2011 P Cr. L J 1756
[Quetta]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
SHAFI MUHAMMAD and another---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No. S -2 of 2011, heard on 30th June, 2011.
Penal Code (XLV of 1860) ---
----Ss. 302(b), 147 & 148---Qatl -e-amd---Appreciation of evidence--- Connection of accused
with the crime was sought to be established by the evidence of prosecution witnesses, who
were closely related to each other and were inimical to accused person ---Said witnesses were
not confidence -inspiring---Evidence of said witnesses in view of their inter se relationship
and their contradictory version, could not be believed without independent corroboration on
material particular ---One piece of tainted evidence could not corroborate other piece of
tainted evidence--- Extra -judicial confession allegedly made by accused person in presence of
prosecution witnesses, being a weak type of evidence could not be made basis for conviction,
in a case of capital charge, unless corroborated by some other tangible piece of evidence
which should be free from infirmity, made under the circumstances which were found to be
reliable ---Witnesses had disclosed the names of accused persons five days after the incident --
-Had they seen t he accused at the night of incident, they could disclose the names of accused
persons at the earliest opportunity ---Even otherwise, extra -judicial confession allegedly made
by accused persons being a joint confession, was inadmissible in evidence; and no r eliance
could be placed on such inadmissible piece of evidence at all ---Identification parade was
absolutely of no avail to the prosecution for the reason that on the one hand both the
witnesses had deposed that they could not identify the culprits due to pitch dark at the dead
hours of the night, but on the other hand, pointed out the accused persons as culprits ---Both
accused persons were not only known to said witnesses previously, but were also nominated
by names through affidavits, submitted five days after the alleged incident ---Medical
evidence was also not in line with ocular and marginal accounts ---Even otherwise, the
medical evidence was not of much help to the prosecution, as the same could not identify or
locate the culprits of the offence in a case, where the presence of the eye- witnesses itself was
found to be doubtful ---Recoveries, had been effected from accused person after 10 days of
the occurrence--- Joint recovery was not permissible under the law and could not be taken
into consideration---Recovery of crime weapons, expert's report and medical evidence by
itself being evidence of purely corroboratory nature, in absence of any direct or substantive
evidence, were not sufficient to bring home charge against accused persons ---Unless
substantive direct evidence was available, conviction could not be based on any other type of
evidence, howsoever it could be reliable ---Impugned judgment passed by the Trial Court,
was set aside and accused were acquitted of the charge and were directed to be releas ed from
jail.
1991 SCMR 643 rel.
Nasir Marri for Appellants.
Abdullah Kurd for the State.
Date of hearing: 30th June, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The Additional Sessions Judge,
Usta Muhammad vide judgment dated 31st December, 2010 has convicted and sentenced
appellants Shafi Muhammad and Akbar under section 302(b) read with section 147 and 148
of the P.P.C. to suffer life imprisonment each as Ta'zir and to pay compensation of Rs.50,0 00
each to the legal heirs of deceased, as provided under section 544 -A, Cr.P.C. Benefit of
section 382- B, Cr.P.C. was also extended in favour of the appellants.
2. Briefly stated the facts of the case are that on 7th February, 2010 at about 9- 00 a.m., a
case vide crime No.15 of 2010 (Exh.P/1- B), under section 302 read with sections 147 and
148 of the P.P.C. was registered at Police Station City, Usta Muhammad District Jaffarabad
on the basis of Fard- e-Bayan Exh.P/1- A of complainant Juma Khan (P.W.1). It wa s alleged
by the complainant that on above date, he, along with his son Mian Bakhsh, nephew Hadi
Bakhsh and cousin Ali Nawaz, was sleeping at Kheerthar Canal. At about 1- 30 a.m., five
unknown persons, duly armed with deadly weapons, came there and awoke Al i Nawaz and
Hadi Bakhsh. In the meantime, complainant and his son Mian Bakhsh also woke up. The
accused persons threatened his son Mian Bakhsh that they will not leave him alive, at which,
he, due to fear, started running and the accused persons started in discriminate firing upon
him, due to which, he, after receiving bullet injuries, expired at the spot and accused persons
ran away from the crime scene. It was further alleged that in the light of bulb of tractor, they
saw the accused persons, who can be id entified on appearance. Consequently, the aforesaid
case was registered.
