2023 P Cr. L J 1792
[Balochistan]
Before Abdullah Baloch and Rozi Khan Barrech, JJ
TAWEEZ KHAN ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 159 of 2022, decided on 6th September, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qanun- e-Shahadat (10 of 1984), Art. 129(g) ---Qatl-i-amd, common
intention--- Appreciation of evidence ---Withholding important witness ---Accused was
charged for committing murder of the son of the complainant and a lady by firing---
Complainant was not eye -witness to the occurrence, however, when he received information
about the injuries caused to his son, he reached the hospital and there he found the dead body of the deceased ---Complainant had not disclosed the source of information regarding the
occurrence in his report ---Complainant stated during his cross -examination that he was
informed about the occurrence by his relative ---Investigating Officer also stated that he
handed over the dead bodies of the deceased to the said relative of complainant ---Neither the
statement of said relative was recorded under S. 161, Cr.P.C., by the Investigating Officer, nor he was produced before the Court ---Non -production of said important witness as
provided under Art. 129(g) of Qanun- e-Shahadat, 1984, would cast adverse inference that if
the said witness had been produced he would not have supported the prosecution version---Circumstances established that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt ---Appeal against conviction was accordingly allowed.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Delay of
more than three and a half hour in lodging the FIR ---Accused was charged for committing
murder of the son of the complainant and a lady by firing--- Record showed that there was a
delay of more than three and a half hours in lodging the report by the complainant ---
Complainant stated during cross -examination that his relative informed him about the
occurrence and within 15/20 minutes, he reached the hospital ---For the sak e of arguments, if
it was presumed that the complainant reached at civil hospital at or about 5:30 p.m., the dead bodies of the deceased were also examined by the doctor around 6:00 p.m., then how the dead bodies of the deceased were handed over to the relative of complainant and the complainant did not receive the same--- Meaning thereby that at that time complainant was
not present at the hospital ---On the other hand, if the complainant reached the hospital at
5:30 p.m. and allegedly saw the deceased's dea d body at the hospital, then what prevented
him from lodging the report at 5:30 p.m.---Said fact created serious doubt in the prosecution
story as to why the report was not lodged promptly--- Delay in lodging the report could not be
simply brushed aside, as it assumed great significance, and it could be attributed to consultations, taking instructions and calculatedly preparing the report keeping in view the names of the assailants opened for involving such persons who ultimately the prosecution
might wish to nominate ---Circumstances established that the prosecution had failed to prove
the charge against the accused beyond shadow of any doubt ---Appeal against conviction was
accordingly allowed.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Sole eye-
witness ---Accused was charged for committing murder of the son of the complainant and a
lady by firing---Ocular account deposed by sole eye -witness did not diverge from the story as
narrated by the prosecution---However, said witness categorically denied recognizing and
identifying the accused person before the court ---Moreover, it had also come on record that
prior to the occurrence, the accused was not known to said witness, who stated in his statement that the person who made the firing gave his mobile number and told his name as the name of present accused ---Investigation Officer held no identification parade of the
accused through the said witness ---Since said witness had not identified the accused before
the Trial Court as such prosecution declared him hostile and cross -examined the said witness,
but could not extract anything from his mouth to connect the present accused with the commission of the alleged offence ---Circumstances established that the prosecution had
failed to prove the charge against the accused beyond shadow of any doubt --- Appeal against
conviction was accordingly allowed.
