2018 P Cr. L J 1351
[Balochistan]
Before Nazeer Ahmed Langove, J
LIAQAT ALI and 2 others ---Appellants
Versus
The STATE---Respondent
Criminal Appeal No. (S) 17 of 2018, decided on 21st February, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 324, 337- F(iii) & 34 ---Attempt to commit qatl- i-amd, causing mutalahimah, common
intention ---Appreciation of evidence ---Benefit of doubt ---Prosecution case was that at about 4.30
a.m., the accused persons with unknown accomplice, all equipped with deadly weapons, came
for stealing two bullocks of complainant ---Accused persons, on resistance, made firing causing
injuries to the complainant and his son---Accused were arrested by the police after an encounter -
--Record showed that FIR had been registered without any delay wherein name of the accused persons figured with parentage, which was not possible in the odd hours of night though they were allegedly identified in the light of bulb, but no proof of light had been brought on record---Accused persons were arrested by the police after the alleged encounter which continued for
thirty minutes in which both the parties resorted to firing but none from either side received a single bruise nor any property was damaged ---Site inspection notes showed that one son of
complainant was shown as injured but the medical certificate produced in the court was of another son of complainant ---Said son did not appear before the Trial Court ---Withholding of
such evidence without good cause suggested that had the said evide nce been brought on record,
same would have been unfavourable to the prosecution---Record transpired that there were material contradictions in the statements of witnesses with regard to registration of case and the visit to the hospital---Witness had stat ed that he shifted the injured to the hospital and thereafter
went to police for registration of case, while complainant had narrated a different story of his visit to the hospital---Prosecution had sent empty shells and crime weapon to the expert with the
unexplained delay of more than three months, which was fatal to the case of prosecution---Circumstances established that prosecution had failed to prove its case beyond any shadow of doubt, benefit of which would resolve in favour of accused---Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentences recorded against them by the Trial Court.
Ali Sher and others v. The State 2008 SCMR 707; Darbar Abbas Shah and another v. The
State 2010 PCr.LJ 1270 and Mian Da d Leghari v. The State 2009 PCr.LJ 1226 rel.
(b) Criminal trial ---
----Medical evidence---Scope ---Medical evidence itself did not connect a particular person with
the commission of offence nor was a conclusive proof rather supported the ocular account.
Ata Muhammad and another v. The State 1995 SCMR 599 and Abdul Subhan v. Raheem
Bakhsh PLD 1994 SC 178 rel.
(c) Criminal trial ---
----Benefit of doubt ---Principle ---If a single doubt was created in the prosecution case, accused
would be entitled to its benef it not as a matter of grace and concession but as a matter of right.
Muhammad Akram v. The State 2009 SCMR 230; Sher Umer Khan v. Khan Pur alias
Khaney and 2 others PLD 2015 Pesh. 143 and Fariad Ali v. State 2008 SCMR 1086 rel. Ms. Tehmina Samad for Appellants.
Abdul Karim Malghani, State counsel.
Date of hearing: 2nd February, 2018.
JUDGMENT
NAZEER AHMED LANGOVE J. ---The instant Criminal Appeal No.17 of 2018 is
directed against the judgment dated 10.01.2018 (hereinafter "the impugned Judgment") passe d
by Sessions Judge, Jaffarabad at Dera Allah Yar, with the prayer to set aside the same and
Acquittal of the appellants of the charge.
2. Facts of the case are that in pursuance of report submitted by the complainant
Muhammad Hayat, the instant case vide, FIR No.16/2016 has been registered at PS Adil Pur, on
24th September 2016, stating therein that he along with his family members have been residing
at Goth Thada Khan Gajani, tonight they after taking meal were sleeping, at about 4:30 a.m. attracted by ba rking of Dogs, he along with his brothers Ganwhar, Imam Bakhsh and son
Hafeezullah came out and identified the accused Liaqat Ali son of Arbab alias Muhammad Usman, Riaz alias Attaullah, Muhammad Amin alias Loti, along with their unknown accomplice in the light of bulb equipped with deadly weapons stealing their two (2) bullocks. Resisted by the complainant and his fellows on which they fired and caused injuries to the complainant and his son Hafeezullah, after committing crime the accused persons fled away towards the North of Pat
Feeder canal by taking aforesaid bullocks with them, Hence this case.
It is relevant to mention here that the appellants alleged to have been arrested by the
police after an encounter when they were on their way near watercourse.
On completion of investigation, challan of the case was submitted and trial commenced.
Charge was framed against the appellants to which they pleaded not guilty and claimed
trial.
3. The prosecution, in order to substantiate its claim produced PW -1 Muha mmad Hayat,
PW-2 Imam Bakhsh, PW -3 Dr. Shoukat Ali Khoso, PW -4 Ganhwar Khan, PW -5 Muhammad
Usman constable, PW -6 Imtiaz Ali constable PW -7 Liaqat Ali H/C PW -8 Muhammad Ismail
Constable, PW -9 Habibullah H/C, PW -10 Ayaz Ahmed constable, PW -11 Ghulam Mustafa
SI/I.O.
