2023 P Cr. L J 589
[Balochistan]
Before Muhammad Ejaz Swati and Sardar Ahmed Haleemi, JJ
NASRULLAH alias MOMIN and another ---Appellants
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 6 and Criminal Revision Petition No. 25 of 2021, decided on 14th
November, 2022.
(a) Penal Code (XLV of 1860) ---
----Ss. 302 & 397---Qanun- e-Shahadat (10 of 1984), Art. 129, Illustration (g) ---Qatl -i-amd
and robbery or dacoity with attempt to cause death or grievous hurt ---Appreciation of
evidence--- Complainant not an eye- witness ---Best evidence, withholding of ---Presumption---
Accused was convicted by Trial Court for committing robbery with causing death and was
sentenced to imprisonment for ten years ---Validity ---Complainant was not eye -witness of the
occurrence an d no eye -witness was cited in FIR ---Subsequently, complainant introduced an
eye-witness through his supplementary statement ---Such kind of witness nominated later on
through supplementary statement was made for the purpose to strengthen case of prosecution
at the behest of police or some other ulterior motives ---Such aspect was enough to shatter
credibility of such witness ---Material witnesses of secure and safe custody as well as safe
transmission of crime weapon to Forensic Science Laboratory were not produced, which was a clear violation of provision of Art. 129, Illustration (g) of Qanun- e-Shahadat, 1984---
Prosecution failed to establish charge against accused as the evidence was suffering from infirmities and there existed sufficient doubts in the case of the prosecution---Trial Court
failed to extend benefit of doubts to the accused and judgment of Trial Court was suffering from misreading and non- appreciation of evidence available on record ---High Court set aside
conviction and sentence awarded by Tria l Court and accused was acquitted of the charge---
Appeal was allowed accordingly.
Muhammad Kamran v. The State 2021 SCMR 479; Mst. Sughra Begum and another
v. Qaiser Pervaiz and others 2015 SCMR 1142; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Mir Zaman and 5 others v. The State and others 2012 SCMR 580 and Muhammad Shah Khesro and another v. The State and others 2006 PCr.LJ 606 rel.
(b) Criminal trial ---
----Recovery of crime weapon ---Proof ---When chains of circumstantial evidence from safe
and secure custody of case property till its safe transmission to forensic science laboratory are missing, then safe custody and transmission are not probable ---Positive report of Ballistic
expert loses its significance in such circumstances.
Nazeer Ahm ed v. State 2016 SCMR 1656 rel.
Asmatullah Mandokhail for Appellant (in Criminal Jail Appeal No. 6 of 2021).
Muhammad Usman Yousafzai for the Complainant (in Criminal Jail Appeal No. 6 of
2021).
Ms. Noor Jahan Kahoor, Additional P.G. for the State (in C riminal Jail Appeal No. 6
and Criminal Revision Petition No. 25 of 2021).
Muhammad Usman Yousafzai for Petitioner (in Criminal Revision Petition No. 25 of
2021).
Asmatullah Mandohail for Respondent No. 1 (in Criminal Revision Petition No. 25 of
2021).
Date of hearing: 19th October, 2022.
JUDGMENT
SARDAR AHMAD HALEEMI, J. ---This common judgment disposes of Criminal
Jail Appeal No.06 of 2021 and Criminal Revision Petition No. 25 of 2021.
The Criminal Jail Appeal No.06 of 2021 has been filed on behalf of Nasrullah alias
Momin (the appellant) through Superintendent Central Prison Mach, against the judgment
dated 30th October 2021 (hereinafter the "impugned judgment") passed by learned
Additional Sessions Judge, Killa Abdullah at Chaman (hereinafte r the "trial Court"), whereby
after altering the charge, the appellant was convicted under section 397, P.P.C. and sentenced to suffer ten years' R.I. with the benefit of section 382- B, Cr.P.C.
