2021 P Cr. L J 719
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
WAHEED and another ---Appellants
Versus
The STATE and another ---Respondents
Criminal Appeal No. (s) 186 of 2019 and Criminal Revision Petition No. (s) 01 of 2020,
decided on 22nd October, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss.302, 392, 353 & 34---Anti -Terrorism Act (XXVII of 1997), S.7--- Qatl-i-amd, robbery,
assault or criminal force to deter public servant from discharge of his duty, common
intention, act of terrorism ---Appreciation of evidence ---Benefit of doubt ---Accused were
charged that they murdered the Police Official/brother of the complainant after committing
robbery--- Case was regist ered on the information given by deceased, then injured to the
complainant ---If it was presumed that the deceased told about the accused at the place of
occurrence, then why on the oral report of the deceased FIR was not lodged--- Statement of
SHO was not r ecorded by the Investigation Officer under S. 161, Cr.P.C.---Investigating
Officer died natural death and the SHO appeared on behalf of the late Investigating Officer and produced site plan, challan of the case, memo of the place of occurrence ---Had SHO
been present at the place of occurrence in whose presence the deceased allegedly made dying
declaration, his statement would have been recorded by the Investigating Officer, but the same had not been done which created a reasonable doubt in the prosecution c ase---Appeal
against conviction was allowed, in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss.302, 392, 353 & 34---Anti -Terrorism Act (XXVII of 1997), S.7--- Qatl-i-amd, robbery,
assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism ---Appreciation of evidence ---Benefit of doubt ---Medical evidence-
--Scope ---Accused were charged that they murdered the Police Official/brother of the
complainant after committing robbery ---Case was registered on the information given by
deceased, then injured to the complainant ---Record showed that dead body of the deceased
was received at hospital at 9:00 p.m. ---Alleged occurrence took place at 8:45 p.m. and
complainant stated during cross -examination that after receiving a telephone call he reached
the place of occurrence within 7/10 minutes ---Possibility that within a period of 5 or 6
minutes the deceased allegedly told about the occurrence to the complainant and within said 5 or 6 minutes the dead body of the deceased also reached to the hospital could not be believed ---Said aspect of the matter also casted reasonable doubt on the prosecution case---
Appeal against conviction was allowed, in circumstances.
(c) Qanun -e-Shahadat (10 of 1984) ---
----Art. 46---Dying declaration ---Evidentiary value ---Scope ---Dying declaration was a
statement of a deceased person as to cause of his death when he was at the point of death ---
No doubt, sanctity was attached to a dying declaration because a dying man was not expected
to te ll lies, but being weak kind of evidence, it required close scrutiny and corroboration
from circumstantial evidence.
Mst. Zahida Bibi v. The State PLD 2006 SC 255 rel.
(d) Penal Code (XLV of 1860)---
----Ss.302, 392, 353 & 34---Anti -Terrorism Act (XXVII of 1997), S.7 ---Qanun- e-Shahadat
(10 of 1984), Art. 46--- Qatl-i-amd, robbery, assault or criminal force to deter public servant
from discharge of his duty, common intention, act of terrorism ---Appreciation of evidence ---
Benefit of doubt ---Dying declaratio n not supported by medical evidence ---Scope ---Accused
were charged that they murdered the Police Official/brother of the complainant after committing robbery--- Case was registered on the information given by deceased, then
injured, to the complainant ---Record showed that the deceased received injuries by means of
a firearm on occipital area of skull margin inverted i.e. 1 x 1 cm wound of entrance and exit wound of bullet were 2 x 2 cm on the left side of the skull of the deceased---Second injury was firearm entrance wound on the backside lumber region 1 x 1 cm margin inverted (Rt.
side) and the exit wound was on abdomen of right side 2 x 2 cm ---In view of the said injuries
on most vital parts, capability and ability of the deceased, then injured, to make statement/talk was beyond the comprehension of a prudent mind--- Alleged dying declaration
of the deceased, then injured, had not been corroborated by any circumstantial evidence to prove the participation of the accused in the commission of the offence ---Appe al against
conviction was allowed, in circumstances.
