2012 Y L R 580
[Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
ABDUL SATTAR ---Appellant
Versus
THE STATE ---Respondent
Criminal Appeal No(S) 113 of 2009, decided on 22nd September, 2011 .
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-e-amd---Appreciation of evidence ---Benefit of doubt ---Ocular account,
which was neither straightfor -ward, nor confidence -inspiring, remained uncorroborated ---All
the alleged eye -witnesses were clos ely related to each other and were inimical to the accused -
--In order to maintain a conviction on capital charge, evidence must come from independent
and unimpeachable source rather than tainted and inimical witnesses without any independent
corroboration ---Conviction awarded to accused could hardly be sustained in law as alleged
eye-witnesses had failed to inspire confidence ---Mere relationship of the witnesses with the
deceased, though was not sufficient to brush aside their evidence, but as a precautio n, the
court had to seek independent corroboration ---Matrimonial dispute regarding marriage of
divorced wife of absconding accused with the deceased, existed between the parties,
possibility of false implication thus could not be ruled out ---No weapon of o ffence was
recovered from possession of accused to corroborate the ocular account ---Participation of
accused in the crime was highly doubtful, in circumstances ---Set of injuries mentioned in
Medico -legal Certificate, would show and suggest that offence had not been committed in the
mode and manner as prescribed by the prosecution witnesses ---Co-accused was arrested from
the venue of crime, immediately, after the occurrence and a .30 bore pistol was recovered
from his possession ---Three empties collected fro m the place of occurrence were fired from
one and the same weapon which was recovered from the possession of co -accused, which
was sufficient to create doubt regarding the participation of accused in the alleged offence ---
Sole independent witness of the oc currence had also not stated anything about the presence
of any other accused, which had negated the participation of accused in the crime in question -
--Abscondence of accused, per se was not sufficient to prove guilt of accused as abscondence
could equal ly be consistent with the innocence of accused ---Abscondence, as a piece of
conduct of accused, was to be judged in the light of other evidence on the record ---Even
otherwise the Trial Court, was not justified while placing reliance on abscondence as no
question under S.342, Cr.P.C. was put to the accused regarding abscondence ---Prosecution
having failed to prove its case against accused beyond reasonable doubt, while extending the
benefit of doubt, conviction and sentence of accused as recorded against him by the Trial
Court was set aside by the High Court and he was acquitted of the charge and was released,
in circumstances.
(b) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Where the statement of a witness was
not believed against one accused, same could not be automatically discarded qua the other
accused; and could be used against him, if it transpired confidence, corroborative and rang
true.
(c) Criminal Procedure Code (V of 1898) ---
----S. 342 ---Statement of accused under S.342, Cr.P.C. ---Scope ---Law required that every
part/piece of the incriminating evidence, circumstances etc. sought to be used against
accused, should be put to him under S.342, Cr.P.C. for having his explanation.
Muhammad Khan and anoth er v. The State 1999 SCMR 1220 rel
(d) Penal Code (XLV of 1860) ---
----S.302(b) ---Qatl-e-amd---Appreciation of evidence ---Benefit of doubt ---Scope ---
Prosecution was duty bound to prove its case beyond any reasonable doubt and if any single
and slightes t doubt was created, same must go to accused and was sufficient to discredit the
prosecution story and would entitle accused for acquittal.
Muhammad Aslam Chishti for Appellant
Abdullaah Kurd, Addl: P.G. for the State.
Date of hearing: 18th August, 2 011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is directed against the
judgment dated 6 -10-2009, passed by the Additional Sessions Judge, Naseerabad at Dera
Murad Jamali, whereby appellant Abdul Sattar son of Wahid Bakhsh was convicted and
sentenced under section 302(b) of the P.P.C. to suffer life imprisonment as ta'zir and to pay
an amount of Rs.100,000 as compensation to the legal heirs of deceased Abdul Qadir, with
the benefit of section 382 -B of the Cr.P.C.
2. The relevant facts, aris ing out of instant appeal, are that on 11 -10-2005, a case vide
F.I.R. No. 112 of 2005 (Exh.P/1 -B), under section 302 read with section 34 of the P.P.C.
was registered at Police Station City Dera Murad Jamali on the Fard -e-Bayan (Exh.P/1 -A) of
complainan t Sher Muhammad, wherein he alleged that on above date, he, along with his
brothers Abdul Qadir, Moula Bakhsh and Jamal -ud-Din son of Ghulam Qadir, after attending
a hearing in the Court of Additional Sessions Judge, was coming towards their house on foot.