Whereas, Matiullah (complainant) filed Criminal Revision Petition No. 25 of 2021 for
enhancement of sentence of the appellant.
2. The prosecution story, in brief, is that on 29th November, 2019, on the written report
Ex.P/1- A of complainant Matiullah, an FIR No. 111 of 2019 under section 302, Q&D at
Levies Station, Chaman was lodged to the effect that on 29th November, 2019 at about 6:15
p.m. brother of the complainant Rafiullah was going back towards home from Boghra Road Tea Hut of his cousin. Meanwhile, two unknown armed accused persons came on motorcycle and by s howing him pistol started his personal search, brother of the complainant infuriated
and altercation took place between them; in the meanwhile accused started firing on Rafiullah, due to which four bullet hit him on his cheek, neck, arm etc. in consequence
whereof Rafiullah fell down and the accused persons snatched a mobile Samsung A7 having contact No. (0316- 8167040) and escaped from the place of occurrence. It was further alleged
that cousin of the complainant namely Naseebullah son of Khuda -e-Dad, who a fter offering
prayer in a nearby Masjid witnessed the incident; Rafiullah was taken to the hospital with the
help of familiar persons in the vehicle of Levies Force but Rafiullah had succumbed to the injuries at the spot; it was also alleged that the eye -witness could identify the accused
persons with their appearance, if they appear before him.
3. The complainant on 30th November, 2019 submitted his supplementary statement
Ex.P/1- B further added that accused person during scuffle also snatched mobile of the
deceased, he could not mention the name of the eye -witness Naseebullah.
4. In pursuance of the above FIR, the investigation of the instant case was entrusted to
PW-9 Abdul Jabbar, Levies Resaldar of the concerned Levies Thana, who conducted the
investiga tion; reached Civil Hospital, and prepared the inquest report. No postmortem of the
deceased was conducted; however, the death certificate was issued by Dr. Abdul Wadood Medical Officer. After that the investigating officer visited the place of occurrence, prepared
a site sketch, secured bloodstained mud and stones, one empty bullet shell and recorded the statements of witnesses. On 30th November 2019, the complainant submitted his supplementary statement and also produced the bloodstained clothes of the de ceased; on 3rd
December 2019 sent the bloodstained clothes of the deceased and bloodstained mud and stones to Forensic Science Laboratory for analysis; thereafter, PW -9 was transferred and
further investigation was conducted by PW -10 Abdul Khaliq, the appe llant was arrested on
16th August 2020 and the crime weapon was also recovered from his residential room; after that the confessional statement of the appellant was recorded by PW -7 Allah Muhammad
Judicial Magistrate on 19th August 2020; crime empty shell and crime weapon were sent to the Ballistic Expert for analysis followed by a positive report. After the completion of investigation, challan was submitted before the trial Court.
5. On receipt of the challan, the trial Court read over the charge to the ap pellant, which
was refuted by him. The prosecution examined ten (10) witnesses, whereafter the appellant was examined under section 342, Cr.P.C, wherein he denied the allegations. The appellant neither examined himself on oath as envisaged under section 340(2), Cr.P.C. nor produced any witness in his defence.
6. After the conclusion of the trial and hearing the arguments of the parties, the trial
Court convicted and sentenced the appellant vide impugned judgment. Hence this appeal.
7. Learned counsel for the pauper appellant contended that the appellant has falsely been
involved in the instant case, as the FIR has been lodged against unknown persons; that the alleged disclosure of pistol has been foisted upon the appellant, which was neither recovered from t he possession of the appellant nor there is any witness to connect the appellant in the
commission of offence and the case of the prosecution is full of doubts. While the trial court in passing the impugned judgment has failed to consider the same, even ot herwise benefit of
doubt favoured the appellant.
