2012 Y L R 374
[Balochistan]
Before Muhammad Noor Meskanzai and Muhammad Hashim Khan Kakar, JJ
ABDUL WAHID---Appellant
Versus
THE STATE---Respondent
Criminal Appeal No.67 of 2009 and Murder Reference No.5 of 2009, decided on 27th October,
2011.
(a) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Benefit of doubt ---Entitlement---
Principles ---Conviction must be founded on unimpeachable evidence and certainty of guilt ---
Any doubt that would ari se in the prosecution case, must, be resolved in favour of accused and it
was imperative for the court to examine and consider all the relevant proceedings and leading
facts to the occurrence, so as to arrive at a correct conclusion ---For giving benefit of doubt, it
was not necessary that there should be many circumstances creating doubts ---If a circumstance,
which would create reasonable doubt in a prudent mind about the guilt of accused, accused would be entitled to benefit thereof, not as a matter of gra ce and concession, but as of right.
(b) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence ---Benefit of doubt ---All the witnesses had
stated that there was no electric light in the house where occurrence took place---Not hing was in
the statements of said witnesses which could show that either the electric light or any other
source of light was available at the time of occurrence to identify accused ---Even the witnesses
had not stated that accused was identified in the light of torch or moonlight ---Identification of
accused in the dark night being not possible, his identification in the court's proceedings would be of no consequence ---Claim of witnesses that they had identified accused had created doubts
about its genuinene ss---Prosecution had not been able to bring any other evidence, direct or
circumstantial, to connect accused with the crime ---Accused had been roped in the case on the
basis of mere suspicion of previous enmity existing between the parties ---F.I.R. was lodged in
the case without naming accused as culprit ---Claim of the alleged eye- witnesses to have seen the
occurrence, appeared to be a claim, which could be accepted only with a lump of salt ---Said
witnesses could not prove their presence at the place of occurrence at the relevant time---Glaring contradictions having been noticed in the statements of witnesses regarding the recovery of crime weapon from possession of accused, Ballistic Expert's report could not be relied upon---Medical evidence in the case was also not of much help/significance to the prosecution when
said evidence could not identify or locate the perpetrators of the offence, when the presence of
eye-witnesses itself was found to be doubtful ---Prosecution's story was full of inconsistencies,
contradictions and improbabilities ---Eye -witnesses had improved their statements materially on a
number of crucial points ---Conviction on the basis of evidence of such nature could not be
recorded on capital charge---Conviction as well as the sentence awar ded to accused by the Trial
Court, were set aside and accused was acquitted of the charge extending him benefit of doubt and was set at liberty, in circumstances.
Ashiq Hussain v. The State 1993 SCMR 417 and Bashir Ahmed v. The State 1999 SCMR 114 ref.
Bashir Ahmed v. The State 1999 SCMR 114 and State through Advocate General Sindh, Karachi v. Farman Hussain PLD 1995 SC 1 rel.
(c) Criminal trial---
----Appreciation of evidence ---Court was not permitted to deviate from the principles and
guidelines laid in the law for appraisement of evidence ---To bring home guilt of accused, legal
evidence was required to be of incriminating nature to connect accused with the commission of
crime beyond the shadow of reasonable doubt.
(d) Administration of justice ---
----Function of the court and duty of legislature ---Court was to administer the laws as were
operative in the country and if such laws failed to achi eve the desired results, then it was the duty
of the legislature to amend such laws suitably to make them effective.
Abdul Sattar Durrani, Addl. P.G. for the State (in Murder Reference No.5 of 2009).
Abdul Sattar Kakar for the Complainant (in Murder Re ference No.5 of 2009).
Saleem Lashari and Munir Langove for Respondents (in Murder Reference No.5 of 2009).
Saleem Lashari and Munir Langove for Appellants (in Criminal Appeal No.67 of 2009).
Abdul Sattar Kakar for the Complainant (in Criminal Appeal No.67 of 2009).
