2020 P Cr. L J 1104
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
ALI MUHAMMAD--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 208 of 2019, decided on 3rd January, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 149--- Qatl-i-amd, unlawful assembly ---Appreciation of evidence ---Benefit
of doubt ---Contradictions in the statements of eye -witnesses ---Effect ---Accused was charged
that he and co- accused committed murder of brother of the complainant and also injured his
cousin by firing--- Prosecution mainstay was on the testimony of three witnesses including
complainant ---Two witnesses were closely related to each other as well as the deceased ---
Complainant had stated that he was present at his tube -well and his brother/deceased and
cousin were loading stones and chips, when the accused persons came to the spot and started
firing upon his brother and cousin--- Complainant had stated during cross -examination that
the distance between the place of occurrence and his tube -well was two kilometers, that
firing had stopped when he reached the spot ---Complainant was not eye -witness of the
occurrence---Eye -witness/injured deposed that at 3.30 p.m., he and deceased were loading
stones and chips, and the accused perso ns came there and attacked upon deceased with sticks
and in the meanwhile the acquitted accused made firing and he received injuries and went unconscious ---Other eye -witness had given the role of firing to accused---Complainant had
given a role to all the accused persons of firing---Injured attributed the role of firing to acquitted co -accused but eye- witness assigned the role of firing to the accused---Injured and
eye-witness did not state that all the accused made firing ---Material contradictions in the
statements of all the witnesses were found, which showed that either both the cited witnesses
were not present at the time and place of occurrence or they had falsely deposed against the appellant in order to suppress some real facts from the court for the reasons best known to them ---Name of the said eye- witness was not mentioned in the report nor did injured witness
stated with regard to the presence of said witness at the place of occurrence---Statements of both the eye -witnesses were also recorded under S. 161, Cr.P.C. on the next date --- Story
narrated by the said witnesses seemed to be fabricated and manoeuvred subsequently just to support the injured witness ---Co-accused was acquitted by the Trial Court and no appeal
against his acquittal had been file d by the complainant ---After acquittal of co -accused to
whom similar role as that of the accused was attributed and who was given benefit of doubt, the conviction of the accused on the same set of evidence was altogether unjustified in law ---
No evidence w as found to connect the accused with the murder in issue ---Circumstances
established that the case was replete with doubts, which was sufficient to tilt the scale of
justice in favour of the accused --- Appeal against conviction was allowed, in circumstance s.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 149--- Qatl-i-amd, unlawful assembly ---Appreciation of evidence ---Benefit
of doubt ---Delay of about three hours in lodging the FIR ---Effect ---Accused was charged
that he and co- accused committed murder of brother of the complainant and also injured his
cousin by firing---Alleged occurrence took place but the FIR was lodged at 3.30 p.m. with
delay of about three hours without any plausible explanation--- Such delay was fatal to the
prosecution case.
(c) Pen al Code (XLV of 1860) ---
----Ss. 302(b) & 149--- Qatl-i-amd, unlawful assembly ---Appreciation of evidence ---Benefit
of doubt ---Ocular and medical evidence--- Contradictions in ---Effect ---Accused was charged
that he and co- accused committed murder of brother of the complainant and also injured his
cousin by firing--- Prosecution had alleged that injured witness received fire arm injuries on
his person which established his presence at the venue of occurrence ---Medical Officer did
not observe any firearm injurie s on the person of said witness ---Prudent mind would not
accept that a person who received injuries would go to the doctor for treatment after lapse of seven days ---Alleged occurrence took place on 05.09.2017 and Medical Officer had stated
that he examined the injured on the next date ---No explanation on behalf of the prosecution
had been furnished as to whether when allegedly the deceased received injuries by means of firearm he was shifted to any hospital on the same date or else ---No medical or other
documentary evidence available on record to show that the deceased was examined on the
same day ---Medical evidence also contradicted the ocular evidence--- Medical Officer only
mentioned in his medical certificate about gunshot injuries but on the other hand t he eye -
witnesses had deposed in their statements that the deceased was beaten with sticks at first ---
Said contradiction casted reasonable doubt in the prosecution case---Appeal against conviction was allowed, in circumstances.