(e) Penal Code (XLV of 1860)---
----Ss.302, 392, 353 & 34---Anti -Terrorism Act (XXVII of 1997), S.7--- Qatl-i-amd, robbery,
assault or criminal force to deter public servant from discharge of his duty, common intention, act of terrorism ---Appreciation of evidence ---Benefit of doubt ---Reco very of
motorbike used in the commission of offence ---Reliance--- Scope ---Accused were charged
that they murdered the Police Official/brother of the complainant after committing robbery---Case was registered on the information given by deceased, then injure d, to the complainant --
-Record showed that a motorbike Honda 125 CC was recovered with the bloodstained seat
cover ---Prosecution produced Head Constable as a witness who stated in his statement that
on the night of occurrence on the source of search light the bloodstains were found on the
ground which led to the metal road and continued till the house of the accused---About 2:30 p.m., a raid was conducted at the house of accused and one motorcycle which was used at the time of occurrence with a bloodstained seat cover was recovered and the same was taken into
possession through a recovery memo---Said witness stated that they did not collect
information about the house from the neighbours ---Neither any document of the house nor
any witness of the locality was produced by the prosecution to establish that the said house
belonged to the accused ---Accused was also not found in the house wherefrom the alleged
motorcycle was recovered ---Prosecution did not produce any other witness to corroborate the
statement of s aid witness ---Appeal against conviction was allowed, in circumstances.
(f) Penal Code (XLV of 1860)---
----Ss.302, 392, 353 & 34---Anti -Terrorism Act (XXVII of 1997), S.7--- Qatl-i-amd, robbery,
assault or criminal force to deter public servant from discha rge of his duty, common
intention, act of terrorism ---Appreciation of evidence ---Benefit of doubt ---Recovery of crime
empties from the place of occurrence---Scope ---Accused were charged that they murdered
the Police Official/brother of the complainant afte r committing robbery--- Case was
registered on the information given by deceased, then injured, to the complainant ---Record
showed that only three crime empties of TT pistol were recovered from the place of
occurrence but the deceased received two entrance wounds ---No weapon had been shown or
recovered from the deceased and the same was also not sent to the firearm expert to match the same with the crime empties ---Alleged recovered crime empties were not sent to Forensic
Science Laboratory so as to ascertain the number of accused --- Appeal against conviction
was allowed, in circumstances.
(g) Criminal trial ---
----Benefit of doubt ---Principle ---For extending the benefit of the doubt in favour of the
accused so many circumstances were not required rather one circumstance, which created a
reasonable dent in the veracity of the prosecution version could be taken into consideration for the purpose, not as a matter of grace but as a matter of right.
Ahsan Rafique Rana for Appellant (in Criminal Appeal No. (s) 186 of 2019).
Jamil Akhtar Gajani, Assistant Prosecutor General (APG) for the State (in Criminal
Appeal No. (s) 186 of 2019).
Muhammad Ashraf Abro for Petitioner (in Criminal Revision Petition No. (s) 01 of
2020).
Ahsan Rafique Rana for Respondent No. 1 ( in Criminal Revision Petition No. (s) 01
of 2020).
Jamil Akhtar Gajani, Assistant Prosecutor General (APG) for the State (in Criminal
Revision Petition No. (s) 01 of 2020).
Date of hearing: 24th September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appe llant having been involved in case FIR No.
75 of 2012 dated 17.06.2012 registered under sections 302, 392, 353, 34, P.P.C. read with
section 7 of Anti -Terrorism Act, 1997 ("the Act") at Police Station Sibi District Sibi was
tried by the learned Special Jud ge, Anti Terrorism Sibi Division Sibi (hereinafter "the trial
court") and on completion thereof by means of the judgment dated 21.12.2019 (hereinafter
"the impugned Judgment") convicted and sentenced the appellant in the following terms: -
"The accused/appellant namely Waheed son of Bashir Ahmed is convicted and
sentenced under section 302(b), P.P.C. to suffer imprisonment for life with fine of
Rs.2,00,000/ - (Rupees Two Lac Only) as compensation to the legal heirs of deceased
within the purview of section 544 -A, Cr.P.C., or in default to suffer SI for six (06)
months.
