2023 P Cr. L J 1578
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Gul Hassan Tareen, JJ
MUHAMMAD AZEEM and others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. (s) 7 and Murder Reference No. (s) 1 of 2022, decided on 30th March,
2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 147, 148 & 149--- Qatl-i-amd, attempt to commit qatl- i-amd, rioting,
rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence ---Benefit
of doubt ---Night time occurrence--- Source of light i.e. bulb not secured during
investigation---Accused were charged for making firing upon the complainant party, due to which the brother and mother of the complainant died while complainant and his brother were grievously hurt ---According to the report of complainant, the incident took place at
02:00 a.m. in odd hours of night ---Complainant alleged that he identified the accused persons
and unknown accused in the light of electricity bulbs ---Accused were roped in the case on
the basis of their identification by the complainant and the eye -witnesses through the said
source of light ---However, the record revealed that the said source of light was not taken into
possession by the Investigating Officer during the course of investigation---According to Investigating Officer, he visited the site and sketched a rough site plan ---Perusal of site plan
did not reveal the existence of electricity bulbs at the scene of occurrence---In this case the existence of the light of electricity bulbs at the time and place of incident was a relevant fact but the prosecution had failed to secure such piece of evidence during the course of investigation---As such, the identification of the accused persons by the complainant as well as by the eye- witness at the scene of occurrence was not beyond shadow of doubt rather
created a reasonable doubt in a prudent mind ---Circumstances established that the
prosecution had failed to prove its case against the accused beyond shadow of any doubt ---
Appeal against conviction was accordingly allowed.
Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 147, 148 & 149--- Qatl-i-amd, attempt to commit qatl- i-amd, rioting,
rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence ---Benefit
of doubt ---Recovery of crime weapon on the instance of accused ---Doubtful ---Accused were
charged for making firing upon the complainant party, due to which, the brother and mother
of the complainant died while complainant and his brother were grievously hurt ---
Prosecution had alleged that on 30th March, 2020, accused persons made disclosures and got
effected recovery of crime weapons ---Evidence of recovery of crime weapons at the instance
of accused persons was not trustworthy---Accused persons were arrested on 18th March, 2020, while the alleged recovery was effected on 30th March, 2020 at the instance of each
accused ---Prosecution had not explained the delay of twelve days in procuring such piece of
evidence--- Prosecution also alleged that the said recoveries were effected from unlocked
boxes lying in a room ---Prosecution had failed to establish that the place from where the
recoveries were allegedly effected, was in the exclusive knowledge and possession of the
accused persons ---Ample time was available for the accused persons to conceal them in a
secret place---Witnesses of recovery memos admitted that the room wherefrom recovery was effected, was also inhabited by other family members ---Thus, the recovery evidence could
not have been relied upon by the trial Court as a material piece of evidence for sentencing the accused persons for capital punishment ---Circumstances established that the prosecution had
failed to prove its case against the accused beyond shadow of any doubt --- Appeal against
conviction was accordingly allowed.
Khalid Mehmood and another v. The State 2004 YLR 334 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 147, 148 & 149--- Qatl-i-amd, attempt to commit qatl- i-amd, rioting,
rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence ---Benefit
of doubt ---Delay of two months and twelve days in sending the crime empty shells and crime
weapons for analysis ---Effect ---Accused were charged for making firing upon the
complainant party, due to which, the brother and mother of the complainant died while complainant and his brother were grievously hurt ---According to Forensic Science
Laboratory Report, the parcels containing crime empty shells and crime weapons were received on 11th June, 2020 at Forensic Science Laboratory Office ---Recoveries were
allegedly effected on 30th March, 2020 which should have been instantly sent to the Forensic Science Laboratory by the Investigating Officer, however, report revealed that the same were sent to the Forensic Science Laboratory with an unexplained delay of two months and twelve days ---Besides the above, the Investigating Officer sent the parcels of crime empties and
crime weapons together to the Forensic Science Laboratory ---Sending crime empties along
with the crime weapons created doubt on the use of crime weapon at the scene of occurrence and recoveries at the instance of the accused persons ---Circumstances established that the
prosecution had failed to prove its case against the accused beyond shadow of any doubt ---
Appeal against conviction was accordingly allowed.
