2022 P Cr. L J 1356
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Rozi Khan Barrech, JJ
MUHAMMAD SALEEM and others ---Appellants
Versus
The STATE ---Respondent
Criminal Appeals Nos. 340, 350 and 352 of 2021, decided on 31st December, 2021.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 397 & 34 ---Qatl-i-amd, robbery, common intention ---Appreciation of
evidence ---Delay in recording the statement of eye -witness ---Scope ---Allegations against the
accused were that they all in furtherance of their c ommon intention snatched the amount
from the deceased and on his resistance, the absconding accused fired upon the deceased,
who later on died ---Ocular account of the incident had been furnished by sole eye -witness ---
Said witness despite witnessing the inc ident and observing that a person was first shot down
by culprits and then was put in vehicle, remained silent for nearly a month without intimating
the police authorities or even informing the complainant in time, who, as per his own
assertion, was well k nown to him for the last 2/3 years, his statement under S. 161, Cr.P.C.,
was recorded about 24 days after the occurrence ---Delayed recorded statement under S. 161,
Cr.P.C., of said eye -witness had brought to a conclusion that the said delay was just used t o
devise and create an untruthful account of the occurrence ---Said witness also admitted that
he visited the police station along with the complainant, whereas the Investigating Officer in
his cross -examination stated that he was called by the complainant and informed that one
eye-witness intended to record his statement under S. 161, Cr.P.C., which showed that the
witness was produced and introduced by the complainant ---Initially the FIR was registered
against unknown persons, but thereafter, the accused w ere arrested, but as per prosecution's
version the accused were arrested on basis of spy information and through latest technology,
however, the case file was silent about any such source of information, nor the prosecution
brought anything on record to sh ow the source of arrest of accused, which too had not only
created doubt in the prosecution's case but had almost shattered the entire prosecution's case -
--Circumstances established that the prosecution had failed to prove its case against the
accused beyo nd shadow of doubt ---Appeal was allowed and accused were acquitted by
setting aside convictions and sentences recorded by the Trial Court.
(b) Criminal Procedure Code (V of 1898) ---
----S. 161 ---Delay in recording statement of witness by the police ---Scop e---Credibility of a
witness is always looked with serious suspicion, if his statement under S. 161, Cr.P.C., was
recorded with delay without offering any plausible explanation.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 397 & 34 ---Qanun -e-Shahadat ( 10 of 1984), Art. 22 ---Qatl-i-amd, robbery,
common intention ---Appreciation of evidence ---Test identification parade ---Infirmities ---
Allegations against the accused were that they in furtherance of their common intention
snatched the amount from the deceas ed and on resistance, the absconding accused fired upon
the deceased, who was later on died ---Identification parade conducted by Judicial Magistrate,
carried out through eye -witness ---Investigating Officer stated in his examination -in-chief that
the identi fication parade was conducted ---Judicial Magistrate, in his cross -examination,
admitted that the accused was under investigation, but his identification parade was
conducted in the premises of Jail ---Accused who was under investigation, how his
identificat ion parade was conducted in Jail premises, and what was the reason that persuaded
the Investigating Authorities and the Judicial Magistrate to conduct the process of
Identification parade of an accused who was under investigation and was under police
reman d, within jail premises ---Eye-witness failed to identify the accused persons during
course of identification parade ---Eye-witness had alleged that there were two persons in the
pickup, then why the identification parade of three persons was conducted throu gh him, thus,
it could be presumed that the eye -witness was accommodated and incited in the process of
Identification parade ---Identification parade of the accused by the said witness was doubtful,
which clearly shattered the prosecution's case, when it co uld not clarify that in the
identification proceedings, the other persons, amongst whom the petitioner was queued, were
of a similar age, height, physique and complexion ---Main object of identification
proceedings was to enable a witness to properly identi fy a person involved in a crime to rule
out any possibility of mistaken identity ---Neither the Investigating Officer nor the Judicial
Magistrate, in whose presence the identification parade was conducted, had taken
precautionary measures prior to conductin g the identification parade ---Proceedings of
identification parade did not support the case of the complainant to the extent of commission
of the offence of alleged armed robbery followed by murder of the deceased ---Circumstances
established that the prose cution had failed to prove its case against the accused beyond
shadow of doubt ---Appeal was allowed and accused were acquitted by setting aside
convictions and sentences recorded by the Trial Court.