The accused/appellant further convicted and sentenced under section 353, P.P.C. to suffer for a period of one (01) year's RI with fine of Rs.2,000/ - (Rupees Two
Thousand Only) or in default to suffer fifteen (15) days' SI. Benefit of section 382(B),
Cr.P.C., is extended in favour of accused/appellant".
2. Aggrieved from the impugned judgment, the appellant Waheed son of Bashir Ahmed
has assailed his conviction and sentence through Cr iminal Appeal No.(S) 186 of 2019, while
the complainant Ikhlaq Ahmed son of Ghazi Khan filed Criminal Revision Petition No.(S) 01 of 2020 for enhancement of conviction awarded to the appellant by the trial court, as the appeal and criminal revision petition are arising out of one and the same judgment of the trial court, therefore, the same are being disposed of through this common judgment.
3. The prosecution story as disclosed in the FIR (Ex.P/1- B) recorded on the written
report of complainant/PW -1 Ikhlaq Ahmed son of Ghazi Khan (Ex.P/1- A) is that he is
residing at Sibi and posts as constable at Police Station Saddar Sibi. His brother namely Irsand Ahmed, ASI (deceased) was also posted at Police Station Saddar Sibi and was performing Gasht duty at CNG Chor angi. On 17.06.2020 at about 8:30 p.m., when his
brother ASI Irshad Ahmed was going to perform his duty at CNG check post on his motorcycle; meanwhile, his brother informed him via mobile phone that near Bhatta Naka some people are firing at him, upon this , he immediately rushed to the place of occurrence,
where he saw his brother in a pool of blood while another person was also lying therein in injured condition. He further alleged in his report that his brother informed him that the said injured is the ac cused who along with his accomplices has intercepted him and tried to snatch
his motorbike while during resistance and scuffle with the accused; brother of the complainant identified the accused Waheed son of Bashir Ahmed and Zareef who made firing upon hi s brother while the third accused has snatched his wallet and mobile, as a result
whereof complainant's brother sustained bullet injuries, whereas his brother also made firing in self -defence due to which one of their accomplice sustained firearm injury. T he
complainant further stated in his report that his brother had informed him that the above named accused along with their unknown accomplices have also snatched away his motorbike and pistol. It is further alleged in the report that when the police shift ed his
brother and injured accused to the hospital, meanwhile his brother succumbed to his injuries.
4. On the arrest of the appellant and after completion of the usual investigation, the
challan was submitted before the learned trial court, where he was f ormally charge sheeted to
which the appellant pleaded not guilty and claimed trial. The prosecution in order to prove its
case produced as many as six (06) witnesses. After closure of the prosecution evidence, the statement of the appellant was recorded un der section 342, Cr.P.C., wherein he denied the
prosecution allegation and professed his innocence. He, however, opted not to record his
statement on oath as envisaged under section 340(2), Cr.P.C., and not produced any witness
in his defence. On conclusion of the trial, the learned trial court after hearing both the parties,
convicted and sentenced the appellant as mentioned above, hence, this appeal.