(d) Criminal trial ---
----Wi tness ---Presence at the place of occurrence---Benefit of doubt ---Single doubt as to the
presence of claimed witness at the crime scene would be sufficient to discard his testimony as a whole.
Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 149--- Qatl-i-amd, unlawful assembly ---Appreciation of evidence ---Benefit
of doubt ---Recovery of weapon and crime empties ---Reliance--- Scope ---Accused was
charged that he and co -accused committed murder of brother of the complainant and also
injured his cousin by firing ---Investigating Officer had secured three crime empties of
Kalashnikov at the time of his first visit of the place of occurrence ---Alleged Kalashnikov
was recovered from the accus ed after 19 days, how could that be possible that the accused
kept the said Kalashnikov for 19 days with him ---Recovery of weapon of offence from the
accused was inconsequential, in circumstances.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 149--- Qatl-i-amd, unlawful assembly ---Appreciation of evidence ---Benefit
of doubt ---Delay in sending the weapon and crime empties to the Forensic Science
Laboratory at belated stage---Effect ---Accused was charged that he and co -accused
committed murder of brother of the complainant and also injured his cousin by firing---
Empties recovered from the place of occurrence and the alleged Kalashnikov were sent together to Firearm Expert---Dispatch of the crime empties and alleged Kalashnikov Firearm Expert together after the arrest of the accused/appellant with the delay of 24 days of its
recovery rendered the same legally unacceptable.
Nazeer Ahmed v. The State 2016 SCMR 1628 rel.
(g) Criminal trial ---
----Benefit of doubt ---Principle ---Prosecution had to stand on his own legs to prove the
charge against the accused ---Benefit of doubt, even slightest, would favour the accused.
Muhammad Akram v. The State 2009 SCMR 230 rel.
Shah Muhammad Jatoi for Appellant.
Habibullah Gul, Additional Prosecutor -General ("APG") for th e State.
Date of hearing: 12th December, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---Through this Criminal Appeal No. 208 of 2019 Ali
Muhammad son of Jan Muhammad (appellant) has assailed the judgment dated 30.05.2019 (hereinafter "the impugned Judgment") passed by learned Additional Sessions Judge/MCTC,
Lasbela at Hub, (hereinafter "the trial Court") whereby the appellant has been convicted and sentenced in the following manners:
"Convicted under section 302(b) read with section 149, P.P.C. and is sentenced him to
suffer Rigorous Life Imprisonment. The accused is further directed to pay Rs.2,00,000/ - (Rupees Two Lacs Only) as compensation under section 544- A,
Cr.P.C., to the legal heirs of the deceased Abdul Aziz. In default of payment of compen sation the accused/convict shall further suffer SI for a period of one (01) year.
The accused is also convicted under section 149, P.P.C. to suffer Rigorous Imprisonment for one (01) year and to pay fine of Rs.5,000/ - (Rupees Five Thousand
Only) on in def ault of payment of fine to suffer SI for five (05) days. The benefit of
section 382- B, Cr.P.C., is extended in favour of accused".
2. Brief facts as unfolded by PW -1 Haji Kora Khan son of Khamisa in his complaint
(Ex.P/1 -A) are that he had purchased a moun tainous land from one Attar son of Lashkari by
caste Surkhail. On 05.09.2017, his brother Abdul Aziz and cousin Rafique were
collecting/taking stones/chips from said mountain when the accused persons namely Ali Muhammad (appellant), Ali Dost, Allah Waraya, Allah Rakhiya, Siddique, Niaz and Talib
sons of Jan Muhammad attacked upon them. They made firing upon Abdul Aziz in his abdominal area and a bullet passed over the head of Rafique and injured him. Hence crime report.
