PLJ 2024 Cr.C. (Note) 153
[Balochistan High Court, Sibi Bench]
Present : ROZI KHAN BARRECH AND GUL HASSAN TAREEN , JJ.
ARZ MUHAMMAD-- Appellant
versus
STATE--Respondent
Crl. J. A. No. (S)2 of 2023, decided on 26.6.2023.
Pakistan Penal Code, 1860 (XLV of 1860) --
----S. 302(b) --Conviction and sentence --Challenge to --Qatl -e-amd--Committed murder --Medical
evidence --Ocular account --Rule of appreciation of evidence --Tribal enmity exists between
parties --Accused was absconder --Held: It is well settled by now that medical evidence may
confirm ocular account with regard to seat of injuries and its duration, nature of injuries, and
kind of weapon used for causing such injury, but it cannot connect accused with commission of
crime --All above -narrated facts and circumstances, when evaluated on judicial parlance, reflect
that prosecution has miserably failed to establish culpability of appellant in instant case through reliable, trustworthy, and confidence -inspiring evidence --Conviction passed by trial Court
against appellant in circumstances is against all canons of law recognized for safe dispensation of
criminal justice --As per dictates of law benefit of every doubt is to be extended in favour of
accused. [Para 15, 18, 19 & 20] A, C & D
Motive --
----I t is settled law that motive is a double -edged weapon, which can be cut either way; if it is
reason for appellant to murder deceased, it is equally ground for complainant to falsely implicate
them in this case. [Para 18] B
2019 SCMR 652 & 1992 SCMR 372.
Mr. Jalil Lehri , Advocate for Appellant.
Mr. Jameel Akhtar Gajani , APG for State.
Date of hearing: 25.5.2023.
J
UDGMENT
Rozi Khan Barrech, J. --The appellant, namely Arz Muhammad, son of Bhawal Khan, had
allegedly committed the murder of Juma Khan, son of Pir Bakhsh, on 27.11.2020 at 50:30 PM at
village Sultan Lehri Manjho Shori, District Nasirabad, by way of firing. For the commission of
the said offence he was booked in FIR No. 75/2020, registered at PS Manjhu Shori, District
Naseerabad, on 27.11.2020 at 6:30 pm. After a regular trial, the appellant was convicted vide
judgment dated 24.01.2022 (herein “impugned judgment” ) passed by learned Additional
Sessions Judge, Naseerabad at Dera Murad Jamali (“trial Court”) of the charge under Section
302-b, PPC and was sentenced rigorous imprisonment for life with direction to pay
Rs. 500,000/ -(Rupees Five Lac) under Section 544- A, Cr.P.C. to the heirs of the deceased Juma
Khan. In default of payment of the compensation amount of Rs. 500,000/ -(Rupees Five Lac), the
accused, Arz Muhammad, shall further suffer simple imprisonment for a period of Six (06)
Months. The benefit of Section 382- B, Cr.P.C. was also extended in favour of the appellant.
2. Being aggrieved from the impugned judgment, the appellant filed the instant appeal through
Superintendent District Jail Dera Murad Jamali.
3. We have heard the learned counsel for the appellant and learned APG and have gone through
the record with their valuable assistance.
4. The whole prosecution case revolves around the statements of Pir Bakhsh (PW -1), who is the
complainant as well as an eye- witness of the case, and Ali Dost (PW -2), who is an eye -witness
of the alleged occurrence. PW- 1 is the father of the deceased, and PW- 2 is the cousin of the
deceased; therefore, for the safe administration of justice, their evidence will have to be
appreciated with care and caution.
5. 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.
6. We have observed that the deceased Juma Khan met with unnatural death near village Sultan Lehri at an unmetaled, road, and according to the complainant and eye -witness , on 27.11.2023 at
5:30 pm, the complainant, along with his son Juma Khan and nephew Ali Dost (PW -2) were
standing behind their house. Meanwhile, five persons came there on two motorcycles and stopped; Sanaullah, Ghulam Qadir, Abdul Haq, Sarwar, and an unknown person who he could identify if confronted, and they were armed with firearms. They challenged them and started firing, so the son of the complainant namely, Juma Khan, received bullet injuries and later on succumbed to the injuries on the spot.
7. The pivotal question to be determined by us is whether the alleged eye -witness es were present
at the place of occurrence at the relevant time and had witnessed the tragedy as claimed by them
and whether their conduct is acceptable to common prudence? In an attempt to unearth the
answer to this crucial question, we have minutely examined their statements and found that
though they stated to be present at the scene of occurrence at the relevant time and to have
witnessed the tragedy, the prosecution side has failed to justify their conduct at the spot.
