2025 P Cr. L J 1205
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
ABDUL AZIZ---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. (s) 51 of 2023, decided on 30th October, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149 ---Qatl-i-amd, rioting, rioting armed with deadly weapons,
unlawful assembly---Appreciation of evidence ---Infirmities ---Accused were charged for
committing murder of the brother of complainant by firing--- Admittedly, complainant
and eye -witness had not seen the appellant and others firing at the deceased---Complainant
had categorically stated that after hearing fireshots he came out of his house and merely
saw assailants including the appellant having firearms in their hands, but did not state to have seen them making firing upon his deceased brother ---Medico -Legal Certificate
showed that there was one entry wound on the lower end of the left ear, making an exit at the back of the right shoulder, which showed that neither all the nominated six accused
persons had fired nor the assailants repeated the fireshots ---Had the assailants repeated
the fireshots, the deceased would have received multiple fire wounds, which showed that the occurrence had not taken place as narrated by complainant ---Complainant seemed to
have witnessed none of the assailants and had exaggerated the occurrence by nominating the appellant, which demonstrated that he had not brought the law into motion with clean hands ---Conduct of complainant was also contrary to natural conduct as he allegedly took
the deceased to the levies station rather than to the hospital and his presence became more doubtful, when his name did not appear in the MLC amongst the persons who brought the deceased to the hospital nor his presence was shown by any witness in the hospital ---Scrutiny of testimony of complainant showed that he was not present at the
crime scene and witnessed no one making fire upon the deceased or witnessing them making their escape good from the crime scene--- Appeal against conviction was allowed,
in circumstances.
(b) Criminal trial ---
----Benefit of doubt ---Principle ---If there is a single circumstance creating reasonable
doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right.
Muhammad Mansha v. The State 2018 SCMR 772 and Naveed Asghar v. The State
PLD 2021 SC 600 rel.
(c) Criminal trial ---
----Benefit of doubt ---Principle ---It is better to acquit ten guilty persons rather than to
convict one innocent person.
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 rel.
Ghulam Mustafa Buzdar and Gul Jatoi for Appellant.
Jameel Akhtar Gajani, Addl, PG for the State.
Date of hearing: 21st September, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J .---Appellant Abdul Aziz was indicted for
committing murder of Muhammad Kareem, who after a full -fledged trial was held guilty of
the charge, as such vide judgment dated 13.04.2023 ("impugned judgment") rendered by
learned Sessions Judge, Kacchi at Dhadar ("Trial Court") he was convicted and sentenced under section 302 (b) as Ta'zir read with section 34 of the Pakistan Penal Code, 1860 ("Penal Code") to suffer life imprisonment RI with a fine of Rs.300,000/ - (three hundred thousand)
payable to the legal heirs of the deceased as compensation under section 544- A of the
Criminal Procedure Code, 1898 ("The Code") and in default to undergo for further six months SI with the premium of section 382- B of the Code; emanating from a case vide FIR
No.09/2022 (Ex.P/6- A) registered with Levies Station, Sanii.
2. Compendious facts of the case are that complainant Abdul Aziz (PW- 1) registered the
FIR ibid, averring therein that on 11.05.2022 he was present in his house situated at Goth Taib Zereena Sanni, at about 12:30 pm, when his brother Muhammad Kareem came out from
his house, appellant Abdul Aziz, absconding accused persons Muhammad Aslam,
Muhammad Ramzan, Hasil alias Nawab, Sharbat and one unknown culprit armed with
weapons made firing upon his brother due to which he received firearm injuries and succumbed in the hospital, whereof the motive was stated to be siahkari.
After registration of the FIR ibid, initially investigation was entrusted to Mehboob Ali
Naib Risaldar Levies ("NR") (PW- 6), who went to the crime scene prepared site plan (Ex.P/6 -
B), inquest report of deceased (Ex.P/6- E), secured 13 empties of SMG vide recovery memo.
(Ex.P/2- B), blood stained earth vide recovery memo. (Ex.P/2- C), recorded statement of the
deceased under section 161 of the Code (Ex.P/6- D), produced death certificate of deceased
(Ex.P/6- F), submitted incomplete challan (Ex.P/6- J), FSL report (Ex.P/6 -I) and produced FIR
(Ex.P/6- A). During the course of investigation, initially all accused persons remained away
from the course of justice and the case was kept in dormant, however on 03.01.2023 appellant Abdul Aziz was arrested.
3. The Trial Court indicted the appellant by framing a formal charge on 12.03.2023,
whereafter denial, the prosecution in order to drive home the charge produced as many as six witnesses and at the end of the prosecution side, the appellant was examined under section 342 of the Code. He neither opted to record his statement on oath nor produced any defence witness, as such, on conclusion of the trial, the appellant was found guilty of the indictment and was convicted and sentenced vide impugned judgment in the terms mentioned in the para supra.
4. Heard. Record sussed out with the able assistance of learned counsel for both the
parties.
5. The entire edifice of the case of the prosecution is pillared upon the statements of
complainant Abdul Aziz (PW- 1), Nodhan (PW -2), Khadim Hussain (PW -4), medical
evidence and circumstantial evidence pertaining to blood stained articles of the deceased and 13 empties of SMG.
The homicidal death of the deceased has not been disputed by the appellant, however,
in order to substantiate the unnatural death of the deceased caused by firearm the prosecution has produced Dr. Zahid Hussain Medical Officer (PW -3), who examined the deceased on
11.05.2022 at 2:30 pm and issued Medico Legal Certificate ("MLC") (Ex.P/3- A) dated
31.05.2022, wherein he observed the following injuries;
"1. Bullet entrance at the lower end of left ear exit at the back of right shoulder.
