2020 P Cr. L J 1236
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Abdul Hameed Baloch, JJ
MUHAMMAD BAKHSH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (s) 47 of 2017, decided on 11th October, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Accused was charged for committing murder of his wife and son of the complainant -
--Motive behind the occurrence was stated to be illicit relations of deceased persons ---Ocular
account of the occurrence had been furnished by three witnesses including complainant ---
Complainant during cross -examination stated that all the witnesses w ere sitting at bed along
with his deceased son while firing was made from distance of 7/8 feet and none other
sustained injuries ---Investigating Officer had stated that he prepared site plan on pointation
of complainant ---Site plan did not disclose presenc e of the witnesses ---Although the site plan
was not substantive piece of evidence but it could not be overlooked--- Omission to indicate
position of witnesses at the time of occurrence in site plan, reflected on the possibility of witnesses not being present at the time of occurrence---Statements of prosecution witnesses were unnatural as their conduct was not above board--- Conduct of the ocular witnesses,
father and nephew, did not appeal the prudent mind, as to how the accused spared the ocular witnesses t o give statement against them ---Complainant being real father of the deceased did
not take his son to the hospital rather left him at the place of occurrence and rushed to the police station for lodging of FIR ---Such conduct of father of deceased did not a ppeal to the
prudent mind---Allegedly, complainant along with his nephew were present when the incident occurred, but the said nephew of complainant was not produced before the Trial Court despite the fact that he was not related to the complainant and dec eased formally,
rather he was independent witness ---Ocular testimonies of the prosecution witnesses were
full of discrepancies and contradictory to each other ---Appeal was allowed and accused was
acquitted by setting aside conviction and sentence recorded by the Trial Court, in
circumstances.
Abdul Sattar v. State 2008 PCr.LJ 869; 2017 SCMR 2002; Muhammad Arif v. State
2019 PCr.LJ 337 and Qamar -uz-Zaman v. Haji Allah Bakhsh 2012 SCMR 1281 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Arts. 38 & 39---Discl osure by accused in police custody ---Scope ---Such disclosure is not
admissible.
Hayatullah v. State 2018 SCMR 2092 rel.
(c) Qanun -e-Shahadat (10 of 1984) ---
----Art. 129(g) --- Withholding material witness --- Presumption ---Material witness withheld
withou t any reason ---Presumption would go against the prosecution.
Lal Khan v. State 2006 SCMR 1846 rel.
(d) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Principle ----One tainted piece of
evidence could not corroborate ot her tainted piece of evidence---Conviction and sentence
could not be sustained on the basis of such like evidence.
(e) Criminal trial ---
----Benefit of doubt ---Principle ---Benefit of slightest doubt would go to accused as matter of
right.
Tariq Pervaiz v. State 1995 SCMR 1345 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Interested
witness ---Scope ---In the present case, witnesses were related to the deceased ---On the basis
of interested witnesses, the conviction in capital charge could not be sustainable, which
required independent corroboration which was lacking in the case of prosecution---Appeal
was allowed and accused was acquitted by setting aside conviction and sentence r ecorded by
the Trial Court, in circumstances.
Zahoor Ilahi v. State 1997 SCMR 385 rel.
Ahsan Rafiq Rana for Appellant.
Jamil Akhtar Gajjani, Additional Prosecutor General for the State.
Date of hearing: 26th September, 2019.
JUDGMENT
ABDUL HAMEED BAL OCH, J.---This Criminal Appeal has been filed by the
appellants against the judgment dated 16.03.2017 ("the impugned judgment") passed by the learned Sessions Judge Usta Muhammad ("the trial court"), whereby the appellant was
convicted and sentenced under section 302(b) of the Pakistan Penal Code, 1860 ("P.P.C.") to
suffer life imprisonment as Tazeer and to pay compensation amounting to Rs.2,00,000/ - (two
lac) each to the legal heirs of deceased Mst. Husna Bibi and Ali Hassan each as per provisions containe d under section 544- A, Cr.P.C., or in default whereof to further undergo
S.I for six (06) months. The benefit of section 382- B of the Criminal Procedure Code, 1898
("Cr.P.C.") was also extended in favour of the appellant.