Kanwar Anwar Ali, Special Judicial Magistrate's case PLD 2019 SC 488 rel.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b), 397 & 34 ---Qatl-i-amd, dacoity, common intention ---Appreciation of
evidence ---Delay in sending weapon of offence and crime empty for analysis ---Scope ---
Allegations against the accused were t hat they in furtherance of their common intention
snatched the amount from the deceased and on his resistance, the absconding accused fired
upon the deceased, who later on died ---Record showed that TT pistol was recovered on
pointation of accused ---Such re covery was immaterial on the point that allegedly the firing
was made through same pistol at the time of incident and allegedly an empty of pistol was
taken into possession from the place of incident ---Witness to the recovery memo of empty
shell in cross -examination admitted that the empty shell produced before the court was of
.9mm calibre pistol ---Record further showed that the crime empty recovered from the spot
and the recovered pistol were sent to Forensic Science Laboratory after 72 days of the
occurr ence and 40 days of the alleged recovery on the alleged pointation of the accused ---
Prosecution had not explained with reasons that why the crime weapon and empties were not
sent to Forensic Science Laboratory in time ---Such lethargic attitude of the Inves tigating
Officer had vitiated the authenticity of Forensic Science Laboratory Report ---Sending crime
empties along with alleged recovered pistol had created a serious doubt ---Circumstances
established that the prosecution had failed to prove its case again st the accused beyond
shadow of doubt ---Appeal was allowed and accused were acquitted by setting aside
convictions and sentences recorded by the Trial Court.
Jehangir v. Nazar Farid and another 2002 SCMR 1986 and Ali Sher v. The State 2008
SCMR 707 rel.
(e) Penal Code (XLV of 1860) ---
----Ss. 302(b), 397 & 34 ---Qatl-i-amd, dacoity, common intention ---Appreciation of
evidence ---Medical evidence ---Scope ---Allegations against the accused were that they in
furtherance of their common intention snatched the amo unt from the deceased and on his
resistance, the absconding accused fired upon the deceased, who later on died ---Medical
evidence was not corroborated by any independent evidence, rather the sole alleged eye -
witness of the incident also did not state a sin gle word about the injury sustained by the
deceased, despite the fact that he claimed to have seen the deceased at the time of receiving
firearm injury ---Circumstances established that the prosecution had failed to prove its case
against the accused beyond shadow of doubt ---Appeal was allowed and accused were
acquitted by setting aside convictions and sentences recorded by the Trial Court.
(f) Criminal trial ---
----Benefit of doubt ---Principle ---Conviction must be based on unimpeachable evidence with
certa inty of guilt ---Any doubt arising out from the prosecution's case, must be resolved in
favour of the accused.
Hamadullah Mengal for Appellant (in Criminal Appeal No. 340 of 2021).
Ghulam Farooq Mengal for Appellant (in Criminal Appeal No. 350 of 2021).
Muhammad Khalid Kakar for Appellant (in Criminal Appeal No. 352 of 2021).
Muhammad Yunus Mengal, A.P.G. for the State.
Date of hearing: 23rd December, 2021.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ---These connected appeals are
directed again st the judgment dated 19th July 2021 passed by the Sessions Judge, Sariab
Division, and since common question of law and facts are involved, therefore, we are
intended to dispose of these appeals through this common judgment.
2. Appellants/convicts have ca lled in question the judgment dated 19th July 2021
("impugned judgment"), passed by learned Sessions Judge, Sariab Division, Quetta ("trial
court"), whereby, the appellants were convicted under section 320(b) of the Pakistan Penal
Code, 1860 ("P.P.C.") as Ta'azir read with section 397, P.P.C. and sentenced to suffer
rigorous life imprisonment each with an amount of Rs.300,000/ - (rupees three hundred
thousand) each as compensation to be payable to the legal heirs of deceased Haji Masoom. In
default whereof, they would further suffer SI for two months each with benefit of section
382-B of the Criminal Procedure Code, 1898 (Cr.P.C).
