2022 P Cr. L J Note 39
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
RAFAAT SHAH ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 233 of 2019, decided on 22nd November, 2019.
(a) Criminal trial ---
----Each case has its own peculiar facts and circumstances and the same seldom coincides
with each other on salient features.
(b) Penal Code (XLV of 1860)---
----S. 302 ---Qatl -i-amd---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 witnesses ---Scope ---Accused was charged that he hit the brother of
complainant with a stone on his head, due to which he succumbed to the injuries ---Record
showed tha t the prosecution had produced three witnesses including complainant in support
of its case--- Complainant of the case was not eye- witness of the incident ---Other two
witnesses were eye- witnesses of the occurrence---Said witnesses were closely related to th e
deceased ---Admittedly, eye -witnesses were relative of deceased but neither they took the
deceased to hospital nor informed the Levies Station despite that the Levies Station was
situated on the opposite side of the place of occurrence i.e. shop---Eye -witnesses stated in
their statement that the quarrel took place between the deceased and accused and they tried to separate each other, meanwhile the accused hit stone on the head of deceased ---Said
witnesses further stated that the deceased went home on moto rcycle and after sometime, the
deceased and complainant came at a place of incident on vehicle and thereafter they went to the hospital ---Had they been present at the spot at the time of alleged occurrence they must
have taken the deceased either to the ho spital or to Levies Station, which admittedly was not
done ---If said witnesses were unable to take the deceased either to the hospital or levies
station than they could at least have deputed someone else for that purpose which had also not been done rather they kept on waiting for the complainant on the spot and left the
deceased who went on motorcycle alone ---Such conduct of near relative/eye -witnesses was
not expected ---Mode and manner of the occurrence by itself was not appealable to the
prudent mined, t herefore, it was highly unsafe to rely on the statement of both the said
witnesses to maintain conviction and sentence of the accused on a capital charge---Circumstances established that conviction passed by the Trial Court against the accused was against all canons of law ---Appeal against conviction was allowed, in circumstances.
(c) Criminal trial ---
----Witness ---Testimony of interested and related witness ---Scope ---If 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, which could not be expected from
a prudent person, then the evidence furnished by the related witnesses could be easily discarded ---Evidence of the related witness coul d not be discarded on the ground of its being
related to the victim.
(d) Penal Code (XLV of 1860)---
----S. 302---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Delay of about
twenty six hours in lodging the FIR ---Effect ---Accused was charged t hat he hit the brother of
complainant with a stone on his head, due to which he succumbed to the injuries ---Record
reflected that the occurrence took place, allegedly in the presence of eye- witnesses, but the
report was lodged after 26 hours of the occurre nce by complainant, who was not eye -witness
of the incident ---Deceased was medically examined in injured condition on the day of
occurrence after two hours of the incident ---Facts remained that Levies Station was situated
near the place of occurrence i.e. opposite side of the shop in which the alleged incident took place---Neither of the eye -witnesses, who were relatives of the deceased, informed the levies
authorities for lodging of report nor the Medical Officer informed the levies or police about the injuries of deceased on the day of occurrence when he examined the deceased ---
Complainant had stated that when the injured on way died, the dead body was brought to civil hospital on the same day but at that time neither the doctor of the hospital nor relative of the deceased informed the levies ---Said inadvertent delay in setting the machinery of law
in motion spoke volumes against the veracity of prosecution version---Appeal against conviction was allowed, in circumstances.
Muhammad Ahmed and 3 others v. The State and others 1995 SCMR 127 rel.
(e) Penal Code (XLV of 1860)---
----S. 302 ---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Ocular and medical
evidence--- Contradictions ---Accused was charged that he hit the brother of complainant with
a stone on his head, due to which he succumbed to the injuries ---In the present case, the
medical certificate showed that there was swelling on the right temporal region of scalp of the deceased ---Medical Officer stated during cross -examin ation that there was no skin
ruptured which meant that no injuries extended to the body cavity of the deceased and there was only swelling ---In the medical certificate, the cause of death of the deceased was
mentioned as head injuries and Cardiorespiratory failure ---Cause of death of the deceased
was doubtful as the medical certificate had also contradicted the ocular evidence of complainant who stated in his report that accused hit the head of deceased repeatedly with a stone ---On the other hand, according to medical certificate, the deceased received only one
injury i.e. swelling on right temporal region of scalp which also created reasonable doubt in the prosecution case--- Alleged stone was taken by the Investigating Officer from the place of
occurrence o n the day of occurrence but there was no sign of blood on the said stone ---
Circumstances established that conviction passed by the Trial Court against the accused was
against all canons of law ---Appeal against conviction was allowed, in circumstances.