5. Arguments advanced from both sides have been heard. We have also minutely gone
through the available re cord on file with the able assistance of the learned counsel for the
parties. It is an established principle of law that each criminal case has its own peculiar facts and circumstances, and the same seldom coincide with each other on salient features. Admi ttedly it is an unfortunate incident in which brother of the complainant lost his life,
after sustaining firearm injuries but to put the facts and circumstances in equilibrium with the touchstone of safe administration of justice, we have scrutinized the w hole evidence
available on record while weighing the same on judicial parlance. It has been observed by us that the prosecution has led evidence in the shape of dying declaration of the deceased, then
injured Irshad Ahmed, medical evidence, as well as inve stigation besides other attending
circumstances. So far as the merits of the case are concerned, first of all, we are taking the
testimony of Ikhlaq Ahmed (PW -1) who is complainant of the case. In the examination- in-
chief he has narrated the same story whi ch has narrated in the report (Ex.P/1 -A). He stated
during cross -examination that he received a phone call of the deceased Irshad Ahmed at 8:44
p.m. According to the FIR (Ex.P/1- B) the occurrence took place at 8:45 p.m., PW -1 stated
during cross -examination that after receiving telephone call he reached at the place of
occurrence within 7/10 minutes. The presence of the PW -1 at the place of occurrence is
doubtful. The prosecution produced PW -2 (Muhammad Rafique, SI) who stated in his
statement that on 17.06.2012 he along with other police officials were on area Gasht. He received a wireless message that firing was made upon ASI Irshad Ahmed, on the said information he reached at the place of occurrence, at there SHO, DSP were also present, where ASI Irshad Ahmed was lying in injured condition. He stated during cross -examination
that he received information through a wireless message at 9:45 p.m. It means that the occurrence took place before 8:45 p.m. PW- 2 (Muhammad Rafique, SI) further stated during
cross -examination that the distance between the Jinnah road and place of occurrence in a
vehicle is 4/5 minutes. PW -2 did not state a single word about the presence of PW -1 at the
place of occurrence in his statement. On the other hand, according to the medical certificate of the deceased (Ex.P/5 -A), the injured was brought to the hospital by ASI Mukhtiar. The
name of the PW -1 is also not mentioned in the medical certificate. Had he been present at the
place of occurrence, he would have taken the deceased to the h ospital, which was not done
by him. Being a brother of the deceased one does not accept such conduct. The presence of the above PW- 1 is further suspected at the place of occurrence because the Murasala for
lodging of the FIR has been written at the civil h ospital, and in the police proceeding
mentioned in the FIR (Ex.P/1 -B), it is clearly mentioned that the complainant Ikhlaq Ahmed
recorded his statement at civil hospital and the same was sent for registration of the FIR to the police station. If he was present at the place of occurrence he should have written or given an oral report to the SHO at the place of occurrence, but the same was not done. The
other witness, i.e. PW -6 Balak Sher, IP/SHO who stated in his statement that on 17.01.2012
at 8:45 p.m., he received information through a wireless message that firing was made in a
Bhatta Naka where two persons were lying in injured condition. He reached the place of
occurrence and saw that two persons were lying in injured condition. The complainant was also present at there, and the injured Irshad Ahmed disclosed the name of the accused to the
complainant with extreme anguish and stated that the accused made firing upon him.
6. Perusal of the initial report (Ex.P/1 -A) reveals that it does not bear the signature or
thumb impression of the PW -6. It has come on record that when the deceased Irshad Ahmed
was shifted to the hospital and on the way he succumbed to the injuries. It is stated earlier that the FIR was lodged in civil hospital Sibi when at the time of l odging of the report the
deceased was not alive. In such circumstances, the PW- 6 being SHO put his signature on the
report (Ex.P/1 -A), and the said FIR was registered on the basis of alleged dying declaration
of the deceased, and he would verify the same. No explanation has been furnished by the
PW-6 as to why he did not sign the report?
7. For the sake of argument, if it is presumed that the deceased told about the accused at
the place of occurrence, then why on the oral report of the deceased FIR was not lodged. Even otherwise, the statement of PW -6 was not recorded by the investigation officer under
section 161, Cr.P.C. It is important to mention here that the investigation was conducted by IP Akbar Ali and who died on 19.01.2014 due to natural death and the PW -6 appeared on
behalf of the late IP Akbar Ali and produced site plan, challan of the case, memo of the place of occurrence on behalf of the late IP Akbar Ali. Had PW -6 being was present at the place of
occurrence in whose presence the deceased alleg edly made dying declaration, his statement
would have been recorded by the investigation officer (late IP Akbar Ali), but the same has
not been done which too create a reasonable doubt in the prosecution case.