3. Brief facts of the case are that on 29th September, 2020 at 3:35 p.m. complainant
Abdul Hayee SI, lodged a report vide FIR No.1 14 of 2020 with Police Station, Sariab Quetta
with the averments that on stated date and time, when he along with other police officials
were on area patrolling, he received telephonic information, regarding lying a dead body at
Kirani Scheme near Sheikh Z ahid Hospital, reached there and found a dead body of a person
aged about 60/65 years in the pool of blood. Thereafter, he informed the control officers
through wireless, in result whereof they reached at the spot and in presence of the witnesses
on cursor y examination of the dead body, the bullet injury was found on his internal side of
the right thigh. The dead body seems to be of a pathan visage and on search nothing was
found/recovered from the dead body for the purpose of identification, thus the dead body was
taken to Civil Hospital for postmortem and identification. Hence, the instant FIR was lodged.
4. On completion of investigation, the challan was submitted before the trial court,
where charge was framed and read over to the appellants, to which th ey did not plead guilty
and claimed trial. Thereafter, the prosecution in order to substantiate the charge produced as
many as thirteen (13) witnesses viz PW -1 Bismillah, PW -2, Dr. Aysha Faiz, PW -3
Muhammad Qasim, PW -4 Ajab Khan, PW -5 Abdul Hayee, SI, PW -6 Hidayat Ullah,
Constable, PW -7 Wajid Ali, SI, PW -8 Ikhlaq Ahmed, PW -9 Muhammad Awais, PW -10
Nafees Ahmed, ASI, PW -11 Muhammad Haroon Mengal, Judicial Magistrate -I, Sariab, PW -
12 Dr. Ali Mardan, Medico Legal Officer and PW -13 Maqsood Sajid, SI/IO.
5. After completion of the prosecution evidence, the statement of the appellants were
recorded under section 342, Cr.P.C.; wherein they once again professed their innocence and
denied the allegation levelled against them. However, they did not opt to record their
statement on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in
their defence. On conclusion of the trial the appellants were convicted and sentenced in the
aforesaid terms. Hence, this appeal.
At the very out set the learned coun sel for the appellant Muhammad Yaqoob, was
posed a query that he has filed a joint appeal with appellant Muhammad Saleem and Abdul
Wahid, and has also filed a separate appeal against the impugned judgment. Mr.
Hammadullah Megnal, Advocate appearing for the appellants in Criminal Appeal No. 340 of
2021, states that since the appellant Muhammad Yaqoob has filed a separate appeal,
therefore, he does not press the Appeal No. 340 of 2021, to the extent of appellant
Muhammad Yaqoob, rather only press the appeal t o the extent of remaining appellants. Order
accordingly.
6. Messrs Muhammad Farooq Mengal, Khalid Khan Kakar and Hammadullah Megnal,
Advocates, appearing in all three appeals for the appellants/convicts argued that the
impugned judgment is against law and the facts of the case, that apparently, the incident was
unseen, but PW -4 who claimed to have witnessed the incident was foisted latter in time, and
his statement was recorded with the delay of about 24 days from the incident, while the
identification para de conducted through PW -4, was also not free from doubt; that the alleged
recovered pistol was dispatched for analysis with unexplained delay of about one month and
ten days, while the FSL report was rendered with a negative opinion by declaring the articl es
as inconclusive from the opinion, which further created doubts in the prosecution story; that
there was no incriminating evidence available against the appellants to connect them with the
commission of the offence; that there were material irregularitie s and illegalities in the
impugned judgment, which is liable to be set -aside, when the the statements of the witnesses
under section 161, Cr.P.C., were recorded after lapse of a considerable time.
Conversely, learned Deputy Prosecutor General opposed the contention of the counsel
for the appellants and contended that the prosecution has successfully proved its case against
the appellants through confidence inspiring evidence; that the appellants had admitted their
guilt by recording disclosure before the p rosecution witnesses during the course of
investigation and consequently, the recovery of crime weapon and the Rikshaw, so used in
commission of the crime, also proved the prosecution case; that the prosecution has produced
sufficient incriminating evidenc e against the appellants and the learned trial court has rightly
convicted the appellants for commission of offence. He lastly urged for dismissal of the
appeal.