(d) Criminal trial ---
----Witness ---Hostile witness ---Scope ---No doubt a witness who has been declared hostile
will not become unworthy of reliance, and his evidence cannot be brushed aside if found true and credible, but since said witness has spoken in two different voices and two different tones, his evidence has to be assessed with much more care and circumspection ---May be
said witness is telling the truth when exonerating the accused, or he is telling the truth when charging him ---Only those voices and tones of witnesses can be considered worthy of
reliance supported by sources essentially unimpeachable because one tainted piece of evidence cannot corroborate another.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Call Data
Record (CDR) ---Accused was charged for committing murder of the son of the complainant
and a lady by firing---In the present case, the Investigation Officer had taken into possession CDR of the mobile of accused---According to the Investigation Officer, at the time of occurrence, the accused was near the place of occurrence, and there was nothing on record in respect of the CDR of the accused who allegedly called the d eceased ---However, it was not
clarified as to whether the telephone/SIM number was in the name of the accused as the same
fact had not been established from the record--- Even otherwise, said fact was also confirmed
by the Investigation Officer that the phone/SIM was not in the name of the accused, and he
stated that according to his record, the mobile number of the accused was not reflected in the CDR ---Said witness further stated during cross -examination that it could not be ascertained
from the CDR that whether the said number belonged to the accused or otherwise ---CDR
produced and relied on by the prosecution was neither attested nor sent by the issuing
authority, nor was any witness either associated during the investigation or produced before
the court ---Thus, it could not be relied on as a valid piece of evidence---Circumstances
established that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt ---Appeal against conviction was accordingly allowed.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Recovery
of eleven crime empties from the spot ---Inconsequential ---Accused was charged for
committing murder of the son of the complainant and a lady by firing--- Record showed that
eleven empties of T.T pistol were recovered from the place of occurrence, and the same were not sent to the Forensic Science Laboratory to establish that whether the said empties were fired from one weapon or otherwise, which made the same doubtful, therefore, the same could not be relied upon for the purpose of conviction---Moreso, such piece of evidence was only a corroborative and was of no avail ---Circumstances established that the prosecution
had failed to prove the charge against the accused beyond shadow of any doubt ---Appeal
against conviction was accordingly allowed.
Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.
(g) Criminal trial ---
----Medical evidence--- Scope ---Medical evidence simply disclosed the nature of injuries,
kind of weapon and duration of time as well as the cause of death, but it cannot signify the author of injuries.
Muhammad Mansha v. The State 2018 SCMR 772 rel.
(h) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Mode and
manner of the occurrence doubtful ---Accused was charged for committing murder of the son
of the complainant and a lady by firing--- Record showed that the Trial Court found the
accused guilty on the sole ground that his sister -in-law was found murdered by means of
firearms on the National Highway---In the absence of any explanation by accused regarding his sister -in-law's murder, the inference was to be drawn against him that he was responsible
for the said murder ---Undoubtedly, the unnatural death of the deceased lady on the main road
was not disputed by the defence ---Motive behind the occurrence had not emerged from the
evidence produced by the prosecution and it was strongly felt that both the parties withheld the actual facts and did not come forward with a true story of the incident ---Nothing came on
record about why the deceased lady was present in the car at the time of the incident with the
deceased ---Complainant also did not state a single word about any relationship of the
deceased lady with the accused, however, when eye -witness appeared before the Court, he
stated during cross -examination that the woman who had been murdered was the sister -in-
law of accused ---However, the said witness further stated during cross -examination that it
was correct that he was not acquainted with either of the parties ---Circumstances established
that the prosecution had failed to prove the charge against the accused beyond shadow of any doubt ---Appeal against conviction was accordingly allowed.
(i) Criminal trial ---
----Proof ---Suspicion--- Scope ---Suspicion, howsoever, grave or strong, can never be a proper
substitute for the standard of proof required in a criminal case, i.e. beyond a reasonable doubt.
Muhammad Pervaiz v. The State and others PLD 2019 SC 592 rel.
(j) Criminal trial ---
----Conviction--- Conjectures and probabilities ---Not the substitute of proof ---In criminal
cases 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 ---Finding as regard the guilt
of accused should be rested surely and firmly on the evidence produced in the case and the plain inference of guilt that may irresistibly be drawn from that evidence ---Mere conjectures
and probabilities cannot take the place of proof ---If a case is decided merely on high
probabilities regarding the existence or non- existence of a fact to prove the guilt of a person,
the golden rule of giving "benefit of doubt" to an accused person, which has been a dominant feature of the administration of criminal justice will be reduced to a naught.
Abdul Sattar Sherani and Abdul Ghani Sherani for Appellant.
Habibullah Nasar for the Complainant.
Ameer Hamza Mengal, A.P.G. for the State.
