2023 P Cr. L J 769
[Balochistan]
Before Naeem Akhtar Afghan, C.J. and Rozi Khan Barrech, J
ABDUL GHAFFAR and others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 194, Criminal Acquittal Appeal No. 193 and Murder Reference No. 6
of 2020, decided on 28th June, 2022.
(a) Criminal trial ---
----Related witnesses ---Scope ---Evidence of the related witnesses can not be discarded on the
ground of its being related to the victim ---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, which can not be expected from a prudent person, then the evidence furnished by related witnesses can be easily discarded.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 109 & 34--- Qatl-i-amd, abetment, common intention---Appreciation of evidence-
--Benefit of doubt ---Chance witnesses ---Accused were charged for committing murder of the
mother and sister of complainant by firing---Ocular account had been furnished by complainant, brother of one of the deceased and uncle of the complainant being eye -
witnesses---Oral statement of eye- witnesses was recorded by the Investigating Officer of the
case at the hospital at 5:45 a.m. on 10.10.2019, whereas the occurrence to ok place on
10.10.2019 at 2:30 a.m.---Oral statement of complainant was hence recorded after three hours and fifteen minutes of the occurrence that too at the hospital and not at the place of occurrence---No reason, much less plausible, had been given by the prosecution at any stage for such deferral in reporting the matter to the police ---In the present case, the ocular account
furnished was suffering from legal and factual infirmities and did not appeal to a prudent mind because, according to the prosecut ion's case, as a result of the firing made at the place
of occurrence two ladies died at the place of occurrence and the same fact was also confirmed by the witnesses ---However, the witnesses never reported the matter to the police
at the place of occurrence for as many as three hours and fifteen minutes ---Moreover, none
of the prosecution witnesses, including eye -witnesses, ever proceeded to the police station or
reported the matter at the place of occurrence and it was the Investigating Officer of the cas e,
who, according to him, reached the place of occurrence where he found the dead bodies of the deceased ladies ---Investigating Officer and recovery witness who had first reached the
place of occurrence did not state a single word that eye- witnesses were present at the place of
occurrence--- Said aspect of the prosecution case had left no doubt that eye -witnesses did not
witness the occurrence--- Prosecution case was that the oral statement of the complainant was
recorded at the hospital ---Thus, there must be some plausible reason for that failure of the
eye-witnesses, not to report the matter at the place of occurrence to the police promptly---
However, none was available and hence doubts had arisen regarding the presence of the said
witnesses at the place and time of occurrence---In that regard an inference against the
prosecution eye -witnesses had to be drawn--- Apart from the above, eye -witnesses were
highly interested and inimically deposed against the accused---First reason for disbelieving
them was that their presence on the spot was unnatural because had they been present at the spot, they would have received some injuries from the shots fired by the accused--- Thus, it
appeared that they had tried to suppress their interestedness ---Both the said eye -witnesses did
not justify their presence at the time and place of occurrence---Thus, it did not appeal to the logic that the person whose sister and mother were being murdered neither made any resistance nor raised a hue and cry for help despite the fact that the alleged occurrence took place in a populated area where there were other houses near the place of occurrence---According to the Call Detail Records (CDRs) of the said witnesses, they were not present at the place of occurrence at the time of occurrence ---Alleged occurrence took place in the area
of District "Q", whereas both the eye -witnesses were residing in another province, and the
said place was at a distance of 350 kilometers from the place of occurrence---Both the said witnesses had not given any plausible explanation for their presence at the spot at the time of the incident ---Said witnesses had no place of business near the place of the incident,
therefore, both the said witnesses were chance witnesses ---Circumstances established that the
prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence -inspiring evidence ---Appeal against conviction was allowed, in
circumstances.
G. M. Niaz v. The State 2018 SCMR 506 and Zafar v. The State and others 2018
SCMR 326 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 109 & 34--- Qatl-i-amd, abetment, common intention---Appreciation of evidence-
--Benefit of doubt ---Delay in lodging the FIR ---Effect ---Accused were charged for
committing murder of the mother and sister of complainant by firing--- Record showed that
the alleged occurrence took place on 10.10.2019 at 2:30 a.m., and the FIR was lodged on the same night at 5:45 a.m. with unexplained delay of three hours and fifteen minutes ---Distance
between the place of occurrence and the police station was one and a half kilometers, but no explanation whatsoever had been furnished by the prosecution for such delay---Furthermore, it could be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the oral statement of the complainant was prepared, and the same was neither prompt nor spontaneous, hence worthy of no reliance ---
Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence -inspiring evidence ---Appeal against
conviction was allowed, in circumstances.
(d) Penal Code (XLV of 1860)---
----Ss. 302, 109 & 34--- Qatl-i-amd, abetment, common intention---Appreciation of evidence-
--Benefit of doubt ---Mode and manner of the occurrence doubtful ---Effect ---Accused were
charged for committing murder of the mother and sister of complainant by firing---In the
present case, if the statements of the eye- witnesses were believed to be true for a moment,
then the question arose as to why and how the accused spared them and did not even try to
kill them when he could have easily killed them because they were empty- handed and at his
mercy, coupled with the fact that they could depose against him as eye -witnesses being
brother and son of the deceased---Mode and manner of the occurrence advanced by the
prosecution witnesses was not appealable to a prudent mind--- Another interesting feature of
the case was that the accused had no motive to fire at the deceased ---According to statements
of the purported eye -witnesses, they were empty -handed and the accused pointed a pistol
upon them and they were totally at the mercy of the accused but they were left alive and the accused selected to kill the sister and mother of the complainant ---One of the deceased was
the wife of the accused with whom he had no direct motive and so it might be inferred that the incident did not take place in the way and manner as it was alleged---Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence -inspiring evidence --- Appeal against conviction was
allowed, in circumstances.