3. After completion of investigation, challan was submitted before the trial Court,
charge was framed against the accused/appellant to which the accused/appellant pleaded not guilty and claimed trial.
4. At the trial, the prosecution produced nine (09) witnesses to prove the charge against
the accused/appellant. After close of the prosecution evidence, statement of accused was
recorded under section 342, Cr.P.C., in which he denied the allegations levelled against him and claimed to have been falsely charged. The appellant/accused neither opte d to record his
statement nor produced any witness in his defence.
5. The trial Court believed the prosecution's evidence on basis of ocular account which
was supported by medical evidence, and recovery of crime weapons and other circumstantial evidence, a nd the accused/appellant was convicted and sentenced as mentioned in the
opening paragraph of this judgment.
6. We have heard the learned counsel for the parties and gone through the available
record with their able assistance.
7. The prosecution's mainsta y was on the testimony of Haji Kora Khan (PW -
1/complainant) brother of deceased Abdul Aziz, Muhammad Rafique (PW -2) cousin of the
complainant and Shah Nawaz (PW- 3). PW -1 and PW -2 are closely related to each other as
well as the deceased. The complainant wh ile appearing in the witness box deposed that on
05.09.2017 at 3:30 p.m., he was present at his tube -well and his brother Abdul Aziz and
cousin Muhammad Rafique were loading stones and chips, when the accused persons namely Ali Muhammad (appellant), Ali Do st, Allah Waraya, Allah Rakhiya, Siddique, Niaz and
Talib sons of Jan Muhammad came to spot and started firing upon his brother Abdul Aziz who received injuries on his abdomen and fell down while his cousin Muhammad Rafique received injuries on his head. H e stated during cross -examination that the distance between
the place of occurrence and his tube- well is two kilometers, that firing had stopped when he
reached the spot. He is not eye -witness of the occurrence. The alleged occurrence took place
on 05.09.2 017 at 3:30 p.m., and the FIR was lodged at 6:40 p.m., with delay of about three
hours without any plausible explanations.
8. Another important factor relevant to discussion is that PW -2 Muhammad Rafique,
who is an eye -witness/injured who deposed in his st atement that on 05.09.2017 at 3:30 p.m.,
he and Abdul Aziz were loading stones and chips, meanwhile the accused persons named
above came there and attacked upon Abdul Aziz with sticks and in the meanwhile the accused Ali Dost (Acquitted accused) made firing and he received injuries and went unconscious. On the other hand, PW -3 Shah Nawaz has given the role of firing to accused
Ali Muhammad (appellant). He deposed that on 05.09.2017 at 3:30 p.m., the accused
attacked upon deceased with sticks and the accused Ali Muhammad armed with Kalashnikov
made firing upon Abdul Aziz and that the accused also made firing upon Muhammad
Rafique/PW- 1 has given a role to all the accused persons of firing. As per PW -2's statement
role of firing was attributed to acquitted co -accused Ali Dost but PW -3 assigned the role of
firing to the appellant. PW -2 and PW -3 did not state a single word in their statements that all
the accused made firing. There are material contradictions in the statements of the above witnesses and it seems f rom the above material contradictions that either both the cited
witnesses were not present at the time and place of occurrence or they had falsely deposed against the appellant in order to suppress some real facts from the Court for the reasons best known to them.
9. The prosecution alleged that (Muhammad Rafique PW- 2) received firearm injuries on
his person to establish his presence at the venue of occurrence yet it cannot be lost sight of
that Dr. Zafarullah, Medical Officer (PW- 7) did not observe any firearm injuries on the
Muhammad Rafique's person. Furthermore, his testimony did not receive any corroboration
from the statement of Shah Nawaz (PW- 3) with regard to the injuries sustained by him.
