2020 P Cr. L J 1603
[Balochistan]
Before Muhammad Hashim Khan Kakar and Abdullah Baloch, JJ
JUMA KHAN---Appellant
Versus
The STATE--- Respondents
Criminal Appeal No. 224 and Criminal Revision No. 28 of 2018, decided on 27th May, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 34---Qatl -i-amd, common intention ---Appreciation of evidence ---Benefit of
doubt ---Accused were charged for committing murder of brother of the complainant ---Two
passers by also received bullet injuries by firing of accused pe rsons ---Motive for the
occurrence was stated to be dispute over a motorcycle--- Prosecution in order to establish the
charge had produced eight witnesses, out of whom two being brothers of deceased were
claiming to be the direct eye -witnesses of the occurrence, while two witnesses were passers
by and were injured in the said incident ---Complainant had stated that on the day of
occurrence, he along with his brother/eye -witness proceeded towards bazar on motorcycle,
while the deceased proceeded on his motorcyc le and when they reached nearby the gate of
Town Committee, the accused- appellant armed with Kalashnikov and the absconding
accused armed with pistol started firing upon his brother, due to which he died at the spot ---
Eye-witness being the second brother of deceased and complainant was the second
eyewitness of the occurrence, who narrated the same story with regard to their departure to bazar and facing murderous attack on his brother by the hands of accused- appellant and
absconding accused ---Both the said eye- witnesses had stated nothing about the position and
direction of the accused persons from which firing was made---Even otherwise, nothing had come on record that the culprits had made firing only upon the deceased or they also made an attempt to take the lives of both the eye -witnesses--- Statements of both the eye -witnesses
were also silent to the effect that what strategy was adopted by the said witnesses in order to save themselves as well as to save their deceased brother ---Presence of both the eye -
witnesses was doubtful for the reasons that the complainant along with his
brother/eyewitness including the deceased were on the target of the accused- appellant and
absconding accused, who were armed with sophisticated weapons, but the deceased brother was hit and the complainant along with his another brother were let free ---Said fact did not
appeal to the logic that by killing a person in presence of his real brother, the culprits would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be
hanged---Apparently, the conduct of eyewitnesses appeared to be unnatural, thus the presence of both the witnesses were doubtful ---Injured witnesses were independent
eyewitnesses of the occurrence, who received bullet injuries in t he incident; their testimonies
were credible and worth credence---Both the said witnesses in specific terms had stated
before the court that they had neither seen the culprits making firing nor they were aware
about the murder of any person in the said inc ident ---Admittedly, both the said witnesses had
stated nothing against the accused -appellant, thus their testimonies were not helpful to the
case of prosecution ---Prosecution had failed to prove its case through confidence inspiring
evidence, in circumstan ces---Appeal was allowed and accused was acquitted by setting aside
conviction and sentence recorded by the Trial Court.
Muhammad Farooq v. State 2006 SCMR 1707; Dohlu v. State 2002 PCr.LJ 690 and
Muhammad Asif v. The State 2017 SCMR 486 rel.
(b) Qanun -e-Shahadat (10 of 1984) ---
----Art. 40---Disclosure of accused ---Admissibility ---If the facts narrated in the disclosure by
accused were already known to the prosecution and no new fact was emerged pursuant to the said disclosure, even no incriminatory evi dence or article was recovered pursuant to the said
disclosure, such disclosure so recorded whilst in police custody would not be helpful to the case of prosecution.
(c) Criminal trial ---
----Medical evidence ---Scope ---Medical report was only a corroboratory piece of evidence
and the same could not be termed to be the substitute of direct evidence.
(d) Penal Code (XLV of 1860)---
----Ss. 302 & 34--- Qatl- i-amd, common intention ---Appreciat ion of evidence ---Recovery of
empties ---Reliance--- Scope ---Recovery of crime weapon was not effected from the
possession of the accused- appellant ---Empties collected from the place of occurrence, thus
could not be sent for matching to Forensic Science Laboratory.
(e) Criminal trial ---
----Benefit of doubt ---Principle ---Accused could not be deprived of the benefit in case of
doubt in the prosecution story.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Kamran Murtaza and Adnan Ejaz for Appellants.