(e) Criminal trial ---
----Chance witness, testimony of ---Scope ---Testimony of a chance witness is not accepted
unless justifiable reasons are shown to establish his presence at the crime scene at the
relevant time ---In the normal course, the presumption under the law would operate about his
absence from the crime spot ---Testimony of a chance witness may be relied upon, provided
some convincing explanations appealing to a prudent mind for his presence on the crime spot are put forth when the occurrence took place ---Otherwise, testimony of chance witness
would fall within the category of suspect evidence and cannot be accepted without a pinch of salt.
Mst. Shazia Parveen v. The State 2014 SCMR 1197 and Muhammad Rafique v. The
State 2014 SCMR 1698 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302, 109 & 34--- Qatl-i-amd, abetment, common intention---Appreciation of evidence-
--Benefit of doubt ---Postmortem examination report contradicting time of occurrence alleged
in the FIR ---Effect ---Accused were charged for committing murder of the mother and sister
of complainant by firing ---Record showed that the occurrence took place at 2:30 a.m. on
10.10.2019--- Postmortem of the deceased was conducted at 5:20 a.m. on 10.10.2019 i.e.
before registration of FIR ---According to Medical Officer the time between death and
postmortem examination was 12 to 13 hours ---In view of the said evidence produced by the
prosecution, the alleged occurrence had not taken place as alleged by the prosecution, i.e. on 10.10.2019 at 2:30 a.m. rather, the alleged occurrence took place 12 to 13 hours before the time alleged by the prosecution ---Said aspect of the case also created reasonable doubt in the
prosecution case ---Circumstances established that the prosecution had failed to prove the
culpability of the accused through reliable, trustworthy and confidence -inspiring evidence ---
Appeal against conviction was allowed, in circumstances.
(g) Penal Code (XLV of 1860) ---
----Ss. 302, 109 & 34--- Qatl-i-amd, abetment, common intention---Appreciation of evidence-
--Benefit of doubt ---Dishonest improvements made by the eye -witnesses ---Effect ---Accused
were charged for committing murder of the mother and sister of complainant by firing---
Record showed that the alleged two eye- witnesses made dishonest improvements in their
statements before the Trial Court---Complainant claimed in his statement before the court that acquitted accused and absconding accused were told that if they came forward they would be killed---However, the said portion of the statement of complainant was not mentioned in his Fard- e-Bayan ---Eye-witness claimed in his statement before the court that
acquitted accused made firing upon one deceased, and present accused made firing upon other deceased ---However, when statement of eye -witness was recorded under S. 161l
Cr.P.C., before the police, he did not state a single word that the absconding accused made firing upon one deceased and present accused made firing upon the other deceased--- Said
willful and dishonest improvement was made by eye -witnesses in order to strengthen the
prosecution case ---In view of such improvements in the statements of eye -witnesses, it was
not safe to rely upon their testimonies and to maintain the conviction and sentence recorded against the accused under capital charge---Such dishonest and deliberate improvement and omission made them unreliable and they were not trustworthy witnesses ---Circumstances
established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence -inspiring evidence --- Appeal against conviction was
allowed, in circumstances.
Amir Zaman v. Mahboob and others 1985 SCMR 685; Akhtar Ali's case 2008 SCMR
6; Khalid Javed's case 2003 SCMR 149; Mohammad Shafique Ahmad v. The State PLD 1981 SC 472; Syed Saeed Mohammad Shah and another v. The State 1993 SCMR 550 and Mohammad Saleem v. Mohammad Azam 2011 SCMR 474 rel.
(h) Criminal trial ---
----Dishonest improvement by witnesses in their statement ---Scope ---When a witness makes
an improvement in his/her statement, and the moment it is observed that the said improvement is made dishonestly to strengthen the prosecution case, such portion of their statement is to be discarded.
(i) Penal Code (XLV of 1860) ---
----Ss. 302, 109 & 34--- Qatl-i-amd, abetment, common intention---Appreciation of evidence-
--Benefit of doubt ---Recovery of weapon of offence at the instance of accused doubtful ---
Accused were charged for committing murder of the mother and sister of complainant by
firing ---In the present case, 9mm pistol was recovered at the instance of accused and the
positive report of the Firearms Expert was received---Prosecution produced recovery witness in that regard ---According to the version of said witness, the ac cused disclosed that he could
recover the pistol he used to make firing upon his wife and mother -in-law---Said witness
further stated that on the pointation of the accused, one 9mm pistol was recovered from the
house of the relative of the accused ---Prosecution had not produced any other witness to
corroborate the statement of said witness to the extent that the alleged pistol was recovered on the pointation of the accused from the house of his relative ---However, Investigating
Officer of the case only stated in his statement that he prepared recovery memo of the pistol
in the presence of witnesses but did not state a single word in his statement that the alleged
pistol was recovered from the house of relative of accused on pointation of the accused---Prosecution failed to produce the person from whose home alleged recovery of 9mm pistol was effected on the pointation of the accused ---Moreover, when neither the said house
belonged to the accused nor the prosecution produced any witness to establish that the said person was a relative of the accused, then how it was possible that the accused kept the pistol in the house of a stranger, which created reasonable doubt in the prosecution case ---
Circumstances established that the prosecution had failed to prove the culpability of the accused through reliable, trustworthy and confidence -inspiring evidence --- Appeal against
conviction was allowed, in circumstances.