Hayatullah v. The State 2018 SCMR 2092 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 324, 147, 148 & 149---Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Qatl-i-
amd, attempt to commit qatl -i-amd, rioting, rioting armed with deadly weapon, unlawful
assembly ---Appreciation of evidence ---Benefit of doubt ---Withholding key witness ---
Presumption ---Accused were charged for making firing upon the complainant party, due to
which, the brother and mother of the complainant died while complainant and his brother
were grievously hurt ---List of witnesses attached with challan mentioned the name of the
brother of complainant and deceased ---However, the said eye -witness was not produced by
the prosecution without any reasonable cause ---Thus presumption was that evidence which
could be and was not produced would, if produced, be unfavourable to the person who
withheld it ---Circumstances established that the prosecution had failed to prove its case
against the accused beyond shadow of any doubt ---Appeal against conviction was
accordingly allowed.
(e) Criminal trial ---
----Benefit of doubt ---Principle ---Benefit of even a single doubt is to be extended to the
accused.
Muhammad Imran v. The State 2020 SCMR 857 rel.
Hasnain Iqbal Minhas for Appellant (in Criminal Appeal No. (s) 7 of 2022).
Jamil Akhtar Gajani, Additional Prosecutor General for the State (in Criminal Appeal
No. (s) 7 of 2022).
Jamil Akhtar Gajani, Additional Prosecutor General for Appellant (in Murder
Reference No. (s) 1 of 2022).
Hasnain Iqbal Minhas for Respondents (in Murder Reference No. (s) 1 of 2022).
Date of hearing: 21st March, 2023.
JUDGMENT
GUL HASSAN TAREEN, J. ---This single judgment shall decide Criminal Appeal
No. (s) 07/2022 filed by the appellants under section 410, the Criminal Procedure Code, 1898
("Code") and Murder Reference No. 01/2022 sent by learned Additional Sessions Judge, Usta Muhammad ("Trial Court") under section 374, Cr.P.C for confirmation or otherwise of death sentences awarded to the appellants. Both originating from the same judgment dated 19 January, 2022 ("impugned judgment"), passed by the Trial Court on a trial held in case FIR No. 01 dated 16 January, 2018, registered under sections 302(b), 324, 147, 148, and 149, the Pakistan Penal Code, 1860 ("P.P.C") whereby, after having found all the three appellants guilty of the charged offences, convicted and sentenced them as under:
"sentenced to death on three counts (each), as Ta'zir under section 302(b), P.P.C for the murder of Nabi Bakhsh, Abdul Ghani and Hurmat Khatoon and to pay compensation of Rs.200,000/ - by each appellant and to be paid to the legal heirs of
each victim/deceased, under section 544 -A, Cr.P.C or in default to pay, to be
recovered as arrears of land revenue or to further undergo six months S.I. (each)."
Each appellant was also separately sentenced under section 324, P.P.C to suffer five
years (R.I.) with fine of Rs. 10,000/ - or in default to pay, to further undergo three months'
(S.I.). Each appellant was also sentenced to pay Arsh (1/3rd of the Diyat amount) and to
suffer five years' (R.I.) as Tazir under section 71, P.P.C, with compensation amount of Rs. 50,000/ - under section 544- A, Cr.P.C to the injured or in case of default, to further undergo
three months (S.I.) with benefit of section 382- B, Cr.P.C.
2. Facts of the case as per FIR are that, on 16 January, 2018, complainant Niaz Hussain,
his brothers, Nabi Bakhsh, Abdul Ghani, Imam Din and a relative Muhammad Rafique along with other family members, after having dinner, went to sleep. It would be about 2:00 p.m. that, on the barking of dogs and the sound effects of footsteps, the complainant got up and saw in the light of electricity bulbs that appellants, Javed Ahmed along with three unknown, whom he can identify if brought before him, entered with fire arms. Soon they entered, all opened indiscriminate firing at his brother Nabi Bakhsh who was sleeping and on the complainant and his brother Abdul Ghani. On having heard the noise of firing, complainant's brother Imam -ud-Din and relative Muhammad Rafique came out from the adjacent room,
whom also saw the accused while making firing. They cried out and on raising hue and cry by them and other family members, the accused while making firing, decamped towards
west. His brother Nabi Bakhsh and mother Hurmat Khatoon succumbed to the injuries of fire
shots of said accused while complainant and his brother sustained grievous hurts. Back drop of the incident is that, there was an old dispute of Sagawati (bride exchange). On such compliant (Ex: P/1 -A) a formal FIR (Ex: P/9 -A) was lodged and investigation of the case
was entrusted to Shah Murad Mengal.