3. After registration of the F.I.R. Exh.P/1- B, investigation of the case was entrusted to
P.W.9 Peer Bakhsh, S. -I., who visited the place of occurrence, prepared site inspection note
and sketch, recorded statements of witnesses, prepared inquest report, sent the corpse to civil
hospital for examination, secure blood- stained earth, collected five empties of Kalashinkov
and five empties of TT pistol vide memos and prepared its sealed pa rcels from the spot.
Thereafter, he went to hospital, where the doctor concerned handed over him the blood -
stained clothes of deceased. He obtained postmortem examination report and the dead body
was handed over to his heirs. On 12th February, 2010, P.Ws. Abdul Rashid and Abdul
Majeed submitted their affidavits, wherein they implicated the accused persons Shafi
Muhammad, Akbar, Muhammad Ramzan, Dost Muhammad, Muhammad Arif and an
unknown person, on the basis whereof, he arrested the accused persons Muhamma d Shafi
and Akbar. On 17th February, 2010, upon disclosure of accused persons, prepared disclosure
memos and recovered crime weapons from their houses on their pointation. After recovery
proceedings, on 18th February, 2010, the identification parades of the accused persons were
carried out through witnesses and identification parade forms were prepared. The crime
articles were sent to FSL, Quetta and Karachi for analysis and the accused persons were
remanded to judicial custody. He placed the papers before IP/SHO Yasin Jamali, who
prepared incomplete challan and after receiving experts' reports, supplementary challan was
prepared and the accused persons were sent up to face the trial.
4. On the stated allegations, charge was framed and read over to the appel lants on 27th
April, 2010, to which they pleaded not guilty and claimed trial. The prosecution, in order to
substantiate the accusation, produced nine witnesses. P.W.1 Juma Khan is complainant of the
case and produced his Fard- e-Bayan Exh.P/1- A, F.I.R. Exh.P/1 -B and affidavit Exh.P/1- C.
P.W.2 Ali Nawaz alleged to have witnessed the occurrence. P.W.3 Abdul Majeed and P.W.4
Abdul Rasheed produced their affidavits as Exh.P/3- A and Exh.P/4- A, nominating the
accused persons to be the culprits. P.W.5 Dr. Zafar Al i Samejo, Medical Officer, Civil
Hospital, Usta Muhammad, has examined the dead body of deceased and issued postmortem
examination report Exh.P/5- A. P.W.6 is Khawand Bakhsh, DSP, in whose presence the
identification parade was conducted Exh.P/6 -A. P.W.7 Ej az Ahmed, constable, is recovery
witness and produced site inspection memo Exh.P/7- A, memo of blood- stained earth
Exh.P/7 -B, memo of five empties of Kalashnikov and five empties of TT pistol Exh.P/7- C
and blood- stained clothes of deceased Exh.P/7 -D. P.W.8 Deedar Hussain, constable, is
witness to the alleged disclosure of the accused persons and produced disclosure memos
Exh.P/8 -A and Exh. P/8 -B as well as recovery memos of TT pistols Exh. P/8- C and Exh. P/8-
D, whereas P.W.9 Peer Bakhsh, S.- I., is the Invest igating Officer of the case. Then the
prosecution closed its side.
5. Thereafter, the appellants were examined under section 342, Cr.P.C., wherein they
denied the prosecution accusation and claimed to be innocent, however, they did not opt to
record their statements on oath as envisaged under section 340(2), Cr.P.C., nor produced any
witness in defence. The trial Court, after close of parties' evidence, vide impugned judgment
convicted and sentenced the appellants, as mentioned hereinabove, hence this appea l.
6. Learned counsel for the appellants, Mr. Nasir Marri, Advocate, contended that the
prosecution had failed to prove its case against the appellants beyond any shadow of doubt.