Sajjan Solangi v. The State 2019 SCMR 872 rel.
(j) Penal Code (XLV of 1860)---
----Ss. 302, 109 & 34--- Qatl-i-amd, abetment, common intention---Appreciation of evidence-
--Benefit of doubt ---Contradictions in the statement of recovery witness and Investigating
Officer ---Accused were charged for committing murder of the mother and sister of
complainant by firing--- Record showed that there was contradiction in the statement of
recovery witness and Investigating Officer ---Recovery witness stated in his statement that on
10.10.2019, the accused was arrested---On the other hand, Investigating Officer stated in his statement that the accused was arrested on 11.10.2019--- Said contradiction created
reasonable doubt in the prosecution case ---Circumstances established that the prosecution
had failed to prove the culpability of the accused through reliable, trustworthy and confidence -inspiring evidence ---Appeal against conviction was allowed, in circumstances.
(k) Penal Code (XLV of 1860)---
----Ss. 302, 109 & 34--- Qatl-i-amd, abetment, common intention---Appreciation of evidence-
--Benefit of doubt ---Weapon and crime empties sent for analysis together and after a delay of
six days ---Accused were charged for committing murder of the mother and sister of
complainant by firing--- Allegedly, the occurrence took place on 10.10.2019 and the accused
was arrested on the next day ---Alleged recovery was effected on 12.10.2019 after two days
of the arrest of accused ---Alleged three empties were taken into possession by the
prosecution through a recovery memo on the day of occurrence, i.e. 10.10.2019---As per record, the recovered pistol and empties were received together by the Firearms Expert on 18.10.2019, with a delay of six days ---Sending of crime weapon (9mm pistol) and bullet
empties together with delay of six days to Firearms Expert created reasonable doubt in the prosecution case---Thus, the Firearms Expert report in that regard was inconsequential to the prosecution case ---Circumstances established that the prosecution had failed to prove the
culpability of the accused through reliable, trustworthy and confidence -inspiring evidence ---
Appeal against conviction was allowed, in circumstances.
Nazir Ahmed v. The State 2016 SCMR 1628; Ali Sher and others v. The State 2008
SCMR 707; Israr Ali v. The State 2007 SCMR 525 and Muhammad Ashraf v. The State 2019
SCMR 652 rel.
Tahir Ali Baloch and Adnan Ejaz Sheikh for Appellants (in Criminal Appeal No. 194
of 2020).
Attaullah Langove for the Complainant (in Criminal Appeal No. 194 of 2020).
Attaullah Langove for Appellants (in Criminal Acquittal Appeal No. 193 of 2020).
Tahir Ali Baloch and Adnan Ejaz Sheikh for Respondents Nos. 1 and 2 (in Criminal
Acquittal Appeal No. 193 of 2020).
Abdul Latif Kakar, A.P.G. for the State.
Date of hearing: 21st June, 2021.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant Abdul Ghaffar, son of Ghulam
Muhammad in Criminal Appeal No. 194 of 2020, having been involved in case FIR
No.123/2019 registered under sections 302, 109 and 34, P.P.C. at Police Station Shalkot District Quetta was tried by the learned Additional Sessions Judge -I Sariab Division ("trial
court") and on completion thereof by means of the judgment dated 29.09.2020 ("impugned judgment") passed in P.P.C. Case No.28/2020 the appellant was convicted and sentenced in the following terms:--
"Accused Abdul Ghaffar son of Ghulam Muhammad is convicted under section 302(b), P.P.C. for commission of Qatl -i-amd of victims Bibi Khalida and Ganj Bibi.
He is sentenced to death in two counts, each count for the commission of Qatl -i-amd
of the each victim. He be hanged by his neck till he is dead.
He is further directed to pay compensation of amount under section 544- A, Cr.P.C
Rs.2,000,00/ - (Rupees Two Lac), to be paid to legal heirs of each deceased after its
realization. In case of default the amount of compensation is recoverable as an arrear of land revenue and in case of further default convicted has to further suffer S.I of six months. The awarded sentence of death shall not be executed until it is confirmed by the Hon'ble High Court of Balochistan, Quetta for confirmation of sentence of death or otherwise. Till the confirmation of sentence of death the accused be kept detained in prison."
Aggrieved from the impugned judgment, the appellant has assailed his conviction and
sentence through Criminal Appeal bearing No. 194 of 2020, while the trial court forwarded
Murder Reference No. 06 of 2020 for confirmation or otherwise of death- sentence inflicted
upon the convict/appellant Abdul Ghaffar, son of Ghulam Muhammad in terms of section
374, Cr.P.C.
Whereas the Criminal Acquittal Appeal No. 193 of 2020 has been filed by the
appellant/complainant Ali Ahmed against the acquittal of the co- accused/respondent No.1
Hakeem Khan and respondent No. 2 Ali Akbar, sons of Ghulam Muhammad by the trial court.
Since all the cases are arising out of one and the same judgment of the trial court,
therefore same are being disposed of through this single judgment.