According to PW -7 Dr. Zafarullah, Muhammad Rafique PW 2/injured was brought to Rural
Health Centre (RHC) Dureji on 12.09.2017. He examined him and found almost healed wound on scalp frontal left side. During cross -examination he stated that he has not
mentioned anything regarding the nature of injuries, as to whe ther the same was caused with
a blunt or sharp weapon or otherwise. It does not appeal to the prudent mind that a person who received injuries on 05.09.2017 would go to the doctor for treatment on 12.09.2017 after lapse of seven days.
10. PW-3 Shah Nawaz w hile appearing before the Court gave his address as tehsil Dureji
where the alleged occurrence took place, which is a mountainous area. According to the site plan (Ex.P/5 -C) the place of occurrence is a rugged terrain with rainy channels and there are
no houses nearby which makes it clear that PW- 3 Shah Nawaz is not resident of the said area
nor the place of occurrence is situated near his house. The name of PW -3 the so- called eye-
witness is not mentioned in the report (Ex.P/1 -A) nor did PW -2/injured Muhamm ad Rafique
state a single word with regard to his (PW -3's) presence at the place of occurrence.
Statements of both the witnesses i.e. PW -2 and PW -3 were also recorded under section 161,
Cr.P.C. on the next date.
11. In view of above facts, inference can be drawn that the statements of the above two
witnesses is not worth as both these witnesses themselves did not see the occurrence nor for that matter the prosecution brought any substantial piece of evidence to establish their presence on the spot at the re levant time. That too, when PW -3's name does not find mention
in the FIR. As stated earlier PW -2 Muhammad Rafique and PW -1 Haji Kora Khan also did
not state a single word about presence of PW -3 at the place of occurrence. There is no
house/village near the place of occurrence. The story narrated by the said witnesses seems to
be fabricated and maneuvered subsequently just to support the injured witness. It is well
settled principle by now that once there appears a single doubt as to the presence of the claimed eye -witness at the crime scene, it would be sufficient to discard his testimony as a
whole. A reference may be made to case titled Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596, wherein it has been held as under: -
"A single doubt reasonably showing that a witness/witness's presence on the crime
spot was doubtful when a tragedy takes place would be sufficient to discard his/their testimony as a whole. This principle may be pressed into service in cases such witness/witnesses are ser iously inimical or appears to be a chance witness because
judicial mind would remain disturbed about the truthfulness of the testimony of such witnesses provided in a murder case, is a fundamental principle of our criminal justice system".
11(sic.) PW -8 Dr . Muhammad Muzakir Toseef has examined the deceased who stated that
on 06.09.2017 he was posted as Medical Officer in Surgical ICU of Jinnah Post Graduate Hospital, Karachi, on call duty. In the meanwhile a patient namely Abdul Aziz was brought from Operat ion Theater, who passed away in ICU later on. The reasons of his death are as
under: -
"1. Cardiopulmonary arrest.
2. Peritonal perforion.
3. Gun shot."
12. The alleged occurrence took place on 05.09.2017 and PW -8 Dr. Muhammad Muzakir
Toseef stated that he examined the injured on 06.09.2017. There is no explanation on behalf of the prosecution as to whether on 05.09.2017 when allegedly the deceased received injuries by means of firearm was shifted to any hospital on the same date or else. There is also no
medical or other documentary evidence available on record to show that the deceased Abdul Aziz was examined on 05.09.2017. The medical evidence also contradicted with ocular evidence. PW -8 Dr. Muhammad Muzakir Toseef only mentioned in his medical certific ate
about gunshot injuries but on the other hand the PW -2 Muhammad Rafique and PW -3 Shah
Nawaz deposed in their statements that the deceased was beaten with sticks at first. The above contradiction also cast reasonable doubt in the prosecution's case.
