2019 P Cr. L J 1456
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
ABDUL RASHID and others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No. 238 and Criminal Revision Petition No. 25 of 2016, decided on 24th
April, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Circumstantial evidence ---Prosecution case was that the accused along with his co -
accused/sons c ommitted murder of father of the complainant by firing--- In order to establish
the charge, prosecution had produced thirteen witnesses, perusal of which reflected that the prosecution had either produced circumstantial evidence, which was not sufficient to hold the
accused responsible for the murder of deceased ---Direct evidence was lacking independent
corroboration produced through interested witnesses, who could not justify their presence at the relevant time ---Complainant had stated that the accused made cell phone call to his father
and extended threats ---Other witness in his court statement had brought on record that at the
relevant time, the deceased was present with him when on receipt of telephonic call the deceased became annoyed and informed him th at the accused had extended him threats ---
Likewise, another witness being the son of the deceased had brought on record that on the same day, he also had received threats from the accused from same cell phone--- Statement of
another son of the deceased was alike to the statement of complainant, who had also brought
on record that his father had informed him and his remaining brothers, that the accused had extended threats to him through phone ---Mother of the deceased residing in the house of
accused party ap peared as witness, her statement was alike the statement of remaining
witnesses with regard to extending threats to the deceased by the accused on phone ---
Statement of witnesses showed that none of them had witnessed the crime directly--- Such
fact had also been admitted by the witnesses in their examination -in-chief and cross
examinations that they were not the eyewitness of the occurrence ---Statements of the said
witnesses showed that their evidence was only with regard to advancing threats to the deceased by the accused ---Except one witness, the statements of remaining witnesses were
silent about the time when the accused made phone call to the deceased extending threats ---
Evidently, no complaint or FIR was lodged by the complainant or his sons before the concerned Police Station in such behalf ---Even otherwise, the Investigating Officer had
failed to collect the Call Detail Report of the cell phone from the concerned cellular
company ---No investigation was made as to whether the cell was registered in the name of
the accused or in what capacity the accused was in possession of the said cell number ---In
absence of any incriminatory evidence it could not be held that the accused had made any phone call to the deceased or extended threats to him or that the sa id cell number was in his
name or in his possession---Circumstances established that prosecution had failed to prove
its case against the accused beyond any shadow of doubt ---Appeal was allowed and accused
was acquitted by setting aside conviction and sent ence recorded by the Trial Court, in
circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Direct evidence---In the present case, direct evidence was produced by the
prosecution through son of the deceased and a mason,who was constructing the boundary
walls of the house of the accused ---Son of deceased had stated that on the day of occurrence
at about 9.30 a.m., he had observed fire shots by the accused upon his father, his house being located nearby the place of occurrence, he started running towards his house to bring weapon, but on his return the accused had decamped from the place of occurrence ---Conduct
of said witness appeared to be unnatural, as it was not appe alable to logic that once father
was being murdered in his presence, he instead of making an attempt to rescue him proceeded towards his house for bringing weapon---Other witness/mason had contradicted the statement of son of deceased and stated that when he heard firing shots, he along with other labour proceeded towards the place of firing and found the deceased lying in the pool of blood--- Perusal of statement of said witness revealed that he had not mentioned the
presence of witness/son of the deceased even at the time of making firing and even he mentioned nothing that soon after the occurrence witness/son of deceased arrived at the place of occurrence ---Soon after the occurrence, complainant had arrived at the place of
occurrence, but he also stated no thing about the presence of witness/son of the deceased ---
Statement of mason was also silent with regard to identity of the assailants who made firing upon the deceased ---Witness/son of deceased had failed to establish his presence at the time
and place o f occurrence ---Apparently, said witness was interested witness being the son of
the deceased and his statement was lacking independent corroboration ---No implicit reliance