2. The prosecution story, as disclosed in the complaint (Ex.P/1- A) recorded on the
statement of PW -1 Ali Ahmed, son of Ghulam Muhammad (complainant) is that he is
residing in District Shikar Pur province of Sindh and has a grocery shop. Some five years back, his sister Mst. Khalida Bibi (deceased) got married to accused/appellant Abdul Ghaffar and has two daughters and a son. Some days later, his sister was suffering from an ailment, so she shifted to Shikar Pur for her medical treatment. The complainant, along with his mother Ganj Bibi (deceased) and paternal uncle Liaquat Ali (PW- 4) brought Mst. Khalida
Bibi to the house of the accused Abdul Ghaffar. At night he, along with his uncle, slept in one room while his sister Mst. Khalida Bibi, his mother and daughter and son of Mst. Khalida Bibi slept in the other room. At about 2:30 a.m. they heard the noise of firing, on which they came out from the room where they were sleeping. When they came into the courtyard, they saw the accused Abdul Ghaffar, Ali Akbar, Hakeem Khan and Razan, out of whom Abdul Ghaffar and Hakeem Khan were equipped with firearms who ordered to retreat
to the room. They were scared and took shelter in the room. After a while, the firing stopped, and they came out and found the mother of the complainant Ganj Bibi and his sister Mst. Khalida Bibi were lying in a pool of blood. The accused persons had also taken his niece Bibi Inzam and Bibi Tooba with them.
The report of the complainant was reduced into Marasla Ex.P/1 -A by the SHO, who
also prepared the injury sheet of the deceased and handed over the dead body to Dr. Aisha Faiz (PW- 4), Police Surgeon Sundaman Provincial Hospital Quetta, for postmortem. She
conducted a postmortem of the deceased and prepared postmortem reports (Ex.P/4- A) and
(Ex.P/4 -B), according to which the deceased received injuries on their bodies by means of
firearms.
After registration of the formal FIR (Ex.P/5 -A) the investigation was entrusted to
Anwar -ul-Hassan IP(PW -5). During an investigation of the case, he visited the place of
occurrence, where he prepared a site plan (Ex.P/5 -B), and collected three bullet empties of a
9mm pistol through a recovery memo (Ex.P/3- A). He reached Civil Hospital Quetta, and
there he took blood -stained clothes of the deceased into possession through recovery memo
Ex.P/3- D and Ex.P/3- E. He prepared the inquest report of the deceased Ex .P/5- C and Ex.P/5 -
E. He recorded the statement of the witnesses under section 161 Cr.P.C. On 11.10.2019, he arrested the accused/appellant and acquitted the co -accused. On the same day, the
accused/appellant made pointation of the place of occurrence. He prepared the memo of
pointation of the place of occurrence (Ex.P/3- F). On the same day, the accused/appellant
made a disclosure about the commission of the offence. He prepared a disclosure memo
(Ex.P/3 -G). On 12.10.2019, the crime weapon (9mm pistol) was recovered on the pointation
of the accused, and the same was taken into possession through a recovery memo (Ex.P/6- H).
He obtained a postmortem report of the deceased from the police surgeon (PW -4) of
Sandaman Provincial Hospital Quetta. He sent the accused to judicial lockup. He sent a
parcel of blood- stained garments of the deceased and recovered pistol to Forensic Science
Laboratory (FSL) and obtained a report from the FSL (Ex.P/5- K and Ex.P/5- N).
3. After completion of the usual investigation, the investigation officer prepared and
submitted the challan before the trial court for the trial of the accused/appellant and acquitted
co-accused. A formal charge was framed against the appellant and acquitted co -accused, to
which they did not plead guilty and opted to put themselves at the option to face the trial for the offences. The prosecution in order to prove its case against the appellant and acquitted co-accused produced and examined five witnesses. When examined under section 342,
Cr.P.C, the appellant and acquitted co- accused negated the allegations levelled against them
by the prosecution. They opted not to record their statements on oath as envisaged under section 340(2), Cr.P.C. However, the accused/appellant produced on witness in his defense and also exhibited the Call Data Report of the mobile as Art.D/1 to Art.D/9.
After hearing arguments advanced by the learned counsel appearing on behalf of both
the parties, the trial court, while evaluating the evidence available on record, found the version of the prosecution proved beyond the shadow of reasonable doubt. Resultantly, the trial court recorded a conviction against the appellant Abdul Ghaffar son of Ghulam Muhammad, whereas the co -accused Hakeem Khan and Ali Akbar, both sons of Ghulam
Muhammad, were acquitted of the charge by the trial court.
4. 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.
5. 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 the sister and mother of the complainant lost their lives after sustaining firearm injuries, 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 the merits of the case are concerned, we have observed that the prosecution
produced Ali Ahmed, son of Lal Bakhsh (PW -1) and Liaquat Ali, son of Ghous Bakhsh (PW -
2), who were eye -witnesses of the occurrence. Perusal of the record reveals that the
prosecution produced the above two eye -witnesses in support of charge, but both the above
witnesses are closely related to the deceased. Ali Ahmed complainant (PW- 1), is the brother
of the deceased Khalida Bibi and the son of the deceased Ganj Bibi and Liaquat Ali (PW -2)
is the uncle of the complainant; therefore, for safe dispensation of justice, their evidence will
have to be appreciated with care and caution. No doubt, the evidence of the related witnesses
cannot be discarded on the ground of its being related to the victim, but if it is found that the 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 related witnesses cannot be easily discarded. At the touchstone of the above, we
now take into consideration the testimonies furnished by the above witnesses in the case.