8. On the other hand, the learned Additional Prosecutor General assisted by the learned
counsel for the complainant contended that the appellant was arrested upon spy information and besides the crime weapon was also recovered from his room and the appellant has also
confessed his guilt at the time of recovery of pistol, which was used in the commission of
offence coupled with the confession of the appellant recorded by the Judicial Magistrate, hence there is no mitigating circumstance in the instant case, as such the appellant was liable
for capital punishment; that the trial Court has failed to appreciate this aspect of the matter and altered the charge from section 302, P.P.C. to that of 397, P.P.C. which i s not proper in
the eyes of the law, hence the sentence awarded to the appellant is liable to be enhanced.
9. Heard the arguments of learned counsel for the parties and perused the record with
their able assistance.
10. Perusal of the statement of PW -1 com plainant reveals that he is not eye -witness of the
occurrence, similarly, no eye -witness has been cited in the FIR (Ex.P/1 -A). Subsequently,
PW-1 complainant introduced an eye -witness i -e Naseebullah (PW- 2) through supplementary
statement (Ex.P/1 -B). The a pex courts have always discouraged such kind of witness
nominated later on through supplementary statement, which are made for the purpose to strengthen the case of the prosecution at the behest of police or some other ulterior motives. This aspect is enou gh to badly shatter the credibility of such witness. Reliance in this regard
is placed on the case of Muhammad Kamran v. The State 2021 SCMR 479, wherein it was observed as under:
"The genesis of supplementary statement is also fraught with doubts. According to the complainant, in his belated disclosure, he had nominated the appellant being the principal culprit, however, when confronted with supplementary statement Ex.DD, his name was conspicuously missing therein. Appellant's nomination by one of the abductees, namely, Hassan Javed (PW -7) in his statement Ex.DC, purportedly
recorded on 8.9.2008 met the same embarrassment. Complainant's choice to let off three co -accused, initially nominated by him in his supplementary statement, is a last
straw. To synchr onize mutually destructive positions, taken after an appalling delay,
to rescue the charge, resting on a moral paradigm, inherently lacking evidentiary certainty on appellant's guilt, is an option beyond juridical possibility. It would be grievously unsafe to maintain the conviction."
11. Moreover, PW -2 Naseebullah, who has been introduced as eye -witness of the
occurrence by the complainant in his supplementary statement narrated a contradictory statement and could not substantiate his presence at the place of occurrence. It is a settled
principle of law that statement of chance witnesses has to be considered with great caution. Further, as per statement of Naseebullah ( PW2) that soon after the incident he took the deceased to the hospital for treatment, bu t MLC (Ex.P/8 -A) and inquest report(Ex.P/9- B)
reflect the names of deceased's relative Baseer Ahmed, Haji Attaullah and Noor Ali respectively. Therefore, the presence of Naseebullah (PW- 2) at the place of occurrence is
doubtful. Reliance in this regard is placed to the case of Mst. Sughra Begum and another v.
Qaiser Pervaiz and others 2015 SCMR 1142, wherein it has been held as under:
"A Chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albei t, his presence there was sheer chance as in the
ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at place where he resides, carries on
business or runs day to day life affairs. It is in this context that the testimony of
chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some
convincing explanation appealing to prudent mind for his presence on the crime spot
are put forth, when the occurrence took plac e otherwise, his testimony would fall
within the category of suspect evidence and cannot be accepted without a pinch of
salt."
Similar view has also been taken in the cases of Muhammad Arshad v. The State 2017
SCMR 142, Naveed Asghar and 2 others v. The S tate PLD 2021 SC 600.