could be placed upon the testimony of alleged eye -witness (son of deceased), in
circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Interested
witness ---Statement of interested witness ---Reliance--- Scope ---Mere relationship of a
witness with the deceased or the com plainant party itself would not diminish the evidentiary
value of his statement, but for making reliance on such statement, especially in heinous crime of murder, it was to be seen whether the said witness had escaped from the acid test of cross examinatio n undamaged, unshaken or the defence had succeeded in giving jolt to his
testimony.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Criminal Procedure Code (V of 1898), S. 164--- Qatl-i-amd, common
intention--- Appreciation of evidence ---Confessional s tatement of accused ---Scope ---
Confessional statement of the accused was recorded under S. 164, Cr.P.C., but the same
appeared to be untrustworthy---Accused was arrested by the police on 20th July 2015 and accordingly his remand period ended on 3rd August 2015, but he was detained in illegal confinement for a day and on 15th day of his arrest i.e. 4th August 2015, his confessional statement was recorded ---Judicial Magistrate, in cross -examination had admitted that on 3rd
August 2015, the accused was produced before him for remand, but it was incorrect that he
was sent to judicial lock -up on 3rd August 2015---Witness had voluntarily stated that
accused was sent to judicial lock up on 4th August and perhaps on 3rd August 2015 there was holiday ---No plausible explanation in such behalf had been tendered by the prosecution-
--Confessional statement of the accused was neither true nor volunteer, in circumstances and was not of any helpful to the case of prosecution.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Medical evidence---Scope ---Medical
evidence had confirmed the unnatural death of deceased ---Such evidence was only used for
confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but it did not constitute any corroboration qua the identity of accused persons to prove their culpability.
Muhammad Sharif and another v. The State 1997 SCMR 866 rel.
(f) Criminal trial ---
----Benefit of doubt ---Pr inciple ---If any single and slightest doubt was created, benefit of the
same must go to the accused.
Tariq Pervaiz v. The State 993 SCMR 1345 rel.
Muhammad Akram Shah for Appellants.
Habibullah Gul, Additional P.- G. for the State.
Ahsan Rafiq Rana for the Complainant.
Date of hearing: 15th April, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.238 of 2016 and Criminal Revision Petition No.25 of 2016.
The Criminal Appeal No.238 of 2016 has been filed by the appellant Abdul Rashid
Son of Abdul Zahir, against the judgment dated 31st May, 2016 (hereinafter referred as, "the
impugned judgment") passed by learned District and Sessions Judge, Mastung (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to suffer life imprisonment and to pay compensation of Rs.200.0001-
(Rupees two hundred thousand) to the legal heirs of deceased Haji Abdul Samad as
envisaged under section 544- A, Cr.P.C. and in defa ult thereof to further suffer one (01)
year's S.I., with the benefit of section 382 -B, Cr.P.C.
The Criminal Revision Petition No.25 of 2016 has been filed by the petitioner
(complainant) Abdul Nasir son of late Abdul Samad for enhancement of sentence of t he
appellant from life imprisonment to that of Capital punishment of death.
2. Facts of the case are that on 21st August 2014, the complainant Abdul Nasir son of
Haji Abdul Samad, lodged FIR No.43 of 2014 at Police Station City Mastung, under sections
302, 34, P.P.C., stating therein that on the day of occurrence at about 10.30 a.m. he was
informed through phone that near new Bus Adda his father was murdered by means of making firing upon him. On such information, he immediately reached at the spot and saw his father lying in the pool of blood and was died. It is further averred in the FIR that on the preceding day of occurrence i.e. 20th August 2014, his father informed him and his brothers Zeshan, Imran and Hafiz Jameel Ahmed that Rashid son of Abdul Zahir (appellant) through
mobile phone No.0335- 0818424 extended threats to him for killing, while through the said
mobile phone number Imran was also threatened by Rashid. Hence, on the day of occurrence accused Abdul Zahir along with his sons Muhammad Rashid a nd Muhammad Amir made
firing upon his father with T.T. pistol and committed his murder.
3. Initially, no one arrested in the case, thus on completion of investigation in absentia;
proceedings under section 512, Cr.P.C. were carried out and the challan was submitted in the
trial Court. Subsequently on arrest of the appellant and co- accused Abdul Zahir, they were
subjected to investigation and on completion thereof, challaned before the trial Court, while the accused Muhammad Amir was declared as proclaimed o ffender and accordingly
proceedings under sections 87 and 88, Cr.P.C. were carried out against him.