4. On examination under section 342, Cr.P.C. the appellants disputed the case of
prosecution and pleaded their innocence, however, did not record their statements on oath as
provided under section 340(2), Cr.P.C. nor produced any witness in their d efence.
5. The trial Court after hearing the parties and evaluating evidence found the appellants
guilty, as such, convicted and sentenced them for the period mentioned hereinabove, hence this appeal.
6. Learned counsel for the appellants argued that the judgment impugned passed by the trial
Court is contrary to law, facts and principles of natural justice, as such, is not sustainable under the law and is liable to be reversed, she added that various baseless cases have been registered against the appe llants including the instant case just to fulfill the formalities but this important
aspect lost sight of the learned trial court. She maintained that there were glaring illegalities on the part of police and dishonest improvements and inconsistencies in t he statements of
prosecution witnesses but escaped notice of the trial court which finally caused miscarriage of justice.
7. On the other hand, the learned State counsel strongly opposed the appeal by submitting
that the judgment impugned is based on prope r appreciation of evidence, no illegality or
irregularity had been committed by the police while investigating the case nor judgment impugned suffers from any legal infirmity or inherent defect warranting interference by this court. He added that the learn ed counsel for the appellants failed to point out any specific
illegality or irregularity or non -reading and misreading of evidence the judgment passed by this
court, as such, the appeal filed by the appellants is liable to be dismissed.
8. I have heard th e learned counsel for the parties and gone through the record with their
assistance which reflects that the instant case has been registered on 24.09.2016, with the history
of theft inside the Hirz, when the appellants alleged to have taken two bullocks of the
complainant, resisted by the latter and his relatives on which the accused persons fired and caused injuries to the complainant and his son Hafeezullah, besides taking away two bullocks by them, however arrested by the police after an alleged encounte r.
9. Deep appreciation of evidence and its critical analysis shows that case of the prosecution
is highly doubtful for the reasons that though the FIR has been registered without any delay wherein name of the appellants did figure with parentage which in my view point was not possible in the odd hours of night though alleged to be identified in the light of bulb but no proof has been brought on record in this behalf. Appellants were arrested by the police after an alleged encounter which continued for 30 m inutes by resorting to firing from both sides but none from
either side received a single bruise nor any property had been damaged. Another damaging factor to the case of prosecution was version of police vide, FIR No.17/2016 registered by PW Latfuf
Ali wh erein he narrated a different story of the occurrence with the effect that they after
receiving information with regard to theft in the house of Abdul Aziz Merhata and stealing his
two bullock by the accused for which FIR No. 19/2016 had been registered, f ound the appellants
coming, who alleged to have resisted their arrest but apprehended after an encounter, another surprise was that said Abdul Aziz did not appear before the trial court nor facts of the FIR having
No. 19/2016 have been brought on record. C areful perusal of record is silent about the release of
aforesaid two bullocks; nothing is available suggesting that who had received custody of above
mentioned bullocks. It is observed with grave concern that in site inspection note (Ex.P/2- B) one
Sanaull ah son of complainant Mohammad Hayat was shown as injured but medical certificate
(Ex.P/3 -B) is of Hafeezullah son of Mohammad Hayat. The latter (alleged injured Hafeezullah)
also did not bother to appear before the trial court. By withholding such evidenc e without good
cause, under illustration (g) of Article 129 of Qanun- e-Shahadat Order 1984, suggests that had
the said evidence been brought on record same would have been unfavorable to the prosecution. Apart from that there are material contradictions in statements of witnesses with regard to
registration of case and visit of hospital. PW -4 Ganhwar Khan stated that he shifted injured to
the hospital and thereafter went to police for registration of case while PW -1 Muhammad Hayat
narrated a different story of his visit to hospital first.
10. So far as the medical evidence is concerned definitely the medical evidence itself does
not connect a particular person with the commission of offence nor is a conclusive proof thereof rather supports Ocular version whi ch is manifest from Article 59 of Qanun -e-Shahadat Order,
1984. States about the opinion of expert and its relevance. In this respect, reliance is placed on a case titled Ata Muhammad and another v. The State SCMR 1995 page 599. Relevant observation theref rom is under: -
"Another question that arises with reference to the corroboration is whether medical evidence can corroborate the ocular evidence qua the appellants. The answer is in the negative. When we talk of corroboration, it is always with regard to t he story of the
prosecution and with regard to the identity of each accused. The medical evidence may confirm the ocular evidence with regard to the receipt of the injury, kind of weapon used for causing the injury; duration between the injury and the deat h, presence of the injured
P.Ws. or of the accused on the spot, but it would not connect the accused with the commission of the crime."
Further reliance is placed on a case titled Abdul Subhan v. Raheem Bakhsh PLD 1994 SC
page 178. Relevant observation therefrom is as under:
"There is no dispute about the fact medical evidence can provide corroboration of confirmatory nature in appropriate cases where questions involved relate to number of assailants, types of weapons used and nature of injuries. Medical evidence cannot be used as corroboration qua accused to say that such and such accused has committed crime and caused such and such injuries."
