2020 P Cr. L J 1350
[Balochistan]
Before Naeem Akhtar Afghan and Abdul Hameed Baloch, JJ
JUMA GUL ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 48 and Murder Reference No. 7 of 2018, decided on 5th
September, 2019.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd--- Appreciation of evidence ---Benefit of doubt ---"Ocular" and
"medical" evidence--- Contradiction ---Effect ---Accused was charged for committing murder
of brother of the complainant by firing---Material infirmitie s followed by contradictions
existed in the statements of the prosecution witnesses ---Record was silent in respect of
information advanced to the police and in that regard all the witnesses narrated differently and were not supporting each other ---Statemen t of three witnesses revealed that complainant
was not present at the time of occurrence ---Medico Legal Certificate transpired that the
corpse was brought to hospital by his brother along with two persons in a private vehicle ---If
the deceased was taken by the Police Official in absence of any close relative to the hospital
then the presence of close relative at the occurrence could not be believed ---Eye -witnesses
had deposed that appellant had fired on deceased from outside the boundary of the hut ---Site
plan showed that the occurrence had taken place inside the boundary wall and no hut outside
the boundary wall was shown in the site plan--- Even the presence of eye -witnesses had not
been shown in the site plan--- Site plan showed that the firing was made upon the deceased
from the close distance while the Medical Officer in his cross -examination suggested that on
making fire from close distance tattoo/burning mark appeared on the body---No burning mark was found on the wound of the deceased ---Admittedly, ther e existed enmity between
the parties ---Eye-witnesses being brothers, mother and sisters of the deceased were interested
witnesses and inimical to the appellant ---Rule of prudence demanded that there must be
independent corroboration of interested and inimi cal witnesses ---Capital punishment on the
basis of such statement was not safe---Record transpired that the blood- stained cloth was
handed over to the Investigating Officer after two days of occurrence but as per Medico Legal Certificate, the deceased was brought to hospital by police on the day of occurrence ---
Question arose as to why the complainant handed over the blood- stained clothes of the
deceased after two days of the occurrence to the Investigating Officer instead of the date of occurrence--- Prosec ution could not be absolved from the duty of proving the case on the
basis of its own evidence ---Appeal was allowed and accused was acquitted by setting aside
conviction and sentence recorded by the Trial Court, in circumstances.
G.M. Niaz v. State 2018 SCMR 506; Barakat Ali v. Muhammad Asif 2007 SCMR
1812 and Muhammad Irshad v. State 1999 SCMR 1030 rel.
(b) Criminal trial ---
----Witness ---Credibility of ---Scope ---To disbelieve a witness, it was not necessary that there
should be numerous infirmities, if there was one which would impeach the credibility of the
witness, that could make the entire statement doubtful.
Jehan Bahadur v. The State 2013 YLR 2772 rel.
(c) Criminal trial ---
----Site -plan---Evidentiary value ---Although the site plan was not a subs tantive piece of
evidence but non- mentioning the eye -witnesses in the site -plan could not be lightly ignored--
-Possibility of non- presence of the eye- witnesses at the time of occurrence could not be ruled
out.
Muhkhtasir v. State 2017 PCr.LJ 1607 rel.
(d) Penal Code (XLV of 1860) ---
----S. 302(b) --- Qatl-i-amd--- Appreciation of evidence--- Recovery of crime weapon and
empty ---Reliance ---Scope --- Accused was charged for committing murder of brother of the
complainant by firing--- Record showed that crime weapon and empty were recovered but the
allegedly said articles were not sent to the Forensic Science Laboratory for examination ---No
explanation had been offered by the prosecution in that regard--- Such recovery was
inconsequential ---Appeal was allowed and accused was acquitted by setti ng aside conviction
and sentence recorded by the Trial Court, in circumstances.
Sajjan Solangi v. State 2019 SCMR 872 rel.
(e) Criminal trial ---
----Benefit of doubt ---Principle ---If any doubt had arisen from the statements of the
prosecution witnesses, its benefit would go to accused as matter of right and not as a grace.
Wajahat Ahmed v. State 2016 SCMR 2073 and Ayub Masih v. The State PLD 2002
SC 1048 rel.
Bangul Mari for Appellant.
Ali Ahmad and Yasir Hayat for the Complainant.
