2022 P Cr. L J Note 32
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
GHUNGAR KHAN--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 64 and Constitutional Petition No. 1199 of 2018, decided on 6th
September, 2019.
(a) Criminal trial ---
----Each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 147, 148 & 149---Anti -Terrorism Act (XXVIII of 1997), S. 7---Qatl -i-amd,
rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism ---
Appreciation of evidence ---Delay of one month and three days in lodging the FIR ---Effect ---
Prosecution case was that accused and co -accused committed murder o f brothers and nephew
of complainant by pelting stones after having forcibly caught them ---Record showed that FIR
was lodged with delay of one month and three days ---Explanation given by the complainant
for such inordinate delay was that they first went to the place "M", whereby they were sent to
place "K" for registration of FIR, wherefrom they were sent to place "M" for registration of the FIR and there complainant knew that the area in which the occurrence took place did not come within the jurisdiction of levies Thana "K" and "M" and they came to "Q" and from
"Q" they went to "M" and lodged the report ---Said explanation given by the complainant was
not plausible as she herself remained at place "Q" for fifteen days and did not lodge the report ---In the a bsence of any plausible explanation, the delay in lodging the FIR would be
fatal and casted suspicion in the prosecution story---Appeal against conviction was allowed, in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 147, 148 & 149---Anti -Terrorism Act (XXVIII of 1997), S. 7 ---Qatl -i-amd,
rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism ---
Appreciation of evidence ---Benefit of doubt ---Chance witnesses ---Non-availability of
justification for presence of witnesses at the place of occurrence--- Un-natural conduct of
eye-witnesses ---Scope ---Prosecution case was that accused and co -accused committed
murder of brothers and nephew of complainant by pelting stones after having forcibly caught
them ---Prosecution had produc ed three eye -witnesses including complainant in support of its
charge---Said three witnesses who were closely related to the deceased had stated that the
accused pelted stones at the deceased and also made firing upon them ---Neither the said
witnesses received any injuries nor produced any medical certificate in respect of any injuries received by them ---Said witnesses also did not react or showed any response when
the accused persons were causing injuries ---No one could believe that the close relatives
would remain silent spectators in a situation like that case, their intervention was very natural
to rescue the deceased but they did nothing to save the deceased from the clutches of the accused persons ---Presence of witnesses on the crime spot due to their unnatural conduct had
become highly doubtful therefore, no explicit reliance could be placed on their testimony---Said witnesses had only given photogenic/ photographic narration of the occurrence ---
Presence of two witnesses at the place of occurrence was further doubtful because their names were not mentioned in the FIR as such ---Record reflected that the occurrence took
place on 13.05.2013 at 11:30 a.m. allegedly in presence of the said three witnesses but the report was lodged on 16.06.2013 and the dead body of the deceased were recovered on 15.06.2013---Witnesses stated that the accused persons after killing the deceased escaped from the place of occurrence and witnesses left the dead body at the place of occurrence---Circumstances suggested that it was unusual on the part of such close relatives to leave the
dead bodies of the deceased on the spot and after a month and three days the dead bodies were brought by Investigating Officer to the hospital ---Conduct of said witnesses was
unnatural, thus, it coul d be held that all the three witnesses were planted at a subsequent
stage after consultation by the complainant party ---Testimonies of the said interested
witnesses did not appeal to the logic to be true nor on the basis of such shaky statements conviction could be awarded or maintained--- Appeal against conviction was allowed, in
circumstances.
(d) Criminal trial ---
----Witness --- Related witnesses ---Testimony of related witnesses ---Reliance--- Scope ---No
doubt the evidence of the related witnesses could not be discarded on the ground of its being
related to the victim, however, if it was found that the testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter could not be expected from a prudent person, then under
such circumstances the evidence furnished by related witnesses could be easily discarded.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 147, 148 & 149--- Anti-Terrorism Act (XXVIII of 1997 ), S. 7 ---Qanun -e-
Shahadat (10 of 1984), Art. 129(g) ---Qatl -i-amd, rioting, rioting armed with deadly weapon,
unlawful assembly, act of terrorism ---Appreciation of evidence ---Benefit of doubt ---
Withholding material witnesses ---Scope ---Prosecution case was that accused and co -accused
committed murder of brothers and nephew of complainant by pelting stones after having forcibly caught them ---Record transpired that the complainant in her Fard -e-Bayan
mentioned the names of two persons who were tied with ropes by the accused during the alleged incident but neither the names of said persons were mentioned in the column of witnesses in the challan nor they were produced before the court ---Non -production of such
important witnesses would cast adverse inference, whi ch concluded that if the said witnesses
had been produced they would not have supported the prosecution version---Appeal against
conviction was allowed, in circumstances.