At about 12 -30 p.m., when they reached National Highway near Shah Petrol Pump, suddenly,
accused persons Abdul Wahab, his brother Abdul Sattar (appellant), Abdul Hakim and Gul
Muhammad, equipped with pistols, appeared and raised 'Lalkara' that "Abdul Qadi r be ready
for death" and started indiscriminate firing upon him, due to which, he sustained bullet
injuries and expired at the spot. The complainant further alleged that in the meanwhile police
also reached there, who arrested accused Abdul Wahab along wi th pistol, whereas accused
Abdul Sattar, Abdul Hakim and Gul Muhammad ran away from the crime scene. The motive
behind the incident was disclosed matrimonial dispute, as the wife of co -accused Abdul
Hakim, namely, Mst. Hooran, after obtaining 'Talaq' from him, contracted marriage with
Abdul Qadir. Consequently, the aforesaid F.I.R. was registered.
3. It may be noted that co -accused Abdul Wahab, as stated above, was arrested and after
completion of the investigation, challan to his extent was submitted be fore the trial Court,
where, on conclusion of the trial, he was convicted and sentenced by the trial Court by
means of judgment dated 7 -8-2006, however, the appellant and co -accused persons could
not be arrested, therefore, case to their extent was kept in dormant. Subsequently, the
appellant was arrested in the present case and after completion of the investigation, challan to
his extent was submitted before the trial Court and he was sent up to face the trial.
4. On the stated allegations, a form al charge was framed and read over to the appellant,
to which he did not plead guilty and claimed trial. The prosecution, in order to prove the
accusation, produced six witnesses. P.W.1 Sher Muhammad is complainant of the case, who
produced his Fard -e-Baya n Exh.P/1 -A, on the basis whereof F.I.R. Exh.P/1 -B was registered.
P.W.2 Jamal -ud-Din and P.W.3 Moula Bakhsh are alleged eye -witnesses of the occurrence.
P.W.4 Dr. Qadir Tunia, Medical Officer, DHQ Hospital, Dera Murad Jamali examined the
dead body of the deceased and issued medico -Legal Certificate Exh.P/4 -A. P.W.5
Muhammad Yousaf, constable, soon after the incident, on hearing fire report, reached at the
spot along with Sepoy Mir Muhammad and saw co -accused Abdul Wahab along with a
pistol, who was arreste d and handed over to S.H.O. He is also witness to the recovery memo.
Exh.P/5 -A of the pistol. P.W.6 Jehangir, S. -I., conducted investigation of the case to the
extent of co -accused Abdul Wahab, whereas P.W.7 Muhammad Rafique Sumalani, S. -I.,
conducted inve stigation to the extent of appellant. Then the prosecution closed its side.
5. Thereafter, the appellant was examined under section 342 of the Cr.P.C., wherein he
denied the prosecution accusation and claimed to be innocent. He did not opt to record his
statement on oath as envisaged under section 340(2) of the Cr.P.C., nor produced any witness
in his defence. The trial Court, after close of the parties evidence, vide impugned judgment,
convicted and sentenced the appellant, as mentioned hereinabove, henc e this appeal.
6. We have heard learned counsel for the appellant as well as learned Additional
Prosecutor -General and have also gone through the available record with their valuable
assistance. It has been submitted by learned counsel for the appellant that prosecution had
failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal
warrants acceptance with a resultant acquittal of the appellant. On the contrary, learned
Additional Prosecutor -General has maintained that prosecution had succeeded in proving the
guilt of the appellant to the hilt and, therefore, present appeal deserves dismissal.
7. Dr. Qadir Tunia, who conducted the external postmortem examination of the dead
body of deceased Abdul Qadir came forward as P.W.4 and furnished the details of injuries
observed by him on the corpse of the deceased as under: --
(i) "Entrance: On left lateral surface of backside of thorax near left lateral side of thorasic
vertebra wound present (half) inch in size circular in s hape margin is inverted.
(ii) Exit: On the left lateral surface of in front of thorax below the (3) three inch left
nipple wound (1) one inch size opposite to entrance, oval in shape margin is everted.
(iii) Firearm wound present on left lateral surfa ce of lumber region, size of wound is one
and half inch in length and depth skin deep, touch only skin."
In his opinion, death was caused due to severe bleeding, shock and haemorrhage. The above
description of injuries would show that the ocular account furnished by the alleged eye -
witnesses is contrary to the medical evidence qua the appellant Abdul Sattar. The deceased
sustained only two firearm injuries, which were attributed to co -accused Abdul Wahab.
8. We are conscious of the fact that where the C ourt finds ocular account, furnished by a
witness truthful and confidence inspiring, then it could not be discarded being contradictory
to medical evidence, but in the instant case, the ocular account is neither straightforward, nor
confidence inspiring, w hich remained uncorroborated. The connection of the appellant with
the crime in question is sought to be established by the evidence of P.W.1 Sher Muhammad,
complainant, P.W.2 Jamal -ud-Din and P.W.3 Moula Bakhsh. All the alleged eye -witnesses
are closely r elated to each other and are, admittedly, inimical to the appellant. P.W.1 Sher
Muhammad and P.W.3 Moula Bakhsh are real brothers of the deceased, while P.W.2 is
cousin of the deceased.