Abdul Latif Kakar, Additional Prosecutor -General for the State.
Date of hearing: 30th August, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---The learned Additional Sessions Judge Sariab
Quetta (the "trial Court") vide judgment dated 02.11.2018 (the "impugned judgment") passed
in P.P.C. Case No. 40 of 2017 convicted the appellant Juma Gul son of Syed Gul under
section 302(b) of the Pakistan Penal Code, 1860 (P.P.C.) and sentenced him to death with further direction to pay compensation of Rs.3,00,000/ - to the le gal heirs of deceased (Barat
Khan son of Muhammad Wali) and, in default whereof to further suffer simple imprisonment for six months.
The appellant has preferred Criminal Appeal No.48 of 2018 for his acquittal, while
the trial court has sent Murder Refere nce bearing No. 07 of 2018 for confirmation of
sentence of death or otherwise. Since common question of law and facts is involved in both the cases therefore same are being disposed of by means of this common judgment.
2. This brief facts of the case, as alleged in the FIR No. 114/2014 registered on
02.08.2014 by complainant Nazar Muhammad son of Wali Muhammad that on the aforesaid date his brother namely Barat Khan was busy in packing vegetable in the field/orchard of Asaudullah Shahwani, when at about 11: 00 a.m. the appellant and Akhtar Muhammad came
there and quarreled with his brother Barat Khan. Meanwhile appellant made firing by means of pistol upon his brother Barat Khan, who received bullet injuries on his person and succumbed to his injuries.
3. After completion of investigation challan was submitted before the trial court. The
charge was framed and read over to the appellant to which he did not plead guilty and claimed trial.
4. In order to establish guilt of the accused, the prosecution examined the following
witnesses:
PW-1 Nazar Muhammad son of Wali Muhammad (complainant). He produced his
Fard -e-Bayan as Ex.P/1 -A.
PW-2 Muhammad Hassan son of Wali Muhammad. He is eye -witness of the
occurrence.
PW-3 Bibi Nadira wife of Wali Muhammad. She is also eye- witness of the
occurrence.
PW-4. Anna wife of Juma Gul. She is also eye -witness of the occurrence.
PW-5 Ghulam Nabi ASI. (Recovery witnesses). He produced recovery memo of one
shell 30 bore pistol as Ex- P/5-A, whereas parcel No.2 as Art -P/1, seal sam ple as Art -
P/2, shell .30 bore as art -P/3 and Fard Inspection Mouaqa as Ex- P5/B respectively.
PW-6 Muhammad Ismail constable (recovery witness). He produced recovery memo
of pistol .30 bore along with two rounds 30 bore as Ex- P/5-A whereas parcel No.1 as
Art-P/4, seal sample as Art -P/5, TT Pistol 30 bore as Art -P/6, two live cartridges as
Art-P/7 and recovery memo of blood- stained clothes of deceased as Ex -P/6-B,
whereas parcel No.3 as Art -P/8, seal sample as Art -P/9, Blood stained Kameez as Art -
P/10 and undershirt (Baniyan) as Art -P/11, respectively.
PW-7 Dr. Ali Ahmed Police Surgeon. Medico- Legal Officer). He produced MLC of
deceased Barat Khan as Ex -P/7-A.
PW-8 Ghulam Muhammad SI. (Investigating Officer). He produced FIR No. 114 of
2014 as Ex -P/8-A, site map as Ex -P/8-B, Inquest report as Ex- P/8-C, list of legal heirs
of deceased as Ex -P/8-D and challan Ex- P/5-E respectively.
5. After close of the prosecution evidence the statement of the appellant was recorded
under section 342, Cr.P.C. He denied the allegations and professed his innocence. He neither
recorded his statement under section 340(2), Cr.P.C. nor produced any defense witness. On
conclusion of trial the appellant was convicted and sentenced in the above terms.
6. Learned counsel fo r the appellant contended that the impugned judgment suffers from
misreading and non- reading of evidence; that the eye -witness are inter se related and
interested witnesses; that on the basis of mala fide intention the complainant nominated the
appellant for commission of offence; that there is contradiction amongst the statements of the
prosecution witnesses; 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 appellant.