(f) Criminal trial ---
----Benefit of doubt ---Principle ---Single doubt if found reasonable would be sufficient to
acquit the accused, giving him/them benefit of doubt because bundle of doubts were not required to extend the legal benefit to the accused.
Riaz M asih alias Mithoo v. State 1995 SCMR 1730; Bagh Ali v. State PLD 1973 SC
321 and Muhammad Luqman v. The State PLD 1970 SC 10 rel.
Tahir Ali Baloch for Appellant.
Abdul Mateen, Deputy Prosecutor General for the State.
Date of hearing: 17th October, 2019.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant having been involved in case FIR
No.06 of 2017 dated 10.04.2017 registered under section 302, P.P.C. at Levies Thana Kapeep District Sheerani was tried by the learned Sessions Judge/Model Criminal Trial Cour t
(MCTC) Zhob (hereinafter "the trial Court") and on completion thereof by means of judgment dated 01.06.2019 (hereinafter "the impugned Judgment") convicted and sentenced
the appellant in the following terms:-
"Convicted under section 302(c) of the Pakis tan Penal Code, 1860 and sentenced him
to suffer Rigorous Imprisonment for the period of ten (10) years as Ta'zir. The accused Rafaat Shah is further directed to pay Rs.50,000/ - (Rupees Fifty Thousand
Only) as compensation to the legal heirs of the decease d Muhammad Nawaz as
provided under section 544- A, Cr.P.C. In default thereof to suffer further SI (Simple
Imprisonment) for six (06) months. The benefit of section 382- B, Cr.P.C., is extended
in favour of accused".
2. Feeling aggrieved from the impugned judgment the appellant has assailed his
conviction and sentence through Criminal Appeal bearing No.233 of 2019.
3. The prosecution story as disclosed in the report (Ex.P/1- A) recorded on the statement
of PW -1 Muhammad Rafique (complainant) is that on 09.04.2 017 at about 10:00 a.m., he had
sent his brother Muhammad Nawaz Khan on a motorcycle to bring petrol from nearby petrol pump station and when he returned home, he saw the colour of his brother's face was changed. On asking his brother told that he had gone to the shop of accused (facing trial)
situated near petrol pump where quarrel took place between him and accused; during the course of quarrel the accused/appellant hit him with a stone on his head. The complainant along with Wali Khan and Sanaullah took his injured brother to Civil Hospital, Zhob, for treatment in vehicle and when they reached at Dr. Kamal Khan Chowk, his brother became
unconscious who was then taken to Civil Hospital in unconscious condition. It is further
alleged in the report that in C ivil Hospital, Zhob, the doctors immediately referred his
brother to Quetta and soon after they left for Quetta, but in the way towards Quetta his brother Muhammad Nawaz Khan succumbed to injuries at Kuchlak. They brought the dead body to Civil Hospital, Z hob. On 10.04.2017 he lodged FIR.
4. After completion of the investigation, the challan was submitted before the learned
trial Court. During trial, the prosecution produced nine (09) witnesses in all. However, the accused got recorded statement on oath and did not produce any witness in his defence. The
learned trial Court after full dressed trial the accused/appellant was convicted and sentenced vide impugned judgment dated 01.06.2019 as mentioned hereinabove.
5. Arguments advanced from both sides have been heard. We have also minutely gone
through the record available on file with the able assistance of 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. Admittedly,
it is an unfortunate incident in which brother of the complainant lost his life, but to put the facts and circumstances in equilibrium with the touchstone of safe administration of justice, we have scrutinized the whole 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 ocular account, medical evidence, as well as investigation besides other attending circumstances.
6. As far as merits of the case are concerned, we have observed that the prosecution
produced PW -1 Muhammad Rafique who is complainant of the case but he is not eye -witness
of the incident. PW -2 Wali Khan and PW- 3 Sanaullah who were eye- witnesses of the
occurrence. Perusal of the record shows that the prosecution has produced the above three witnesses in support of its charge but all the above three witnesses are closely related to the deceased Muhammad Nawaz Khan. PW- 1 Muhammad Rafique is brother of the deceased.
PW-2 is relative of the deceased and PW- 3 is cousin of the deceased, therefore, for safe
dispensation of justice, their evidence will have to be appreciated with care and caution. No doubt the evidence of the related wit nesses cannot be discarded on the ground of its being
related to the victim but if it is 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 as such, which cannot be expected from a prudent
person, then under such circumstances the evidence furnished by the related witnesses cannot be easily discarded. At the touchstone of the above we now taken into consideration the testimoni es furnished by the above witnesses in the case.