Date of hearing: 24th August, 2022.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant Taweez Khan, son of Abdul Manan,
was involved in case FIR No. 02/2021 registered under sections 302 and 34, P.P.C. with Levies Thana Badinzai District Zhob and was tried by learned Sessions Judge Zhob ("trial court"). The trial court seized with the matter in terms of the judgment dated 31.03.2022 and convicted and sentenced the appellant in the following terms:
"21……..Therefore accused facing trial Taweez Khan son of Abdul Manan is convicted under section 302(b) of the Pakistan Penal Code, 1860 for committing Qatl -
i-amd of deceased Asadullah son of Abdul Sattar and Mst. Gorai Bibi wife of Jamal
Khan and sentenced to suffer life imprisonment on two counts. The accused Taweez
Khan is also liable to pay an amount of Rs.300,000/ - (Rupees three- hundred
thousand) for each murder as compensation to the legal heirs of the deceased Asadullah and Mst. Gorai provided under section 544- A, Cr.P.C and in default
whereof would suffer further S.I (Simple Imprisonment) for six (06)/six (06) months.
Both the sentences would run concurrently. The benefit of section 382- B, Cr.P.C is
extended in favour of accused…"
Aggrieved from the impugned judgment, the appellant Taweez Khan has assailed his
conviction and sentence through the titled appeal.
2. The prosecution story, as disclosed in the complaint (Ex.P/1- A) recorded on the
statement of the complainant Abdul Sattar, son of Muhammad Yaqoob (PW -1), is that on 3rd
February, his son, namely Asadullah (deceased), was on his way to Zhob from Quetta in a 2-
D car having registration No.ARS -708. Meanwhile, at 3:00 p.m. appellant Taweez Khan,
along with other unknown accused persons in a white color car chased his son's car, and near levies check -post, Sawara made indiscriminate firing upon them, due to which the car
stopped. The complainant's son Asadullah (deceased) got out of the car and ran to save his life, but the accused persons made repeated fires upon him due to which he died on the spot. After that, the accused person also made firing upon the woman sitting in the car. Hence, the crime report.
After completion of the investigation, the challan was submitted before the trial court.
After a full dressed trial, the appellant was convicted and sentenced vide impugned judgment dated 31.03.2022 in the aforesaid terms, whereafter the instant appeal has been filed.
3. We have heard the learned counsel for the parties and perused the available record
with their able assistance.
4. In order to prove its case, the prosecution produced as many as seven witnesses in all.
Abdul Sattar (PW -1) was the complainant of the case, Wali Dad (PW- 2) was an eye -witness
to the occurrence, Dr. Shahbaz Khan (PW- 3) examined the dead bodies of the deceased and
produced medical certificates (Ex.P/3 -A and Ex.P/3- B), Khaliq Dad Levies Employee (PW-
4) is the recovery witness of blood- stained garments of the deceased Asadullah (Ex.P/4 -A),
blood- stained clothes of the deceased Mst. Gorai (Ex.P/4 -B), blood -stained stones of the
deceased (Ex.P/4 -C), and eleven bullet empties of .30 bore pistol taken into possession
through recovery memo (Ex.P/4- D) from the place of occurrence, Bakht Meer (PW- 5)
Dafedar Levies who was the first investigation officer of the case, Shamsuddin (PW -6) was
the second investigation officer and Muhammad Dawood IP Crimes Branch (PW -7) is the
third investigation officer of the case.
5. The complainant/PW- 1, namely Abdul Sattar, is not an eye -witness to the occurrence;
however, when he received information about the injuries caused to his son, he reached the Civil Hospital Zhob, and there he found the dead body of the deceased. The complainant has not disclosed the source of information regarding the occurrence in his report. When he
appeared before the court as PW- 1, he stated during cross -examination that he was informed
about the occurrence by his relative Abdul Khaliq. The investigation officer Bakht Meer
(PW -5) also stated in his statement that he handed over the dead body of the deceased to one
Abdul Khaliq. Neither the statement of said Abdul Khaliq was recorded under section 161, Cr.P.C by the investigation officer, nor was he produced before the court. Non- production of
such important witness 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 witness had been produced he would not have supported the prosecution version.