7. Conversely, the learned counsel for the complainant vehemently opposed this appeal
and supported the impugned judgment. He contended that the trial court had reached the just conclusion because the prosecution successfully proved the guil t of the appellant, therefore,
the appellant is not entitled for acquittal and his appeal is liable to be dismissed.
8. Learned Deputy Prosecutor General adopted the arguments advanced by the learned
counsel for the complainant and urged for dismissal of t he appeal.
9. Heard. Record perused. The prosecution case rest on ocular account, medical
certificate, and recovery of blood stained earth, blood stained clothes, crime empty and crime weapon. PWs -1 to 4 claim to be eye -witnesses of the occurrence. Complai nant/PW -1 stated
that on the fateful day he went to Hazarganji for purchasing vegetable and meat, meanwhile his brother informed that the accused are quarreling with Barat Khan (deceased), whereupon he rushed to the house where he saw his brother while pac king the vegetable outside the
house, meanwhile appellant and co -accused started beating his brother. He tried to rescue but
appellant made firing upon his brother Barat Khan and the bullet hit his arm and head and he succumbed to the injuries at the spot. Thus he informed the police about the occurrence. PW -
1 during cross -examination stated that my brother used to cultivate vegetable; that police
reached at the spot and took the dead body to hospital; that he doesn't know who informed the police. PW- 1 deni ed the suggestion that Hassan fired upon Juma Gul but bullet hit the
deceased. In his court statement PW- 1 stated that he informed the police but during cross -
examination he expressed his ignorance about the same.
PW-2 (second ocular witness) in his court statement stated that Juma Gul fired upon
his brother. During cross -examination PW -2 stated that they did not inform the police even
the police had not come at the place of occurrence; that the deceased was taken to hospital by
the complainant and two oth er persons by private Suzuki vehicle; that
During cross -examination PW -3 admitted that due to boundary wall of house nothing
could be seen outside; that she was present inside the boundary wall when the police has taken the corpse to hospital; that no male member of family was present except the
complainant.
PW-4 stated that Juma Gul and Akhtar overpowered Barat Khan and Juma Gul fired
upon him. During cross -examination PW- 4 stated that:
She further stated that the complainant (Nazar Muhammad) and p olice came at the
spot together.
10. All the above reveals of material infirmities followed by contradiction in the
statements of the prosecution witnesses. The record is silent in respect of information advanced to the police and in this regard all the wi tnesses narrated differently rather they are
not supporting each other. The statement of PWs -2 and 4 reveal that PW -1 was not present at
the time of occurrence. The MLC transpires that the corpse was brought to hospital by the police while PW- 2 stated that the corpse was taken to hospital by his brother along with two
persons in a private vehicle. It transpires that none of the witness was present at the time of firing as firing took place outside the boundary wall near the Hut.
11. To disbelieve a witness, it is not necessary that there should be numerous infirmities,
if there was one which would impeach the credibility of the witness that could make the entire statement doubtful. Reliance is placed on the case of Jehan Bahadur v. The State 2013 YLR 2772, w hereby it has been held as under:
"It is fundamental principle of jurisprudence, that is, to disbelieve a witness, it is not necessary that there should be numerous infirmities. If there is one which impeaches the credibility of the witness that may make the entire statement doubtful."
12. PW-7 exhibited MLC as Ex- P/7-A at the trial, which reveals that the deceased was
brought to hospital by Ghulam Nabi ASI. If the deceased was taken by the police official in
absence of any close relative to the hospital t hen the presence of close relative at the
occurrence cannot be believed. In this regard the Hon'ble Supreme Court in the case of G.M. Niaz v. State 2018 SCMR 506 held as under:
"The record of the case shows that Zahid Iqbal deceased was taken to hospital in a injured condition by police constable not by above mentioned close related eye -
witnesses and this fact completely belied the claim of eye -witnesses regarding their
present with the deceased at relevant time."
13. PW-8 exhibited site plan Ex -P/8-B befo re the trial court, which also belies the
statements of ocular witnesses. As per eye- witnesses the appellant had fired on deceased
outside the boundary in the hut. As per site plan Ex- P/8-B the occurrence had taken place
inside the boundary wall and no hut outside the boundary wall is shown in the site plan. Even
the presence of eye- witnesses has not been shown in the site plan.