13. Muhammad Bashir (PW -9) Tehsildar who conducted investi -gation of the case and
secured three crime empties of Kalashnikov at the time of his first visit of the place of occurrence. He deposed that on 24.09.2017 he arrested the accused Ali Muhammad and recov ered Kalashnikov from him but the said witness did not state the place and time of
recovery of Kalashnikov from the accused/appellant. PW- 4 Abdul Hafeez who is recovery
witness of Kalashnikov deposed before the trial Court that on 24.09.2017 he along with Tehsildar and levies constables Gul Muhammad, Abdul Nabi and Asadullah were on area patrolling, at about 9:30 a.m., the Tehsildar received spy information through telephone that the accused nominated in the FIR namely Ali Muhammad was going from area Luhi to Sarwana. On the said information they reached to the area Kotirah Tehsil Dureji and found the accused, going on foot, whom they apprehended and effected recovery of the alleged
Kalashnikov from him. His statement is not corroborated by the other witness es. PW -9
Bashir Ahmed only stated in his statement that he recovered Kalashnikov from the accused
but he did not give detail in his statement when, how and from where Kalashnikov was recovered from the accused. Even otherwise, the occurrence took place on 05.09.2017 the
alleged Kalashnikov was recovered from the accused on 24.09.2017 when he was going by
foot. How can it be possible that the accused kept the said Kalashnikov for 19 days with him
and thereafter the same was recovered from him. The bullet emp ties recovered from the place
of occurrence and the alleged Kalashnikov were sent together to Firearm Expert on
17.10.2017 after recovery of Kalashnikov i.e. with delay of 24 days of its alleged recovery from the accused/appellant.
14. Anyhow, the dispatch of the crime empties and alleged Kalashnikov to the office of
Firearm Expert Crime Branch Balochistan, Quetta, together after arrest of the accused/appellant with delay of 24 days of its securing, renders it to be legally unacceptable and, thus, in the ci rcumstances the recovery of weapon of offence from the appellant
remained inconsequential. Even otherwise, the report (Ex.P/9- E) is also doubtful to the
extent of recovery of Kalashnikov and matching the empties and it's mentioned in the report (Ex.P/9 -E) that "the three crime empty shell of 7.62 mm bore marked as C1 to C3 had been
fired from the 7.62 mm bore Pistol present in parcel No.3". Reliance is placed on the case title Nazeer Ahmed v. The State 2016 SCMR 1628, wherein it has been held as under: -
"The crime empty secured from the place of occurrence was sent to the office of
Forensic Science Agency after recovery of the gun rendering such recovery to be legally unacceptable".
15. The co -accused Ali Dost was acquitted by the trial Court and no appeal against his
acquittal has been filed by the complainant. After acquittal of co -accused Ali Dost to whom
similar role as that of the appellant was attributed and who was given benefit of doubt, the ballistic expert's report has lost its evidentiary value an d once this piece of evidence, as has
already been discussed, is excluded from consideration then, the conviction of the appellant on the same set of evidence where the co -accused similarly charged was acquitted, was
altogether unjustified in law.
16. We d o not find any iota of evidence to connect the appellant with the murder in issue.
It is well settled principle of law that the prosecution has to stand on its own legs to prove the charge against the accused and the benefit of doubt, even slightest, shall favour the accused.
What to speak of a single doubt, the case in hand is replete with doubts, which is sufficient to tilt the scale of justice in favour of the appellant. Reliance is placed on case titled Muhammad Akram v. The State 2009 SCMR 230, wherein at page No.236, it has been held
as under: -
"It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Perva iz 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 created reasonable doubt in a prudent mind about the guilt of the accused, the n the accused would be entitled to the benefit
of doubt not as a matter of grace and concession but as a matter of right".
17. The nutshell of about discussion is that Criminal Appeal No.208 of 2019 filed by the
appellant Ali Muhammad son of Jan Muhammad i s allowed, his conviction and sentence
awarded by the learned trial Court are set aside and he is acquitted of the charge by giving
the benefit of doubt to him. He shall be released from jail forthwith, if not required to be detained in connection with any other case.
Appeal allowed.
JK/29/Bal. Appeal allowed.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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