7. The trial court did not believe the ocular testimony for good reasons. The trial court
found that the presence of the complainant/PW -1 and PW -2 at the time of the incident has
not been convincingly explained. We may add another aspect, and the most vital point in the
case attracting our attention is that the oral statement of Ali Ahmed (PW -1) and Liaquat Ali
(PW -2) was recorded by Anwar -ul-Hassan (PW -5) the investigation officer of the case at the
hospital at 5:45 am on 10.10.2019, whereas the occurrence took place on 10.10.2019 at 2:30 a.m. The oral statement of complainant/PW -1 (Ex.P/1 -A) was hence recorded after three
hours and fifteen minutes of the occurrence that too at the hospital and not at the place of occurrence. No reason, much less plausible, has been given by the prosecution at any stage for such deferral in reporting the matter to the police. In this case, the ocular account
furnished is suffering from legal and factual infirmities and does not appeal to a prudent
mind because, according to the prosecution's case, as a result of the firing made at the place of occurrence Khalida Bibi and Ganj Bibi (both deceased) died at the place of occurrence and the same fact was also confirmed by the witnesses; however, the witnesses never reported the matter to the police at the place of occurrence for as many as three hours and fifteen minutes. Moreover, none of the prosecution witnesses, including Ali Ahmed (PW -1) and Liaquat Ali
(PW -2), ever proceeded to the police station or reported the matter at the place of occurrence,
and it was Anwar -ul-Hassan (PW -5), the investigation officer of the case, who, according to
him reached the place of occurrence where he found the dead bodies of the deceased Khalida Bibi and Ganj Bibi. The most important witness i.e. Muhammad Ibrahim (PW -3), is the
witness of the memo of the place of occurrence and memo of other recoveries of the place of occurrence. According to his statement recorded before the trial court as PW -3, he along with
other police officials reached the place of occurrence and found the dead bodies of the deceased in one room. The investigation officer Anwar -ul-Hassan took three bullet empties
of a 9mm pistol and the blood -stained mattress of the deceased into possession through a
recovery memo in his presence. He further stated in his statement that IP/SHO sent the dead bodies of the deceased to the hospital in a private vehicle. After carrying out the formalities at the place of occurrence, the investigation officer reached the Civil Hospital Quetta where on the oral report of the complainant/PW -1, the FIR was lodged at 5:45 a.m. Even otherwise,
the police officials, i.e. Muhammad Ibrahim ASI (PW -3) and Anwar -ul-Hassan (PW- 5), who
had first reached the place of occurrence, did not state a single word that Ali Ahmed (PW- 1)
and Liaquat Ali (PW -2) were present at the place of occurrence. This aspect of the
prosecution case has left no doubt in our mind that Ali Ahmed (PW -1) and Liaquat Ali (PW -
2) did not witness the occurrence.
8. It is the prosecution's case itself that the oral statement of the complainant/PW -1 Ali
Ahmed (Ex.P/1- A) was recorded at the hospital. There must be some plausible reason for this
failure of the witnesses, namely Ali Ahmed (PW -1) and Liaquat Ali (PW -2), not to report the
matter at the place of occurrence to the police promptly; however, none is available, and
hence, doubts have arisen regarding the presence of the witnesses namely Ali Ahmed (PW -1)
and Liaquat Ali (PW- 2) at the place and time of occurrence. In this regard an inference
against the prosecution witnesses Ali Ahmed (PW- 1) and Liaquat Ali (PW -2) has to be
drawn. Guidance is sought from the principle enunciated by the august Supreme Court of
Pakistan in the case of "G. M. NIAZ v. The State" (2018 SCMR 506), the august Supreme
Court of Pakistan was pleased to hold as under:
"An FIR in respect of the alleged occurrence had been lodged after about seven hours
and forty minutes which by itself was a circumstance doubting the claimed availability of the above mentioned eye -witnesses with the deceased at the time of
occurrence."
Guidance is also sought from the principle enunciated by the august Supreme Court of
Pakistan in the case of Zafar v. The State and others (2018 SCMR 326) where the august Supreme Court of Pakistan was pleased to hold as under: -
"It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to
the police on the same day at 8.30 a.m. i.e. after five hours and thirty minutes of the
occurrence. The distance between the place of occurrence and the police station is 09 miles. The postmortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. after 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay ill lodging the FIR or for that matter the belated postmortem of the deceased."
9. It was stated earlier that the alleged occurrence took place on 10.10.2019 at 2:30 a.m.,
and the FIR was lodged on the same night at 5:45 a.m. with unexplained delay of three hours and fifteen minutes. The distance between the place of occurrence and the police station is one and a half kilometers, but no explanation whatsoever has been furnished by the prosecution for such delay. Furthermore, it can be inferred from the circumstances and the statements of the witnesses that it was only after consultation and concert that the oral statement (Exh. P/1 -A) of the complainant, namely Ali Ahmed (PW -1) was prepared, and the
same was neither prompt nor spontaneous, hence worthy of the no reliance.
10. Apart from the above, Ali Ahmed (PW -1) and Liaquat Ali (PW -2) were highly
interested and inimically deposed against the appellant. The first reason for disbelieving them is that their presence on the spot was unnatural because had they been present at the spot, they would have received some injuries from the shots fired by the appellant. It appears that they have tried to suppress their interestedness. Both the above witnesses did not justify their presence at the time and place of occurrence. It does not appeal to the logic that the person whose sister and mother were being murdered neither made any resistance nor raised a hue and cry for help despite the fact that the alleged occurrence took place in a populated area where there were other houses near the place of occurrence.