2. Brief facts of the prosecution case are that on 25.01.2014 the complainant Ghulam
Rasool lodged an FIR No.24/2014 with Police Station Usta Muhammad, alleging therein that about six months ago his son marriage was solemnized with the daughter of Ghulam Qadir and his son was residing in t he house of his father -in-law situated in Soomra Muhallah Usta
Muhammad. On the aforesaid date he along with his nephew Pir Muhammad and relative Gul Muhammad went to the house of his son, when at about 1:00 pm, accused persons Ghulam Qadir, Muhammad Bakhs h along with an unknown person armed with firearm and knife
came there and Ghulam Qadir while declaring his wife Mst. Husna as Sihakar with Ali Hassan, started firing at his son, who received bullet injuries and died at the spot while the unknown persons a imed firearm at them and warned them do not come forward. Thereafter
accused Muhammad Bakhsh went to the room and cut the neck of Mst. Husna with knife, due to which she also died.
3. After completion of investigation, challan was submitted before the tria l Court.
Thereafter, on 09th May, 2016 charge was framed and read over to the appellant, to which he did not plead guilty and claimed trial. During the trial, the prosecution produced following nine witnesses: -
I) PW-1, Ghulam Rasool (complainant), who produced written report Ex.P/1- A.
II) PW-2, Pir Muhammad, eye -witness of the occurrence, who produced site map Ex- P/2-
A, recover memo blood stained cotton of deceased Ali Hassan and Mst. Husna Ex.P/2- B and Ex.P/2 -D, recovery memo of three empty round and knife Ex- P/2-C and
Ex-P/2-E, seal parcels, sampl e of seal, empty rounds and knife as Article P/1 to
Article P/12.
III) PW-3, Dr. Abdul Jabbar (Medical Officer) who produced postmortem report Ex- P/3-
A.
IV) PW-4 Mst. Samina, eye -witness of the occurrence.
V) PW-5, Abdul Samad Constable (recovery witness), who produced recovery memos of
blood- stained clothes of deceased Ali Hassan and Mst. Husna as Ex- P/5-A, Ex P/5-B,
sealed parcels and samples of seals as Article P/13 to P/18.
VI) Dr. Raheela Samejo, Lady Medical Officer, who produced postmortem report of deceased Mst. Husna as Ex -P/6-A which is according to register record is Ex -P/6-A-I.
VII) PW-7, Abdul Haleem Constable (disclosure witness), who produced disclosure memo
Ex-P/7-A.
VIII) PW -8 Ghulam Akbar SI (1st Investigation Officer). Who produced the FIR Ex.P/8-
A, site plan as Ex -P/8-B, inquest reports Ex.P/8- C and Ex.P/8 -D, incomplete challan
Ex.P/8- E, FSL report Ex.P/8- F and incomplete challan Ex.P/8 -G.
IX) PW-9 Abdul Ghani (2nd Investigation Of ficer). Who arrested the appellant and
produced incomplete challan Ex- P/9-A.
4. On conclusion of prosecution evidence, the appellant was examined under section 342
of the Cr.P.C. wherein he once again professed his innocence. He neither recorded his
statement on oath as envisaged under section 340(2) of the Cr.P.C. nor produced any defence witness in his favour. The learned trial court, on conclusion of the trial, convicted and sentenced the appellant as mentioned hereinabove, hence this appeal.