8. The complainant/PW -1 stated before the trial Court that after receiving injuries, his son was
lying on the spot for ten minutes in injured condition, and he remained standing there and
thereafter, he left the dead body on the spot and went to the police station. Dr. Soomer Khan, Medical Officer (PW- 3), who examined the dead body of the deceased, stated in his statement
that the dead body of the deceased was brought to the hospital Rural Health Centre Manjho Shori at 8:00 pm by Constable Saifullah. Abdul Rahim Constable (PW-5), who is the recovery witness of the blood- stained earth bullet empties recovered from the
place of occurrence, stated in his statement that they reached at 7:10 pm at the place of occurrence, where the dead body of the deceased was lying.
9. The alleged occurrence took place at 5:30 pm, and the dead body was received at the hospital
at 8:00 pm, meaning thereby that the dead body of the deceased was lying on the spot from 5:30 pm till 8:00 pm who had received as many as four fire -arm wounds, however still he was not
taken to the hospital. It is hard to believe and is against human conduct that Juma Khan (then injured and later deceased), who had received as many as four fire -arm entry wounds, kept
bleeding on the spot for such a long period and was brought to the hospital subsequently. The dead body of the deceased was brought to the hospital by Constable Saifullah, and the complainant, and eye -witness were not with the deceased at the hospital. This fact also proves
that both the above witnesses, namely Pir Bakhsh and Ali Dost, were not present, and had they been present, then they necessarily would have taken the then- injured Juma Khan (deceased) to
the hospital. It was human conduct that first tried to shift the injured to the hospital to provide medical treatment. From the conduct of the witnesses, it could be judged that they were not present on the spot.
10. We have also noted that the complainant/PW -1 during his statement before the Court stated
that tribal enmity exists between him and the absconding accused. Both the witnesses stated during cross -examination that at the time of occurrence, they were at a meager distance from the
deceased, i.e ., a few steps. According to the site -plan, which was prepared by the investigation
officer.
Allegedly the appellant and the absconding accused made indiscriminate firing upon the deceased with different weapons, and according to PW -5, five bullet empties of T.T. pistol, five
bullet empties of Kalashnikovs, and three bullet empties of 303 rifle were taken into possession by the investigation officer from the place of occurrence, which were lying in three different
directions. The record tells that the deceased was a few steps ahead while the complainant and
PW-2 were a few steps behind, and it was 5:30 pm when the accused was attracted to the spot
and made indiscriminate firing upon the deceased. It is worthwhile to mention here that the deceased was the son of the complainant, and there was tribal enmity between the parties. The complainant being the real enemy would have been the prime target, but the lack of interest in
killing the complainant indicates his absence from the spot at the time of the incident. If they
(PW-1 and PW -2) had been present, they would have been prime targets of the assailants.
Furthermore, it was claimed by the prosecution witnesses that as many as five accused in total
fired through weapons of different bores at the time of occurrence, and in the midst of this indiscriminate firing, the witnesses, namely Pir Bakhsh (PW -1) and Ali Dost (PW -2) had not
received even a single scratch on their persons during the whole course. If the said witnesses had been present in the assailants’ view, then they would not have been spared.
11. We have noted with grave concern that the prosecution witnesses claimed that they, namely Pir Bakhsh (PW -1) and Ali Dost (PW -2), were miraculously saved in the midst of the firing.
Blessing them with such incredible consideration and showing them such favour is implausible and opposed to the natural behavior of any accused. It is all the more illogical then being perceptive of the fact that if the witnesses were left alive, they would depose against the accused;
even then, the appellant and co- accused did not cause any injury to them. Such behavior runs
counter to natural human conduct and behavior on the part of the accused. Article 129 of the
Qanun- e-Shahadat Order, 1984 allows the Courts to presume the existence of any fact, which it
thinks likely to have happened, regard being had to the common course of natural events and
human conduct in relation to the facts of the particular case. We thus trust the existence of this fact, by virtue of the Article 129 of the Qanun- e-Shahadat Order, 1984, that the conduct of the
assailants, as deposed to by the witnesses, namely Pir Bakhsh (PW -1) and Ali Dost (PW -2), as
opposed to the common course of natural events and human conduct. Hence, we are holding that
both Pir Bakhsh (PW -1) and Ali Dost (PW -2) were not present at the place of occurrence and did
not witness the occurrence. The August Supreme Court of Pakistan, in its binding judgment, has
repeatedly held that in a scenario where the motivation was against the complainant or the witnesses, but the accused did not cause any harm to them, notwithstanding being within the range of their firing, would reveal that the said witnesses were not present at the place of occurrence. Reliance is placed on the cases of Tariq Mehmood v. The State and others (2019
SCMR 1170), Mst. Rukhsana Begum and others v. Sajjad and others (2017 SCMR 596), Rohtas
Khan v. The State (2010 SCMR 566), and Muhammad Farooq and another v. The State (2006
SCMR 1707).