6. It is also proved from the record that before lodging of FIR, the dead bodies of the
deceased were examined by Dr. Shahbaz Khan (PW- 3), Medical Officer at Civil Hospital
Zhob. According to the statement of the said witness, the dead bodies of the deceased were brought on 03.02.2021 at 5:30 p.m., and within thirty minutes, he examined the dead bodies, meaning thereby that PW -3 examined the dead bodies of the deceased at 6:00 p.m.
7. Although the FIR was lodged on 03.02.2021 at 7:00 p.m., after examination of the
dead bodies of the deceased, however, the same appeared to be for the reasons that the prosecution had waited for the medical opinion of a doctor, which resulted in a delay in the registration of FIR. Since this delay in registration of the FIR has provided ample opportunity for the complainant to deliberate and consult in the matter, therefore not only the mode and manner of the occurrence have to be thoroughly examined, but ocular testimonies also require a very careful probe.
8. On the face of it, there is a delay of more than three and a half hours in lodging the
report by the complainant. The complainant stated during cross -examination that one Abdul
Khaliq informed him about the occurrence. He further stated during cross -examination that
within 15/20 minutes, he reached the hospital. For the sake of arguments, if it is presumed that the complainant reached at civil hospital Zhob at or about 5:30 p.m., the dead bodies of the deceased were also examined by the doctor around 6:00 p.m., then how the dead bodies of the deceased were handed over to one Abdul Khaliq and the complainant did not receive the same, meaning thereby that at that time he was not present at the hospital. On the other hand, if the complainant reached the hospital at 5:30 p.m. and allegedly saw the deceased's dead bodies at the hospital, then what prevented him from lodging the report at 5:30 p.m.? It creates serious doubt in the prosecution story as to why the report was not lodged promptly. Needless to say that the delay in lodging the report cannot be simply brushed aside, as it assumes great significance, and it could be attributed to consultations, taking instructions and calculatedly preparing the report keeping in view the names of the assailants opened for involving such persons who ultimately the prosecution might wish to nominate.
9. Another intriguing aspect of the matter is that the star witness of the occurrence,
namely Wali Dad (PW- 2), when he appeared before the court, fully exonerated the appellant
from the commission of the offence. He is the only eye -witness to the occurrence. He did not
identify the appellant before the court; therefore, the learned DPP declared him hostile and requested the trial court to cross -examine him. An opportunity was provided to learned DPP
to cross -examine, and the said witness was cross -examined at length, wherein he denied that
he identified the accused at the time of the incident. According to PW -2, on 03.02.2021, the
deceased Asadullah phoned the 2 -D car officer, and Munshi (clerk) of the office gave his
number to the deceased Asadullah. Later on, the deceased Asadullah telephoned him to come
to Takatu hotel, upon which he reached Takatu hotel, where the deceased Asadullah and one
woman were standing and both of them seated in the car. The woman was seated in the rear
seat, and deceased Asadullah was seated in the front seat of the car and proceeded toward
Zhob. When they reached near Sawara Pul Levies chowki, one white color car was parked, and thereafter, the deceased Asadullah told him to accelerate the vehicle, which he accelerated the vehicle. When he reached Tor Narai Khwarha, the said white car reached near them and made firing at his car. He stopped the car, and the deceased Asadullah opened the door and was trying to run away, but two persons alighted from the white color car and made firing upon Asadullah, who received injuries and fell down, thereafter the said two persons also made firing upon the woman who was sitting on the rear seat of the car. The accused person gave him his number and told him his name was Taweez Khan. Lastly, he stated that he did not identify the accused.
10. The ocular account deposed by PW- 2 did not diverge from the story as narrated by the
prosecution. However, he categorically denied recognizing and identifying the accused person before the court. It has also come on record that prior to the occurrence, the accused Taweez Khan, was not known to PW -2, who stated in his statement that the person who
made the firing gave his mobile number and told his name as Taweez Khan. The investigation officer held no identification parade of the accused/appellant through the said witness. Since PW -2 Wali Dad had not identified the accused before the trial court as such
learned DPP declared him hostile.
11. The word 'hostile' does not figure anywhere in any Article of Qanun- e-Shahadat
Order, 1984, but it has been introduced in the judicial precedents while interpreting section 154 of the Evidence Act of 1872 and Article 150 of Qanun- e-Shahadat, 1984. The wordings
of both law provisions are the same, reproduced for ready reference.