4. At the trial, co -accused Abdul Zahir was acquitted of the charge by the trial Court
under section 265- K, Cr.P.C. vide order dated 21st April, 2016, while to the extent of
appellant the prosecution has produced thirteen (13) witnesses, whereafter the appellant was examined under section 342, Cr.P.C. However, he neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial
and after hearing arguments, the learned trial Court convicted and sentenced the appellant as mentioned above. Whereafter the convict filed Criminal Appeal, while the complainant filed Criminal Revision Petition for enha ncement of sentence from life imprisonment to that of
Capital punishment of death.
5. Heard the learned counsel and perused the available record. In order to establish the
charge the prosecution has produced the evidence of thirteen witnesses, perusal of which reflects that the prosecution has either produced circumstantial evidence, which are not
sufficient to hold responsible the appellant for the murder of deceased Haji Abdul Samad or
the direct evidence is lacking independent corroboration being produced through interested witnesses, who could not justify their presence at the relevant. The circumstantial evidence has been produced through the evidence of PW -1 Abdul Nasir (complainant), PW -2, PW -3,
PW-6 and PW -11. According to PW -1 (complainant) at the time of occurrence he was
present in his office, when he was informed that his father w as murdered by means of firing.
This witness has failed to mention the name of person who informed him on phone and disclosed about the occurrence and the name of assailant. However, this witness has placed his suspicion upon the appellant, as according to PW-1 on the preceding night of the
occurrence his father had informed him and other PWs that he had received threats from the appellant to be murdered. According to PW -1 the appellant had made phone call through Cell
No.0335- 0818424 to his father and exte nded threats. Similarly. PW -2 Hafiz Jamil Ahmed in
his Court statement has brought on record that on 20th August 2014 the deceased was present with him, when on receipt of telephonic call the deceased became annoyed and informed him that the appellant had extended him threats. Likewise, PW -3 Muhammad Imran being the son
of the appellant has brought on record that on 20th August 2014 he also had received threats from the appellant from Cell No.0335- 0818424. The statement of another son of deceased
namely Zeeshan (PW 6) is alike to the statement of PW -1 (complainant), who has also
brought on record that his father had informed him and his remaining brothers that the appellant extended threats to him through phone. PW -11 Mst. Bibi Hajira is the mother of the
deceased Abdul Samad and was residing in the house of accused party in Kharotabad Quetta.
Her statement is alike to the statement of remaining witnesses with regard to extending threats to the deceased by the appellant on phone.
6. If the statements of PW -1, PW-2, PW -3, PW -6 and PW -11 are taken into
consideration together, it would become crystal clear that none of the witnesses have witnessed the crime directly. Such fact has also been admitted by the witnesses in their examination in chief and cross -examina tions too that they are not the eye witness of the
occurrence. It is evident from the statements of the said witnesses that their evidence is only with regard to advancing threats to the deceased by the appellant. However, except PW -2
Hafiz Jamil Ahmed the statements of remaining witnesses are silent about the time when the
appellant made phone call to the deceased extending threats. It has also been observed that no complaint or FIR was lodged by the complainant or his sons before the concerned Police Station in such behalf. Even otherwise, the Investigating Officer has failed to collect the Call
Detail Report of the Cell No.0335- 081842 from the concerned Cellular Company. No
investigation was also made that either the Cell No. 0335- 0818424 was registered in the
name of the appellant or that in what capacity the appellant was in possession of the said Cell number in absence of any incriminatory evidence it cannot be held that the appellant had made any phone call to the deceased or extended threats to him o r that the said Cell number
was in his name or in his possession.