12. We have noted that according to the site -plane of the occurrence (Ex -P/6-A), as prepared by
the investigation officer Muhammad Ibrahim SI (PW -6), houses were constructed near the place
of occurrence. None of those who had their houses near the place of occurrence joined the investigation of the case and also did not appear before the trial Court to support the prosecution case. The prosecution was under a bounden duty to produce the witnesses who were the residents of the place of occurrence. Article 129 of the Qanun- e-Shahadat, 1984 provides that if any
evidence available with the parties is not produced, then it shall be presumed that had that evidence been produced, the same would have been gone against the party producing the same.
It was further observed in the site -plan (Ex.P/6- A) that it does not disclose the presence of the
witnesses. Although the site -plan is not a substantive piece of evidence, it could not be
overlooked. The omission to indicate the position of witnesses at the time of occurrence in the site-plan reflected the possibility of witnesses not being present at the time of occurrence.
13. The alleged occurrence took place on 27.11.2020 at 5:30 pm, and the FIR was lodged on the same date at 6:30 pm. The absconding accused Saifullah, Ghulam Qadir, Sarwar, and Abdul Haq were nominated in the FIR, and the complainant also alleged that one unknown person was also accompanying the accused persons whom he can identify if confronted. The accused/appellant was not nominated in the FIR. Surprisingly Ali Dost (PW -2) submitted an affidavit before the
investigation officer on 02.02.2021 and nominated the accused/appellant as accused. The
investigation officer treated the affidavit of PW -2 as a supplementary statement. The parentage
and address have been given in the affidavit. The said affidavit was filed after more than two months of the occurrence. When PW -1 and PW -2 appeared before the Court, they did not
disclose the source of information who informed them about the appellant. Even PW -2 stated
during cross -examination that he has no knowledge as to where the stamp paper dated
02.02.2021 was prepare d and by whom. According to the report of the complainant Ex.P/1- A, no
feature and description of the unknown accused person was given. The identification parade of
the accused/appellant was conducted through PW -1 and PW -2 in the presence of Sabir Saleem,
the then Judicial Magistrate Dera Murad Jamali (PW- 7), on 08.10.2021. When the appellant was
already nominated on 02.02.2021 by PW -2 in his supplementary statement, then there was no
occasion for his identification parade on 08.10.2021. Nutshell is that the prosecution could not
prove the identification of the appellant as one of the assailants who committed the occurrence.
14. So far as the supplementary statement of PW -2 is concerned, the Courts have always
deprecated such kind of statements, which are made with the purpose of strengthening the case
of the prosecution at the behest of the police officials or some other ulterior motives to get the suspect convicted by hook or crook. Nomination through supplementary statements has always been deprecated and disliked by the Hon’ble Supreme Court and has never been appreciated for the same being an afterthought. Here, we would like to refer to the cases of “Kashif Ali v. The Judge, Anti -Terrorism, Court No. II, Lahore and others” (PLD 2016 SC 951) and “Akhtar Ali
and others v. The State” (2008 SCMR 6). Reliance in this regard is also placed on the case of
Muhammad Kamran v. The State 2021 SCMR 479, wherein it was observed as under:
“The genesis of supplementary statement is also fraught with doubts. According to the complainant, in his belated disclosure, he had nominated the appellant being the principal culprit, however, when confronted with supplementary statement Ex.DD, his name was conspicuously missing therein. Appellant’s nomination by one of the abductees, namely, Hassan Javed (PW -7) in his statement Ex.DC, purportedly recorded
on 8.9.2008 met the same embarrassment. Complainant’s choice to let off three co-accused, initially nominated by him in his supplementary statement, is a last straw. To synchronize mutually destructive positions, taken after an appalling delay, to rescue the
charge, resting on a moral paradigm, inherently lacking evidentiary certainty on appellant’s guilt, is an option beyond juridical possibility. It would be grievously unsafe to maintain the conviction”
15. Reverting to the medical evidence is in the shape of the statement of Dr. Soomer Khan, Medical Officer (PW- 3), who examined the dead body of the deceased. It is well settled by now
that the medical evidence may confirm the ocular account with regard to the seat of injuries and its duration, nature of injuries, and kind of weapon used for causing such injury, but it cannot connect the accused with the commission of the crime. We are fortified with the judgments passed by the Hon’ble Supreme Court of Pakistan reported as “Sajjan Solangi v. The State”
(2019 SCMR 872).
