of 1860) ---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Statement of eye -
witnesses ---Allegation against the accused was that he made firing with his pistol on the
deceased while he w as going on car along with two witnesses ---Ocular account was furnished by
two witnesses ---Said witnesses alleged that they were present in the car with the deceased, when
accused made firing on the deceased ---Said witnesses stated that at the time of alle ged
occurrence, window glasses of the car were closed ---Said witnesses had stated that firing was
made from a very close range, but such firing only hit the deceased and both the witnesses seated
in the car did not receive any firearm injury nor any damage was caused to the car ---Window
glasses of the car were not broken despite the facts that windows were closed at the time of firing
from outside ---Both the witnesses though were on the target of accused, but only deceased was
hit---Said factor did not appe al to the logic that by killing a person in presence of his close
relative, no effort was made to cause any injury/kill the said persons/witnesses leaving them for
evidence --- Presence of said alleged eye -witnesses with the deceased at the time and place o f
occurrence was highly doubtful ---Conviction and sentences recorded against accused by Trial
Court were set aside.
Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel.
(c) Penal Code (XLV of 1860) ---
----S. 302--- Qatl-i-amd--- Appreciation of evidence --- Interested witnesses ---Testimony of
closely related witnesses ---Reliance---Scope ---One alleged eye witness was brother of deceased
while other eye -witness was his cousin ---Statement of a witness could not be discarded merely
on the ground that he was related to the victim, but in order to remove any sort of ambiguity,
corroboration was required to prove the version of interested and related witnesses, which was
lacking in the present case ---Conviction and sentences recorded aga inst accused by Trial Court
were set aside.
(d) Penal Code (XLV of 1860) ---
----S.302---Qatl -i-amd---Appreciation of evidence ---Motive not proved--- Effect ---In the present
case, prosecution had alleged that motive for the occurrence was that accused had d emanded Rs.
ten lac from deceased (his cousin) for purchase of vehicle, which was not given by the deceased,
due to which, accused became annoyed and committed murder of the deceased ---Prosecution
failed to prove the motive ---Motive so narrated was not so strong that had provoked the accused
to kill his cousin---Conviction and sentences recorded against accused by Trial Court were set
aside.
(e) Criminal trial ---
----Motive ---Scope ---Conviction could be recorded even in the cases, where no motive was
alleg ed---Once motive alleged by the complainant, it was to be proved and in case of failure,
benefit would be resolved in favour of accused.
Mst. Mir Shahbano v. Ahmed Jan 2011 YLR 1965 rel.
(f) Penal Code (XLV of 1860) ---
----S. 302--- Qatl-i-amd--- Appreci ation of evidence --- Recovery of weapon of offence from
accused ---Prosecution failed to establish said recovery ---Circumstances showed that recovery of
weapon of offence was foisted upon accused just to strengthen the case of prosecution---Crime
empties al ong with firearm were not sent to the firearm expert---No explanation had been
furnished by the prosecution in this regard, thus alleged recovery became inconsequential ---
Conviction and sentences recorded against accused by Trial Court were set aside.
(g) Penal Code (XLV of 1860) ---
----S. 302 ---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Scope ---Prosecution had
failed to prove the charge against the accused beyond shadow of doubt ---Circumstances and
facts had created sufficient doubts in the case of prosecution, benefit of which would be extended
in favour of accused---Conviction and sentences recorded against accused by Trial Court were
set aside.
(h) Criminal trial ---
----Benefit of doubt ---Scope ---Benefit of even a slightest doubt had to be extended in favour of
accused.
Nadir Ali Chalgari, Muhammad Sadiq Guman and Abdul Ghani Mengal for Appellant.
Jamil Akhtar Gajani, Additional P. -G. for the State.
Muhammad Sabir Jamali for the Complainant.