Abdul Sattar Durrani Addl. Prosecutor -General for the State (in Criminal Appeal No.67 of
2009).
Date of hearing: 19th October, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This judgment will dispose of Criminal
Appeal No.67 of 2009 and Murder Reference No.5 of 2009, both arising out of judgment dated
28th February, 2009, passed by the Sessions Judge Khuzdar, whereby appellant Abdul Wahid son of Khan Muhammad was convicted under section 302(b) of the P.P.C. and sentenced to death . The trial Court, however, acquitted the co -accused persons, namely. Abdul Nabi, Syed
Muhammad and Abdul Hakeem by extending them the benefit of doubt.
2 Complainant Pir Muhammad (P.W.1), in his Fard- e-Bayan (Exh.P/1- A), alleged that on
14th August, 2007 at about 11- 30 a.m. he, along with his son Hussain Bakhsh and family were
sleeping in a mosquito- net in their house situated in Mouza Bhandur Tehsil Naal, when suddenly
he woke up on hearing gun fire and saw that a person, having Kalashnikov i n his hand, was
running. Since there was darkness, therefore, he could not identify him, however, he made a call
behind him, but he did not reply and fled away from the venue. He tried to get up his son, but he, after sustaining bullet injury, expired on t he spot. In the meanwhile, people of the vicinity
gathered over there. He further alleged that he as well as his son has no enmity with anyone. however, sometime back, his relatives Abdul Ghani and Abdul Majeed, after committing the murder of their father Naik Muhammad, absconded from the area and falsely involved his
deceased son Hussain Bakhsh in the commission of murder of their father and on account of said reason, the above named accused persons with the collusion and connivance of accused Abdul Nabi, Abdul Wahid, Said Muhammad, Khan Muhammad and Abdul Hakeem, have hatched
conspiracy and committed the murder of his son. Consequently, a case vide Crime No.18 of 2007, under section 302 read with section 34 of the P.P.C. was registered at Police Station Na al
District Khuzdar.
3. After registration of F.I.R. Exh.P/11- A, the investigation of the case was carried out by
P.W.11 Nisar Ahmed, S.H.O., who visited and inspected the site, prepared site sketch Exh.P/11-
B, seized the dead body, secured blood- stained earth collected crime empties vide memos,
recorded the statements of P.Ws., prepared inquest report Exh.P/11- E and released the dead body
of the deceased to the complainant on his application Exh.P/11- C through receipt Exh.P/11- D.
He arrested the nominated accused persons, out of whom he recovered a Kalashnikov from the possession of accused Abdul Wahid, which was taken into possession vide memo and a separate case under the Arms Ordinance was registered against him. He further took into possession the blood- stained clothes of the deceased and sent it along with other crime articles i.e. blood- stained
earth, crime empties and Kalashnikov to FSL for analysis and reports. After completion of the investigation, he prepared incomplete challan Exh.P/11- F and on receiving FSL report Exh.P/11-
G regarding blood- stained articles and Firearm's Expert Report Exh.P/11- J regarding
Kalashnikov and crime empties, he prepared challans Exh.P/11- H and Exh.P/11- K.
4. On the stated allegation, a formal charge was framed and r ead over to the appellant, to
which he did not plead guilty and claimed trial. The prosecution, in order to substantiate the
accusation, produced eleven witnesses. P.W.1 Pir Muhammad is complainant of the case, who
produced his Fard -e-Bayan Exh.P/1- A. P.W.2 Muhammad Ashraf and P.W.3 Muhammad Ali,
claimed to have witnessed the occurrence. P.W.4 Behram Khan is witness to the securing of
blood- stained earth vide memo Exh.P/4- A. P.W.5 Muhammad Jan soon after the occurrence
reached at the site. He is witness to the collection of crime empties from the place of occurrence vide memo Exh.P/5- A. P.W.6 Allah Bakhsh also reached at the site soon after the occurrence.