16. As far as the recovery of the crime weapon, i.e ., T.T pistol, affected on the pointation of the
appellant is concerned. Allegedly the occurrence took place on 7.11.2020, and the appellant was
arrested on 30.09.2021. It was alleged by PW -4 Head Constable Muhammad Akbar that on
15.10.2021, the appellant made the disclosure during the investigation that he could recover the crime weapon. On the said disclosure, the accused was taken near Mir Gul Dip Bala Shakh, where on the pointation of the accused a T.T pistol was recovered from a box lying in a room, which was taken into possession by the investigation officer through a recovery memo in the presence of the witnesses. The alleged recovery was affected fifteen days after the appellant’s arrest, which is beyond the remand period. The prosecution failed to produce any corroborative evidence. The statement of PW- 8 Manzoor did not state a single word about whether the pistol
was recovered from the appellant; rather, he only stated that the pistol was recovered on the pointation of the accused. Even otherwise, the pistol was not recovered from the physical possession of the appellant, and the same was recovered allegedly from the house of the accused. It has come on record that in the said house women folk, and children were also residing. However, it has not come on record that, factually the said house belonged to the appellant. This aspect of the matter caused reasonable doubt in the prosecution case. Even otherwise, no private witness was associated at the time of alleged recovery. It is stated earlier that the alleged occurrence took place on 27.11.2020, and the alleged recovery was affected on 15.10.2021 after a delay of more than nine months; under such circumstances, how it can be said that the accused kept the crime weapon in his house for such a long period of time waiting for the police to recover the same that too on his pointation.
17. The alleged occurrence took place on 27.11.2020, and on the same date, five crime empties of T.T pistol, bullet empties of Kalashnikovs, and rifles were also recovered from the place of occurrence, which were taken into possession by the investigation officer through recovery
memo in the presence of witnesses. The crime weapon, i.e ., T.T pistol, was recovered on alleged
pointation of the appellant on 15.10.2021 after his arrest, which is after more than nine months
after the occurrence. The prosecution also produced a positive report of the Fire -arms Expert
(Ex.P/8- B), according to which the fire -arms expert received the Parcel No. 2 of five crime
empties of a .30 bore T.T pistol and Parcel No. 6 of crime weapon, i.e ., .30 bore pistol on
23.11.2021 together, but the same has been found to be in violation of the verdict of the Hon’ble
Supreme Court, and this Court held that the recovered empties should not be retained by the
police for a wait of recovery of crime weapon. Rather it has been held that sending the empties together with the crime weapon to the ballistic expert makes the entire process suspicious and highly doubtful. In this case, it is obligatory for the investigation officer to have sent the five crime empties recovered from the place of occurrence as soon as possible without delay to FSL and without waiting for recovery of the crime weapon. More so, it is apparent from the record that the crime empties were secured from the crime scene on 27.11.2020 on the day of the murder of the deceased, but the same was retained in possession, whereas the crime weapon was allegedly recovered on 15.10.2021, whereafter the empties and alleged crime weapon were sent
together along with empties to the FSL for ballistic analysis, which has diminished its
evidentiary value because it gives rise to manipulation and padding. Therefore, the Fire -arms
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.”
18. The learned APG has also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence, as stated by the prosecution witnesses, namely Pir Bakhsh (PW -1) and Ali Dost (PW -2), was that there was tribal enmity
between them and the absconding accused. It has also come on record that the deceased was proclaimed offender in FIR No. 21/2018 of PS Knankot lodged under Sections 324 and 34, PPC, and FIR No. 59/2019 of PS Manjho Shori lodged under Sections 302, 324, and 34, PPC and this fact was admitted by the complainant/PW -1 during cross -examination. There was also the
possibility that since the deceased was involved in different cases as a proclaimed offender and also had enmity with other people, he might have been murdered by some other person. Even otherwise, it is settled law that motive is a double -edged weapon, which can be cut either way; if
it is the reason for the appellant to murder the deceased, it is equally ground for the complainant to falsely implicate them in this case. Reliance is placed in the cases of Muhammad Ashraf Alias
Acchu v. The State (2019 SCMR 652), Liaqat Ali and 11 others v. The State” (1992 SCMR 372).
Moreover, it is an admitted rule of appreciation of evidence that motive is only a corroborative piece of evidence, and if the ocular account is found to be unreliable, then motive alone cannot be made the basis of conviction.
19. 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.
20. 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 the 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 the judgment dated 24.01.2022 (herein “impugned judgment” ) passed in case Sessions No. 40/2021, Crl. Jail Appeal No. (S)
02/2023 filed by the appellant is allowed as a consequence whereof he is acquitted of the charge
in FIR No. 75/2020 PS Manjhoo Shori, District Naseerabad. The appellant Arz Muhammad, son of Bhawal Khan, is ordered to be released forthwith if not required in any other case.
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