7. We have heard the arguments and gone through the record along with the impugned
judgment.
8. In the instant case, the allegation levelled against the appellants/convicts was that
they in furtherance of their common intention and in order to snatch the amount from the
deceased Haji Masoom, and on resistance of the deceased, the absconding accused Ahmed
Khan fired upon the deceased, who sustained bullet injury on his thigh, who was thrown in
the vehicle and was then thrown in Kirani Scheme behind the Sheikh Zaid Hospital in injured
condition, who latter on died. The FIR was initially registered aga inst unknown persons, but
thereafter, the appellants were arrested. Admittedly, this case squarely rests on circumstantial
evidence, except an eye -witness account of PW -4 Ajab Khan, who claimed to have witnessed
the incident. As per PW -4, on 28th September 2020, at about 02:20 -25 p.m. his motorcycle
became out of order near Ghazi Steel Mill, when he heard the noise of break of vehicle, and,
he saw an old man riding on motorcycle, was hit by double cabin gray colour pickup, having
no number plate, when he tr ied to help the old man, he heard a fire shot and the old man fell
on the ground. Two persons were in pickup, one of them wearing black colour dress was
holding pistol, they put the old man in their vehicle and went towards Sariab Customs. His
statement wa s recorded on 21st October 2020, by the police authorities and thereafter, he
identified three persons in Jail on 23rd October 2020. The witness in court mistakenly
identified one of the accused persons as Sanaullah, who was actually Muhammad Yaqoob.
He in cross -examination, stated that he did not know Haji Masoom (deceased), however, he
knew the complainant Bismillah, for 2/3 years back.
9. It is noted with grave concern that this witness despite witnessing the incident and
observing that a person was firs t shot down by culprits and then was put in vehicle, he
remained silent for nearly a month without intimating the police authorities or even
informing the complainant in time, who as per his own assertion was well known to him for
the last 2/3 years. So fa r his testimony is concerned, his statement under section 161, Cr.P.C.
was recorded about 24 days after the occurrence. It is a settled law that credibility of a
witness is always looked with serious suspicion, if his statement under section 161, Cr.P.C.,
was recorded with delay without offering any plausible explanation. The delayed recorded
statement under section 161 of Code of Criminal Procedure, 1898 of PW -4 has brought us to
a conclusion that the said delay was just used to devise and create an untrut hful account of
the occurrence. While it was also admitted by the PW -4 that he visited the police station
along with the complainant, whereas the Investigating Officer in is cross -examination stated
that he was called by the complainant and informed that o ne eye -witness intends to record
his statement under section 161, Cr.P.C, which shows that the witness was produced and
introduced by the complainant.
Moreover, it is noted that initially the FIR was registered against unknown persons,
but thereafter, the appellants were arrested, but as per prosecution's version the appellants
were arrested on basis of spy information and through latest technology, however, the case
file is silent about any such source of information, nor the prosecution br ought anything on
record to show the source of appellants' arrest, which too has not only created doubt in the
prosecution's case but has almost shattered the entire prosecution's case.
10. Another piece of evidence available against the appellants being r elied upon by the
prosecution was their identification parade conducted by PW -11 Muhammad Haroon Mengal
(Judicial Magistrate -I, Sariab) carried out through PW -4 Ajab Khan. However, it is noted
that the appellants were arrested on 15th October 2020, but the ir identification parade was
conducted on 23rd October 2020, after nine days of their arrest, whereas the Investigating
Officer (PW -13) stated in his examination -in-chief that the identification parade was
conducted on 22nd October 2020. PW -11, in his cros s-examination, admitted that the
appellant Sanaullah, was under investigation, but his identification parade was conducted in
the premises of Jail. It is noticed astonishingly that an accused who is under investigation,
how his identification parade was co nducted in Jail premises, and what was the reason that
persuaded the investigating authorities and the Judicial Magistrate to conduct the process of
Identification parade of an accused who is under investigation and was under police remand,
within jail pre mises. Though, the witness Ajab Khan, failed to identify the appellants
Muhammad Saleem and Muhammad Yaqoob during course of identification parade. It is also
imperative to add here that the PW -4 Ajab Khan had alleged that there were two persons in
the pic kup, then why the identification parade of three persons was conducted through him,
thus, it can be presumed that the PW -4 was accommodated and incited in the process of
Identification Parade.