P.W.7 Mubarak, constable, is recovery witness of unlicensed Kalashnikov, which was taken into
possessio n vide memo Exh.P/7- A. P.W.8 Pasand Khan is witness to the blood- stained clothes of
the deceased, which were taken into possession vide memo Exh.P/8- A. P.W.9 Dr. Washoo Mall,
Medical Officer, examined the dead body of the deceased and issued death certificate Exh.P/9- A.
P.W.10 Lal Muhammad is witness to the alleged disclosure of co- accused Abdul Hakeem, which
was reduced into writing vide memo Exh.P/10 -A and P.W.11 Nisar Ahmed S.H.O. is the
Investigating Officer of the case.
5. In his examinations unde r sec- tion 342 of the Cr.P.C., the appellant denied and
controverted each and every allegation of fact levelled against him by the prosecution and
professed his innocence. He also recorded his statement on oath under section 340(2) of the Cr.P.C. and produced DW -1 Abdul Khaliq and D.W.2 Abdullah in his defence. The trial Court,
after hearing the learned counsel for the parties, convicted and sentenced the appellant, as mentioned hereinbefore, hence this appeal and murder reference.
6. We have heard le arned counsel for the appellant as well as learned counsel for the State
duly assisted by learned counsel for the complainant and have also gone through the available
record with their valuable assistance.
7. Learned counsel for the appellant bitterly cr iticized the judgment impugned herein and
reiterated that the claim of P.Ws. Pir Muhammad, Muhammad Ashraf and Muhammad Ali, to
have witnessed the crime, stands belied by host of circumstances. In this context, it was submitted that the evidence on capital charge had not been collected from the unimpeachable
source and the eye- witnesses' account furnished in this case is so unreasonable and inherently
improbable that no amount of corroboration can rehabilitate it. Learned counsel also contended that the rep ort of Firearm's Expert would not be of much evidentiary value for the reason that the
Kalashnikov attributed to the appellant and the empties had remained in the custody of police for sufficient longtime, therefore, no reliance can be placed on the report of Firearms expert, as the
possibility of the substitution of the empties cannot be ruled out. Learned counsel also challenged the prosecution case in respect of the identification of the accused during odd hours of the night in absence of any source of l ight and submitted that the appellant has been involved
mere on the basis of suspicion. In the last limb of their arguments, they also referred to the testimonies of the alleged eye -witnesses, according to whom they saw the appellant, shooting the
deceased , but did not chase the appellant, whose house, according to the site plan, is situated at a
distance of about 200 feet from the place of occurrence. As per learned counsel, this was, indeed,
a very strange behaviour and not to be expected in the natural c ourse of event. In support of these
submissions, learned counsel has relied upon a case of "Ashiq Hussain v. The State" reported
in 1993 SCMR 417 and "Bashir Ahmed v. The State" reported in 1999 SCMR 114. Consequently, learned counsel pr ayed that the impugned judgment be set aside and the appellant
be acquitted of the charge.
8. Mr. Abdul Sattar Durrani, learned Additional Prosecutor -General, appearing for the State
and Mr. Abdul Sattar Kakar, learned counsel for the complainant, on the other hand, have fully
supported the impugned judgment. They have submitted that the ocular evidence on the record
supported by recovery of crime weapon, positive report of expert and the medical evidence, which fully established the guilt of the appellant, as such, the impugned judgment, being well -
reasoned, does not warrant interference by this Court.
9. The death of the deceased Hussain Bakhsh due to a gunshot wound is not an issue, as
according to the evidence of Medical Officer, Dr. Washoo Mal l, Medical Officer RHC, Naal, the
deceased had received a bullet injury on right side of the neck, which entered from backside and
exited from the right side of the neck. According to the opinion of the Medical Officer, the injury was caused by firearm and death was caused due to excessive bleeding.