3. The Investigating Officer ("I.O") visited the scene of occurrence and recorded
statements of eye -witnesses Muhammad Rafique and Imam Din. He sketched rough site map
and prepared site inspection memo; secured blood stained earth of deceased as well as injured persons and sealed in parcel Nos. 1 to 4; secured sixteen crime empty shells of Kalashnikov and eight crime empty shells of TT pistol from the scene of occurrence and sealed in parcel Nos. 5 and 6. On 17 January, 2018, the I.O took into possession the last worn clothes of the deceased and injured. On 18 March, 2020, the I.O arrested all the three appellants. On 30 March, 2020, on disclosure of the accused Habibullah, crime weapon Kalashnikov along with two magazines and five live cartridges were recovered at his instance. On the same date, on the disclosure of appellant Nos. 2 and 3, crime weapons TT pistols were recovered at their instance. He obtained the medico legal certificates of deceased and injured, recorded statements of the witness of recovery memos of last worn clothes of the deceased and injured and of disclosure memos. On completion of formal investigation, having found the appellants guilty, he prepared the crime report under section 173, Cr.P.C and sent the same to the Trial Court.
4. On 24 March, 2020, the Trial Court formally charge sheeted the appellants, to which
they pleaded 'not guilty' and claimed trial.
5. The prosecution in order to rebut the presumption of innocence of accused, produced
following evidence:
PW-1: Niaz Hussain. He was complainant of the case and tendered in evidence his
application for lodgment of FIR and an affidavit as Ex: P/1- A and Ex: P/1- B;
PW-2: Muhammad Rafique. He deposed an eye account of the fateful incident;
PW-3: Mian Khan, Constable. He was witness of recovery memos of the last worn
clothes of deceased and injured and produced them as Ex: P/3- A and Ex: P/3- B;
PW-4: Muhammad Zaman, Constable. He was witness of recovery memos of earth
stained blood and crime empty shells. He produced them as Ex: P/4- A and Ex: P/4 -B;
PW-5: Jumma Khan, Constable. He was witness of disclosure memo of accused
Habibullah and produced the same and the recovery memo as Ex: P/5- A and Ex: P/5 -
B;
PW-6: Muhammad Ayub, Constable. He was witness of disclosure memo of accused
Muhammad Rafiq and produced the same and the recovery memo as Ex: P/6- A and
Ex: P/6 -B;
PW-7: Muhammad Essa, Constable. He was witness of disclosure memo of accused
Muhammad Azeem and produced the same and the recovery memo as Ex: P/7 -A and
Ex: P/7 -B;
PW-8: Dr. Marryam, Lady Medical Officer, Civil Hospital Usta Muhammad. She
externally examined the dead body of deceased Hurmat Khatoon and produced her
post mortem report as Ex: P/8- A to Ex: P/8 -D;
PW-9: Dr. Ahmed Khan, Medical Officer, Civil Hospital Usta Muhammad. He
examined the injured Abdul Ghani and produced his initial certificate as Ex: P/9- A.
He also examined injured Niaz Hussain and produced his initial certificate as Ex: P/9-
B. On the same date, he conducted external post mortem of deceased Nabi Bakhsh and produced his post mortem report as Ex: P/9- C to Ex: P/9- F;
PW-10: Dr. Abdul Jabbar Soomro, Senior Medical Officer, Civil Hospital Usta
Muhammad. He examined the dead body of deceased Abdul Ghani and produced post mortem report as Ex: P/10- A to Ex: P/10- D; and
PW-11: Shah Murad S.I./Investigating Officer of the case. He produced FIR (Ex:
P/11 -A), map (Ex: P/11 -B), inquest report of deceased Nabi Bakhsh, Hurmat Bibi and
Abdul Ghani (Ex: P/11- C t Ex: P/11 -E), Challan No. 3/2018 (Ex:P/11- F), FSL report
(Ex:P/11 -G), Supplementary Challan No. 3/A/20- 18 (Ex: P/11 -H), Challan No. 3-
B/2018 (Ex: P/11- J), FSL report (Ex: P/11- K), and supplementary challan (Ex: P/11-
L).
On 24 November, 2021, the Assistant District Public Prosecutor Jaffarabad made an
application for close of evidence which was allowed by the Trial Court. After completion of prosecution evidence, the Trial Court examined appellants under section 342, Cr.P.C; wherein they opted not to appear as their own witnesses nor they opted to lead evidence in their defence. On conclusion of trial, the Trial Court held the appellants guilty and therefore, convicted and sentenced in the aforementioned terms.