2. Emergency treatment given and patient referred to Trauma Center SPH Quetta for further management.
FEEDBACK/DEATH CERTIFICATE DHQ HOSPITAL MASTUNG.
Death Certificate DHQ Hospital Mastung shows that patient expired on 25th May 2022, due to firearm and his death was confirmed by Medical Officer, Copy of death
Certificate consists of one (01) page attached.
KIND OF WEAPON: Bullet."
6. Complainant Abdul Aziz (PW -1) testified that on 11.05.2022 at 12:30 pm, while he
was present at his home he heard fireshots, whereupon he came out of his house and saw
Muhammad Aslam, Muhammad Ramzan, Hasil alias Nawab, Sharbat, one unknown culprit and appellant Abdul Aziz going armed with firearms, whereas his brother was lying injured on the ground, who was taken by him to the hospital, where he succumbed, whereof the motive was revealed as siahkari. During cross -examination, he replied that several neighbors
came at the crime scene, however failed to tell their names as well as their numbers and also failed to tell the number of fireshots. He also replied that he did not accompany the deceased
to the hospital, however stated that one of his brother namely Hafeez went to the hospital at
Dhadar, but said Hafeez has not been produced. He deposed that the houses of Nodhan (PW -
2) and Khadim Hussain (PW -4) are situated adjacent to his house, however, denied that he
was not present at the crime scene at the time of occurrence. Nodhan (PW- 2) is the brother of
the complainant, who stated that at the relevant time he was in Taib busy in agro work and
that his brother Muhammad Kareem was killed by accused persons Muhammad Aslam,
Muhammad Ramzan, Hasil alias Nawab, Sharbat, one unknown culprit including appellant
Abdul Aziz. According to him, at the relevant time his brother Abdul Aziz was present at the
crime scene, who took his deceased brother to the hospital and that he went to the crime scene, where Mehboob Ali NR (PW- 6) came, who inspected the crime scene, took blood
stained earth, empties cartridges and prepared recovery memos (Ex.P/2 -A), (Ex.P/2 -B),
(Ex.P/2 -C) respectively and produced the said articles as Art.P/01 to Art.P/18. During cross -
examination, he stated that the place where he was doing agro work is one km away from the crime scene and that when Mehboob Ali NR (PW -6) came at the crime scene at 12:30 pm
deceased Muhammad Kareem was not present. Khadim Hussain (PW- 4) stated that on
11.05.2022, he was present at his home when shots were fired, as such, he reached at the
place of occurrence, where the deceased was lying injured and he also saw Abdul Aziz (PW-
1), who told him that his brother has been murdered by Muhammad Aslam, Muhammad Ramzan, Hasil alias Nawab, Sharbat and one unknown culprit including appellant Abdul Aziz. Obviously, he did not see any of the assailants like Nodhan (PW -2). According to him,
complainant Abdul Aziz (PW -1) went to the levies station along with Muhammad Kareem
(deceased) whereafter Mehboob Ali NR (PW -6) came at the crime scene and took into
possession fired 13 cartridges and blood stained earth. He denied that his house is situated in Dhadar and has no house in Sanni Taib.
7. Admittedly, complainant Abdul Aziz (PW -1), Nodhan (PW -2) and Khadim Hussain
(PW -4) have not seen the appellant and others firing at the deceased. Complainant Abdul
Aziz (PW- 1) has categorically stated that after hearing fireshots he came out of his house and
merely saw assailants including the appellant having firearms in their hands, but did not state to have seen them making firing upon his deceased brother. There is only one injury and the MLC shows that there is one entrance wound on the lower end of the left ear, making an exit at the back of the right shoulder, which shows that neither all the nominated six accused persons have fired nor the assailants repeated the fireshots. Had the assailants repeated the fireshots, the deceased would have received multiple fire wounds, which shows that the occurrence has not taken place as narrated by complainant (PW- 1). It is a golden principle of
criminal administration of justice that the witness can lie, but not the circumstances. Complainant Abdul Aziz (PW -1) seems to have witnessed none of the assailants and have
exaggerated the occurrence by nominating the appellant, demonstrating that he has not brought the law into motion with clean hands. The conduct of complainant Abdul Aziz (PW -
1) is also contra to the natural conduct by taking the deceased to the levies station rather to the hospital and his presence becomes more doubtful, when his name does not appear in the MLC amongst the persons, who brought the deceased to the hospital nor his presence was shown by any witness in the hospital. The scrutiny of his testimony shows that he was not present at the crime scene and witnessed none, while making fire upon the deceased or witnessing them to make their escape good from the crime scene.
8. Be that as it may, it would be unsafe to explicitly place reliance upon the testimony of
complainant Abdul Aziz (PW -1) to maintain the conviction and sentence awarded by the
Trial Court of life imprisonment to the appellant.
9. Upshot of the above discussion is that the impugned judgment is unsustainable, which
merits to be set at naught by extending benefit of doubt to the appellant in view of the dictum
expounded by the apex Court in the cases titled as "Muhammad Mansha v. The State" (2018 SCMR 772) and "Naveed Asghar v. The State" (PLD 2021 SC 600). For ready reference, the relevant excerpt of Muhammad Mansha's case is reproduced herein below;
"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 guilt 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 better than ten guilty persons be acquitted rather than one innocent person be convicted. Reliance in this regard can be made upon the case 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)."
[Emphasis Added]
10. Corollary, for the foregoing reasons the instant appeal is allowed, the impugned
judgment dated 13.04.2023 penned by the Trial Court is set -aside; consequently the appellant
is acquitted of the indictment.
The appellant be released forthwith, if not incarcerated in any other case.
JK/13/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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