Date of hearing: 12th November, 2016.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal No.(S)74 of
2015 filed by the appellant Sanaullah son of Ali Bakhsh, against the judgment dated 7th May,
2015 (hereinafter referred as, "the impugned judgment") passed by the learned Sessions Judge,
Usta Muhammad (hereinafter referred as, "the trial Court"), whereby the appellant was convicted
under section 302(b), Qisas and Diyat Ordinance (P.P.C.) and was sentenced for capital
punishment of death as Tazir and he was directed to be hanged by neck till his death and to pay
compensation of Rs.200,000/ - (rupees two lacs) to the legal heirs of deceased Shah Nawaz as
provided under section 544- A, Cr.P.C. or in default thereof to further suffer six months' S.I.
Murder reference No.(S)06 of 2015 has been forwarded by the trial Court for confirmation of
death sentence or otherwise.
2. Facts of the case are that on the basis of statement of injured Shah Nawaz FIR
No.07/2014 dated 8th January, 2014 was lodged at Police Station City Usta Muhammad, under
section 324, P.P.C., stating therein that on the day of occurrence at about 6.00 p.m. he along with
his uncle Bashir Ahmed and brother Muhammad Afraz were going to Bazaar on his Mehran
motorcar bearing Registration No.BAP -871/Sindh, when they reached Jacobabad Railway
Phattak Usta Muhammad, his relative Sanaullah son of Haji Ali Bakhsh (the appellant) came
there on XLI Motorcar, stopped the same and started firing with pistol at him, due to which he
received bullet injures on his abdomen and arm whi le accused escaped from the spot. The motive
behind the occurrence was that accused Sanaullah had demanded Rs.10,00,000/ - (rupees ten lac)
from him for purchase of a vehicle and he told him that presently he has no money and that he
will pay the amount to him by tomorrow due to which he became annoyed and went.
After registration of FIR, the injured/complainant Shah Nawaz died on his way to
Larkana. Hence, section 302(b), P.P.C. was inserted in the FIR.
3. In pursuance of the above FIR, investigation was e ntrusted to PW -7 Shah Nawaz, SI/IO,
who during investigation visited the site and prepared site sketch; carried out proceeding under
section 174, Cr.P.C. and prepared inquest report of deceased; recorded the statements of
witnesses under section 161, Cr.P.C.; took into possession the Mehran vehicle, blood stained
articles from the vehicle and seven empties of 9 mm; took into possession the blood stained
clothes of deceased; obtained post mortem report of deceased; arrested the appellant and
subjected him to investigation; on completion of investigation submitted the challan in the trial
Court.
4. The appellant was put on trial. During the trial, the prosecution produced seven (07)
witnesses, whereafter; the appellant was examined under section 342, Cr.P.C. T he appellant
neither recorded his statement on oath nor produced any witness in his defence. After concluding
evidence and hearing arguments, the trial Court awarded conviction to the appellant as
mentioned in para -1 above. The appellant has preferred the instant criminal appeal, whereas the
trial Court has awarded Murder Reference for confirmation or otherwise of the death sentence
awarded to the appellant.
5. Learned counsel for the appellant stated that the prosecution has failed to substantiate the
charge against the appellant beyond any shadow of doubt; that the statements of interested and
related witnesses are lacking independent corroboration as it is not believable to a prudent mind
that the appellant has murdered the deceased in front of his blood relations and let them free to
depose against him; that the ocular account of testimony is in conflict with medical evidence;
that the statements of the prosecution witnesses are not consistent and same are suffering from
material contradictions, dishonest improvements and infirmities rendering their testimony
doubtful, but the benefit of doubt has not been extended in favour of the appellant.
6. Learned Additional Prosecutor General assisted by learned counsel for complainant while
supporting the impugned judgment stated that the prosecution through consistent and confidence
inspiring evidence has proved the charge against the appellant beyond any shadow of doubt; that
the prosecution evidence is not suffering from material contradictions, infirmities or di shonest
improvements; that there are no mitigating circumstances to award lesser punishment to the
appellant and that after proper appraisal of the evidence available on record the trial Court has
rightly awarded penalty of death to the appellant, which is not open for any interference.
