2018 P Cr. L J 1443
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
SADDAM HUSSAIN and another ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No.(s) 161, Criminal Revision No.(s) 47 and Criminal Acquittal Appeal No.
(s) 157 of 2015, decided on 24th January, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 147, 148 & 149--- Qatl-i-amd, attempt to commit qatl- i-amd, rioting,
rioting armed with deadly weapon, unlawful assembly ---Appreciation of evidence ---Benefit
of doubt ---Prosecution case was that on the day of occurrence, accused with co- accused
persons duly armed with Kalashnikovs came at the place of incident and started firing upon the brother of the complainant, due to which, he sustained injuries and died at the spot, while another Police Official, who at the relevant time was passing from there also came under firing, received injuries and subsequently succumbed to the injuries ---Ocular account of the
occurrence was furnished by the three witnesses including complainant, claiming to have
directly witnessed the crime ---Complainant was brother of the deceased, whereas remaining
eye-witnesses were brother and son of the deceased ---Record showed that initially, accused
and co -accused were arrested and after taking cognizance of the case, Trial Court examined
the statement of five witnesses including the eye -witnesses of the prosecution---Another
accused was arrested subsequently, and to his extent, the Trial Court again examined al l the
prosecution witnesses ---Both the statements of witnesses recorded in the Trial Court were
contradictory to each other on material counts as well as the first and second statements of the witnesses were also contradictory to their earlier depositions recorded during investigation of the case---Complainant appeared as witness and made contradictory statement from his fard -
e-bayan ---Complainant had mentioned in his fard- e-bayan that there existed no motive
behind the occurrence and his brother was murder ed without any reason, but said witness had
himself contradicted his assertion in his court statement and admitted the existence of previous enmity that he was nominated in case registered under S. 302, P.P.C., whereby the father of accused and co -accused were murdered ---Brother of complainant/witness also made
his ignorance that prior to present incident, his brother had committed the murder of three persons of the accused party ---Complainant and his brother knowingly made attempt to
camouflage the motive for the occurrence---Complainant had deposed that he approached the police for registration of FIR by submitting his fard -e-bayan on the same day, but the same
was delayed by the police for two days and on the third day of incident, second fard -e-bayan
was taken from him and accordingly the FIR was lodged ---Complainant had failed to produce
the copy of his first fard -e-bayan in the court and also had failed to produce any evidence in
such behalf that whether he had approached the high- ups of the department or otherwise ---
Other eyewitness had failed to justify his presence at the time and place of occurrence ---
Complainant and eye -witness had stated that after the incident, the police had come and took
the deceased and the injured to the hospital and nowhere t he presence of other eye -witness
was mentioned ---Said eye -witness had mentioned that he worked in the said shop, in front of
which the incident had taken place ---Said witness deposed that he along with police had
taken the injured to the hospital ---Said wi tness made certain dishonest improvements from
his earlier deposition ---Said witness stated that his father remained unconscious for ten days
and succumbed to injuries ---On the contrary, Medical Officer, who treated the father of
witness stated that during treatment, the injured was capable to speak ---Statements of all the
star witnesses were found contradictory to each other ---Witnesses made unsuccessful attempt
to establish their presence at the place of occurrence, but they failed which showed that
occur rence was un -witnessed, due to which the FIR was delayed for two days and accused
were nominated in the FIR after consultation and deliberation---Complainant with his brother as well as the son of deceased were the target of the accused party, but brother and father of the complainant party were hit and the complainant or the witnesses were let free ---Said
factor did not appeal to the logic that by killing two persons in presence of their close relatives accused would not attempt to cause any injury/kill th e prosecution witnesses leaving
them for evidence to be hanged ---Incident took place on 27.12.2014 and on that date,
(without registration of FIR), the first Investigating Officer of the case arrived at site and started investigation of the case by inspect ing the site, preparing site plan, collecting the
empties of Kalashnikov, preparing recovery memos and sealing the empties in parcel, collecting the blood- stained earth, recording the statement of witnesses and deceased then
injured under S. 161, Cr.P.C., shifted the injured and deceased to the hospital, while admittedly, the FIR was lodged on 29.12.2014---Such investigation could have been conducted after registration of FIR ---Allegedly, Kalashnikov was recovered on the pointation
of accused, but prosecuti on had failed to establish the same through solid evidence ---Similar
role had been ascribed to all the accused, but Trial Court disbelieved the same to the extent of acquitted accused, but on the same set of evidence, accused was awarded conviction and
sentence ---Circumstances established that prosecution had failed to prove its case against the
accused beyond any reasonable doubt, benefit of which would resolve in favour of accused ---
Appeal was allowed and accused was acquitted in circumstances by setting aside conviction and sentence recorded against him by the Trial Court.
Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690
rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 154--- Lodging of FIR ---Scope ---If the complainant par ty was reluctant to lodge the
FIR, the SHO of the concerned police station could have lodged the FIR on his own on
receipt of information about commission of cognizable offence ---Police had no authority to
delay the registration of FIR on flimsy grounds ---Once information regarding the commission
of a cognizable offence had been given to the SHO, it was his statutory duty to enter every information regarding the commission of cognizable offence in a book maintained at Police Station.
Mst. Shehnaz alias As ma alias Rani and another v. The State 2010 PCr.LJ 23 rel.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 147, 148 & 149---Qanun- e-Shahadat (10 of 1984), Art. 129(g) ---Qatl -i-
amd, attempt to commit qattl- i-amd, rioting, rioting armed with deadly weapon, unlawful
assembly ---Withholding material evidence ---Effect ---Eyewitness stated that another witness
was accompanied them at the relevant time and the name of said witness also appeared in the
challan, but the evidence of said witness was withheld by the prosecution without any plausible reason or justification ---Adverse presumption could fairly be drawn that had the
said witness been examined in the court, his evidence would have been un- favourable to the
prosecution.
Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR
1180 and Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.
Ahsan Rafiq Rana for Appellants.
Sarwar Khan Kakar for the Complainant/Petitioner/Appellant.
Jamil Akhtar Gajani, A.P. -G. for the State .
Date of hearing: 29th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.(S) 161 of 2015. Criminal Revision Petition No.(S) 47 of 2015 and Criminal Acquittal
Appeal No.(S) 157 of 2015. The criminal appeal has been filed by the accused -appellant
Saddam Hussain son of Shadman, against the judgment dated 19th September 2015 (hereinafter referred as "the impugned judgment") passed by the learned Additional Sessions
Judge Dera Bugti at Sui (hereinafter as "the trial Court"), whereby he was convicted under
sections 302(b), 149, P.P.C. and sentenced to suffer life imprisonment on two counts and to
pay compensation of Rs.300.000/ - each to the legal heirs of both the deceased Dhani Bakhsh
and Hawaldar Madad Ali, as envisaged under section 544- A, Cr.P.C. and in default thereof to
further suffer six (06) months' S.I., under section 148, P.P.C. for two years' S.I. Both the sentences were ordered to run concurrently, with the benefit of section 382- B, Cr.P.C., while
the accused Ali Jan alias Paneri and Jangoo Khan sons of Mawarahan were acquitted of the
charge against whom the complainant filed Criminal Acquittal Appeal, while he has also filed Criminal Revision Petition for enhancement of sentence awarded to the appellant Saddam Hussain.
2. Facts of the case are that on 29th December 2014 the complainant Sewa Khan son of
Hazhave Khan lodged FIR No.42 of 2014 at Police Station Dera Bugti under sections 302,
324, 147, 148, 149, P.P.C., stating therein that he is resident of Muhalla Kohoo Zhankave
Dera Bugti and earns his livelihood by labour work. On the day of occurrence i.e. 27th December 2014 he came out from his house for search of labour work. while his brother was standing near the Welding Shop situated at Achanak Chow k Dera Bugti, when at about 03.30
p.m. five accused persons namely Muhammad Murad alias Muradoo Jangoo Khan, Ali Jan alias son of Mawarhan, Saddam Hussain and Khadim Ilussain son of Shadman being armed with Kalashnikov came over there and started firing upon his brother namely Dhani Bakhsh due to which he sustained injuries and died at the spot, while another police official namely Hawaldar Madad Ali who at the relevant time was passing from there also came under firing and received injuries and subsequentl y he also succumbed to injuries. After commission of
crime the accused persons escaped from the place of occurrence. The complainant further averred that there was no motive behind the occurrence and the accused persons committed the murder of his brother without any reason.