He argued with vehemence that the occurrence is unseen and that statements m ade by the so -
called eye- witnesses did not inspire confidence. P.W.1 complainant Juma Khan and P.W.2
Ali Nawaz had failed to bring anything on the record to substantiate their claim of being
present at the time of occurrence. He further submitted that the F.I.R. has been lodged after
unexplained delay, that too against unknown culprits. There is contradiction between ocular
account and medical evidence. He lastly contended that the ocular account, regarding extra-
judicial confession, furnished by P.W.3 Abdul Majeed and P.W.4 Abdul Rasheed, also did
not inspire confidence and both the witnesses seemed to be planted one.
7. On the other hand, Mr. Kamal Khan Kakar, Advocate, representing the State,
submitted that the prosecution had successfully proved the guil t of the appellants. The ocular
account, furnished by P.Ws. 1 and 2, had found ample corroboration and support from the
other pieces of evidence produced by the prosecution. The ocular account is also
corroborated by the recovery of crime weapons, effected from the possession of appellants
on their pointation from their houses situated at Goth Juma Khan.
8. So far as the factum of murder of Mian Bakhsh is concerned, the defence has not
disputed the same. The fact, Mian Bakhsh died as a result of fire arm in juries, is further
proved by the evidence of P.W.5 Dr. Zafar Ali Samejo, Medical Officer, who conducted the
postmortem examination of dead body of deceased Mian Bakhsh and found two firearm
wounds, one entrance wound on left side of the chest and the other exit wound on right side
of the chest laterally. According to the Medical Officer, the injuries were ante- mortem and
homicidal in character and the death was caused due to damage of the vital organs.
9. The connection of the accused with the crime is soug ht to be established by the
evidence of P.W.1 Juma Khan and P.W.2 Ali Nawaz. All the witnesses i.e. P.W.1 Juma
Khan, P.W.2 Ali Nawaz, P.W.3 Abdul Majeed and P.W.4 Abdul Rasheed, are closely related
to each other and are, admittedly, inimical to the appellants. P.W.1 Juma Khan is father of
deceased Mian Bakhsh, while P.W.2 Ali Nawaz is the paternal uncle of deceased. After
going through their evidence, we have no hesitation in observing that the eye -witnesses have
failed to inspire our confidence. Admittedly , the occurrence had taken place in odd hours of
the night at about 1 -30 a.m. and both the alleged eye -witnesses had stated in a categorical
manner that at the time of occurrence, they could not identify the culprits due to complete
darkness, while on the other hand, the identification parade was conducted through the said
witnesses, who have pointed out the appellants as murderers of deceased Mian Bakhsh. In
our opinion, it is a textbook example of approbate and reprobate. The evidence of the alleged
eye-witnesses, in view of their inter se relationship and their contradictory version, cannot be
believed without independent corroboration on material particulars. Needless to mention here
that one piece of tainted evidence cannot corroborate another piece of tainted evidence.
10. The next piece of evidence has been furnished by P.W.3 Abdul Majeed and P.W.4
Abdul Rasheed regarding the extra -judicial confession made by the appellants in their
presence at the fateful night. Both the said witnesses had maintained that on 7th February,
2010 at about 1- 00 a.m., after having heard gunshots, they took out their tractor and drove it
towards the field of Juma Khan, complainant, and saw five men, armed with Kalashnikov
and TT. pistols, in the light of their tractor, including Shafi Muhammad, Akbar, Arif, Dost
Muhammad and another unknown person, who told that they murdered Mian Bakhsh and
warned them to stay back. It is established that extra -judicial confession, being a weak type
of evidence, cannot be made basis for conv iction in a case of capital charge, unless
corroborated by some other tangible piece of evidence. It should be free from infirmity made
under the circumstances, which are found to be reliable. The ocular account, furnished by
these witnesses, who also belong to the "Baradari" of complainant, is neither straightforward,
nor confidence -inspiring. They have disclosed the names of appellants, five days after the
incident, through their affidavits, submitted before the Investigating Officer. Had they seen
the ap pellants at the fateful night, they could disclose the names of culprits at the earliest
opportunity, but it is very strange to note that they kept mum for five days. We are of the
considered view that there was no occasion and reason with the appellants t o confess their
guilt before the said witnesses. Usually, in the normal course of nature, an offender choosing
night time for commission of an offence, necessarily wants to keep his identity concealed.