The other important aspect of the case is that according to the medical certificate
(Ex.P/3 -A) which was produced by PW -3 Dr. Ghulam Sarwar who examined the dead body
of the deceased, according to which on 17.06.2012 the dead body of the deceased was
received at hospital at 9:00 p.m. It is earlier stated that the alleged occurrence took place
at 8:45 p.m. The PW -1 stated during cross -examination that after receiving a telephone call,
he reached at the place of occurrence within 7/10 minutes. How it can be possible that within
a period of 5 or 6 minutes the deceased allegedly told about the occurrence to PW -1 and
within said 5 or 6 minutes the dead body of the deceased also reached to the hospital. This aspect of the matter also castes reasonable doubt i n the prosecution case.
8. Adverting to the dying declaration of the deceased, then injured, Irshad Ahmed,
suffice it to say that dying declaration is a statement of a deceased person as to cause of his death when he is at the point of death. No doubt, sanctity is attached to a dying declaration because a dying man is not expected to tell lies, but being weak kind of evidence, it requires close scrutiny and corroboration from circumstantial evidence. At different occasions, the august Supreme Court of Pakis tan has settled some of the well -known tests for determining
the genuineness of dying declaration which are (i) whether it rings true (ii) whether the dying
man was capable of making it (iii) whether it was free from outside prompting and was not inconsist ent with other evidence, facts and circumstances of the case (iv) whether the
deceased then injured was capable to identifying the assailant(s). To find out truth or falsity of a dying declaration, a case is generally considered in all its physical environ ment and
circumstances. It is necessary to find out how far the evidence or its different parts fit in with
the circumstances and possibility that can safely be deducted in a particular case. Therefore,
in order to pass the test of reliability, a dying dec laration has to be subjected to very close
scrutiny, keeping in view the fact that such statements are made in the absence of an accused, which has no opportunity of testing the veracity of the statement by cross -examination.
9. In the case titled Mst. Zah ida Bibi v. The State (PLD 2006 Supreme Court 255) it has
been held by the Hon'ble Supreme Court of Pakistan that dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dyi ng person is not expected to tell a lie. Likewise, rule 25- 21 of the Police
Rules, 1934, speak about the essential ingredients to be followed during the recording of dying declaration, which for the sake of convenience and ready reference is reproduced below:-
25-21 Dying Declaration: -
(1) A dying declaration shall, whenever possible, be recorded by a magistrate.
(2) The person making the declaration shall, if possible, be examined by medical officer with a view to ascertaining that he is sufficiently in possession of his reason to make a
lucid statement.
(3) If no magistrate can be obtained, the declaration shall, when a gazetted police officer is not present, be recorded in the presence of two or more reliable witnesses unconnected with the police depart ment and with the parties concerned in the case.
(4) If no such witnesses can be obtained without risk of the injured person dying before his statement can be recorded, it shall be recorded in the presence of two or more police officers.
(5) A dying declar ation made to a police Officer should, under section 162, Code of
Criminal Procedure, be signed by the person making it.
10. In view of the law and the precedent referred above, the first point for consideration is
whether the deceased then injured was cap able of talking and able to make a statement. The
PW-1 and PW -6 stated in their statements that at the time of shifting of injured to the
hospital he succumbed to the injuries. According to medical certificate (Ex.P/3 -A) produced
by PW -3 Dr. Ghulam Sarwar, who examined the dead body of the deceased then injured has
sustained the following injuries.
"1. Firearm entrance wound l x 1 cm on occipital area of skull margin inverted.
2. Exit wound of bullet 2 x 2 on left side skull and bleeding.
3. Firearm entrance wound on backside lumber region 1 x 1 cm margin inverted (Rt side).
4. Exit wound on Rt side abdomen 2 x 2 cm and bleeding."
11. The cause of death of the deceased has given by PW -3 the medical certificate (Ex.P/3 -
A) that "cause of death of the deceased is head injuries excessive blooding shock and death
caused by firearm". The deceased received injuries by means of a firearm on occiptal area of
shall margin inverted i.e. 1 x 1 wound entrance and exit wound of bullet were 2 x 2 cm on the left side of the skull of the deceased. The second injury was firearm entrance would on the backside lumber region 1 x l cm margin inverted (Rt side) and the exit wound was abdomen of right side 2 x 2 cm.