12. The witness of recovery of pistol bearing No. 35872, a magazine and five live rounds
is PW -5 Saifullah Levies Resaldar, who deposed that he received a spy information about the
culprit involved in the commission of offence on 16th August 2020; at about 8:00 a.m.
morning, he along with other officials of levies under the supervision of Assistant Commissioner Chaman conducted a raid at the house of the appellant and he was arrested, who disclosed his name as Nasrullah alias Momin son of Masood; on a personal search of the
appellant, a Samsung mobile along with Sim was recovered; during the search of his room, from the beneath of his pillow, a pistol bearing No. 35872, a magazine and five live rounds were recovered; on interrogation, t he appellant disclosed that the pistol was used in the
murder of the deceased;
13. In this connection, the confessional statement of the appellant is unbelievable, when
the direct and ocular account furnished by the prosecution is doubtful. Further, the wi tness of
MLC and inquest report namely Baseer Ahmed, Haji Attaullah and Noor Ali respectively have not been produced by the prosecution, as such, the chain of circumstantial evidence has been broken, which creates dent in the prosecution case as well. The link between the chain
of circumstantial evidence is also missing, in such a scenario, the confessional statement alone is not sufficient to be believed true and voluntary. In this regard, reliance may be placed on the case of Mir Zaman and 5 others v. The State and others 2012 SCMR 580,
wherein it has been held as under:
"The law on the point is quite settled that a retracted confession must be corroborated by some other independent evidence and the same seldom suffices by itself to record a conviction on the basis of the same. In the case in hand the weapons and the cash
recovered during the investigation did not stand connected with the alleged offences and there was no other piece of evidence produced by the prosecution to provide any corro boration to the retracted confessions attributed to the said appellants."
14. In addition to this, PW -9 first investigating officer of the instant case secured one
crime empty shell at the place of occurrence on 29th November 2019; while PW -10 2nd
investigating officer recovered the crime weapon on 16th August 2020; a crime empty shell and the crime weapon sent to a ballistic expert for analysis on 21st September 2020 followed by the positive report (Ex.P/10- C). Perusal of the record reveals that the crime empty shell
has been kept in the store/Malkhana of the levies station for more than eleven (11) months
and the crime weapon for thirty five (35) days without any explanation, which makes the safe
custody doubtful. Further, the crime empty shell and crime w eapon were sent through
Ghulam Sarwar Reader for analysis after the arrest of appellant. The prosecution neither produced store in charge nor Ghulam Sarwar. It is a settled principle of law that when the chains of circumstantial evidence from safe and secu re custody of case property till its safe
transmission to forensic science laboratory are missing, then the safe custody and
transmission are not probable. In this context, the positive report of Ballistic expert lost its
significance. Reliance is placed o n the case of Nazeer Ahmed v. State 2016 SCMR 1656.
15. Moreover, statements of both investigating officers i -e PW -9 and PW -10 are silent
about the entry of case property in the register -19 of the concerned levies station at the time
of handing and taking over and no reason has been furnished for non- compliance. The
material witnesses of secure and safe custody as well as safe transmission of crime weapon to Forensic Science Laboratory have not been produced, which is a clear violation of the provision of A rticle 129(g) of Qanun- e-Shahadat Order, 1984; as the prosecution had
withheld its best evidence. Reliance be placed on the case of "Muhammad Shah Khesro and another v. The State and others" 2006 PCr.LJ 606, wherein it was held as under: -
Article -129 (g) -Withholding of evidence -Presumption ---If the best piece of evidence
is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it is not Producing that evidence."
16. It has been established from the record that the prosecution has failed to establish the
charge against the appellant as the prosecution evidence is suffering from infirmities and there exist sufficient doubts in the case of the prosecution, but the trial Court has fa iled to
extend the benefit of doubts to the appellant, besides the impugned judgment is suffering
from misreading and non- appreciation of evidence available on record.
For the above reasons, the appeal is accepted. The impugned judgment dated 30th
October 2021 passed by the learned Additional Sessions Judge, Killa Abdullah at Chaman is
set aside. The appellant Nasrullah alias Momin son of Masood is acquitted of the charge in case FIR No.111 of 2019 under section 302, Q&D at Levies Station, Chaman. The appe llant
being in custody is ordered to be released forthwith, if not required in any other case.
Consequently, the Criminal Revision Petition No.25 of 2021 is dismissed.
MH/17/Bal. Order accordingly.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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