7. Now adverting to direct evidence produced by the prosecution through PW -9 Saeed
Ahmed, who is the paternal son of the deceased and PW -10 Muhammad Yaqoob, who was
the mason and was constructing the boundary walls of the house of the appellant. According to PW -9 on the day of occurrence at about 9.30 a.m. the deceased was present in his house
and informed him that he is sending Cement etc through Rickshaw and on receipt he should
count the s ame. Whereafter, on receipt of cement he counted the same and started proceeding
towards deceased Abdul Samad, when he observed firing shots making by the appellant upon
his father. According to PW -9 since his house was located nearby the place of occurren ce
thus he started running towards his house to bring weapon, but on his return the appellant had decamped from the place of occurrence. The conduct of this witness appears to be
unnatural, as it is not appealable to a logic that once father is being murde red in his presence
and he instead of making an attempt to rescue him proceeded towards his house for bringing
weapon. Even otherwise, PW -10 Muhammad Yaqoob Mason contradicted the statement of
PW-9 and stated that the deceased himself had brought Cement and after bringing cement he
returned back on his motorcycle, when he (PW -10) heard firing shots, thus he along with
other labours proceeded towards the place of firing and found the deceased lying in the pool of blood. The perusal of statement of this witne ss reveals that he has not mentioned the
presence of PW- 9 even at the time of receiving of cements and making firing and even he has
mentioned nothing that soon after the occurrence PW -9 arrived at the place of occurrence.
Even otherwise, according to PW -1 soon after the occurrence he arrived at the place of
occurrence, but the complainant has also stated nothing about the presence of PW -9. The
statement of PW -10 is also silent with regard to identity of the assailants who who made
firing upon the deceased. Accordingly, PW -9 has failed to establish his presence at the time
and place of occurrence. Apparently, this witness is interested witness being the son of the deceased and his statement is lacking independent corroboration.
8. We are conscious of the fact that mere relationship of a witness with the deceased or
the complainant party itself would not diminishes the evidentiary value of his statement, but for making reliance on such statement, especially in heinous crime of murder, it is to be seen whether the said witness has escaped from the acid test of cross examination undamaged,
unshaken or the defence has succeeded in giving jolt to his testimony. In the case in hand, the PW-9 being sole eye -witness of the occurrence has failed to establish his presence at the
relevant time, as such, no implicit reliance could be placed upon the alleged direct testimony of alleged eye- witness, who otherwise is the son of deceased and is interested witness.
9. So far the confessional statement of the appellant under sec tion 164, Cr.P.C. is
concerned, the same also appears to be untrustworthy. The appellant was arrested by the police on 20th July 2015 and accordingly his remand period was ending on 3rd August 2015, but he was detained in illegal confinement for a day and on 15th day of his arrest i.e. 4th August 2015 his confessional statement was recorded. In cross -examination PW -7 Amjid
Khan, Judicial Magistrate in reply of a question admitted that on 3rd August 2015 the appellant was produced before him for remand, but it is incorrect that he was sent to judicial lock-up on 3rd August, 2015. Voluntarily stated that he was sent to judicial lock- up on 4th
August 2015 and perhaps on 3rd August, 2015 there was holiday, while infact 3rd August, 2015 was not holiday. No plausi ble explanation in such behalf has been tendered by the
prosecution, thus the confessional statement of the appellant is neither true nor volunteer, as such, the same is not helpful to the case of prosecution.
10. The medical evidence in this case has been furnished by PW -4 Dr. Naseer Ahmed
Tareen, Medical Officer, who has confirmed the unnatural death of deceased. However, the fact remains that medical evidence is only used for confirmation of ocular evidence
regarding seat of injury, time of occurrence an d weapon of offence used, etc. but medical
evidence itself does not constitute any corroboration qua the identity of accused person to
prove their culpability. Reliance in this regard can be place on the case of Muhammad Sharif and another v. The State (1997 SCMR 866).
11. The reappraisal of the statements of all the witnesses being interested and closely
related with each other have drawn a different sketch of the occurrence creating doubts in the case of prosecution. 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 disbelieve the prosecution story and acquit the accused. Reliance in thi s 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."
For the above reasons, the appeal is accepted. The impugned judgment 31st May,
2016 passed by learned District and Sessions Judge, Mastung is set aside and the appellant Abdul Rashid son of Abdul Zahir, is acquitted of the charge under s ection 302(b), P.P.C. The
appellant being in custody; is ordered to be released forthwith, if not required in any other case.
Consequently, the Criminal Revision Petition No.25/2016 being devoid of merits is
dismissed.
JK/26/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,
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