10. It needs no reiteration that conviction must be founded on unimpeachable evidence and
certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused a nd it is imperative for the Court to examine and consider all the relevant
proceedings and leading facts to the occurrence, so as to arrive at a correct conclusion. It is not denied that for giving benefit of doubt, it is not necessary that there should be many
circumstances creating doubts. If there is a circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused; then the accused will be entitled to the benefit thereof, not as a matter of grace and concession but as of ri ght.
11. The sole evidence against the appellant, brought by the prosecution on record, was the
alleged identification of the accused by Pir Muhammad (complainant), P.W.2 Muhammad Ashraf and P.W.3 Muhammad Ali at the relevant time, who witnessed the occurrence and identified the accused at the spot and, subsequently, in the Court. All the witnesses have, categorically, stated that there was no electric light in the house, where the occurrence took place. There is nothing in the statements of these witness es, which could show that either the
electric light or any other source of light was available at the time of occurrence to identify the culprit(s). Even the witnesses have not stated that either the accused was identified in the light of torch or moonlit. The identification of the appellant in the dark night, as stated by the P.Ws., was
not possible and, consequently, his identification in the Court's proceeding would be of no
consequence. The claim of the said witnesses is not only a tall claim, but tall enough that it
creates serious doubts about its genuineness. The prosecution has not been able to bring any other evidence, direct or circumstantial, to connect the appellant with the crime. The sole evidence of identification of the appellant in the dark night at the time of occurrence being
highly doubtful and having not been proved up to the required standard, would not be
attached any weight and with the exclusion of the evidence of identification, it would be a case
of no evidence.
12. We are of the considered view that the appellant has been roped in the instant case on the
basis of mere suspicion on account of previous enmity existing between the parties regarding the
murder of Naik Muhammad. Admittedly, the alleged occurrence took place at 1- 30 a.m., while
the F.I.R. was lodged at 3- 00 a.m., that too, without naming the appellant as culprit, rather it has
been mentioned in the Fard- e-Bayan Exh.P/1- A that due to darkness, the complainant could not
identify the culprit, who, after commission of the offence, was running, as such, there was no occasion left for the prosecution witnesses to identify the culprit during pitch dark in a running condition to opposite direction. Thus, the claim of the eye -witnesses, to have seen the
occurrence, appears to be a claim, which can be accepted only with a lump of salt. In this
context, we are also not unmindful of the usual human conduct that an offender choosing night time for commission of an offence necessarily wants to keep identity concealed. Thus, the culprit, choosing the cover of night for committing the murder of the deceased, would surely have decamped from the scene of occurrence, immediately, after commission of the offence. Therefore, the claim of these witnesses that they have identified the app ellant after commission
of the offence during odd hours again appears to be not only a tall claim, but tall enough to raise
serious doubts about its genuineness.
13. The above named witnesses claimed to be present at the time of occurrence, but their
conduct and presence at the time of occurrence is highly doubtful. From perusal of their
statements, it transpires that they have not been able to establish that as to how they were
present and what steps they had taken in order to save the life of their bel oved one or catch the
culprit, whose house, admittedly, situated adjacent to the place of occurrence at a distance of 200 feet? Although hard and fast rules about the human conduct and behaviour are not available, yet in the light of accepted standards of human behaviour, it can be safely said that, in the normal course of events, they should have tried to chase and catch the culprit, who was, allegedly, identified by them at the time of occurrence. Had they seen the occurrence, the F.I.R. should have figured the name of the appellant as a perpetrator. Thus, the conduct, exhibited by the said
witnesses, is offensive to the normal human behaviour and we find that the ocular account is not trustworthy and confidence inspiring.