5. Learned counsel for the appellant contended that the eye -witnesses are inter se related
to the deceased Ali Hassan then how three persons after committing murder of deceased left them behind for evidence; that the entire prosecution is based on surmises and conjec tures;
that role of firing on Ali Hassan was attributed to absconding accused Ghulam Qader whereas murder of Ali Hassan took place in the court yard where witnesses were sitting with deceased; that at the time of incident, deceased Husna Bibi was in the ro om and none
witnessed the incident of cutting of throat of Husna Bibi by appellant; that there is no eye -
witness of the incident to the extent of murder of Mst. Husna Bibi by the appellant; that the statements of the prosecution witnesses are contradictory with each other; that the impugned
judgment suffers from misreading and non- reading of evidence; that the eye -witness are
inter se related and interested witnesses; that according to Ex -P/8-B PW -1 and PW -2 are
away from the place where murder of Husna Bi bi took place; that the trial court has failed to
appreciate the evidence in his true perspective; that there are material irregularities and illegalities in the impugned judgment, which is liable to be set -aside. He lastly urged for
acquittal of the appel lant.
6. Conversely, learned DPG strongly opposed the contention of learned counsel for the
appellant and contended that the prosecution has successfully proved its case against the appellant through confidence inspiring evidence; that despite lengthy cros s-examination, the
defence failed to shake the statements of the witnesses; that all the witnesses have recorded their statements in line with each other; that the learned trial court has rightly convicted the appellant for commission of offence. He lastly urged for dismissal of the appeal.
7. We have heard the learned counsel for the parties and have perused the record with
their able assistance. The case of prosecution rests upon testimonies of three ocular
witnesses, recovery of blood- stained cloths, rec overy of blood- stained dagger, disclosure and
medical evidence. It is the case of prosecution that the complainant, his nephew and close
relative went to the house of his son, who was living with his father -in-law Ghulam Qadir.
They were sitting at the cou rtyard of the house with his son on a bed, meanwhile Ghulam
Hussain along with Muhammad Bakhsh came there and while declaring his wife Sihakar with Ali Hassan, took pistol and made firing upon Ali Hassan while Muhammad Bakhsh went inside the room and cut t he neck of Mst. Husna with knife, due to which she died at the
spot. Muhammad Bakhsh has thrown the knife inside the house. PW -1 during cross -
examination stated that they all were sitting at bed along with Ali Hassan while firing was made from distance of 7/8 feet and none other sustained injuries. He further replied that:
8. As per prosecution the PW -2 is ocular as well as recovery witness of blood- stained
cloths of both the deceased as Ex- P/2-B and blood stained earth Ex- P/2-D, recovery of three
empties Ex-P/2-C, recovery of knife Ex- P/2-E. PW -2 during cross -examination stated that
the deceased Ali Hassan was sitting on another bed. Further stated that:
Statements of PW -1 and PW -2 manifest that at the time of occurrence PW- 4 Mst.
Samina was not presen t, even in the report Ex- P/1-A the presence of PW -4 was not shown.
When the name of witness is not mentioned in the FIR, then presence of said witness become
doubtful. Reliance is placed on the case of Haji Nader Khan v. State 2003 PCr.LJ 1205.
9. PW-8 (In vestigating Officer) stated that he prepared site plan Ex- P/8-B on pointation
of PW -1. The site plan does not disclose presence of the witnesses. Although the site plan is
not substantive peace of evidence but it cannot be overlooked. The concept of prepar ation of
site plan is that when the witnesses are cited in order to corroborate the version of ocular account, as the witness can change his version but site plan cannot be changed once prepared. The omission to indicate in site place, position of witnesse s at the time of
occurrence, reflects on the possibility of witnesses not being present at the time of occurrence. Reliance is placed on the case of Abdul Sattar v. State 2008 PCr.LJ 869.