11. In view of above reasons, the identification parade of the petitioner by the said
witness was doubtful, which clearly shattered the prosecution's case, when it could not
clarify that in the identification proceedings, the other persons, amongst whom the petitioner
was queued were of a similar age, height, physique and complexion. The main object of
identification proceedings is to enable a witness to properly identify a person involved in a
crime to rule out any possibility of mistaken identity. Neither the Investigating Officer nor
the learned Judicial Magistrate, in whose presence the identification parade was conducted,
had taken precautionary measures prior to conducting the identification parade.
12. In the latest pronouncement of the Hon'ble Supreme Court, in the matter of "Kanwar
Anwar Ali, Special Judicial M agistrate" (PLD 2019 SC 488) certain guidelines for
identification parade have been laid down, which stipulates as under: -
23. Although there is no law, which prescribes any such precautions yet the necessary
guidelines are available in the form of execut ive instructions and judicial
pronouncements. Some of them are summarised as under: -
(a) Memories fade and visions get blurred with passage of time. Thus, an
identification test, where an unexplained and unreasonably long period has intervened
between the occurrence and the identification proceedings, should be viewed with
suspicion. Therefore, an identification parade, to inspire confidence, must be held at
the earliest possible opportunity after the occurrence;
(b) a test identification, where the possi bility of the witness having seen the accused
persons after their arrest cannot be ruled out, is worth nothing at all. It is, therefore,
imperative to eliminate all such possibilities. It should be ensured that, after their
arrest, the suspects are put to identification tests as early as possible. Such suspects
should preferably, not be remanded to police custody in the first instance and should
be kept in judicial custody till the identification proceedings are held. This is to avoid
the possibility of ove rzealous I.Os. showing the suspects to the witnesses while they
are in police custody. Even when these accused persons are, of necessity, to be taken
to Courts for remand etc. they must be warned to cover their faces if they so choose
so that no witness co uld see them;
(c) identification parades should never be held at police stations;
(d) the Magistrate, supervising the identification proceedings, must verify the period,
if any, for which the accused persons have remained in police custody after their
arrest and before the test identification and must incorporate this fact in his report
about the proceedings;
(e) in order to guard against the possibility of a witness identifying an accused person
by chance, the number of persons (dummies) to be intermin gled with the accused
persons should be as much as possible. But then there is also the need to ensure that
the number of such persons is not increased to an extent which could have the effect
of confusing the identifying witness. The superior Courts have, through their wisdom
and long experience, prescribed that ordinarily the ratio between the accused persons
and the dummies should be 1 to 9 or 10. This ratio must be followed unless there are
some special justifiable circumstances warranting a deviation f rom it;
(f) if there are more accused persons than one who have to be subjected to test
identification, then the rule of prudence laid down by the superior Courts is that
separate identification parades should ordinarily be held in respect of each accused
person;
(g) it must be ensured that before a witness has participated in the identification
proceedings, he is stationed at a place from where he cannot observe the proceedings
and that after his participation he is lodged at a place from where it is not possible for
him to communicate with those who have yet to take their turn. It also has to be
ensured that no one who is witnessing the proceedings, such as the members of the
jail staff etc., is able to communicate with the identifying witnesses;
(h) th e Magistrate conducting the proceedings must take an intelligent interest in the
proceedings and not be just a silent spectator of the same bearing in mind at all times
that the life and liberty of someone depends only upon his vigilance and caution;
(i) the Magistrate is obliged to prepare a list of all the persons (dummies) who form
part of the line -up at the parade along with their parentage, occupation and addresses;
(j) the Magistrate must faithfully record all the objections and statements, if any,
made either by the accused persons or by the identifying witnesses before, during or
after the proceedings;
(k) where a witness correctly identifies an accused person, the Magistrate must ask
the witness about the connection in which the witness has identified that person i.e. as
a friend, as a foe or as a culprit of an offence etc. and then incorporate this statement
in his report;
(l) and where a witness identifies a person wrongly, the Magistrate must so record in
his report and should also state the number of persons wrongly picked by the witness;
(m) the Magistrate is required to record in his report all the precautions taken by him
for a fair conduct of the proceedings and
(n) the Magistrate has to give a certificate at the end of his report i n the form
prescribed by CH.II.C. of Vol. III of Lahore High Court Rules and Orders.