Although the site plan is not a substantive peace of evidence but non- mentioning the
eye-witnesses in the site plan cannot be lightly ignored. Possibility of non- presence of the
eye-witnesses at the time of occurrence cannot be ruled out. Reliance in this regard is placed
on the case of Muhkhtasir v. State 2017 PCr.LJ 1607.
13. As per site plan Ex -P/8-B the firing was made upon the deceased from the close
distance while the PW- 7 in his cross -examination stated that it is correct to suggest that on
making fire from close distance tattoo/burning mark appear on the body; that no burning mark was found on the wound of the deceased. As per medical jurisprudence the firing from close distance causes blackening. Reliance in this regard is placed on the case of Barakat Ali
v. Muhammad Asif 2007 SCMR 1812.
14. It is an admitted fact there existed enmity between the parties. The eye- witnesses
being brothers, mother and sisters of the deceased are interested witnesses and inimical to the appellant. Due to strained relations PW- 4 (wife of appellant) was living with her brothers.
Rule of prudence demands that there must be independent corroborati on of interested and
inimical witnesses. The capital punishment on the basis of such statement is not safe. In this regard reliance is placed on the case of Muhammad Irshad v. State 1999 SCMR 1030, wherein the Hon'ble Supreme Court has held as under: -
"It is evident from these circumstances that the complainant- party was inimically
disposed towards the appellant. The eye -witnesses examined by the prosecution are
closely related to one and other and the rule of prudence required that there should have been some independent corroboration available for placing implicit reliance on their testimony but the same is lacking and it would be highly unsafe to act upon the uncorroborated testimony of eye -witnesses examined by the prosecution, particularly
when it is f ull of material contradictions".
15. Record transpires that the blood stained cloth (Ex- P/6-B) was handed over to the
investigating officer after two days of occurrence but as per Ex- P/7-A the deceased was
brought to hospital by police on the day of occurr ence, under such circumstances the
question arises as to why the complainant handed over the blood stained clothes of the
deceased after two days of the occurrence to the investigating officer instead of handing over the same on the date of occurrence.
16. The allegedly recovered crime weapon and crime empty were not sent to the FSL for
examination, and in this regard no explanation has been offered by the prosecution. In the case of Sajjan Solangi v. State 2019 SCMR 872, it was held as follows by the Hon'b le
Supreme Court:
"Although, a .12 bore gun was recovered allegedly on the pointation of the petitioner and a crime empty was recovered from the place of occurrence but surprisingly the gun was not sent to the forensic expert for comparison or to determine whether it was in working condition or not. Allegedly, petitioner got recovered the said gun from the bushes which place was accessible to everyone. The private persons were also present there as admitted by the witness but only police officials were mad e witness of the
said recovery. In the absence of any positive report of Forensic Science Laboratory, the recovery of the gun is inconsequential.
4. The medical evidence at the most could be a supporting evidence to the ocular account and by itself cannot identify the assailant but as already discussed in this case
there is no ocular account, hence medical evidence is also not helpful to the prosecution."
16.(sic.) It is established principle of criminal administration of justice that the entire
burden of proof lies on the prosecution and the prosecution cannot be absolved from the duty
of proving the case on the basis of its own evidence. If any doubt arises from the statements of the prosecution witnesses its benefit goes to accused as matter of right and not as a grace.
Reliance in this regard is placed on the case of Wajahat Ahmed v. State 2016 SCMR 2073.
17. Similarly, in the case of Ayub Masih v. The State (PLD 2002 SC 1048), the Hon'ble
apex Court has held that rule of benefit of doubt, which is described as the golden rule, is
essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law. This view is also of important value under Islamic Law in the light of saying of Holy Prophet (P.B.U.H) that the 'mista ke of Qazi (Judge) in releasing a criminal is
better than his mistake in punishing an innocent'.
For the aforesaid reasons this appeal is accepted, the impugned judgment dated
02.11.2018, passed by learned Additional Sessions Judge Sariab, Quetta is set a side and
while extending benefit of doubt the appellant Juma Gul son of Syed Gul is acquitted of the charge under section 302(b), P.P.C. in FIR No 114 of 2014. The appellant being in custody is ordered to be released forthwith if not required in any other case.
Consequent to the above the Murder Reference No.07 of 2018 is answered in
negative.
JK/101/Bal. Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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