10. The statements of prosecution witnesses are unnatural. Their co nduct is not above the
board. The conduct of the ocular witnesses (who are father and nephew) did not appeal the prudent mind, as how the accused spared the ocular witnesses to give statement against them to put them into gallow. The Hon'ble apex Court in a judgment reported in 2017 SCMR 2002
also discarded such fact and in this respect this Court in the case of Muhammad Arif v. State
2019 PCr.LJ 337 also held as under:
"Similarly, all the witnesses have admitted in their cross -examination that the injured
Raees Muhammad Hussain is their elder, meaning thereby that all the persons were
belonged to the party of injured Raees Muhammad Hussain, thus all the witnesses
could a lso easily be targeted by the accused party, but only the deceased Muhammad
Salah and his father Raees Muhammad Hussain were hit and all the remaining
witnesses including the brothers of deceased i.e. PW -1 and PW -10 were let free by
accused party. The pres ence of all the witnesses especially the presence of PW- 1 and
PW-10 being the sons of injured PW -3 at the place of occurrence is absolutely
doubtful for the reasons that the complainant/PW -1 along with his brother PW -10
Muhammad Wafa including the deceased were on the target of the appellant having
pistol and Kalashnikov in their hands, but the deceased brother and injured father of
the complainant were hit and the complainant along with his brother PW -10 were let
free. It does not appeal to the logic that by killing a person in presence of his real
brothers, the appellant would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged."
11. Another aspect which does not appeal to the prudent mind that the PW -1 bei ng real
father did not take his son to the hospital rather left him at the place of occurrence and rushed to the Police Station for lodging of FIR. Reliance is placed on the case of Qamar -uz-Zaman
v. Haji Allah Bakhsh 2012 SCMR 1281.
12. Now adverting to t he disclosure stated to have been made by the appellant in presence
of PW -9, it is to be noted that the Investigation officer had already visited the place of
occurrence and prepared site plan, recovered blood stained knife, meaning thereby that all the facts were in the knowledge of the Investigation Officer, under such circumstances the disclosure did not benefit to prosecution even otherwise under Articles -38 and 39 of the
Qanun- e-Shahadat Order, 1984 (the Order 1984) the disclosure before the police is not
admissible. Reliance is placed on the case of Hayatullah v. State 2018 SCMR 2092.
13. As per PW- 1 he along with his nephew and Gul Muhammad were present when the
unfortune incident had been occurred, but the said Gul Muhammad was not produced before the trial court despite the fact that he was not related to the complainant and deceased
formally, rather he was independent witness. It is settled principle of law when the statement of material witness is withheld without any reasons, under Article 129(g) of the Order 1984
presumption goes against the prosecution. Reliance is placed on the case of Lal Khan v. State 2006 SCMR 1846.
14. The medical and recovery are corroborative piece of evidence, which itself cannot
identified the culprit. The ocular testi monies of the prosecution witnesses are full of
discrepancies and contradictory to each other. Tainted piece of evidence cannot corroborate other tainted piece of evidence, as such conviction and sentence cannot be sustained on the basis of such like evide nce. It is well settled principle of Criminal Administration of Justice
that the accused is favorite child of law and benefit of slightest doubt goes to accused as matter of right. Reliance is placed on the case of Tariq Pervaiz v. State 1995 SCMR 1345.
15. The case of prosecution stands on ocular account, FSL report, medical certificate,
recovery memo and disclosure memo of appellant before police during investigation. The witnesses are related to deceased. On the basis of interested witnesses the convict ion in
capital charge cannot be sustainable, which requires independent corroboration which is lacking in the case of prosecution. Reliance in this regard is placed in the case of Zahoor Ilahi v. State 1997 SCMR 385.
Thus, in view of above the appeal is allowed. The impugned judgment dated 16th
March, 2017, passed by the learned Sessions Judge Usta Muhammad to the extent of appellant is set -aside. While extending benefit of doubt the appellant Muhammad Bakhsh son
of Rasool Bakhsh is acquitted of the charge under sections 302/34, P.P.C. in case FIR No.24 of 2014, Police Station City Usta Muhammad. The appellant being in custody is ordered to
be released forthwith if not required in any of her case.
JK/136/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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