3. Pursuant to the above the initial investigation was conducted by PW -8 Darya Khan,
ASI 1st I.O., who visited the site and prepared site sketch; took into possession ten empties of
Kalashnikov from the place of occurrence: took into possession blood stained earth; referred the Madad Ali for treatment to hospital. PW -7 Ghulam Abbas, SI is the 2nd I.O. who during
investigation arrested the appellant Saddam Hussain and Ali Jan; took into possession the blood stained clothes of deceased Dha ni Bakhsh recorded the statements of witnesses;
recorded the disclosure of appellant Saddam Hussain and recovered the crime weapon Kalashnikov along with magazine and four live cartridges on his pointation from his house; got obtained death certificates of deceased: PW -10 Abdul Majeed Dasti, SI is the third I.O. of
the case, who arrested the accused Jangoo and on completion of investigation submitted the challan in the trial Court.
4. On receipt of challan the trial Court declared accused Muhammad Murad ali as
Muradoo and Khadim Hussain son of Shadman, as proclaimed offenders by initiating
proceedings under sections 87 and 88, Cr.P.C. At the trial the prosecution produced ten (10)
witnesses, whereafter the appellant and acquitted accused were examined under s ection 342,
Cr.P.C. They also recorded their statements on oath under section 340(2), Cr.P.C. while the
acquitted accused Jangoo Khan produced a witness in his defence, while the appellant has not
produced any witness in his defence. On conclusion of trial and after hearing arguments, the
learned trial Court vide impugned judgment, convicted and sentenced appellant Saddam
Hussain, while acquitted accused Ali Jan alias Paneri and Jangoo Khan. Whereafter, the appellant Saddam Hussain has filed the criminal ap peal No.(S) 161 of 2015, while the
complainant filed criminal acquittal appeal No.(S) 157 of 2015 against the acquitted accused, while filed Criminal Revision Petition No.(S) 47 of 2015 for enhancing the sentence of appellant Saddam Hussain.
5. Learned cou nsel for the appellant Saddam Hussain contended that the impugned
judgment of the learned trial Court is perverse and contrary to material available on record; that all the witnesses contradicted each other on material counts as well as made dishonest impr ovements in their depositions; that only interested witnesses have been produced and the
case of prosecution is lacking independent corroboration; that on the same set of evidence acquittal was recorded in favour of co -accused, while the appellant has wron gly been
convicted and sentenced by the learned trial Court by mis -appreciation of evidence to his
extent; that all the prosecution witnesses have failed to justify their presence at the time at the place of occurrence; that the prosecution has withheld the evidence of important witness Jamil Ahmed as he had refused to give false evidence in favour of the complainant party; that the prosecution has failed to establish the recovery of alleged Kalashnikov on the pointation of the appellant; that the prosecuti on has miserably failed to establish the charge against the
appellant, but he has been convicted and sentenced in the manner, which is not sustainable in the eyes of law, thus deserves to be set aside. He also opposed the criminal revision petition for enh ancement of sentence of appellant.
6. Learned counsel for the acquitted accused contended that since the prosecution has
produced shaky and untrustworthy evidence against them, which were rightly appreciated by the learned trial Court and acquitted the acc used-respondents of the charge; that the
complainant himself admitted in his fard -e-bayan that no previous enmity exist in between
the parties, thus no question arises for committing the murder of deceased by the appellant along with co- accused: that the F IR was lodged after delay of two days and that too without
any plausible explanation; that the interference in the order of acquittal is unwarranted, until and unless proved that the same is perverse, contrary to material available on record, flimsy
and not tenable, while the perusal of the impugned judgment qua the prosecution evidence
has justified the impugned acquittal order recorded in favour of the acquitted accused, thus the same is not open for interference to the extent of acquitted persons, hence the appeal so filed assailing their acquittal deserves dismissal.
7. Learned counsel for the complainant assisted by the learned Additional Prosecutor
General while supporting the impugned judgment to the extent of convicted accused contended that the learned trial Court after proper appraisal of material available on record has come to right conclusion by awarding conviction to the appellant, but committed illegality while awarding lesser punishment to the appellant, hence prayed for enhancement of his sentence from life imprisonment to that of Death sentence.