Thus, the proceedings of identification parade also do not support the case of the
complainant to the extent of commission of the offence of alleged armed robbery followe d
by murder of the deceased.
13. So far as alleged recovery of TT pistol on pointation of appellant Sanaullah, is
concerned, the same was also immaterial on the point that allegedly the firing was made
through same pistol at the time of incident and allege dly an empty of TT pistol was taken
into possession from the place of incident, but PW -6 who was witness to the recovery memo
of empty shell (EX -P/6-B) in cross -examination admitted that the empty shell produced
before the court was of .9mm caliber pistol. The record further shows that the crime empty
recovered from the spot and the recovered pistol were sent to F.S.L after 72 days of the
occurrence and 40 days of the alleged recovery on the alleged pointation of the appellant
Sanaullah. Prosecution has not explained with reasons that why the crime weapon and
empties were not sent to F.S.L in time. This lethargic attitude of the Investigating Officer has
vitiated the authenticity of F.S.L report Ex -P/13 -F. Reliance is placed on "Jehangir v. Nazar
Farid and a nother" (2002 SCMR 1986) wherein it was held that:
Report of the Forensic Science Laboratory whereby the three crime empties allegedly
found at the place of occurrence were found to have been fired from a 7 -MM rifle
allegedly recovered at the instance of Nazar Farid accused was offered by the
prosecution as a piece of evidence corroborating the ocular testimony. The occurrence
had taken place on 21 -1-1996. Nazar Farid accused was arrested on 1 -2-1996. The
rifle in question had been allegedly recovered from him on 12 -2-1995 and it was at
least seven days thereafter i.e on 19 -2-1996 that the crime empties in question had
been received in the Forensic Science Laboratory. In the circumstances this piece of
evidence is not credible and is of no assistance to the prosecution as against Nazar
Farid accused.
14. Moreover, sending crime empties along with alleged recovered pistol, created a
serious doubt, as why the crime empties were retained by the Investigating Officer till
recovery of pistols, then sending them t ogether created serious doubt when possibility of
manipulation cannot be ruled out. The Hon'ble apex Court in its judgment reported in 2008
SMCR Page 707 Ali Sher v. The State held that:
10. Three crime -empties of .7 mm rifle and two crime empties of .12 bore gun had
been allegedly found at the place of occurrence which had been taken into possession
by Jehangir Khan, S. -I./SHO (P.W.14). Even if it be presumed that the said crime -
empties were in fact available at the spot and had been rightly recovered by the
Investigating Officer, it is a pity that the said crime -empties had been retained in the
police station for more than three weeks and had been sent to Forensic Science
Laboratory only on 14 -4-1995 and that also along with a .7 mm rifle and a .12 bore
gun which had been allegedly recovered at the instance of Ali Sher and Gohar Ali
respectively. No explanation had been offered as to why the crime -empties had not
been dispatched immediately to the Forensic Science Laboratory specially when one
Muhammad Mus htaq F.C. (P.W.13) and gone to Lahore on 28 -3-1995 carrying the
blood -stained earth found in this case for transmitting the same to the Officer of the
Chemical Examiner.
11. The crime -empties having been allegedly found at the place of occurrence and
having been retained for so long the police station and having been sent to the F.S.L.
along with the crime weapons and that also 12 days after the alleged weapons of
offence had been allegedly recovered destroys and evidentiary value of the said piece
of evid ence. These recoveries, therefore, cannot offer any corroboration to the ocular
testimony.