"The Court may, in its discretion, permit the person who calls a witness to put any questions to him which might he put in cross -examination by the adverse party".
The plain reading of the above provision of the law indicates that it is of the
discretion of the court to permit the party who calls a witness to put any question to him.
Normally a witness who becomes hostile or adverse to the party who produced him
for recording evidence in his support is allowed to be cross -examined to impeach the credit
of the witness by evidence of the kind mentioned in Article 151 of Qanun- e-Shahadat Order,
1984.
12. In order to make entitle a party to invoke Article 150 of the Oanun- e-Shahadat Order,
1984, it is necessary to establish that the witness is guilty of prevarication, or that he is inconsistent in his statement or trying to suppress the truth or that he bears animosity towards the party who calls him. In the absence of any act on the part of the witness of the above nature, a party is not entitled to cross -examine his witness to impeach his credit.
13. It is stated earlier that PW- 2 fully endorsed the occurrence and did not deviate from
the story as narrated by the prosecution; however, he denied having recognized or identified
the accused/appellant who was present before the court. The learned DPP cross -examined the
said witness, but he could not extract anything from his mouth to connect the present appellant with the commission of the alleged offence.
14. No doubt a witness who had been declared hostile would not become unworthy of
reliance, and his evidence could not be brushed aside if found true and credible, but since said witness had spoken in two different voices and two different tones, his evidence had to be assessed with much more care and circumspection. May be he was telling the truth when exonerating the accused, or he was telling the truth when charging him. Only those voices and tones of witnesses could be considered worthy of reliance supported by sources essentially unimpeachable because one tainted piece of evidence could not corroborate another.
15. In the case in hand, no independent or unimpeachable evidence being on record which
could tend to lend support to the testimony of a hostile witness to the extent of involvement of the appellant in the commission of the offence. His testimony in the circumstances of the case could not be -considered for holding the accused/appellant guilty of the offence he was
charged with. The complainant of the case was not an eye -witness of the occurrence,
however, the accused was nominated in the FIR, and being the basic document in a criminal case, was vested with much greater sanctity, but where it was recorded after delay, it would lose its sanctity and probate worth and would become a suspect document rather than one giving a natural, spontaneous and straightforward account of the occurrence. The FIR lodged with delay without any explanation could not be treated as either sacrosanct or authentic. There is no other evidence available on record to establish that the accused/appellant was
present at the place of occurrence at the relevant time.
16. The trial court found the appellant guilty on the basis of the Call Data Record (CDR)
as well as why the accused remained silent upon the murder of Mst. Gorai, who, according to the record, the accused Taweez Khan, being the brother -in-law of the said lady (deceased)
Mst. Gorai.
17. Adverting to the evidence in the shape of CDR, it is noted that the investigation
officer Muhammad Dawood (PW -7), has taken into possession of CDR data of the
appellant's mobile (Ex.P/7- A). According to the Investigation Officer, at the time of
occurrence, the appellant was near the place of occurrence, and there is nothing on record in respect of the CDR of the appellant who allegedly called the deceased; however, it was not clarified as to whether the telephone/SIM number was in the name of the appell ant as the
same fact has not been established from the record. Even otherwise, this fact was also confirmed by the investigation officer that the phone/SIM was not in the name of the appellant, and he stated that according to his record, the mobile number of the accused is 0300- 3808542, and the said number is not reflected in the CDR data. The said witness further
stated during cross -examination that it could not be ascertained from the CDR data that
whether the said number belonged to the appellant or othe rwise. He further stated during
cross -examination that it is not clarified from the CDR data that the number was in the name
of the appellant. It is also important to add here that CDR produced and relied on by the
prosecution was neither attested nor sent by the issuing authority, nor was any witness either associated during the investigation or produced before the court. It also cannot be relied on as a valid piece of evidence.