8. To the extent of acquitted accused, the learned counsel for the complainant contended
that both the accused persons were nominated in the FIR with specific role of firing upon the
deceased Dhan i Bakhsh and Madad Ali, due to both of them died; that all the witnesses
produced by the prosecution have correctly identified both the accused in the trial Court as
assailants, who along with convicted accused and the absconding accused armed with Kalashn ikov murdered two persons and even throughout the trial both of them have failed to
take any specific plea with regard to their false implication, hence prayed for awarding conviction and sentence to the acquitted accused in accordance with.
9. Heard the l earned counsel and perused the available record. So far as the unnatural
death of deceased Dhani Bakhsh is concerned, the same is undisputed. The defence is also
not disputing the unnatural death of deceased, but pleaded their false implication on the basi s
of previous enmity. Soon after the crime, the deceased Dhani Bakhsh was taken to District
Head Quarter Hospital Dera Bugti, where he was examined by PW -6 Dr. Sateesh Kumar,
Medical Superintendent at 4.45 p.m. and after examination he issued MLC Ex.P/6- A. perusal
of which reflects that the deceased received multiple bullet injuries on his person. It was opined by PW -6, that the duration of injuries were fresh and firearm was used in the crime
10. Likewise, the deceased Madad Ali was examined by PW -9 Dr. Muhammad Ismail,
Ex-Medical Officer, District Head Quarter Hospital Dera Bugti. According to PW -9 on 27th
December 2014 at about 4.00 p.m. the deceased was brought before him and after examination he observed bullet injuries on the person of deceased Madad A li, hence after
providing him first aid he was referred to Rahim Yar Khan for further medical treatment, but the latter succumbed to the injuries. PW -9 issued MLC Ex.P/9- A.
11. Though the unnatural death of deceased Madad Ali has not been disputed by the
defence, but at this juncture it is necessary to mention here that the medical and ocular evidence are conflicting to each other. According to case of prosecution as emerged from the statement of PW -5 Dost Muhammad, who is the son of deceased that the decea sed died after
ten days of the incident, but astonishingly the MLC was issued by PW -9 Dr. Muhammad
Ismail, Ex -Medical Officer on 28th January 2015, almost after one month, but did not
mention exact time and date of his death, however, in cross -examination admitted that the
injured was able to speak. As far as the unnatural death of deceased Madad Ali is concerned, it was confirmed.
12. Now adverting to ocular testimony, suffice to mention here that the prosecution has
produced ten witnesses, out of whom the complainant/PW -1 Sewa Khan. PW -3 Raheem
Bakhsh and PW -5 Dost Muhammad are claimed to have witnessed the crime directly. PW -1
is the complainant of the case as well as the brother of deceased Dhani Bakhsh while PW -3 is
also the brother of deceased, whereas PW-5 Dost Muhammad is the son of deceased Madad
Ali. It is also necessary to mention here that initially the accused Saddam Hussain and Ali Jan
were arrested and after taking cognizance of the case, the trial Court had examined the statements of five witn esses including the star witnesses of the prosecution i.e. PW -1
complainant Seway Khan, PW -3 Rahim Bukhsh and PW -5 Muhammad, however,
subsequently the accused Jangoo Khan was arrested and to his extent the trial Court once again examined all the five witnesses. However, in the interest of justice, we are taking into consideration both the statements of the witnesses jointly. Perusal of both the statements of witnesses recorded in the trial Court which are contradictory to each other on material counts as well as the Ist and second statements of the witnesses are also contradictory to their earlier depositions recorded during investigation of the case.