7. Heard the learned counsel, and perused the available record. Perusal of record reveals
that the unnatural death of deceased Shah Nawaz is not disputed. Even the defence has admitted
the unnatural death of deceased, but pl eaded his false implication. Soon after the occurrence, the
deceased was shifted to Civil Hospital Usta Muhammad, where after giving him first aid, he was
referred to Larkana, but on his way to Larkana, he succumbed to the injuries. The dead body was
broug ht back to Civil Hospital Usta Muhammad, where PW -5 Dr. Amanullah Chishti, Medical
Officer, Civil Hospital, Usta Muhammad conducted after post mortem of deceased and issued
Post Mortem Report Ex.P/5- A. According to postmortem report the deceased had received
multiple fire arm injuries on his person and the death of deceased occurred due to damage to the
vital organs, liver, right kidney, small and large intestines, blood vessels and shock. The
prosecution case is also supported by the blood stained articles i.e. seat cover and Kameez of
deceased and the FSL report.
8. Now adverting to ocular testimony, the prosecution has produced seven witnesses. The
FIR was lodged on the basis of alleged fard -e-bayan of injured Shah Nawaz, which was reduced
into writing by Sikandar Ali, ASI, who appeared at the trial as PW -2. In his deposition PW -2
stated that on receipt of information with regard to receiving bullet injuries by a person and his
shifting to hospital, he along with other police officials rushed to hospital, where he recorded the
Fard-e-bayan of the injured Ex.P/1- A, which contains the thumb impression of the injured and he
sent a Marasala to Police Station for registering FIR. PW -6 Sajjad -ud-Din, Constable was along
with PW -2 on patrolling the area and had rushed to the place of occurrence. He has also narrated
the above story.
9. The ocular evidence of both the above police officials is in contradiction to the medical
evidence. PW -5 Dr. Amanullah Chishti, Medical Officer, Civil Hospital, Usta Muhammad gave
first aid to the injured Shah Nawaz and thereafter referred him to Larkana. PW -5 in his cross -
examination stated that when Shah Nawaz was brought to hospital in injured condition, he was
fully unconscious. PW -5 further admitted that the injured was produced after 20 to 25 minutes.
PW-5 in his cross -examination has also brought on record that the firing was made from a
distance of one or one and half feet.
10. The ocular testimony with regard to recording of fard- e bayan/ dying declaration of Shah
Nawaz is in conflict with the medical evidence. If the deceased was brought to hospital within
the period of 20 to 25 minutes after the occurrence and was fully unconscious, then under such
circumstances the prosecution version of recording fard- e-bayan/ dying declara tion of deceased
Shah Nawaz stands falsified. The conflict between the ocular testimony and medical evidence
lead us to the conclusion that the fard- e-bayan/dying declaration of the deceased has falsely been
prepared by the police at the behest of complain ant party.
11. Now adverting to the testimony of alleged eye -witnesses of the occurrence, suffice to
observe here that the prosecution has produced two alleged eye -witnesses i.e. PW -1 Bashir
Ahmed and PW -3 Muhammad Afraz. According to both the witnesses the entire incident was
witnessed by them. According to PW -1 on the day of occurrence he along with PW -3
Muhammad Afraz were accompanying the deceased Shah Nawaz in his Mehran motorcar, when
their vehicle was intercepted by appellant Sanallah, who was on XLI Car and through 9 mm
pistol he started firing upon his nephew Shah Nawaz and thereafter the appellant fled away from
the place of occurrence. PW -1 in his cross -examination stated that he was sitting with the
deceased on the front seat of the vehicle, whil e deceased was driving the car. It has further been
brought on record by PW -1 that at the time of alleged incident the window glasses of their
vehicle were shuttered -up. PW -3 being brother of the deceased also claims to have accompanied
the deceased in his vehicle when the alleged incident took place.