15. The FSL report (EX -P/13 -F) of the alleged recovered pistol and the empty was with
the opinion that
"the one crime empty shell of .30 bore pistol marked as "C" present in parcel No.2
having been inconclusive with .30 bore pistol present in parcel No.5".
Thus, this piece of evidence relied upon by the prosecution was also not helpful to its
case, rather has created another serious doubt in its veracity.
16. As fa r as medical evidence is concerned, the same was also not corroborated by any
independent evidence, rather the sole alleged eye -witness of the incident Ajab Khan (PW -4)
also did not state a single word about the injury sustained by the deceased, despite th e fact
that he claimed to have seen the deceased at the time of receiving firearm injury.
17. It is settled law that if the evidence being relied upon by the prosecution does not
establish a strong chain of circumstances, which could not be explained away on any
hypothesis other than the guilt of the accused, conviction in such eventualities would not be
legal, because in case, where the ocular account has failed to get corroboration from any
other piece of evidence, the circumstantial evidence should point inevitably to the conclusion
that the accused and the accused only is the perpetrator of the offence and such evidence
should be incompatible with innocence of the accused, which is lacking in the case in hand
and for rendering this view, we are fortified by the view of the Hon'ble Supreme Court about
circumstantial evidence rendered in the case of "M.D. Nazir Hussain Sarkar and another v.
The State" (1969): -
"An accused cannot be found guilty unless all reasonable hypothesis, which are
consistent with hi s innocence, have been excluded.
Further held in case of Advocate -General, Government of East Pakistan v. Majid alias
Abdul Majid (1970 SCMR 12).
"If the evidence does not establish strong chain of circumstances which could not be
explained away on any h ypothesis other than the guilt of the accused, conviction
under section 302, P.P.C. would not be legal".
"A very high quality of evidence is required and chain of events has to be completed
with a view to establish guilt of accused beyond reasonable doubt and to make the
plea of his being innocent incompatible with the weight and quality of prosecution
eviden ce. Where the prosecution fails to prove circumstances in a manner to make it
beyond reasonable doubt, judgment of High Court in rejecting such evidence is in
accord with principles recognized for safe administration of criminal justice". (PLD
1986 SC 690) .
"Law relating to circumstantial evidence that proved circumstances must be
incompatible with any reasonable hypothesis of the innocence of the accused". (1992
SCMR 1047 and 1999 SCMR 1034)."
18. For what has been discussed above, we are of firmed opinio n that the prosecution has
miserably failed to bring the guilt of the appellants at home through cogent and confidence
inspiring ocular or circumstantial evidence beyond shadow of any reasonable doubt. The
circumstantial evidence relied upon by the prosecu tion does not make a chain so as to show
or establish that its one end touches the dead body of the deceased and other the neck of the
appellant, but having ample doubts in the prosecution case. It is settled law that one
substantial doubt would be enough for acquittal of the accused. The rule of benefit of doubt
is essentially a rule of prudence, which cannot be ignored while dispensing justice in
accordance with law. Conviction must be based on unimpeachable evidence with certainty of
guilt and any doubt arising out from the prosecution's case, must be resolved in favour of the
accused. The said rule is based on the maxim "it is better that ninety -nine guilty persons be
acquitted rather than one innocent person be convicted." However, in the instant case
innumerable doubts were boiling down from the prosecution's case, on basis whereof, the
conviction judgment against the appellants/convicts is not sustainable.
For the foregoing reasons, the appeals in hand filed by Muhammad Saleem son of
Abdul Wahab, Muha mmad Yaqoob son of Muhammad Hayat, Abdul Wahid son of Imam
Dad and Sanaullah son of Din Muhammad were allowed, and after setting aside the
conviction and sentence awarded to them vide judgment dated 19th July 2021 passed by the
learned Sessions Judge, Sari ab Division, they were acquitted of the charge and ordered to be
released forthwith, if not required in any other custody case vide our short order dated 2nd
December 2021 and these details shall constitute the reasons thereof.
JK/17/Bal. Appeals 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.