Lal Khan v. The State 2004 SCMR 1847 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b), 147, 148 & 149---Anti -Terrorism Act (XXVIII of 1997), S. 7 ---Qatl -i-amd,
rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism ---
Appreciation of evidence ---Benefit of doubt ---Dishonest improvements ---Contradiction i n
medical and ocular evidence---Scope ---Prosecution case was that accused and co -accused
committed murder of brothers and nephew of complainant by pelting stones after having
forcibly caught them ---Medical evidence showed that the deceased received firearm injuries -
--First Information Report had alleged that the accused persons pelted stones in result
whereof the deceased died on the spot but nothing had been mentioned about any firearm injuries ---In order to address that anomaly, the eye -witnesses made imp rovements in their
statements during the trial and stated that the accused made firing upon the deceased---Statement of the eye -witnesses when confronted with the crime report it had been observed
that the witnesses dishonestly stated about firearm injury allegedly caused to the deceased and also introduced dishonest improvement just to bring ocular version in line with medical evidence--- Change in version of witnesses were not an outcome of frail human memory,
rather was made deliberately with a design of bringing their testimony in conformity with
medical evidence, thus, the same in no manner, could be brushed aside ---Appeal against
conviction was allowed, in circumstances.
(g) Criminal trial ---
----Witness ---Dishonest improvements ---Scope ---Purity of a te stimony led a court to
pronounce a guilty verdict ---If such purity was polluted through dishonest improvements, the
eye-witness would loss his credibility rendering it not worthy of any credence.
Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b), 147, 148 & 149---Anti -Terrorism Act (XXVIII of 1997), S. 7 ---Qatl -i-amd,
rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism ---
Appreciation of evidence ---Motive was not pr oved--- Scope ---Prosecution case was that
accused and co -accused committed murder of brothers and nephew of complainant by pelting
stones after having forcibly caught them ---Complainant and witnesses for the first time
introduced the motive of the occurrenc e and stated that there was a dispute between them and
the accused persons in respect of property ---In the first instance, the motive had not been
established in any manner whatsoever through any documentary evidence or even secondary evidence of reliable nature, thus reliance could not be placed on such artificial motive.
(i) Criminal trial ---
----Benefit of doubt ---Principle ---Many circumstances were not required rather one
circumstance, which created reasonable dent in the veracity of the prosecution ver sion, could
be taken into consideration for extending benefit of doubt not as a matter of grace rather as a
matter of right.
Tariq Pervaiz v. The State 1995 SCMR 1345 and Riaz Masih v. State 1995 SCMR
1730 rel.
Ali Hassan Bugti for Appellant.
Syal Khan Durrani for the Complainant.
Saeed Ahmed Kakar, State Counsel.
Date of hearing: 21st August, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---This judgment disposes of Criminal Appeal No. 64
of 2018 filed by the appellant (convict) against the judgment dated 16.03.2018 ("impugned
judgment") passed by the learned Special Judge Anti -Terrorism -II, Quetta ("trial court")
whereby the appellant was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life as Tazeer and to pay compensation of Rs.200,000/ - (Rs. Two Lac) to
legal heirs of each deceased as envisaged under section 544 -A, Cr.P.C., with benefit of
section 382- B, Cr.P.C.
2. Brief facts of the case are that on the report of the complainant Amina Bibi (Ex.P/1-
A) FIR No.14 of 2013 was lodged on 15.06.2013 under sections 302, 147, 148, 149, P.P.C.
read with section 7(a) of the Anti -Terrorism Act, 1997 with Levies Station Mach alleging
therein that she along with her family departed from Quetta on 13th May 2013 for Narmok, when reached t o Zamri area at Bibi Nani at 11:30 a.m., the accused persons Ghunger Khan
(appellant), Amanullah, Jalal and Hidayatullah (absconding accused) accompanied by three unknown accused persons, whom according to the complainant she can identify if confronted, al ready entrenched on the spot and on seeing them came out and tied Siraj and
Waheeda by ropes and started pelting stones at brothers of the complainant namely Raja, Muhammad Anwar and nephew Sohrab Khan after having forcibly caught them, thereby killed her brothers and nephew who expired on the spot and the culprits made their escape good after the incident; leaving the dead bodies at the spot. After the incident the complainant party untied themselves and got registered the case.