6. Mr. Hasnain Iqbal Minhas, Advocate, appearing on behalf of appellants states that the
prosecution withheld the evidence of a material witness namely Imam -ud-Din, the brother of
the complainant, therefore, the Trial Court should have drawn a presumption that had the
said witness been produced, he would have gone against the prosecution. He states that the appellants were arrested on 18 March, 2020, while recovery of crime weapon at their instance was shown on 30 March, 2020, with an unexplained delay of 12/13 days. He further
states that the crime empties and the alleged recovered crime weapons were sent together to
the FSL which cast a serious doubt on the issue of matching of the crime empty shells with
the alleged recovered crime weapons and that too with an unexplained delay of three months. He states that Muhammad Yousaf had informed the police about the incident and the complainant has also mentioned his name in his statement, however, the I.O had not recorded his statement under section 161, Cr.P.C. He also states that the complainant through an affidavit (Ex:P/1 -B) has changed the parentage of the appellants. He finally states that
neither the source of identification of appellants was taken into custody by the I.O nor existence thereof was mentioned in the site plan and there are material contradictions in the statements of eye -witnesses; as such the impugned judgment is not sustainable at law.
7. On the other hand, Mr. Jameel Akhtar Gajani, Additional Prosecutor General opposes
the contentions of appellants' counsel and states that the prosecution through concrete and
confidence inspiring evidence has proved the guilt of the appellants beyond reasonable
shadow of doubt. He states that the prosecution produced two eye -witnesses of the incident
who specifically nominated the appellants for commission of the murder of three bear -
handed persons and injured two persons. He states that substitution is a real phenomena and complainant is the star witness as he also sustained injuries during the course of incident. Finally, he supported the impugned judgment.
8. Heard learned counsel for the parties at length and gone through the available record.
9. According to the report (Ex: P/1- A) of complainant, the incident took place at 02:00
a.m. in odd hours of night. The complainant alleged that he identified the appellants and unknown accused in the light of electricity bulbs. The appellants were roped in the case on the basis of their identification by the complainant and the eye -witnesses through the said
source of light. However, the record reveals that the said source of light was not taken into possession by the I.O during the course of investigation. According to I.O, he visited the site and sketched a rough site plan (Ex: P/3- B). The perusal of site plan does not reveal the
existence of electricity bulbs at the scene of occurrence. The PW -2 Muhammad Rafique is an
eye-witness of the incident. He in his examination in chief deposed that 'they got up on the
sudden noise of firing and in the light of electricity, saw the appellants who made firing at the scene of occurrence.' The PW -2 has mentioned, the cause of the identification of the
appellants, the availability of electricity at the scene of incident. It suggests if there would
have been no electricity bulbs at the time and place of incident, they could not have identified the appellants. In this case, the said source of light was a very much relevant fact under Article 22, the Qanun- e-Shahadat Order, 1984 (Q.S.O), however, the prosecution has
not brought on record evidence of such relevant fact. According to Article 22, Q.S.O, 'any fact is relevant which establishes the identity of a person or a mate rial thing.' In this case the
existence of the light of electricity bulbs at the time and place of incident was a relevant fact but the prosecution has failed to secure such piece of evidence during the course of
investigation. As such, the identification of the appellants by the complainant as well as by
the PW- 2 at the scene of occurrence is not beyond shadow of doubt rather creates a
reasonable doubt in a prudent mind. In the case reported as Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), the Supreme Court of Pakistan has held as under:
"2. According to the prosecution, the occurrence took place at 2:00 a.m. in odd hours of the night. Although prosecution alleged that sufficient light of bulbs was available there but during investigation, no such bulbs (source of light) were taken into possession by the I.O. In that eventuality, the identification of the assailants became doubtful especially when Mehmand complainant, PW -11 and Muhammad Yar PW- 12
allegedly saw the occurrence from a distance of more than 100 feet. Learned counsel for the complainant and learned Additional Prosecutor General are unable to give any explanation as to why the source of light was not taken into possession…."