9. After having gone through their evidence, we have no hesitation i n observing that the
alleged eye -witnesses have failed to inspire our confidence. The conviction awarded to the
appellant can hardly be sustained in law. In order to maintain a conviction on capital charge,
evidence must come from independent and unimpeach able source rather than tainted and
inimical witnesses without any independent corroboration. We are conscious of the fact that
mere relationship of the witnesses with the deceased is not sufficient to brush aside their
evidence, but, as a precaution, the Court has to seek independent corroboration. Admittedly, a
matrimonial dispute regarding the marriage of Mst. Hooran (divorced wife of absconding
accused Hakeem) with the deceased exists between the parties, as such, possibility of false
implication cannot be ruled out. Though the appellant was arrested, but no weapon of offence
was recovered from his possession to corroborate the ocular account. Under such
circumstances, his participation in the crime is highly doubtful. In the present day's society, it
has been noticed in most of the cases that witnesses of complainant party always throw net
very wide to implicate a large number of actual culprit's family and due to this phenomenon,
burden of Court in administering criminal justice has arisen and the Court s have to sift the
chaff from grain. The record is indicative of the fact that initially co -accused Abdul Wahab
was arrested and challan to his extent was submitted before the trial Court and after
completion of trial was convicted and sentenced vide jud gment dated 7 -8-2006 passed by
the Additional Sessions Judge, Naseerabad at Dera Murad Jamali. The statements of said,
witnesses were believed qua the said accused. It is settled principle of law that where the
statement of a witness is not believed agains t one accused, the same cannot be automatically
discarded qua the other accused and can be used against him, if it transpired confidence,
corroborated and rings true.
10. We have noticed that the set of injuries mentioned in medico -Legal Certificate
Exh.P/4-A would show and suggest us to believe that the offence has not been committed in
the mode and manner as prescribed by the prosecution witnesses. The offence seems to be the
consequences of an act committed by one person, as the three empties, allegedl y, secured
from the place of occurrence, were fired from one and the same weapon. For facility of
reference, the relevant portion of FSL report Exh.P/6 -F is reproduced below: --
"OPINION "
The examination of the case has revealed as under: --
(1) Three .30 bore crime empties now marked as C1, C2 and C3 were fired from the
above mention .30 bore Pistol No.5046403 in question in view of the following major points
i.e. striker pin marks, breach face marks, chamber marks and ejector marks, etc are similar."
The record further reveals that co -accused Abdul Wahab was arrested from the venue of
crime, immediately, after the occurrence and a .30 bore pistol was recovered from his
possession. Three empties collected from the place of occurrence, along with the crime
weapon, were sent to the office of the Assistant Inspector General of Police Criminalistic
Division, Sindh, Karachi for examination and all the empties were found to be fired from the
pistol recovered from the possession of co -accused Abdul Wahab and this fact alone is
sufficient to create doubt regarding the participation of present appellant in the alleged
offence. The sole independent witness of occurrence Muhammad Yousaf, who had arrested
co-accused Abdul Wahab, has also not stated a single word a bout the presence of any other
accused, except Abdul Wahab and negated the participation of present appellant in the crime
in question.
11. Similarly, reliance of prosecution on the alleged abscondence of the appellant was
also not well placed, because abscondence per se was not sufficient to prove guilt of the
appellant. Abscondence could equally consistent with the innocence of the appellant.
Abscondence as a piece of conduct of the appellant was to be judged in the light of other
evidence on the recor d. Even otherwise, the trial Court has fallen in error while placing
reliance on abscon -dence, as no question under section 342 of the Cr.P.C. was put to the
appellant regarding absconsion. Law requires that every part/piece of the incriminating
evidence, circumstance etc. sought to be used against him, should be put to the accused under
section 342 of the Cr.P.C., for having his explanation. By holding the view, we are fortified
by the dictum laid down in the case of Muhammad Khan and another v. The State reported in
1999 SCMR 1220, wherein it has been held that: --
"In any case abscondence can never remedy the defects in the prosecution case as it is not
necessarily indicative of guilt Moreover, abscondence is never sufficient by itself to prove the
guilt."
12. It is settled principle of law that prosecution is duty bound to prove its case beyond
any reasonable doubt and if any single and slightest doubt is created, it must go to the
accused and is sufficient to discredit the prosecution story and entit les the accused for
acquittal. The said rule is based on the maxim: --
"It was better that ten guilty persons be acquitted rather than one innocent person be
convicted, care should be taken by Court in convicting an accused."
13. Under the aforesaid rea sons, we are of the confident view that the prosecution has
miserably failed to prove its case against the appellant beyond reasonable doubt, as such,
while extending the benefit of doubt, this appeal is allowed, the conviction and sentence of
the appellan t recorded by the trial Court, are set aside and he is acquitted of the charge. He
shall be released forthwith, if not required in any other case.
These are the reasons of our short order dated 18 -8-2011 announced in open Court.
H.B.T./133/Q 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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