18. The next circumstantial, i.e. recovery of eleven empties of T.T pistol from the place
of occurrence is concerned, and the same were also not sent to the FSL to establish that whether the said empties were fired from one weapon or otherwise, which makes the same further doubtful, therefore, the same cannot be relied upon for the purpose of conviction. Moreso, this piece of evidence is only a corroborative and is of no avail. In the instant case, the trial court has already disbelieved the direct evidence of PW- 2, namely Wali Dad. In a
case titled as Ghulam Akbar and another v. The State (2008 SCMR 1064), it was observed by the Hon'ble Supreme Court that the law required that empty recovered from the spot should be sent to the laboratory without any delay, failing which such recovery evidence is not free from doubt and could not be used against the accused.
19. So far as the learned APG's contention that the medical evidence has fully supported
the prosecution case is concerned, the medical evidence at the most is a supporting piece of evidence and relevant only if primary evidence, i.e. ocular account, inspires confidence. Here, the only eye- witness, namely Wali Dad (PW- 2), has not involved the appellant to
connect him with the commission of the offence; therefore, the medical evidence simply discloses the nature of injuries, kind of weapon and duration of time as well as the cause of death, but it cannot signify the author of injuries. In this context, the reliance is placed on the case titled "Muhammad Mansha v. The State" (2018 SCMR -772), wherein the Hon'ble
Supreme Court of Pakistan has held that;
"The medical evidence it has been declared by this Court in various judgments that the medical evidence neither pinpoint the accused nor establish the identity of the accused and at the most can depict the locale of injury, duration, weapon used etc; and medical evidence can never be considered to be corroboratory piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of set of injuries, the weapon used, duration, the cause of death etc;".
20. The trial court found the appellant guilty on the sole ground that his sister -in-law was
found murdered by means of firearms on the national highway; in the absence of any explanation by him regarding his sister -in-law's murder, the inference was to be drawn
against him that he was responsible for the said murder. Undoubtedly the unnatural death of the deceased Mst. Gorai on the main road was not disputed by the defense. The motive behind the occurrence has not emerged from the evidence produced by the prosecution and it was strongly felt that both the parties withheld the actual facts and did not come forward with a true story of the incident. Nothing came on record about why the deceased Mst. Gorai was present in the car at the time of the incident with the deceased Asadullah. The complainant also did not state a single word about any relationship of the deceased Mst. Gorai with the accused Taweez Khan, however, when PW- 2 Wali Dad appeared before the
court, he stated during cross -examination that the woman who had murdered was the sister -
in-law of one Taweez Khan, however, the said witness further stated during cross -
examination that it is correct that he was not acquainted with either of the parties.
21. Be that as it may, whether the conviction can be sustained on the basis that the
deceased Mst. Gorai was the sister -in-law of the appellant, it suffices to state that the
appellant could not be convicted for the alleged offence simply on the basis of supposition.
There is no evidence on record to establish that at the time of occurrence, the accused was present at the place of occurrence. It has to be kept in mind that Article 122 of the Qanun -e-
Shahadat Order 1984 comes into play only when the prosecution has proved the guilt of the
accused by producing sufficient evidence, except for the facts referred to in Article 122,
leading to the inescapable conclusion that the offence was committed by the accused. Then, the "evidential" burden is on the accused not to prove his innocence but only to produce evidence enough to create doubts in the prosecution's case. It may be noted that the relevant issue was also dilated upon by the august Supreme Court of Pakistan in the case of "Abdul Majeed v. The State" (2011 SCMR 941) wherein it was held as under:
"7. The basic principle of criminal law is that it is the burden of the prosecution to prove its case against the accused beyond reasonable doubt. This burden remains throughout and does not shift to the accused, who is only burdened to prove a defence plea, if he takes one. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution
evidence. However; this by itself would not be sufficient to establish the appellant's
guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the house at the time his wife was murdered. This, perhaps, distinguishes this case from that of "Afzal Hussain Shah v. The State" (ibid) where the accused admittedly was present in the house when his wife was killed.
8. In the absence of any positive prosecution evidence, the appellant cannot be convicted on presumption that since the murder of his wife took place in his house it
can only be him and no other who had murdered the deceased. The conviction and sentence of the appellant on this single circumstance cannot be sustained in law. The appeal is, therefore, allowed. The conviction and sentence of the appellant are set aside and he is acquitted of the charge against him. He shall be set at liberty if not required in any other case."