7. It reflects from the record that the occurrence took place on 09.04.2017 at about 10:00
a.m., allegedly in the presence of PW- 2 and PW -3 but the report was lodged on 10.04.2017 at
12:30 p.m., by PW -1 Muha mmad Rafique who is not eye -witness of the alleged occurrence
with delay of 26 hours. PW -1 stated in his report (Ex.P/1- A) as well as his statement before
the Court that on 09.04.2017 at 10:00 a.m., he had sent his brother on a motorcycle to bring petrol f rom nearby petrol pump station and when he returned home, he saw the colour of his
brother's face was changed. On asking his brother told that he had gone to the shop of
accused/appellant situated near petrol pump where quarrel took place between him and
accused/appellant and during the course of quarrel the accused/appellant hit him with a stone
on his head. He further stated that he took his brother to Civil Hospital, Zhob and doctors immediately referred him to Quetta and soon after they left to Quetta b ut in the way towards
Quetta his brother succumbed to the injuries at Kuchlak. They brought the dead body to Civil
Hospital, Zhob, and on the next date i.e. 10.04.2017, he lodged report against the accused.
During cross -examination he (complainant) stated that the Levies Thana Kapeep is situated
in front of the shop where the alleged incident took place. He further stated during cross -
examination that distance of Zhob city is about 20/22 kilometers from our village, he further
stated during cross -examinatio n that at first time he brought his brother to Civil Hospital
Zhob at 12:30 p.m. (day). PW -2 Wali Khan stated in his cross -examination that when the
deceased (Muhammad Nawaz Khan) proceeded towards his house on motorcycle he and PW-3 Sanaullah were sitting in a hotel. He further stated during cross -examination that his
statement was recorded by Tehsildar on 10.04.2017 at 10:00 a.m. PW -3 Sanaullah stated in
his cross -examination that the deceased (Muhammad Nawaz Khan) proceeded towards his
house and after so metime the deceased and his brother came in a vehicle in place of
occurrence and from there they went to hospital. He further stated during cross -examination
that after occurrence the deceased went to his house. PW- 4 Dr. Zahid Parvez stated in his
statemen t that on 10.04.2017 he was posted at District Headquarter Hospital Zhob, at 10:00
a.m., the dead body of deceased Muhammad Nawaz Khan was brought by Muhammad Rafique and Sanaullah. PW -7 Dr. Noor Muhammad stated in his statement that on
09.04.2017 he was posted as Chief Medico Officer Civil Hospital Zhob, on the same date the injured Muhammad Nawaz was brought by his brother Muhammad Rafique at 12:30 p.m., and he examined the injured.
8. We have also observed that during course of investigation, statements under section
161, Cr.P.C., of PW -2 and PW -3 were also recorded on next date of incident. It has been
observed by us that the deceased Muhammad Nawaz Khan medically examined in injured condition on 09.04.2017 at 12:30 p.m., i.e. on the day of occurrence by PW-7 Dr. Noor
Muhammad who was Chief Medico Officer, Civil Hospital, Zhob. It also come on record that Levies Thana is situated near to place of occurrence i.e. opposite side of the shop in which the alleged incident took place. Neither PW -2 and PW -3 who is relative of the deceased
informed the levies authorities for lodging of report and nor the PW -7 Dr. Noor Muhammad
informed the levies or police about the injuries of deceased Muhammad Nawaz Khan on the day of occurrence when he examined the deceased Muhammad Nawaz Khan on the day of occurrence. Even according to the PW- 1 when the injured at the way was died near Kuchlak,
the dead body was again brought to Civil Hospital, Zhob on the same day but at that time neither the doctor of Zhob hospital nor relat ive of the deceased informed the levies,
therefore, this inadvertent delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance in this behalf is placed on the case of Muhammad Ahmed and 3 others v. The State and others 1995 SCMR 127.
9. The presence of PW- 2 and PW -3 also doubtful at the place of occurrence for the
reasons that PW- 2 is relative of deceased and PW- 3 is cousin of the deceased, neither they
took the deceased to hospital nor informed the Levies Thana despite that the levies thana is
situated on the opposite side of the place of occurrence i.e. shop. PW -2 and PW -3 stated in
their statement that the quarrel took place between the deceased and accused and they tried to
separate each other, m eanwhile the accused hit stone on the head of deceased. They further
stated that the deceased went to home on motorcycle and after sometime, the deceased and Muhammad Rafique came at a place of incident on vehicle and thereafter they went to hospital. Had they been present at the spot at the time of alleged occurrence they must have
taken the deceased Muhammad Nawaz Khan either to hospital or to Levies Thana which
admittedly was not done. Assuming for the sake of arguments that they were unable to take
the deceased either to the hospital or levies station, then they could at least have deputed
someone else for that purpose which has also not been done rather they waiting for the complainant on the spot and leave the deceased who went on motorcycle alone, suc h conduct
of near relative i.e. PW- 2 and PW -3 is not expected from them. The mode and manner of the
occurrence itself by the prosecution is not appealable to the prudent mined, therefore, it was highly unsafe to rely on the statement of both these witnesse s to maintain conviction and
sentence of the accused on a capital charge.
