2018 P Cr. L J 1216
[Balochistan]
Before Abdullah Baloch, J
GUL MIR ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 198 and Murder Reference No. 6 of 2014, decided on 22nd September,
2017.
(a) Penal Code (XLV of 1860) ---
----S. 302--- Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Accused and cousin
of complainant were quarrelling, accused fired at the cousin of complainant, due to which, he
died at the spot ---Two persons of complainant side sustained injuries when both side s started
fighting after the firing ---Ocular account was furnished by cousin and brothers of deceased
being eyewitnesses ---Record showed that statements of eye -witnesses, being brothers and
cousin, nominated and attributed role of murder of deceased to the accused ---Statements of
said witnesses were not worth credence and confidence inspiring ---Said witnesses had neither
shown their presence at the place of occurrence nor corroborated the statements of each other
on the manner in which the occurrence took place ---Conduct of blood relation eyewitnesses
did not appeal to the prudent mind that while in presence of brothers and cousin of deceased, the accused single handedly armed with shot gun came over there and after exchange of few harsh words started firing on the deceased ---Despite presence of all eyewitnesses, none of
them had resisted or tried to save the deceased from the clutches of accused ---No
action/reaction had arisen from the circumstances of the case to believe the statements of natural eyewitness es, as such, the conduct of all eye -witnesses itself created doubt in the case
of prosecution---All the witnesses were interested being related with each other and the deceased ---Circumstances of the case showed that there were certain inhabitants of the a rea,
who at the time of alleged incident gathered around at the place of occurrence, but none of them was made as witness to corroborate the prosecution version---Case of prosecution, in circumstances, lacked independent corroboration and the accused could not be assumed to be
culprit solely on the statements of witnesses that were interested and were related to the deceased ---Testimony of said interested witnesses were not reliable, which reflected that
prosecution tried to suppress material evidence ---Circumstances established that prosecution
had failed to prove its case beyond shadow of doubt, benefit of which would resolve in favour of accused ---Accused was acquitted in circumstances by setting aside conviction and
sentence recorded by the Trial Court.
Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690
rel.
(b) Criminal trial ---
----Witness ---Interested witness ---Testimony of interested witness ---Reliance---Scope ---Mere
relationship of witnesses inter se or to the deceased was n ot sufficient to discredit out -rightly
their testimony, if otherwise, such witnesses were found to be the witnesses of truth--- If the
independent and impartial witnesses were available and they were not produced and withheld
and only the related witnesses , whose testimony was not confidence inspiring, were
produced, testimony of such witnesses could not be relied upon without independent corroboration tending to satisfy the court that the witnesses had spoken the truth.
Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR
1180 rel. (c) Penal Code (XLV of 1860) ---
----S. 302--- Qatl-i-amd---Appreciation of evidence ---Non-recovery of weapon of offence and
empties ---Effect ---Neither any empty of the gun was taken into possession from the place of
occurrence nor the weapon was recovered from the possession of accused---Accused was
admittedly arrested from the place of occurrence---Such gross negligence and defective investigation created serious dent in the case of prosecution---Prosecuti on had failed to
establish the charge against the accused beyond shadow of doubt ---Accused was acquitted in
circumstances by setting aside conviction and sentence recorded by the Trial Court.
(d) Criminal trial ---
----Benefit of doubt --- Principle --- Single circumstance creating reasonable doubt in a
prudent mind about the guilt of the accused would entitle him/her to the benefit not as a
matter of grace and concession but as a matter of right.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Manzoor Ahme d Rehmani for Appellant.
Abdul Karim Malghani, State counsel for the State.
Date of hearing: 21st August, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---These Criminal Appeal No.198/2014 and Murder
Reference No.06/2014 were referred by the Hon'ble Chief Justice, High Court of Balochistan, for writing of judgment as Referee Judge, being conflict judgments passed by my learned brothers Mr. Justice Naeem Akhtar Afghan, who has acquittal the appellant from the charge, while my learned brother Mr. Justice Muhatnmad Kam ran Mullakhail, has maintained the
conviction so passed by the learned trial Court, however, altered the judgment from death sentence to that of life imprisonment. Prior to agree or disagree with the judgments passed by my learned brothers Justices, I woul d like to discuss the material brought on record by the
prosecution as well as scrutinized the documents so brought on record.