10. The learned APG has also relied upon the evidence of recovery of crime weapons at
the instance of the appellants. The prosecution has alleged that on 30 March, 2020, appellants Nos. 1, 2 and 3 made disclosures and got effected recovery of crime weapons. The evidence of recovery of crime weapons at the instance of appellants is not trustworthy. The appellants were arrested on 18 March, 2020, while the alleged recovery was effected on 30
March, 2020 at the instance of each appellant. The prosecution has not explained the delay of
twelve days in procuring this piece of evidence. According to FSL report (Ex: P/11- K), the
parcels Nos. 5, 6, 11, 12 and 13 containing crime empty shells and crime weapons were received on 11 June, 2020 at FSL Office Quetta. The recoveries were allegedly effected on 30 March, 2020 which should have been instantly sent to the FSL by the I.O, however, Ex: P/11 -K reveals that the same were sent to the FSL with an unexplained delay of two months
and twelve days. Besides above, the I.O sent the parcels of crime empties and crime weapons
to together to the FSL. According to Ex: P/4- A and Ex: P/4- G, the crime empties were
secured on 16 January, 2018 from the scene of occurrence. The I.O should have sent the parcels of crime empty shells without delay to the FSL. However, sending crime empties along with the crime weapons creates doubt on the use of crime weapon at the scene of occurrence and recoveries at the instance of the appellants. The Supreme Court of Pakistan in the case reported as Hayatullah v. The State (2018 SCMR 2092) has held as under:
"….Much reliance was placed on the recovery of pistol from the appellant and empty from the place of occurrence, we observe that the empty was recovered on 11.02.2006 and pistol was recovered on 22.02.2006 and till the recovery of the pistol the empty was not sent to the firearm expert and the empty and the pistol both remained together in the Malkhana and thereafter transmitted to the office of the Forensic Science Laboratory. So the recovery is inconsequential. Even otherwise recovery alone is not sufficient for conviction and it is always termed as a corroborative piece of evidence. It is settled law that one tainted piece of evidence can't corroborate another tainted piece of evidence."
The prosecution also alleged that the said recoveries were effected from unlocked
boxes lying in a room. The prosecution has failed to establish that the place from where the recoveries were allegedly effected, was in the exclusive knowledge and possession of the appellants. The said recovery was effected after about two and half months of the occurrence.
There was ample time for the appellants to conceal them in a secrete place. The witnesses of
recovery memos admitted that the room wherefrom recovery was effected, was also inhabited by other family members. The Lahore High Court in the case reported as Khalid Mehmood and another v. The State (2004 YLR 334) has held as under:
"…..Irfanullah has admitted that the main door of the house wherefrom the recovery was effected was lying open and the families of appellant Basharat and absconding co-accused Tariq Mehmood were living there. He has also admitted that appellant
Khalid, his wife and children also resided there. It, thus, was not in exclusive possession of any of the two appellants and absconding co- accused Tariq Mehmood.
Abdul Hamid, S.- I. has also admitted that the recovery was effected from an iron box,
which was lying open and that room was not locked. The recovery of the said crime weapon, therefore, in such circumstances is inconsequential. It could not be received as of any corroborative value to the ocular account."
Therefore, the recovery evidence could not have been relied upon by the Trial Court
as a material piece of evidence for sentencing the appellants for capital punishment.
11. The list of witnesses attached with challan mentions the name of the brother of
complainant and deceased i.e. namely Imam Din at serial No. 3. However, the said eye -
witness was not produced by the prosecution without any reasonable cause. Hence, evidence which could be and is not produced would, if produced, be unfavourable to the person who withheld it. So far as the medical evidence is concerned, the same does not establish the identity of appellants, therefore, the appellants could not have connected with the commission of alleged offence on mere basis of this type of evidence.
12. We have gone through the impugned judgment; however, the Trial Court has merely
relied upon the evidence of PW -1, PW -2 and recovery of crime weapons at the instance of
the appellants. The impugned judgment suffers from non- reading of evidence and is outcome
of illegal exercise of jurisdiction by the Trial Court. While sentencing the appellants, the Trial Court has overlooked the afore discussed major discrepancies in the prosecution case and therefore, has illegally convicted and sentenced the appellants. It is well settled that benefit of a single doubt is to be extended to the accused. Reliance is placed on the case reported as Muhammad Imran v. The State (2020 SCMR 857).
13. For what has been discussed and observed hereinabove, we are inclined to interfere
with the impugned judgment. Resultantly, the instant appeal is allowed; impugned judgment dated 19 January, 2022 passed by learned Additional Sessions Jude, Usta Muhammad is set aside, and the appellants Muhammad Azeem son of Hazara Khan alias Ghazi Khan, Habibullah and Muhammad Rafique both sons of Faqir Muhammad alias Ghazi Khan are acquitted from the charge in case FIR No. 01 of 2018 dated 16 January, 2018 registered under sections 302, 324, 147, 148, 149, P.P.C at Police Station Bagh Head, District Jaffarabad. They be set at liberty forthwith, if not required to be detained in any other case.
The Murder Reference No. 01 of 2020 is; therefore, answered in negative.
JK/91/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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