11. If the statements of the above witnesses are believed to be true for a moment, then the
question arises as to why and how the appellant spared them and did not even try to kill them
when he could have easily killed them because they were empty -handed and at his mercy,
coupled with the fact that they could depose against him as eye -witnesses being brother and
son of the deceased. The mode and manner of the occurrence advanced by the prosecution witnesses is not appealable to the prudent mind. Another interesting feature of the case is that
the appellant had no motive to fire at the deceased. According to statements of the above so -
called eye- witnesses, they were empty -handed, and the appellant pointed a pistol upon them,
and they were totally at the mercy of the appellant, but they were left alive, and the appellant
selected to kill the sister and mother of the complainant. It is also worthwhile to mention here that deceased Mst. Khalida Bibi is the wife of the appellant with whom he had no direct motive, and so it may be inferred that the incident did not take place in the way and manner as it was alleged.
12. The presence of Ali Ahmed/complainant (PW -1) and Liaquat Ali (PW -2) becomes
further doubtful because the appellant produced DW -1 Aftab Ahmed, computer operator of
the DIG police office who produced the Call Data Report (CDR) of the mobile phones which were in the use of Ali Ahmed (PW -1) and Liaquat Ali (PW -2) as Art.P/1 to Art.P/9. Ali
Ahmed (PW -1) stated during cross -examination that Mobile No.0300- 3676716 and Mobile
No.0305- 3676716 belonged to him. He further stated during cross -examination that he kept
the said mobile at his house situated at Shikar Pur province of Sindh. On the day of occurrence, he did not bring the said mobile to Quetta. Liaquat Ali (PW -2) also stated during
cross -examination that Mobile No.0304- 3479299 was in his use. It is worth mentioning here
that Ali Ahmed (PW -1) and Liaquat Ali (PW -2) reside at Shikar Pur province of Sindh. They
also mentioned their address while recording their statements as PW -1 and PW -2 as Shikar
Pur Sindh. PW -1, during his statement clarified that some days before the occurrence, he
brought his sister Khalida Bibi (deceased) who was suffering from an ailment, to Shikar Pur for treatment. He further stated that thereafter he along with his mother Ganj Bibi and paternal uncle took Khalida Bibi to the house of the accused Abdul Ghaffar. On the other hand, according to CDR of Mobile No.0304- 3479299, which was in the use of Liaquat Ali
(PW -2) on 10.10.2019 at 2:03 a.m., his location was near the DE office, Taluka and District
Shikar Pur province of Sindh at the same time he received incoming calls from Mobile No.0306- 3341638. On the same day, at 7:54 a.m., when he received an incoming call on his
mobile number, his location was at Royal City Hotel Quetta. CDR of Mobile No.0305-3676716 under the use of Ali Ahmed (PW -1) on the day of occurrence, i.e. 10.10.2019 at
2:08 am, his location was near DE Office Taluka and District Shikar Pur province of Sindh. On 10.10.2019, at 2:21 am, he was also at Shikar Pur Sindh. At 2:58 a.m., he was at district Jacobabad province of Sindh and at 6:35 a.m., his location was at the area of Mouza Mach, district Bolan, province of Balochistan. On the same day, at 7:56 a.m. location of PW -1 was
at Royal City Hotel Quetta.
13. The distance between Quetta and Shikar Pur is about 352 kilometers. The distance
between Jacobabad and Quetta is 314 kilometers, and the distance between Mach and Quetta is 65 kilometers. According to CDR of PW -1, he received incoming all on 10.10.2019 at 2:00
a.m.; then he proceeded to Quetta and reached Jacobabad at 2:58 a.m., then reached Mach, district Bolan on 10.10.2019 at 6:35 a.m. and then reached to Quetta at 7:42 a.m., meaning thereby that allegedly after the occurrence, Ali Ahmed (PW- 1) and L iaquat Ali (PW -2)
received incoming calls on their mobiles in their house on the day of occurrence, i.e.
10.10.2019 at 2:08 a.m. and then they proceeded to Quetta. According to the CDRs of the above witnesses, they were not present at the place of occurrence at the time of occurrence.
14. The alleged occurrence took place in the area of District Quetta at Hazar Ganji,
whereas both the above witnesses were residing in Shikar Pur province of Sindh, and the said place is at a distance of 350 kilometers from the place of occurrence. Both the above PWs have not given any plausible explanation for their presence at the spot at the time of the incident. They had no place of business near the place of the incident; therefore, we hold that both the above witnesses were chance witnesses.
15. The testimony of a chance witness ordinarily is not accepted unless justifiable reasons
are shown to establish his presence at the crime scene at the relevant time. In the normal course, the presumption under the law would operate about his absence from the crime spot. The testimony of a chance witness may be relied upon, provided some convincing explanations appealing to a prudent mind for his presence on the crime spot are put forth when the occurrence took place; otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt. Reliance may be placed on the cases reported as "Mst. Shazia Parveen v. The State" (2014 SCMR 1197) and "Muhammad Rafique v. The State" (2014 SCMR 1698).
16. The occurrence took place at 2:30 a.m. on 10.10.2019. The postmortem of the
deceased was conducted at 5:20 a.m. on 10.10.2019 i.e. before registration of FIR. According to Dr. Aisha Faiz (PW- 4) the time between death and postmortem examination was 12 to 13
hours.
17. In view of the above evidence produced by the prosecution, the alleged occurrence
has not taken place as alleged by the persecution, i.e. on 10.10.2019 at 2:30 a.m. rather, the alleged occurrence took place 12 to 13 hours before the time alleged by the prosecution and this aspect of the case also creates reasonable doubt in the prosecution case.