The ratio decidendi of the above decision was further developed by the Hon'ble
Supreme Court in the case titled "Nasrullah alias Nasro v. The State" (2017 SCMR 724).
22. In a case of this nature, the appellant could not have been convicted for the alleged
murder merely because he happened to be the brother -in-law of one of the deceased. On the
record, there is no credible evidence which could be made as the basis for the conviction of the appellant. Principally, a criminal case is to be decided on the basis of evidence adduced by the prosecution and suspicion, howsoever, grave or strong, could never be a proper substitute for the standard of proof required in a criminal case, i.e., beyond a reasonable doubt. Hon'ble apex Court of the country, in a case titled Muhammad Pervaiz v. The State and others (PLD 2019 SC 592) observed that: --
"Suspicions are after all suspicions and cannot substitute the legal proof nor can a suspect be condemned on the basis of moral satisfaction in the absence of evidentiary certainty."
23. It is a well- established principle of administration of justice in criminal cases that
finding guilt against an accused person cannot be based merely on the high probabilities
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 is decided merely on high probabilities regarding the existence or
non- existence of a fact to prove the guilt of a person, the golden rule of giving "benefit of the
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 Constitutional Courts, will be reduced to naught.
24. The prosecution is under obligation to prove its case against the accused person at the
standard of proof required in criminal cases, namely, beyond reasonable doubt standard. It cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standards applied in civil cases. Suppose the prosecution fails to discharge its said obligation, and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the accused person's guilt. In that case, the benefit of that doubt is to be given to the accused person as a right, not as a concession.
25. The rule of giving the benefit of the doubt to an accused person is essentially a rule of
caution and prudence. It is deep- rooted in our jurisprudence for the safe administration of
criminal justice. Common law is based on the maxim, "It is better that hundred (100) guilty persons be acquitted rather than one innocent person be convicted".
The basic principle of Islamic criminal law is based on evidence beyond any shadow
of a doubt. The principle can be deduced from an undisputed Hadith:
"Ayesha reported that the Messenger of Allah said 'Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him [accused], let him have his way, because the leader's mistake in pardon is better than his mistake in punishment". Mishkatul Msabili (Eng. Translation by Fazl- ul-Karim) Vol.II, P.544
Law Publishing Company, Lahore.
Because the damage resulting from erroneous sentences is irreversible, the principle
that it is better to acquit a guilty person than to punish an innocent one was proclaimed by the Holly Prophet of Islam (Peace Be Upon Him) fourteen hundred (1400) years ago and has now become the guiding principle for the safe administration of justice.
26. Keeping in view the said golden rule of giving the benefit of the doubt to an accused
person for safe administration of criminal justice, we believe that all the circumstantial evidence discussed above is completely unreliable and utterly deficient in proving the charge against the appellant beyond a reasonable doubt. The prosecution has miserably failed to complete the chain of circumstances so as to establish the guilt of the appellant in a manner that can rule out every hypothesis inconsistent with h is innocence. The circumstantial
evidence tendered by the prosecution is not found to be like a wellknit chain, one end of which can touch the dead body of the deceased person and the other the neck of the appellant. We find that the missing links have been liberally filled up by the court below,
apparently being influenced by the heinous nature of the charges involved in the case, on the
basis of surmises and conjectures, which have resulted in grave injustice. The court below has overlooked serious pitfalls and grave infirmities in the prosecution evidence by adopting a superficial and cursory approach, not befitting the seriousness of the crime charged in the present case. The verdict returned by the court below is manifestly erroneous, having been
arrived at without a complete and comprehensive appreciation of all the evidence and
relevant aspects of the case.
27. For the foregoing reasons, while accepting Criminal Appeal No. 159 of 2022, the
conviction and sentence awarded to the appellant Taweez Khan son of Abdul Manan, vide
judgment dated 31.03.2022 passed by the learned Sessions Judge Zhob in Murder Case No. 10 of 2021 is set aside, and the appellant is acquitted of the charge in FIR No. 02 of 2021 of Levies Thana, Badinzai by extending the benefit of the doubt in his favour. The appellant Taweez Khan, son of Abdul Manan, shall be released forthwith if not required to be detained in any other case.
JK/168/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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