Thus, the culprits choosing the cover of night for kil ling of deceased would surely have no
reason to confess before private persons immediately after the occurrence. Even otherwise,
the extra -judicial confession, allegedly, made by the appellants, being a joint confession, was
inadmissible in evidence and no reliance can be placed on such inadmissible piece of
evidence at all.
11. Regarding the identification parade, P.W.6 Khawand Bakhsh, DSP, Usta Muhammad,
appeared in witness box and deposed that on 18th February, 2010, he was present in city
police station, Usta Muhammad. In his presence, the identification parade of accused Shafi
Muhammad and Akbar was made through complainant Juma Khan and Ali Nawaz, who had
identified both of them to be the same persons, who, after committing the murder of deceased
Mian Bakhsh, had fled away. We are of the opinion that the identification parade is
absolutely of no avail to the prosecution for the reason that on one hand both the witnesses
had deposed categorically that they could not identify the culprits due to pitch dar k at the
dead hours of the night, but on the other hand, surprisingly, pointed out the appellants as
culprits. Needless to state here that both the appellants were not only known to the said
witnesses previously, but were also nominated by names through af fidavits submitted five
days after the alleged incident.
12. Similarly, the medical evidence i.e. postmortem examination report Exh.P/5 -A,
produced by P.W.5 Dr. Zafar Ali Samejo, Medical Officer, Hospital, Usta Muhammad, is
also being not in line with the ocular and marginal accounts. According to P.W.1 Juma Khan,
firing was made upon the deceased from a distance of about 8 paces, while on the other hand,
blackening was seen around the entrance wound and according to the said witness blackening
can be seen, when firing has been made within the distance of about 3 - 4 feet. Even
otherwise, the medical evidence in this case is not of much help to the prosecution, as the
same cannot identify or locate the culprits of the offence in a case, where the presence of the
eye-witnesses itself is found to be doubtful.
13. So far as the recoveries, allegedly, effected from the appellants during the course of
investigation in the instant case is concerned, it had been effected after 10 days of the
occurrence. A prudent mi nd cannot believe that the appellants would be so naive/foolish as
to keep their weapons for so long so as to facilitate their recovery from them. Even
otherwise, joint recovery is not permissible under the law and could not be taken into
consideration.
14. We are of the considered view that the recovery of crime weapons, expert's report and
medical evidence by itself being evidence of purely of corroboratory nature, in the absence
of any direct or substantive evidence, were not sufficient to bring home cha rge against the
appellants. It is well established that unless substantive direct evidence is available,
conviction cannot be based on any other type of evidence, howsoever, convincing it may be,
reliance in this regard may be placed on a case reported in 1991 SCMR 643, wherein the
Hon'ble Supreme Court of Pakistan was pleased to lay down as under: --
"The answer obviously is in the negative, we say because none of the pieces of
evidence relied upon is a substantive piece of evidence and so long a substantive or
direct evidence is not available no other type of evidence, howsoever, convinced it
may be, can be relied upon or can firm the basis of conviction".
15. On a careful scanning of the entire evidence, we are of the opinion that the
punishment awarded to the appellants is not sustainable under the law. In order to sustain a
conviction on capital cha rge, evidence must come from independent and unimpeachable
source, rather than tainted and inimical witnesses without any independent corroboration.
Vide short order dated 30th June, 2011, we had allowed the appeal, the impugned
judgment dated 31st December, 2010 passed by the Additional Sessions Judge, Usta
Muhammad was set aside and the appellants were acquitted of the charge and were directed
to be released from jail forthwith, if not required in other case and the above are the reasons
of our short order.
H.B.T./64/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,
let us know.