18. The above alleged two eye -witnesses made dishonest improvements in their
statements before the trial court. Ali Ahmed (PW -1) also claimed in his statement before the
court that Hakeem Khan (acquitted accused) and Razan (absconding accused) were told that if they came forward, they would be killed. However, the said portion of his statement is not mentioned in his Fard- e-Bayan (Ex.P/1- A). Liaquat Ali (PW -2) claimed in his statement
before the court that Ali Akbar (acquitted accused) made firing upon deceased Ganj Bibi, and Abdul Ghaffar made firing upon deceased Khalida Bibi. However, when his statement was recorded under section 161, Cr.P.C before the police, he did not state a single word that the accused Ali Akbar made firing upon Ganj Bibi and appellant Abdul Ghaffar made firing upon the deceased Khalida Bibi.
19. The above willful and dishonest improvement was made by PW -1 and PW -2 in order
to strengthen the prosecution case. It is well settled by now that when a witness makes an improvement in his/her statement, and the moment it is observed that the said improvement was made dishonestly to strengthen the prosecution case, such portion of their statement is to
be discarded. Having observed improvements in the statements of the PW -1 and PW -2, we
hold that it is not safe to rely upon their testimonies and to maintain the conviction and
sentence recorded against the appellant under capital charge. Such dishonest and deliberate improvement and omission made them unreliable, and they are not trustworthy witnesses. It is held in the case of Amir Zaman v. Mahboob and others (1985 SCMR 685) that the
testimony of witnesses containing material improvements is not believable and trustworthy.
Likewise, in Akhtar Ali's case (2008 SCMR 6), it was held that when a witness made
improvements dishonestly to strengthen the prosecution's case, then his credibility becomes doubtful on the well -known principle of criminal jurisprudence that improvement once found
deliberate and dishonest, cast serious doubt on the veracity of such witness. In Khalid Javed's case (2003 SCMR 149), such a witness who improved his version during the trial was found wholly unreliable. Further reference in this respect may be made to the cases of Mohammad Shafique Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).
20. As far as the alleged recovery of a 9mm pistol at the instance of appellant Abdul
Ghaffar and the positive report of the Firearms Expert (Ex.P/5 -N) are concerned, the
prosecution produced ASI Muhammad Ibrahim (PW -3) in this regard. According to his
version on 11.10.2019, the accused disclosed that he could recover the pistol he made firing upon his wife and mother -in-law. He further stated that on the pointation of the accused, one
9mm pistol was recovered from Kakozai Colony Eastern Bypass from the house of the relative of the accused, namely Sadullah. The prosecution has not produced any other witness to corroborate the statement of PW -3 to the extent that the alleged pistol was recovered on
the pointation of the accused from the house of Sadullah, however; Anwar -ul-Hassan (PW -
5), who conducted the investigation of the case only stated in his statement that he prepared recovery memo of the pistol in the presence of witnesses but did not state a single word in his statement that the alleged pistol was recovered from the house of one Sadullah on pointation of the accused. There is also a contradiction in the statement of PW -3 and PW -5.
PW-3 stated in his statement that on 10.10.2019, the accused was arrested, but on the other
hand, PW -5 stated in his statement that the accused was arrested on 11.10.2019. The above
contradiction also creates reasonable doubt in the prosecution case.
21. The prosecution also failed to produce the said Sadullah alleged from whose home the
alleged recovery of 9mm pistol was effected on the pointation of the appellant. Moreover, when neither the said house belonged to the accused/appellant, nor the prosecution produced any witness to establish that the said Sadullah is a relative of the accused, then how it is possible that the appellant kept the pistol in the house of a stranger, which creates reasonable doubt in the prosecution case. Reliance is placed in this regard on the case titled as Sajjan Solangi v. The State (2019 SCMR 872).
22. Allegedly, the occurrence took place on 10.10.2019, and the accused was arrested on
the next day. The alleged recovery was effected on 12.10.2019 after two days of his arrest. The alleged three empties were taken into possession by the prosecution through a recovery memo on the day of occurrence, i.e. 10.10.2019. As per record, the recovered pistol and empties were received by the Firearms Expert on 18.10.2019, together with a delay of six
days.
23. Sending of crime weapon (9mm pistol) and bullet empties together with a delay of six
days to Firearms Expert creates reasonable doubt in the prosecution case; therefore, the
Firearms Expert report in this regard is inconsequential to the prosecution case. Reliance is placed in the case titled as Nazir Ahmed v. The State (2016 SCMR 1628) wherein it has been held as under:
"..the crime -empty secured from the place of occurrence was sent to the Forensic
Science Laboratory after recovery of the gun rendering such recovery to be legally unacceptable--- "
Reliance is also placed on the case of Ali Sher and others v. The State (2008 SCMR
707) and Israr Ali v. The State (2007 SCMR 525). In the case of Muhammad Ashraf v. The
State (2019 SCMR 652) the Hon'ble Supreme Court observed as under:
"After scrutiny of evidence, it has been observed by us that no such corroboration is
available on record because the empties secured from the spot and the .30 bore pistol allegedly recovered from the possession of appellant at the time of his arrest were sent to the office of FSL on the same day i.e. on 21.03.2002 after the arrest of appellant on 23.01.2002. In these circumstances, the report of FSL cannot be relied and is legally inconsequential."
24. The appellant was also booked for an offence under section 13(e) of the Arms
Ordinance, 1965 vide FIR No. 189/2019 of PS Khaliq Abad dated 12.10.2019. Allegedly one 9mm pistol was recovered on the pointation of the accused from the house of one Sadullah.