After usual investigation, challan was submitted before the trial court. Charge was
framed against the appellant to which he did not plead guilty and claimed trial. Thereafter the prosecution produced its evidence. Amina Bib (PW -1) was the complainant as well as eye -
witness of the occurrence. Murad Bakht (PW -2) and Wasil Khan (PW- 3) were the eye-
witnesses of the occurrence. Dr. Ali Mardan (PW- 4) examined the dead bodies of the
deceased persons and conducted post -mortem (Ex.P/4 -A to Ex.P/4- C). Mir Ahmed Levies
Sepoy (PW -5) was the wi tness of site plan of the place of occurrence (Ex.P/5 -A). Zubair
Ahmed (PW -6) was investigation officer of the case, who conducted investigation of the case
(Ex.P/6 -A to Ex.P/6- C). Muhammad Ibrahim SI (PW -7), also conducted investigation of the
case. Abid Ali (PW -8) also conducted investigation of the case (Ex.P/8 -A to Ex.P/8 -B).
The statement of the appellant/accused was recorded under section 342, Cr.P.C.
wherein he rebutted the allegation levelled against him and professed his innocence. The
appellant n either opted to appear as his own witness under section 340(2), Cr.P.C. nor
produced any defense witness. After hearing arguments advanced by learned counsel appearing on behalf of both the parties, the trial court while evaluating the evidence available on record found the version of the prosecution proved beyond the shadow of reasonable
doubt. Resultantly, recorded conviction to the appellant in the above terms. Aggrieved from the impugned judgment, the appellant has filed Criminal Appeal No. 64 of 2018, whereas Mst. Bibi Amina (complainant) has preferred the constitution petition bearing No. 1199 of 2018 for enhancement of sentence recorded against the appellant to that of capital punishment. Since both the cases are arising out of one and same judgment, therefore this
consolidated judgment shall dispose of both the matters.
3. Arguments advanced from both the sides have been heard. We have also minutely
gone through the record available with the able assistance of learned counsel for the parties.
4. 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.
Admittedly it is an unfortunate incident in which brothers and nephew of the complaina nt
lost their lives, after sustaining firearm injuries. But to put the facts and circumstances in equilibrium at the touchstone of safe administration of justice we have scrutinized the whole evidence available on record, while weighing the same on judicia l parlance. It has been
observed by us that the prosecution has led evidence in the shape of ocular account, medical evidence, as well as investigation besides other attending circumstances.
5. As far as merits of the case are concerned we have observed th at the occurrence took
place on 13.05.2013 and there is no denial to the fact that the FIR was lodged with delay of one month and three days i.e. on 15.06.2013. The only explanation given by the complainant for such inordinate delay is that they first went to Manguchar, whereby they were sent to
Kalat for registration of FIR, wherefrom they were sent to Mach for registration of the FIR and there she knew that the area in which the occurrence took place does not come within the jurisdiction of levies Thana K alat and Manguchar and they came to Quetta and from Quetta
they went to Mach and lodged the report. During cross -examination she stated that she spend
the night at Manguchar and on the next day she came to Quetta and she remained in Quetta for fifteen days . The explanation given by the complainant is not plausible. She herself
remained at Quetta for fifteen days and did not lodge the report and ultimately the same was lodged after a month and three days from the occurrence.
The date mentioned in the report Ex.P/1 -A i.e. 13.05.2013 that neither the
complainant nor the JO uttered a single word in their statement that the complainant filed any
application before the Naib Tehsildar concerned on the day of occurrence for lodging the FIR. Even otherwise the IO/Na ib Tehsildar (PW -6) did not produce any Roznamcha report or
any other document to show that the complainant filed application on the date of occurrence to Levies Station Mach. This fact further negates the date mentioned in the report i.e.