Abdul Mateen, D.P.G. for the State.
Sadiq Khan and Habibullah Khan Nasar for the Complainant.
Date of hearing: 20th May, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.224 of 2018 and Criminal Revision Petition No.28 of 2018.
Appellant Juma Khan son of Abdul Sattar has filed the Criminal appeal, against the
judgment dated 5th July 2018 (hereinafter referred as. "the impugned judgment") passed by
the learned Sessions Judge Loralai, (hereinafter as, "the trial Court"), whereby the appellant
was convicted under section 302(b)/34, P.P.C. and sentenced to suffer imprisonment for life with compensation of Rs. 100,000/ -, which in case of recovery was directed to be paid to the
legal heirs of deceased Shah Muhammad, while in case of non -payment thereof, the appellant
to further suffer six (06) months' S.I. with the benefit of section 382- B, Cr.P.C.
While, the Criminal Revision Petition has been filed by the complainant/petitioner for
enhancement of the sentence of appellant f rom life imprisonment to that of Capital
punishment of death.
2. Facts of the case are that on 18th February 2016, the complainant Din Muhammad
lodged FIR No.15 of 2016 at Police Station Duki, under sections 302, 34, P.P.C., stating therein that on the day of occurrence he along with his brother Fida Muhammad over a
Motorcycle, while his other brother Shah Muhammad over another motorcycle started
proceeding towards Duki Bazar, when they reached near the office of Town Committee
Duki, they found accused pers ons Malik equipped with Pistol and Juma armed with
Kalashnikov, who started firing over his brother Shah Muhammad, due to which he succumbed to his injuries on the spot, while two passers by namely Asmatullah and Kalla
Khan also received bullet injuries. T he motive behind the occurrence is stated to be a dispute
over a motorcycle in between the parties.
3. After registration of FIR, none of the accused was arrested, thus on completion of
investigation, the I.O. submitted challan in the trial Court and accor dingly proceedings under
section 512, Cr.P.C. were carried out. Subsequently, the appellant was arrested, who was subjected to investigation and on completion thereof, he was challaned before the trial Court, where the absconding accused Malik was declared as proclaimed offender by the trial Court
by initiating proceedings under sections 87 and 88, Cr.P.C.
4. At the trial, the prosecution produced eight witnesses, whereafter the appellant was
examined under section 342, Cr.P.C. The appellant neither recorde d 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 appellant was found guilty of the charge and was convicted and sentenced as mentioned above in para No.1. whereafter, the instant appeal has been filed
by the appellant, while the complainant filed revision petition for enhancing the sentence of the appellant.
5. Heard the learned counsel and perused the available record. The admitted feature of
the case is that the prosecution in order to establish the charge has produced the evidence of eight witnesses, out of whom PW -1 and PW -2 being brothers of deceased are cla iming to be
the direct eye- witnesses of the occurrence, while PW- 3 and PW -4 were passers by and were
injured in the said incident. PW -5 has furnished medical evidence. PW -6 is the witness of
disclosure of the appellant. PW -7 and PW -8 are the Investigating Officers of the case. The
minute scrutiny of statements of all witnesses suggests that the trial Court has failed to
appreciate the evidence in its true persvetive and has come to a wrong conclusion by
awarding conviction and sentence to the appellant.
6. The most important evidence furnished by the prosecution through the statements of
PW-1 Din Muhammad and PW -2 Fida Muhammad. Both the witnesses were the real brothers
of deceased. According to complainant/PW -1 on the day of occurrence he along with PW -2
started proceeding towards Duki Bazar in one motorcycle, while the deceased Shah
Muhammad proceeded on his own motorcycle and when they reached nearby the gate of
Town Committee, the present appellant armed with Kalashnikov and the absconding accused armed with pistol started firing upon his brother, due to which he died at the spot. PW -2
being the second brother of deceased and complainant is the second eye- witness of the
occurrence, who narrated the same story with regard to their departure to Duki Bazar and facing murderous attack by his brother by the hands of appellant and absconding accused.