The trial court also tried him in Arms Case No. 15/2019, and after a full dressed trial, he was acquitted of the charge on 29.09.2020. The trial court, while acquitting the accused from the charge under section 13(e) of the Arms Ordinance 1965 in the aforesaid FIR (crime weapon in the instant case) disbelieved the recovery of the alleged pistol on pointation of the appellant, but it is amazing that how did the trial court rely upon the said recovery of crime weapon and convicted the appellant on the basis of the alleged recovery of crime weapon in the instant case.
25. The trial court found the appellant guilty on the sole ground that "his wife and
mother -in-law were found murdered by means of firearms in his house from where the dead
bodies of the deceased were recovered; in the absence of any explanation by him regarding his wife and mother -in-law's murders, the inference was to be drawn against him that he was
responsible for the said murders". Undoubtedly, the unnatural death of the deceased inside the house of the appellant and his failure to discharge the said onus is intriguing; however, it cannot be equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences after discarding the remaining pieces of evidence, relied upon by the prosecution. The appellant could not be convicted for the alleged murder simply on the basis of supposition. There is no evidence on record to establish that at the time of occurrence, the accused was present in the said house. It has to be kept in mind that Article 122 of the Order comes into play only when the prosecution has proved the guilt of the accused by producing sufficient evidence, except 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 this 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 in the case of
"Nasrullah alias Nasro v. The State" (2017 SCMR 724), wherein it was held as under:
"5. It has been argued by the learned counsel for the complainant that in the cases of Arshad Mehmood v. The State (2005 SCMR 1524) and Saeed Ahmed v. The State (2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circumstances in which such unnatural death had occurred. The learned counsel for the complainant has maintained that the stand taken by the appella nt regarding suicide having been committed by the deceased was neither
established by him nor did it fit into the circumstances of the case, particularly when the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden of proof shifts to the accused person in a case of this nature. It has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941 ) that the prosecution is bound to prove its case against an accused
person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye- witnesses and such claim of the
prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place in his house, therefore, it must be he and none else who would have committed that
murder. In the case in hand the eye -witnesses produced by the prosecution lived
eighty kilometers away from the scene of the crime, their stated reason for presence in
the house of occurrence at the time of the incident in issue had never been established through any independent evidence, their presence at the spot had not even been mentioned by the complainant in the FIR lodged by him and the conduct displayed by
the said eye -witnesses was such that they did not inspire confidence at all. The eye -
witnesses produced by the prosecution had been clearly contradicted in this case by
the medical evidence and no independent corroboration had been received by them through any other source inasmuch as the motive set up by the prosecution had not been proved and the alleged recovery of the weapon of offence was legally inconsequential. In a case of this nature the appellant could not have been convicted for the alleged murder merely because he happened to be the husband of the deceased.
6. For what has been discussed above a conclusion is inescapable that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the conviction and sentence of the appellant recorded and upheld by the courts below are set aside and he is acquitted of the charge by extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case."
In a case of this nature, the appellant could not have been convicted for the alleged
murder merely because he happened to be the husband of one of the deceased.
26. As discussed above, both the eye -witnesses, namely Ali Ahmed (PW -1) and Liaquat
Ali (PW -2) failed to prove their presence at the place of occurrence. Both the PWs
dishonestly made dishonest improvements in their statements. There are major contradictions
in the ocular evidence and medical evidence. The prosecution also failed to establish that the appellant was present inside the house when the alleged occurrence took place. The recovery of the alleged pistol is also doubtful and inconsequential to the prosecution's case.
All the above -narrated facts and circumstances, when evaluated on judicial parlance,
reflect that the prosecution has miserably failed to establish the culpability of the appellant in the instant case through reliable, trustworthy and confidence -inspiring evidence.
27. It is an axiomatic principle of law that the benefit of the doubt is always extended in
favour of the accused. The case of the prosecution if found to be doubtful, then every doubt,
even the slightest, is to be resolved in favour of the accused. In this case, prosecution
miserably failed to prove the case against the appellant beyond a reasonable doubt. Reliance in this context can be placed on "Muhammad Mansha v. The State" (2018 SCMR 772), and relevant observations of their Lordships appearing in para -4 on page No.778 can
advantageously be reproduced hereunder:
"4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilty of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it
is better that ten guilty persons be acquitted rather than one innocent person be
convicted" Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749)."
In another judgment titled "Abdul Jabbar v. The State and another" (2019 SCMR
129), their Lordships observed:
"It is settled principle of law that once a single loophole is observed in a case presented by the prosecution much less glaring conflict... benefit of such loophole/lacuna in the prosecution case automatically goes in favour of an accused."
28. From the facts and circumstances narrated above, we are persuaded to hold that
conviction passed by the 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 29.09.2020 passed in P.P.C. Case No. 28/2020, Criminal Appeal No.194/2020 filed by the appellant is allowed as a consequence whereof he is acquitted of the charge in FIR No.
123/2019 dated 10.10.2019 registered under sections 302 and 34, P.P.C. at PS Shalkot
District Quetta. The appellant Abdul Ghaffar is ordered to be released forthwith if not required in any other case.
The Murder Reference No. 06 of 2020 is answered in negative.
The prosecution has also miserably failed to prove its case against the
respondents/acquitted -accused Hakeem Khan and Ali Akbar, therefore, the Criminal
Acquittal Appeal No. 193 of 2020 filed by the complainant is hereby dismissed.
JK/103/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,
let us know.