10. Now to turn to discuss the medical evidence produced by PW -7 Dr. Noor
Muhammad, according to him on 09.04.2017 he was posted as Chief Medical Officer Zhob, on the same date the i njured Muhammad Nawaz Khan was brought by his brother
Muhammad Rafique at 12:30 p.m., he examined the injured and found the following injuries.
"Patient came with H/O Heaol injury. On examination, patient was in shock, with No.B.P. and pulse, there was sw elling on Rt temporal region of scalp. He was
vomiting, emergency treatment given and referred to CMH Zhob for further treatment".
The dead body was also examined by Neuro Surgeon Asghar Babar who was not
produced before the Court. According to PW -4 Dr. Z ahid Parvez the deceased received
following injuries.
"(i) Head Injury.
(ii) Cardiorespiratory failure".
11. According to medical certificate (Ex.P/7 -A) there was swelling on the right temporal
region of scalp of the deceased. PW- 7 Dr. Noor Muhammad stated during cross -examination
that it is correct that "there was no skin ruptured". Meaning thereby that there was no any injuries which extend to the body cavity of the deceased and there was only swelling but according td medical certificate ( Ex.P/14- A) the cause of dead of the deceased was
mentioned i.e. head injuries and Cardiorespiratory failure. The cause of death of the deceased also doubtful, the medical certificate has also contradicted with the ocular evidence of PW -1
Muhammad Rafique w ho stated in his report that;
12. But on the other hand, according to medical certificate the deceased received only one
injury i.e. swelling on right temporal region of scalp which too create reasonable doubt in the
prosecution case. PW- 4 Dr. Zahid Parvez stated in his statement that the dead body was
examined by one Neuro Surgeon Asghar Babar Hussain, but the doctor who had examined
the deceased Muhammad Nawaz Khan was not produced before the Court.
13. For the sake of arguments, it presumed that the deceased Muhammad Nawaz Khan
received injuries by means of stone on his head while the PW -2 and PW -3 did not shift him
to hospital and according to the prosecution witnesses the deceased went to his home on his own motorcycle after the occurrence and the alleged stone was taken by the investigation officer from the place of occurrence on 10.04.2017 which was produced by PW -5 Waris
Khan, Levies Sepoy and there was no sign of blood on the said stone.
14. There is no two opinions about the fact that the cardinal principle of justice always
laid emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel the apprehension of the Court with regard to the implication of innocent persons along with guilty one by the prosecution, otherwise, the golden principle of ju stice would
come into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused. In this regard, relian ce is placed on a view held by the
Hon'ble Supreme Court in the case of Riaz Masih alias Mithoo v. State 1995 SCMR 1730.
15. In the case reported as Bagh Ali v. State PLD 1973 SC 321, it was observed that the
appraisement of the evidence of eye- witnesses h as to be based upon a full consideration and
evaluation of all the circumstances appearing in the case where there is fatal absence of physical circumstances to connect the accused person with the crime and there is a motive and in such a situation, the oc ular evidence must, in order to carry conviction on a capital
charge, come from unimpeachable source and if such source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt whic h such evidence must necessarily create.
16. Regarding the golden principle of benefit of doubt, reference can be made to the
celebrated judgment of the Apex Court titled Muhammad Luqman v. The State PLD 1970 SC 10, where the Hon'ble Bench have observed that; -
"It may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence
produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof. If a case where to be decided merely on high probabilities regarding the existence of
non- existence of a fact to prove the guilt of a person, the golden rule of "benefit of
doubt" to an accused person, which has been a dominant feature of the administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught".
From the facts and 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 01.06.2019 in Criminal Appeal No.233 of 2019 filed by the appellant is
allowed as a consequence whereof he is ordered to be acquitted of the charge in FIR No. 06 of 2017 dated 10.04.2017 registered under sections 302/337- ADF P.P.C. at Levies Thana
Kapeep District Sherani. He is directed to be released forthwith, if not required in any other
case.
The appeal is hereby accepted.
JK/77/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,
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