13.05.2013 by the complainant herself and according to her at first she went to Manguchar
and spent the night over there and thereafter she went to Quetta and spent fifteen days but
she did not state a single word that on the date of occurrence she first went to Mach for registration of FIR. The statement of PW -2 Murad Bakht and PW -3 were also recorded after
a month from date of the occurrence. It is to be noted that in the absence of any plausible explanation the Apex Court has always treated delay in lodging the FIR to be fatal and casts suspicion in the prosecution story, extending the benefit of doubt to the accused. It has also been held by the Apex Court that the FIR is always treated as a cornerstone of the prosecution case to establish the guilt against those involved in the crime, thus, it has a significant role to play. Reliance is placed in the case of Noor Muhammad v. The State (2010 SCMR 97) wherein it was held that when the prosecution could not furnish any plausible explanation for the delay of twelve hours in lodging the FIR, which time appeared to have
been spent in consultation and preparation of the case, the same was fatal to the prosecution case.
6. As observed above, the prosecution produced Amina Bibi (PW -1) complainant,
Murad Bakht (PW -2), Wasil Khan ( PW-3) as eye- witnesses of the occurrence. Perusal of the
record shows that the prosecution has produced the above three witnesses in support its charge, but all the above three witnesses are closely related to the deceased. PW- 1 Amina
Bibi is sister of the deceased Raja and Muhammad Anwar and aunt of deceased Sohrab
Khan. PW -2 Murad Bakht is mother of deceased Raja and Muhammad Anwar and
grandmother of deceased Sohrab Khan and Wasil Khan (PW -3) is father of the deceased Raja
and Muhammad Anwar. Therefore for the safe dispensation of justice their testimonies will have to be appreciated with care and caution. No doubt the evidence of the related witnesses cannot be discarded on the ground of its being related to the victim but if it is found that the testimon y of the related witness got no corroboration from attending circumstances of the
case or the conduct shown by them at the time of occurrence or just thereafter as such, which cannot be expected from a prudent person, then under such circumstances the evidence furnished by related witnesses can be easily discarded. At the touchstone of the above we now take into consideration the testimonies furnished by the above witnesses in the case. According to the above witnesses the accused pelted stones at the decea sed and also made
firing upon them. Neither the said witnesses received any injuries nor produced any medical certificate in respect of any injuries received by them. The witnesses also did not react or showed any response when the accused persons were causing injuries. No one can believe that the close relatives would remain silent spectators in a situation like this case, their intervention was very natural to rescue the deceased but they did nothing to save the deceased from the clutches of the accused p ersons.
7. The presence of witnesses on the crime spot due to their unnatural conduct has
become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/photographic narration of the occurrence but did nothing
nor took a single step to rescue the deceased. The presence of PW- 2 Murad Bakht and PW -3
Wasil Khan at the place of occurrence is further doubtful because the name of the above two
persons were not mentioned in the FIR to the effect that they w ere present at the spot.
8. It reflects from the record that the occurrence took place on 13.05.2013 at 11:30 am
allegedly in presence of the above three witnesses but the report was lodged at 16.06.2013 and the dead body of the deceased were recovered on 15.06.2013. According to all the above three witnesses the accused persons after killing the deceased escaped from the place of occurrence and they (witnesses) left the dead body at the place of occurrence and according to PW -1 she remained in Quetta. According to PW -2 after the occurrence she came to
Quetta. According to PW -3 after the occurrence he went to Karachi. To say the least this was
extraordinarily strange on the part of such close relatives to leave the dead bodies of the deceased on the spot and after a month and three days the dead bodies were brought by Naib
Tehsildar/IO to the hospital. According to PW -6 the dead bodies were brought in plastic
bags. It is also an admitted fact that three persons lost their lives and there is also levies thana at a distance of 45 kilometers from the place of occurrence and FC personnel are also
posted on the main Highway of Mach between Bibi Nani. The area nearby the place of occurrence is a populated area as villages are over there. The news of the incident mus t have
travelled across the area like a wild fire. It does not appeal to the logic that the brothers, sons and grandsons have been murdered in presence of above three eye -witnesses but they neither
made any resistance nor bothered about the dead bodies, which were lying at the place of occurrence for more than a month despite the fact that PW- 1 and PW -2 came to Quetta,
remained in Quetta and PW -3 went to Karachi and remained there and all of them kept mum
for a considerable long period. The conduct of the a bove witnesses is unnatural, thus, we
have no hesitation to hold that all the above three witnesses were planted at a subsequent
stage after consultation by the complainant part. Therefore, the testimonies of the above interested witnesses do not appeal to the logic to be true nor on the basis of such shaky
statements conviction can be awarded or maintained.