12. We with utmost care and caution scrutinized the statements of both the witnesses, but we
do not find ourselves in agreement with the said statements of both the witnesses for variety of
reasons. Firstly, a ccording to medical evidence as well as the statements of PW -1 and PW 3, the
firing was made from a very close range, but such firing only hit the deceased and both the
witnesses seated in the vehicle did not receive any firearm injury nor any damage was caused to
the vehicle. According to the witnesses at the time of occurrence the window glasses of their
vehicle were shuttered -up, but despite firing from outside, the said window glasses were not
broken. It is an astonishing factor that both the witnesses were on the target of appellant, but only
deceased Shah Nawaz was hit and PW -1 (being cousin) and PW -3 (being brother of deceased)
were let free without any assault or an attempt to assault. It does not appeal to the logic that by
killing a person in prese nce of his close relatives accused would not attempt to cause any
injury/kill the prosecution witnesses leaving them for evidence to be hanged. Reliance in this
regard is placed on the case of Muhammad Farooq v. State, 2006 SCMR 1707. Reference in this
regard is also made to the case of Dohlu v. State, 2002 PCr.LJ 690.
13. The presence of both the above witnesses with the deceased at the time and place of
occurrence is highly doubtful. Hence, we have no hesitation to conclude that the case of
prosecution is lacking independent corroboration as only interested witnesses have been
produced. PW -1 is the cousin and PW -3 is the brother of deceased Shah Nawaz. We are
conscious of the fact that the statement of a witness cannot be discarded merely on the ground
that he is related to the victim, but in order to remove any sort of ambiguity and for safe
administration of justice independent corroboration is required to prove the version of interested
and related witnesses.
14. Another important aspect of the case is t hat the prosecution has failed to establish the
motive behind the occurrence. The motive so narrated was not so extreme that had provoked the
appellant to kill his cousin. It appears that the prosecution had alleged a motive to strengthen the
case, but has failed to prove the same. It is true that the conviction, can be recorded even in the
cases where no motive is alleged, but once motive is alleged by the complainant it must be
proved and in case of failure, the benefit must go to the accused. Reliance in this regard is placed
to the case of Mst. Mir Shahbano v. Ahmed Jan, 2011 YLR 1965. Relevant portion is reproduced
below:
"15. Another fact to be noted is the motive shown in the FIR which is blood feud enmity.
This motive has not been proved at all in the evidence by the prosecution. No
documentary proof has been filed. Normally motive is of no avail and in certain cases
which are motiveless conviction can be recorded. But once motive is alleged by
complainant in report it must be proved and in case of fa ilure, the benefit must go to the
accused."
15. The prosecution has also failed to establish the recovery of crime weapon on the
pointation of the appellant and it appears that the same was foisted upon him just to strengthen
the case of prosecution. The c rime empties along with firearm were not sent to the firearm
expert. No explanation has been furnished by the prosecution in this regard.
16. The reappraisal of the evidence reveals of infirmities and discrepancies in the case of
prosecution. The perusal of impugned judgment reflects that the same is result of mis -reading
and mis appreciation of evidence available on record. The defence has succeeded in causing dent
in the case of prosecution. The circumstances have created doubt in the case of the prosecut ion.
The prosecution has miserably failed to prove the charge against the appellant beyond any
shadow of doubt. There exists sufficient doubt in the case of prosecution. According to settled
principle of law benefit of even a slightest doubt has to be exte nded in favour of an accused.
For the above reasons, the appeal is accepted. The impugned judgment dated 7th May,
2015 passed by Sessions Judge, Usta Muhammad is set inside and while extending benefit of
doubt, the appellant Sanaullah son of Ali Bakhsh is acquitted of the charge under section 302(b),
P.P.C. in FIR No.7/2014 of Police Station City Usta Muhammad. The appellant/convict being in
custody, is ordered to be released forthwith, if not required in any other case.
Consequent to the above, the murde r reference No.(S)06/2015 is answered in negative.
JK/12/Bal. 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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