2. The brief facts arising from the prosecution case are that the complainant/PW -1 Jan
Muhammad has reported the matter with the Tehsildar Mangochar through its Fard- e-bayan
Ex.P/1 -A, on the basis of which FIR No.1/2014 was registered at Levies Thana Mangochar
on 15.1.2014 at about 3.30 p.m. under section 302, P.P.C., wherein he submitted that he is
resident of Killi Mehranzai and o n the fatal day he at 02.215 p.m. was arrived at Killi Shah
Nawaz, where he saw that accused/appellant Gul Mir son of Amir Bakhsh, caste Muhammad
Shai and his cousin deceased Muhammad Azam son of Taj Muhammad inside the Havaili fighting with each other, wh ile other people intervened to debar them from the said quarrel,
however, the appellant Gul Mir holding a shotgun in his hand have fired upon the deceased Muhammad Azam and he was killed. Thereafter, from both sides the people started fighting with each ot her during the course Muhammad Ayub and Muhammad Gul son of Taj
Muhammad also sustained injuries and the appellant was escaped from the scene. The distance of place of occurrence from Levies Thana shown 4 -KMs in south.
3. The PW -1 while recorded his statem ent before the Court has almost narrated the same
story as mentioned in Fard- e-bayan, however, during the course of cross examination made
certain dishonest improvements, while replying in cross question No.14 he stated that:
� � � �� رٹ�۔""ر � � � �ا
In reply to question No.18, he stated that,
� � � � شاٹ� ہ� ى� اور ا� � � ں�� � � � ۔ ۔ � � �� � ب� ا�
In reply to question No.19, he replied that,
" � � � م� ں�� � ب� ا� اور� � � رى� � �� "۔
It is pertinent to point out that neither in his fard -e-bayan nor in his examination in chief
the PW -1/complainant has mentioned that Muhammad Gul and Muhammad Ayub have
received injuries by means of what kind of weapon. Furthermore, he has not mentioned in
his fard -e-bayan that Muhammad Gul and Muhammad Ayub had received injuries by
means of Laties by the brother of appellant. He has also failed to mention the name of
brother of appellant, who caused injuries to the Muhammad Gul and M uhammad Ayub by
means of Laties . The statement of PW -1 further reflects that he has not mentioned that on
the said date how he came directly at the place of occurrence at Killi Shah Nawaz, as such, his presence at the relevant time of occurrence is suspici ous.
4. The PW -2 is Abdul Qadoos son of Taj Muhammad. He has deposed that on
15.1.2014 he was present at Killi Shah Nawaz Mangochar at 2.15 p.m. the accused/appellant made firing through shotgun upon Muhammad Azam and he died at the spot, while Tehsildar w as arrived at the place of occurrence and in his presence taken the
dead body of deceased, taken into possession blood stained earth and blood- stained
clothes of deceased and thereafter handed over the dead body of the deceased to its relatives through receipt. It is pertinent to mention here that this witness is also showing him as an eye- witness of the occurrence, while PW -1/complainant did not mention his
name in his fard -e-bayan or in the statement recorded in Court. PW further admitted in his
cross -examination in reply of Question No.07 that,
" �� � �� � ار� ہ� و�پار � "۔
In reply to questions Nos.8 and 9 he replied that,
"پار�� � 1 � 17.3.2014 � ىر�� ۔)DPP � �پار � � � اض� ا� 1 � 17.3.2014 وہ� درج�FSL � �� �
۔� �تار� � � "
� �پار � � � ت� در� 1 � � درج�تار� اور�� � ۔
He admitted in reply to question No.16 that:
م� ى� ا� د�ن آ� ہ� �برآ � � �پار � � � ت� در� ۔� ر� ا� ��
He further replied in question No.17 that:
۔� گ� � � وس اور�ا� � � ��
The statement of this witness showing that neither he was present at the time in the place of
occurrence, because neither the PW -1 has mentioned his pre sence in his Fard -e-bayan or
statement nor PW itself mentioned the presence of PW -1 Jan Muhammad nor stated anything
with regard to the injuries of Muhammad Gul and Muhammad Ayub. Even otherwise, the possession of article in his presence also creates doubt and it appears that the PW is a chance
witness.