13. The complainant Sewa Khan appeared as PW -1, who made contradictory statement
from his Fard -e-bayan Exh.P W-1/A. In his fard- e-bayan Exh.P/1- A, PW -1 has stated that on
the day of occurrence early in the morning he went out from his house for labour work, but
his court statement is silent in such behalf and further PW -1 has not mentioned that when he
again retu rned to his house. In his fard -e-bayan the complainant has clearly mentioned that he
was informed by his brother PW -3 Rahim Bukhsh with regard to incident that again his both
court statements are silent in this regard. However, in his examination while rep lying the
answer of question No. 23, he replied that firstly he reached at the place of occurrence and after his arrival his brother Rahim Bukhsh had reached. PW -3 in his first statement recorded
on 15th April, 2015 has not mentioned that he had informed t he complainant about the
incident and while replying the question No. 5 in his cross -examination he stated that he
reached at the spot after 9/8 minutes, but he made dis -honest improvement in his second
statement recorded on 22nd August, 2015 and stated that he informed the complainant Sewa about the incident. PW -3 also made dishonest improvements and contradicted the statement
of PW -1 and stated that at first, he reached at the spot PW -1 in his Court statement stated that
he was standing in front of his house at the distance of about 200 spaces, but no such details had been mentioned in the Fard- e-bayan. The complainant in his fard- e-bayan Ex.P/1- A has
mentioned that there exists no motive behind the occurrence and his brother was murdered without any rhyme or reason but he himself contradicted his such assertion in his Court
statement and admitted the existence of previous enmity that he was nominated in case FIR No.3/1999 under section 302, P.P.C. whereby the father of accused Ali Jan namely Moran and Shadman the father of accused Saddam Hussain were murdered. PW -3 also made his
ignorance that prior to instant incident his brother Sewa had committed the murder of three persons of the accused party. It appears that the complainant and his brother PW -3 knowingly
made an attempt to camouflage the motive behind the occurrence. PW -1 in his Court
statement has mentioned that he approached the police for registration of FIR by submitting his fard -e-bayan on the same day, but the same was delayed by the police for t wo-days and
on the third day of incident, second fard- e-bayan was taken from him and accordingly the
FIR was lodged. However, the PW -1 has failed to produce the copy of his first fard- e-bayan
in the Court and he has failed to produce any evidence in such behalf that whether he had approached the high -ups of the department or otherwise. Mere bald words of the complainant
are not enough to allow him to fill- up the lacunas.
14. The third star witness of the prosecution is PW -5 Dost Muhammad, but he has failed
to justify his presence at the time and the place of occurrence. PW -1 and PW -3 have stated
that after the incident the police had come and they took the deceased and the injured towards hospital and nowhere the presence of PW -5 was mentioned, while PW -5 has mentioned that
he works in the said shop, in front of which the incident had taken place, whereby the
deceased Dhani Bakhsh and his father Madad Ali were murdered. According to PW -5 he
along with police had taken his injured father to hospital. This witness has also made certain dishonest improvements from his earlier deposition, as in his statement recorded under section 161, Cr.P.C. he had given specific role to accused Saddam Hussain for committing the murder of deceased Dhani Bakhsh and injuring his f ather Madad Ali, but his Court
statements are silent in this regard and even he had also not mentioned the names of remaining witnesses in his 161, Cr.P.C. statement. PW -5 further brought on record that after
receiving injuries, his father remained unconsc ious for ten days and being unconscious he
succumbed to his injuries. On the contrary, PW -9 Dr. Muhammad Ismail, who treated the
father of PW -5 when he was in injured condition, stated that during treatment the injured
Madad Ali was capable to speak.
15. We have analyzed the statements of all the three- star witnesses of the prosecution
case and found the same contradictory to each other. The witnesses made an unsuccessful
attempt to establish their presence at the place of occurrence, but they failed to jus tify/explain
their presence. It appears that the occurrence was unwitnessed due to which the FIR was
delayed for two -days and after consultation and deliberation, the accused were nominated in
the FIR. The witnesses do not corroborate presence of each othe r. It is an astonishing factor
that the complainant along with his brother PW -3 Rahim Bakhsh as well as the son of
deceased Madad Ali i.e. PW -5 Dost Muhammad and both the deceased were on target of the
accused party, but brother and father of the complaina nt party were hit and the complainant
or the witnesses were let free. It does not appeal to the logic that by killing two persons in presence of their 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.