The record transpires that the complainant in her Fard -e-Bayan (Ex.P/1 -) mentioned
the names of Siraj son of Kambir Khan and Waheeda daughter of Ghula m Rasool "who were
tied with ropes by the accused during the alleged incident" but to our surprise neither the names of said persons were mentioned in the column of witnesses in the challan nor they were produced before the court. Non- production of such im portant witnesses, as provided
under Article 129(g) of Qanun- e-Shahadat Order 1984 and dictum laid down by the Hon'ble
Supreme Court in the case of Lal Khan v. The State (2004 SCMR 1847) would cast adverse inference, which brings us to the irresistible conclusion that if the said witnesses had been produced they would not have supported the prosecution version.
9. The above eye -witnesses burdened the appellant and the absconding accused with the
role of firearm injuries caused to the deceased. The autopsy o f the deceased was conducted
by Dr. Ali Mardan (PW -4), according to which the deceased received firearm injuries. It has
been alleged in the crime report Ex.P/1 -A that the accused persons pelted stones in result
whereof the deceased died on the spot but no thing has been mentioned about any firearm
injuries. In order to address this anomaly the eye -witnesses made improvements in their
statements during the trial and stated that the accused made firing upon the deceased. The
statement of the eye -witnesses hav e been confronted with the crime report and it has been
observed that the witnesses dishonestly stated about firearm injury allegedly caused to the
deceased and also introduced dishonest improvement, just to bring ocular version in line with medical eviden ce.
10. We are convinced that the change in version of witnesses were not an outcome of frail
human memory, rather was deliberately made with a nefarious design of bringing their testimony in conformity with medical evidence, thus, it in no manner can be brushed aside. It is the purity of a testimony which leads a court to pronounce a guilty verdict and if such purity is polluted through dishonest improvements, the eye -witness loses his credibility
rendering it not worthy of any credence. Reference in this regard can be made to the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344) wherein the Hon'ble Supreme Court of Pakistan observed as under: -
"According to the doctor, there was only one fire -arm entry wound on the chest of the
deceased Zafar Iqbal. In order to meet this situation, witnesses for the first time, during trial made omission and did not allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So the improvements and omissions were m ade by the
witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses."
The complainant and PWs also made dishon est improvements in their statements
when for the first time introduced the motive of the occurrence and stated that there was a dispute between them and the accused persons in respect of property. In the first instance, the motive has not been established in any manner whatsoever through any documentary
evidence or even secondary evidence of reliable nature, thus we are unable to rely on such artificial motive. For the sake of argument if there is any dispute between the parties in respect of property it w ould not have driven the appellant so frantically wild, moving him to
that extreme by so ruthlessly vengeful to act in this manner rather, it appears to be the job of a person who was driven so either by family honor or someone highly provoked after having
been diszraced or might be the job of gangsters or target killers, who normally act and re -act
in this manner.
11. 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 confidence inspiring evidence. It is an established principle of law that for extending benefit of doubt in favor of the accused so many circumstances are not required r ather one circumstance, which creates reasonable dent
in the veracity of the prosecution version can be taken into consideration for the purpose not as a matter of grace rather as a matter of right. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State (1995 SCMR 1345) and Riaz Masih v. State (1995 SCMR 1730).
In view of circumstances narrated above, we are persuaded to hold that conviction
passed by the learned trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law
benefit of every doubt is to be extended in favour of the accused. Resultantly while setting
aside the conviction and sentence recorded by the trial court in terms of judgment dated
16.03.2018, Crl. Appeal No.64/2018 filed by the appellant is allowed as a consequence whereof he is ordered to be acquitted of the charge in FIR No. 14/2013 dated 15.06.2013 Levies Thana Mach. He is directed to be released forthwith if no t required in any other case.
As far as the Constitution Petition No. 1199/2018 filed by the complainant for
enhancement of sentence recorded against the appellant to that of capital punishment is concerned, the Criminal Appeal No. 64 of 2018 filed by the appellant against his conviction
has been accepted by this court, therefore no question of enhancement of sentence arises, therefore the connected Constitution Petition No. 1199 of 2018 is dismissed.
JK/79/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.