5. PW-3 is Muhammad Ayub. He is also son of Taj Muhammad. He stated that on
15.1.2014 at 2.15 p.m. they were present in their home. The quarrel took place between children of appellant Gul Mir and the childr en of his cousin (deceased Muhammad Azam) as
revenge thereof harsh words were exchanged between the appellant and deceased and people interfered to save them from quarrel, but during the course Gul Mir had taken shot gun and fired upon Muhammad Azam and Muhammad Azam died at the spot, thereafter he has received nominal injuries by means of Laties. Tehsildar arrived at the place of occurrence and arrested the appellant. The PW did not mention the presence of PW -1 Jan Muhammad at the
place of occurrence and even did not mention the name of Gul Muhammad, who had allegedly received injuries and simply mentioned that he himself received injuries by means of Laties. The PW failed to mention the name of person, who caused injuries to him. Also in cross -examination he stated that he and Muhammad Gul received injuries by means of Laties,
but he failed to mention who caused the injuries to them. He also did not mention the presence of PW -2 Abdul Qadoos.
6. The PW -4 is Muhammad Gul. He is also son of Taj Muhammad. He st ated in his
statement that on 15.1.2014 he was present at the site there is one Havaili of them and in the middle of that Havaili a wall is there, while his brother deceased Muhammad Azam came out
from the Havaili then from other side appellant Gul Mir was also came out and fired through
shotgun upon his brother deceased Muhammad Azam. He was killed. Motive behind the occurrence was quarrel between the children. It is further important to mention here that this important eye -witness of the prosecution neither mentioned the presence of PWs -1, 2 and 3
nor deposed a single word with regard to receiving injuries by him caused through Laties as stated by the other eye- witness. The PW has also stated a different story from the statement
of other eye -witnesses and stated that:
� � � � � بنب� ى� دو� � ہر �با� � �� بب� � ا� �� ا� � ار�ى د � ا� ن� در� � � ى� ا�� ہارى� � � �
ىا� د� � � � ا� �� ے� � � ن�ئر
�� � � شاٹ� ۔
The statement of this PW is contradictory to the statement of other eye -witnesses, which
creates serious doubt of his presence at the place of occurrence at relevant time.
7. Another witness i.e. PW -6 Abdul Kabir he is also son of Taj Muhammad came
forward being an eye -witness stated that on 15.1.2014 he was present at his home at Killi
Shah Nawaz at 2.15 p.m. he heard some commotion, as such, he came out from his house and
saw that there is a fighting between Gul Mir and deceased Muhammad Azam. During the
course appellant fired upon Muhammad Azam and killed him. It is important that this eye -
witness also did not name the presence of other eye -witnesses including the injured eye -
witnesses.
8. The PW -5 is Dr. Abdullah Jan Langove. He deposed that on 15.1.2014 he was posted
as Medical Officer at DHQ Hospital Kalat. On the same day a dead body of Muhammad Azam son of Taj Muhammad was brought to DHQ Hospital Kalat. He examined his de ad
body and found the following injuries:
1. Wound of Entrance: Three (03) wounds of entrance in number on neck 1 cm.
These wounds are two to three cm each apart. These are oval in shape.
2. Wound of Exit: Three wounds in number and fracture mandibular bone and
bullet crosses. The bone on both sides which also causes bleeding from ear and damage brain and vital center brain.
He also opined that the injuries caused by means of fire arm and the probable cause of death
was opined due to damage of vital organ brain.
9. PW-7 is Munir Ahmed Mughal, Tehsildar Mangochar, who deposed all the steps
taken by him and mainly while reaching at the time of occurrence has prepared the sketch of occurrence and prepared inque st report and specially in his sketch Ex.P/7- B he has mentioned
the place of presence of appellant, as under:
ىا� د� � � � ا� ل� � � ن�ئر
�� � � شارٹ� � ر� ا� ہ� � ا� � � م� � ں� م� وہ� ۔
10. Prior to evaluation of the st atements of eye- witnesses and Investigating Officer it
would be appropriate to decide the unnatural death of deceased Muhammad Azam. In this
regard all the prosecution witnesses in their statements fully deposed that the deceased was killed by means of fir e arm and their statement to this regard supported by the Medical
Certificate Ex.P/5 -A produced by PW -5 Dr. Abdullah Jan Langove, Medical Officer DHQ
Kalat, who conducted the external examination of the body of deceased on 15.1.2014 at 6.00 p.m. and opined his injuries were caused by means of fire arm, which caused his death due to
damage of vital organ/brain. Further the inquest report made by the Investigating Officer, wherein also at Column Nos.9, 10 and 12 it is transpired that the cause of death of dec eased
was unnatural and further the unnatural death of deceased was not disputed by the defence.