16. Another astonishing feature of the case is that the alleged incident took place on 27th
December 2014, on the said date without registration of FIR, the First Investigating Officer of
the case arrived at site and commenced with the investigation of the case by inspecting the site, preparing site map, c ollecting the empties of Kalashnikov, preparing recovery memos
and sealing the empties in parcel collecting the blood stained earth: recording the statements of witnesses under section 161, Cr.P.C., shifted the injured and deceased to hospital; recorded the statement of deceased Madad Ali under section 161, Cr.P.C., while admittedly the FIR
was lodged on 29th December 2014. It is observed that such investigation could have been conducted after registration of FIR, therefore, there was no justification for delaying the registration of FIR on that very pretext. Even otherwise, if the complainant party was reluctant to lodge the FIR, the Station House Officer of the concerned Police Station could have lodged the FIR himself on receipt of cognizable offence by h imself, but this has not
been done so. The Police had no authority to delay the registration of FIR on flimsy grounds once information regarding the commission of a cognizable offence had been given to it. It is the statutory duty of the officer of a polic e station to enter every information regarding the
commission of cognizable offence in a book maintained by such officer the prescribed form i.e. to register FIR. The use of word 'shall' in section 154, Cr.P.C. indicated that it does not provide discretionary power to the Police Officer to delay or refuse the registration of FIR. The aggrieved person had a right that his complaint about the commission of a cognizable offence, be registered in the Police Station as a preliminary step before conducting the investigation, but it appears that the police had flagrantly violated the same and intentionally
and deliberately delayed in registering the FIR, irrespective of the fact that the complainant
party had approached the police for lodging the FIR or otherwise. The main object of prompt
registration of an FIR is to rule out the possibility of deliberation, consultation and inquiry. The element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the interval. Reliance in this regard is placed on the case of Mst. Shehnaz alias Asma alias Rani and another v. the State, 2010 PCr.LJ 23a.
17. According to the statements of PW -1 and PW -3, the witness Jamil Ahmed was
accompanying them at the relevant t ime and the name of such witness also appeared in the
Challan, but the evidence of said witness was withheld by the prosecution without any plausible reason or justification. Therefore, a presumption under illustration (g) of Article 129 of Qanun- e-Shahada t Order, 1984 can fairly be drawn that had the said witness been
examined in the Court his evidence would have been un favourable to the prosecution. 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."
Similar view was also taken in the case of Khalid alias Khalidi and 2 others v. The State, 2012 SCMR 327, whereby it was held as under:
"The prosecution has not, for the reasons best known to it, produced Mst. Jannat Bihi,
an injured witness, from which an inference could be drawn against the prosecution that if she is produced she would have not supported the prosecution version. We, therefore, find that the ocula r account is not of such a character which could be relied
upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye -
witnesses at the place and time of occurren ce is not established as their statements
have been disbelieved by the learned appellate court regarding Sultan Mehmood acquitted accused."
18. So far as the recovery of crime weapon i.e. Kalashnikov on the pointation of the
appellant Saddam Hussain is concerned, the prosecution has also failed to establish the same through solid evidence. According to recovery memo Ex.P/2- A the Kalashnikov was
recovered on the pointation of appellant from his house from the Hen cage towards western wall, while in his cross -examination PW -2 replying the answer of question No.12 stated that:
19. The statement of appellant Saddam Hussain has weight and under the circumstances
his false implication cannot be ruled out of consideration.
20. Reappraisal of the prosecution evidenc e reveals that it was blind murders and the
witnesses failed to justify their presence at the time and the place of occurrence and their statements are contradictory. The investigation of the case was carried out prior to lodging of FIR. The complainant pa rty tried to conceal material facts, which has rendered their
testimony doubtful. The complainant party has also not described the precious enmity existing in between them. The deceased Madad Ali survived for ten days, but during such period his statement/dying declaration was not recorded.
It is further observed that similar role has been ascribed to all the accused, but the trial
Court disbelieved the same to the extent of acquitted accused, but on the same set of
evidence, the appellant Saddam Hussain w as awarded conviction and sentence.
All the above circumstances have created reasonable doubt in the case of prosecution,
but benefit of doubt has not been extended in favour of the appellant.
21. For the above reasons, the Criminal Appeal No.(S) 161 of 2015 is accepted. The
impugned judgment dated 19th September 2015 passed by the learned Additional Sessions
Judge, Dera Bugti at Sui to the extent of conviction and sentence of the appellant Saddam
Hussain, is set aside and the appellant Saddam Hussain of S hadman is acquitted of the charge
under section 302(b), P.P.C. in FIR No.42 of 2014 Police Station Dera Bugti. The appellant
being in custody, is ordered to be released forthwith, if not required in any other case.
Consequent to the above the Criminal Revision Petition No.(S) 47 of 2015 and
Criminal Acquittal Appeal No.(S) 157 of 2015, being devoid of merits are hereby dismissed.
JK/14/Bal. Order accordingly.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,
let us know.