12. In view of the aforesaid injuries on most vital parts, capabilit y and ability of the
deceased then injured to make statement/talk is beyond the comprehension of a prudent mind.
13. The above -discussed facts and circumstances clearly suggest that the report (Ex.P/1 -
A) was not recorded on the statement of the deceased/then injured rather it is a manifest
document which does not find corroboration from any direct or circumstantial evidence.
14. The other piece of evidence, i.e. recovery of motorbike Honda 125 CC bearing
registration No.QAM -7140 with the bloodsta ined seat cover. The prosecution produced PW -
4 Abdul Hakeem who stated in his statement that on the night of occurrence on the source of
search light the bloodstains were found on the ground which led to the metalled road and
continued till the house of the accused and about 2:30 p.m., a raid was conducted at the house of accused and one motorcycle which was used at the time of occurrence with a bloodstained seat cover was recovered, and the same was taken into possession through a recovery memo. The said w itness stated that they did not collect information about the house
from the neighbours. Neither any document of the house not any witness of the locality was produced by the prosecution to establish that the said house belonged to the accused. The accused was also not found in the house wherefrom the alleged motorcycle was recovered.
The prosecution did not produce any other witness to corroborate the statement of PW -4
Abdul Hakee, Head Constable. Even otherwise, nothing came on record that either the accu sed allegedly received injuries at the time of occurrence. The deceased stated in his
alleged dying declaration that due to firing in his self -defence, one accomplice of the accused
received injuries. It is worthwhile to mention here that when the police r eached the place of
occurrence, they also found one injured, namely Noor Ahmed alleged accused who later on succumbed to the injuries. Under such circumstances when one of the alleged accused was found in injured condition at the place of occurrence then w hose bloodstains were found on
the seat of the recovered motorcycle? This aspect of the matter castes reasonable doubt in the prosecution case.
Only three crime empties of TT pistol were recovered from the place of occurrence
but the deceased received two entrance wounds and the alleged deceased/accused Noor
Ahmed received one firearm injury. No weapon has been shown or recovered from the deceased, and the same was also not sent to the firearm expert to match the same with the crime empties. The alleged recovered crime empties were not sent to FSL so as to ascertain the number of accused. The alleged dying declaration of the deceased then injured has not
corroborated by any circumstantial evidence to prove the participation of the appellant in the
commissio n of the offence.
15. All the above -narrated facts and circumstances when evaluated on the judicial
parlance reflect that the prosecution has failed to establish the culpability of the appellant in the instant case through reliable, trustworthy and confide nce-inspiring evidence. It is an
established principle of law that for extending the benefit of the doubt in favour of the accused so many circumstances are not required rather one circumstance, which create a reasonable dent in the veracity of the prosecu tion version can be taken into consideration for
the purpose, not a matter of grace as a matter of right.
In view of the above discussion, we are persuaded to hold that conviction passed by
the learned trial court against the appellant in the circumstance s is against all canons of law
recognized for the safe dispensation of criminal justice. As per dictates of the law, the benefit of every doubt is to be extended in favour of the accused. Resultantly, while setting aside the conviction and sentence recorde d by the trial court in terms of the judgment dated
21.12.2019, Criminal Appeal No.(S) 186 of 2019 filed by the appellant is allowed as a consequence whereof he is ordered to be acquitted of the charge in FIR No.75 of 2012 dated 17.06.2012 registered at Po lice Station City Sibi under sections 302, 392, 353, 34, P.P.C.. He
is directed to be released forthwith if not required in any other case.
Hence, the Criminal Revision Petition No. (S) 01 of 2020 filed by the petitioner is
dismissed.
JK/248/Bal. Order a ccordingly.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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