11. After overall perusal of ocular evidence i.e. statements of eye -witnesses i.e. PW -1,
PW-2, PW -3, PW -4 and PW -6 being brothers and cousins of deceased thoug h separately in
their statements nominated and attributed role of murder of deceased to the appellant, but
their statements are not worth credence and confidence inspiring for the reasons that neither they have shown the presence of each other at the place of occurrence nor corroborated the
statements of each other on all counts i.e. the manner in which the occurrence has taken place or any sudden provocation happened in spur of moment. Furthermore, mainly the conduct of blood relation eye -witness does not appeal to the prudent mind while in presence of such five
brothers and cousins of deceased the appellant single handedly armed with shot gun came over there and after exchange of few harsh words started firing on the deceased and despite presence of all ey e-witnesses none of them has resisted or tried their level best to save the
deceased from the clutches of appellant, but no such action/reaction was arisen from the circumstances of the case to believe the statements of natural eye- witnesses, as such, the
conduct of all eye -witnesses is itself creating doubt in the case of prosecution. It does not
appeal to the logic that by killing a person in presence of his close relatives, they did not attempt to save the deceased from the accused. Reliance in this rega rd 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.
12. It has come on record that all the witnesses are brothers and cousins to each other.
PW-1 was th e maternal uncle of deceased, while PWs -2, 3, 4 and PW -6 are the brothers of
deceased Muhammad Azam, hence all the witnesses interested being related with each other
and the deceased. Besides, according to the case of prosecution there were certain other inhabitants of the area, who at the time of alleged incident gathered around at the place of
occurrence, but again none of them was made as witness to corroborate the prosecution version, hence the case of prosecution is lacking independent corroboration and the appellant
cannot be assumed to be culprit solely on the statements of witnesses that are interested and are related to the deceased. It is settled law that when independent witnesses are present but they are not produced and only related witnesses ar e produced, testimony of such witnesses
are not reliable. It would also reflect that prosecution wanted to suppress material evidence. It is a celebrated principle of the appreciation of evidence that mere relationship of witnesses inter se or to the deceased is not sufficient to discredit out -rightly their testimony if otherwise
such witnesses are found to be the witnesses of truth but if the independent and impartial witnesses are available and they are not produced and withheld and only the related witne ss
whose testimony is not confidence -inspiring, are produced, the testimony of such witnesses
cannot be relied upon without independent corroboration and the corroboration shall be of such a standard which tends to satisfy the court that the witnesses have spoken the truth.
Reliance in this regard is placed on the case of Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another, 2014 YLR 1180. The relevant portion is reproduced herein below:
"The inference regarding non- production of this important independent witness would
go against the prosecution that had he been produced his statement wouldn't have been favourable to prosecution. It would also reflect that prosecution wanted to suppress material evidence."
13. Besides, neither any empties of s hot gun was taken into possession from the place of
occurrence nor allegedly weapon was recovered from the possession of accused/appellant he was admittedly arrested from the place of occurrence at the spur of moment. Such gross negligence and defective in vestigation creates serious dents in the case of prosecution and
from all four corners the prosecution has miserably failed to establish the charge against the
appellant beyond shadow of any doubt and the learned trial Court while recording the
judgment and sentence, awarded major penalty of death to the appellant reached to a wrong conclusion by not taking into consideration the material doubts created in the prosecution case and the learned trial Court failed to extend the benefits of such doubts to the a ppellant.
Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held that, "The concept of benefit of doubt to an accused is deep -rooted in our country. For giving him benefit of doubt it is not necessary that
there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
14. After proper appraisal of evidence to its true perspective I am agreed with the view of
my learned brother Mr. Justice Naeem Akhtar Afghan by setting -aside the impugned and
accepting the appeal of the appellan t and acquitted him from the charge.
15. Thus, I do hereby accept the appeal and set -aside the judgment dated 16th July 2014
passed by learned Additional Sessions Judge, Kalat and acquit the appellant Gul Mir son of Amir Bakhsh from the charge by extending the benefit of doubt to him, accordingly he is
acquitted of the charge under section 302, P.P.C., FIR No.01/2014 Levies Thana Mangochar. The appellant being in custody, be released forthwith if not required in any other case.
The murder reference made by trial Court is answered in negative.
JK/157/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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