7. The minute scrutiny of statements of both the eye -witnesses establishes the fact that
they same are silent with regard to material aspects of the case. Both the witnesses have
stated nothing about the position and direction of the accused persons from which firing was made. Even otherwise, nothing has come on record that the culprits had made firing only upon the deceased or they also made an attempt to take the lives of both the eye -witnesses.
The statements of both the witnesses are also silent to the effect that what strategy was adopted by the PW -1 and PW -2 in order to save themselves as well as to save their deceased
brother. The presence of both the witnesse s is absolutely doubtful for the reasons that the
complainant/PW -1 along with his brother PW -2 Fida Muhammad including the deceased
were on the target of the appellant and absconding accused, who were armed with sophisticated weapons, but the deceased brot her was hit and the complainant along with his
another brother were let free. It does not appeal to the logic that by killing a person in presence of his real brothers, the culprits would not attempt to cause any injury/kill the prosecution witnesses leavi ng 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. Apparently, the conduct of PW -1
and PW -2 appears to be unnatural, thus the presence of both the witnesses are doubtful. We
are fortified by the dictum laid down by the Hon'ble apex Court in the case of Muhammad Asif v. The State 2017 SCMR 486, wherein it was held as under:
"10. We fail to understand that in the presence of the two close friends accompanying
the deceased and parents, how such tragedy with a son could happen without any intervention on their part to come to rescue of the deceased when they were not far away as shown in the site plan."
8. The best piece of evidence in the case in hand is the testimony of PW- 3 Kalla Khan
and PW -4 Asmatullah, suffice to state here that both the witnesses are independent eye-
witnesses of the occurrence, who received bullet injuries in the incident and being independent witnesses their testimonies are most credible and worth of credence. However,
both the witnesses in specific terms have stated before the Court that they neither saw the
culprits making firing nor they were aware about the murder of any person in the said incident. Admittedly, both the witnesses have stated nothing against the appellant, thus their testimonies are not helpful to the case of prosecution.
9. It has further been observed during investigation, the Investigating Officer has
recorded the disclosure of the appellant in presence of PW -6 as Ex.P/6- A, perusal of which
reflect that the facts so narrated in the said disclosure were already known to the prosecution and no new fact was emerged pursuant to the said disclosure and even no any incriminatory evidence or article was recovered pursuant to the said disclosure. Thus, the disclosure so recorded whilst in police custody is not helpful to the case of prosecution.
10. Since the entire case of the prosecution was rested upon the ocular evidence of
witnesses, but the same are contradictory to each other on all material counts. The only evidence which remains in the field is the unnatural death of the deceased, which though was not disputed by the parties, but however, the medical report is only a corroboratory piece of evidence and the same cannot term to be the substitute of direct evidence. Since the prosecution has failed to prove its case through confidence inspiring evidence, as such, the medical certificate alone could not be helpful to the case of prosecution to base the
conviction of the appellant. Besides, the recovery of crime weapon was also not effected from the possession of the appellant and thus the empties so collected from the place of occurrence could not be sent for matching to FSL.
11. In view of the ocular testimony of the related/interested prosecution witnesses,
contradictions and dishonest improvements in their testimony and lacking independent
corroboration in material aspects, the false implication of the appellant by the PWs cannot be ruled out of consideration as the appellant while recording his statement on oath has taken specific plea of his false implication by PWs due to previous dispute. The perusal of impugned judgment reveals that the same is suff ering from mis -reading, non- reading and
mis-appreciation of material available on record. The above defects in the prosecution case
were not considered by trial Court, thus wrongly the benefit of such doubts could not be extended in favour of appellant. Ne edless to emphasize that accused were entitled to be
extended benefits of doubt as a matter of right. Even an accused cannot be deprived of benefit of doubt merely because there is only one circumstance, which creates doubts in the prosecution story, where as in the case in hand there are series of doubts. Reliance in this
regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held as under:
"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 en titled to
the benefit not as a matter of grace and concession but as a matter of right."
For the reasons discussed hereinabove, the appeal is accepted, the impugned judgment
dated 5th July 2018 passed by the learned Sessions Judge Loralai, is set aside and while extending the benefit of doubts, the appellant Juma Khan son of Abdul Sattar is acquitted of
the charge, under sections 302, 34, P.P.C. 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 is hereby dismissed.
JK/33/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,
let us know.