14. The next piece of evidence on record is the Ballistic Expert report, which has been
produced by the Investigating Officer as Exh.P/11- J, which shows that the empty, which was
collected from the scene of crime, wedded with Kalashnikov recovered from possession of the
appellant . However, in this connection, it would be seen that as per recovery memo Exh.P/7- A,
the Kalashnikov was recovered on 14th August, 2007, whereas the same was sent for the ballistic test on 6th November, 2007 after a considerable delay of about three months without any
plausible explanation or reason. In these circumstances, we are of the opinion that the Ballistic
Expert's report cannot be relied upon. In this connection, reference can be made to a case of
"Bashir Ahmed v. The State" reported in 1999 SCMR 114, wherein the Hon'ble Supreme Court
of Pakistan has held, inter alia, that the retention of the crime empties in the malkhana for about a month before sending the same for the ballistic test raises an inference that they might have been doctored in order to match the crime weapon. Even otherwise, there is glaring contradiction
among the statements of witnesses regarding the recovery of crime weapon from possession of the appellant. As already been observed above that the house of the appellant is situated adjacent
to the place of occurrence and he was arrested immediately after the alleged occurrence from his house, therefore, in such circumstances, he was not so fool that he kept the alleged recovered Kalashnikov under his control beneath the bed of a res idential room, enabling the police to
recover the same and to create a piece of evidence against him. To our mind, this is a textbook example of a case of fabricated evidence on the charge of murder, wherein the culprit himself disclosed his identity to the prosecution witnesses and recovered crime weapon.
15. Similarly, the medical evidence in this case is also not of much help/significance to the
prosecution, as the same cannot identify or locate the perpetrators of the offence in a case where
the presence of eye- witnesses itself is found to be doubtful. Even otherwise, the medical
evidence is only of supportive nature and the same looses all its value in a case, like the present
one, where there is no other reliable evidence available on record to give support to it.
16. The prosecution's story in this case is full of inconsistencies, contradictions and
improbabilities. The eye -witnesses have improved their statements materially on a number of
crucial points. On the basis of evidence of this natur e, conviction cannot be recorded on capital
charge. By holding this view, we are fortified from the judgment in a case of "State through
Advocate -General Sindh, Karachi v. Farman Hussain" reported in PLD 1995 Supreme Court 1,
wherein it was held that while trying a criminal case, it is the duty of Court to appraise evidence
strictly according to the legal requirements described by law without being swayed away emotionally for any other extraneous reasons, which fall outside the pale of legal jurisdiction of
appraisement of evidence. It was also observed by the Hon'ble Supreme Court in the said judgment that in the criminal jurisprudence, which is followed, it is invariably the duty of the prosecution to prove the case against accused beyond doubt and the acc used is presumed to be
innocent until the case is fully proved against him and in that process not only if there is room for doubt, benefit thereof is to go to the accused but if any legal provision, which is to be relied upon in the appraisement of evidence and is open to two interpretations, one beneficial to the accused is to be adopted. The Court is to administer the laws as are operative in the country and if such laws fail to achieve the desired results, then it is the duty of the legislature to amend them
suitably to make them effective. Court is not permitted to deviate from the principles and
guidelines laid in the law for appraisement of evidence. To bring home guilt to the accused, legal
evidence is required to be of incriminating nature to connec t accused with the commission of
crime beyond the shadow of reasonable doubt.
17. In this case, as mentioned above, the eye -witnesses have clearly failed to establish that
they had actually seen the culprit clearly at the time of occurrence, in pitch dar k night, hence,
subsequent identification of the accused during trial was without any legal importance. The
alleged recovery of crime weapon and the medical evidence are merely corroborative pieces of evidence and in the absence of reliable ocular account, the same cannot be considered
corroborative pieces of evidence and no conviction can be based upon them. Prosecution story is full of improbabilities, doubts and improvements, thus, the conviction of the appellant in this case cannot be upheld and is liable to be set aside.
In view of what has been stated above, Criminal Appeal No.67 of 2009 is accepted, the conviction recorded as well as the sentence awarded by the trial Court to the appellant is set aside and the accused/appellant is acquitted of the charge by extending benefit of doubt in his favour. If not required in connection with any other case, he be set at liberty forthwith. Sentence
of death awarded to the appellant by the trial Court is not confirmed. Murder Reference No.5 of
2009 is answered in negative.
H.B.T./149/Q Appeal accepted.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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