11. Another damaging factor of the instant case was non- sending of empty shells timely and
crime weapon to the ex pert with an unexplained delay of more than three months in this respect
reliance is placed on a case titled Ali Sher and others v. The State 2008 SCMR Page 707. Relevant observation therefrom is as under: -
"The crime -empties having been allegedly found at the place of occurrence and having
been retained for so long in the police station and having been sent to the F.S.L. along
with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys an evidenti ary value of the said piece of evidence.
These recoveries, therefore, cannot offer any corroboration to the ocular testimony."
Further reliance is placed on a case titled Darbar Abbas Shah and another v. The State
2010 PCr.LJ 1270. Relevant note thereof i s as under: -
"It has also been observed that as per recovery memo. (Exh. PE) six empties were taken into possession from the spot by the Investigating Officer (P. W. 9) on 21.10.2003 in presence of Syed Shabir Hussain Shah (P. W.2) one Zulfiqar Ali, PW (not produced), but P. W 2 while appearing in Court stated that three empties were seized by the investigating officer from the venue of crime. Perusal of record also reveals that the empties recovered from the spot and the pistols, allegedly recovered on the pointation of the appellants,
were sent to the Forensic Science Laboratory together on 13.11.2003 as per statement of Muhammad Iqbal, constable (P. W. 4). In view of this situation, although the report of the Forensic Science Laboratory is in the positive , but it is of no avail to the prosecution and
cannot be taken into consideration because it is settled principle of law that delay in
sending the empties and the crime weapon would destroy the evidentiary value of such
piece of evidence."
12. Further reli ance is placed on a case titled Mian Dad Leghari v. The State 2009 PCr.LJ
page 1226. Relevant portion is as under: -
"There was a delay of more than a month in sending the crime empties and the weapons
of offence to the Ballistic Expert, for which there is no explanation forthcoming. Sending of crime empties and the weapons of offence together after a long delay will cast a serious doubt and will be of no legal value. Reliance in this behalf is placed on Allahando v. The State 1969 SCMR 714, Muhammad Shafi a nd another v. The State PLD 1968 Lah.
869, Beekho alias Imam Bux and 2 others v. The State 1973 PCr.LJ 896; Bacho and others v. The State PLD 1963 Kar. 891. It also cannot be lost sight that both the recovery witnesses are close relations of the deceased p ersons. Bahu (P.W.8) is uterine brother of
Khaira deceased and Muhammad son of Amir P.W.6 is the brother of Khair's wife and maternal uncle of Manzoor deceased. In view of the above circumstance, we disbelieve the recoveries in this case."
It is also obse rved with concern that empty shells of both the cases were sent together
which further proved fatal to the case of prosecution.
13. Needless to mention here that the defence is not required to create a series of dents and
doubts in prosecution case but for giving the benefit of doubt if a single doubt is created even
then the defence is entitled to the benefit of doubt not as a matter of grace and concession but as
a matter of right. Reliance can be placed on the judgment titled as Muhammad Akram v. The State reported in 2009 SCMR 230. Relevant observation there from are reproduced herein
below; -
"The nutshell of the whole discussion is that the prosecution case is not free from doubt.
It is an axiomatic principle of law that in case of doubt, the benefit th ereof must occur in
favour of the accused as matter of right and not of grace. It was observed by this court in the case of Tariq Pervaiz v. The State 1995 SCMR 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 create 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".
Reliance can also be placed on case titled as Sher Umer Khan v. Khan Pur alias Khaney
and 2 others reported in PLD 2015 Peshawar 143 wherein it held as under --
"It is settled law that the prosecution primarily is bound to establish guilt against the accused without shadow of reasonable doubt by producing trustworthy, convincing and
coherent evidence enabling the court to draw conclusion: whether the prosecution has succeeded in establishing accusation against the accused or otherwise and if it comes to the conclusion that the charges so imputed against the accused has not been proved
beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that
prosecution is duty bound to prove its case beyond any reasonable doubt and if any single
and slightest doubt is created benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal.
Moreover, accused is always consider as the most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance can be placed on case titled, "Fariad Ali v. State" 2008 SCMR 1086."
14. In the light of what has been discussed above the appeal filed by the appellants, is
accepted the judgment impugned dated 10th January 2018, passed by Sessions Judge, Jaffarabad at Dera Allah Yar, is set aside, and appellants Liaqat Ali son of Arbab alias Muhammad Usman, Riaz alias Attaullah son of Darghain alias Dargahi and Muhammad Bakhsh alias Muhammado son of Sobha alias Dhani are acquitted of the charge under sections 324, 337- F(iii) of the P.P.C.,
in FIR No.16/2016, of Police Station Adil Pur , by extending benefit of doubt in their favour they
are in custody they be released forthwith, if not required in any other case.
JK/17/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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