2012 M L D 365 [Balochistan]
Before Muhammad Hashim Khan Kakar and Ghulam Mustafa Mengal, JJ
QADIR BAKHSH and 2 others ---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No.(s)37 of 2011, decided on 25th August, 2011. (a) Penal Code (XLV of 1860) ---
----Ss. 302(b)/149---Qatl -e-amd---Appreciation of evidence---Solitary witness ---Conviction can
be based on the evidence of a solitary witness if he is found to be truthful and his evidence corroborated by other independent evi dence inspires confidence.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b)/149--- Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Qatl -e-amd---Appreciation of
evidence ---Solitary eye -witness had not only made dishonest improvements in his statement at
the trial, but he being a resident of a far -off place was a chance witness and he had not shown
any specific reason for his being present at the scene of occurrence---Conduct of the said eye -
witness on the spot was offensive to normal human behaviour and his pr esence thereat could not
be believed ---Unexplained delay of two and a half hours in lodging the F.I.R. had led to the
inference of cooking a concocted story by deliberation---Medical evidence had belied the ocular testimony ---Withholding of an independent eye -witness mentioned in the F.I.R. by the
prosecution had led to an adverse inference under Art.129(g) of Qanun -e-Shahadat, 1984---Said
eye-witness had been examined as a defence witness and he had categorically stated that the
present accused were not t he culprits in the case---Two sticks recovered as weapons of offence
did not assist the prosecution as the same were not shown to be stained with human blood---Prosecution evidence was replete with doubts, benefit of which had to be given t o accused
as a matter of right ---Accused were acquitted in circumstances.
1972 SCMR 28; 1996 SCMR 167 and Tariq Pervez v The State 1995 SCMR 1345 ref
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b)/149---Qatl -e-amd---Appreciation of evidence---Benefit of doubt, extension of ---
Principle ---Benefit of every doubt must accrue in favour of accused as a matter of right and not
of a grace.
Tariq Pervez v. The State 1995 SCMR 1345 ref
Muhammad Aslam Chishti for Appella nts
Abdullah Kurd for the State
Date of hearing: 11th August, 2011.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is directed against the judgment
dated 25- 5-2011, passed by Sessions Judge, Sibi, whereby appellants Qadir Bakhsh, Moula
Bakhs h and Shah Muhammad were convicted and sentenced under section 302(b) read with
section 149 of the P.P.C. to suffer life imprisonment and to pay an amount of Rs.100,000 each as compensation to be paid to the legal heirs of deceased, in default whereof to f urther undergo' S.I.
for six months, with benefit of section 382- B of the Cr.P.C.
2. The relevant facts, arising out of instant appeal, are that on 4- 9-2009, a case vide F.I.R.
No.61 of 2009 (Exh.P/8- A), under section 337- ADF read with sections 147 and 149 of the P.P.C.
was registered at Police Station City Sibi on the Fard -e-Bayan (Exh.P/1- A) of complainant
Abdul Ghaffar (P.W.1), wherein he alleged that on above date, his brother Abdul Nisar and Wazir Khan were proceeding towards bazaar on a bicycle and at about 10- 30 a.m., he
(complainant) was informed by Soorat Khan Khajjak through telephone that his brother is lying in injured condition alongside the road near Gharib Abad School, at which he rushed at the site, where he found his brother in pool o f blood. The complainant further alleged that he was told by
Wazir Khan that accused Moula Bakhsh, Qadir Bakhsh, Saifullah, Khan Muhammad and Shah Muhammad made assault upon his brother by means of sticks on his head, due to which, he sustained serious inj uries and they all ran away from the venue. The injured was shifted to civil
hospital and, resultantly, the aforesaid F.I.R. was registered.
3. After registration of the F.I.R. Exh.P/8- A, Investigation of the case was entrusted to P.W.8
Moula Dad, S.I., who went to civil hospital, prepared memo of injury of the injured and handed
over to the medical officer and, thereafter, visited the site, prepared site sketch Exh.2/8- B and
site inspection memo Exh.P/4- A on the pointation of complainant, secured blood- stained earth
vide. memo Exh.P/4- B, took into possession two sticks lying in Aafani Gishkori street on the
pointation of complainant and eye -witness Wazir Khan vide recovery memo Exh.P/5- A,
recorded the statements of P.Ws. He arrested the accused persons o n the day of occurrence i.e. 4 -
9-2009. On 6 -9-2009, complainant informed him by means of telephone that his injured brother
Abdul Nisar succumbed to the injuries last night in civil hospital, Quetta, at which he went to the house of deceased and prepared i nquest report Exh.P/8- C of the dead body of deceased. On 9- 9-
2009, he took into possession blood- stained clothes of the deceased vide recovery memo
Exh.P/6- A produced by the complainant at police station. On 10- 9-2009, he sent the blood-
stained earth and clothes of the deceased to FSL for analysis and report. On 15- 9-2009, he
received certificate of Naib Tehsildar, Sibi (Exh.P/8 -D) in respect of accused Qadir Bakhsh
regarding his presence on his duty. On 18- 9-2009, obtained initial medical certificate Exh.P /3-A
of deceased from concerned medical officer On 19 -9-2009, after completion of the investigation,
the accused persons were remanded to judicial custody and he placed the papers before
IP/S.H.O. Balak Sher, who prepared incomplete challan Exh.P/8- E. On 29 -11-2009, he received
FSL report Exh.4/8- F, on the basis thereof, supplementary challan Exh.P/8- G was prepared by
IP/S.H.O. Balak Sher. On 2- 1-2010, on receiving the death certificate Exh.P/7- A of deceased,
IP/S.H.O. Abdul Majeed prepared another incompl ete challan Exh.P/8 -H.
4. On the stated allegations, a formal charge was framed and read over to the appellants on 24-
10-2009, to which they did not plead guilty and claimed trial. The prosecution, in order to prove
the accusation, produced eight witness es. P.W.1 Abdul Ghaffar is complainant of the case, who
exhibited his Fard- e-Bayan Exh.P/1- A. P.W.2 Wazir Khan alleged to have witnessed the
occurrence. P.W.3 Dr. Lal Muhammad, Medical Officer, initially examined the injured deceased and issued medico lega l certificate Exh.P/3 -A. P.W.4 Munir Ahmed is witness to the site
inspection note Exh.P/4- A, and securing of blood -stained earth by the I.O. vide memo Exh.P/4-
B. P.W.5 Abdul Rasheed is witness to the recovery of sticks vide memo. Exh.P/5- A. P.W.6 is
Rehmat ullah, HC, in whose presence the complainant handed over the blood- stained clothes of
the deceased to the I.O., which were taken into possession vide memo. Exh.P/6- A. P.W.7 Dr.
Muhammad Noor, Medico Legal Officer, Civil Hospital, Quetta, externally examine d the dead
body of deceased and issued death certificate Exh.P/7- A and P.W.8 Moula Dad, S.I., is the
investigation officer of the case. Then the prosecution closed its side. 5. Thereafter, the appellants were examined under section 342 of the Cr.P.C., wherein they denied the prosecution accusation and claimed to be innocent. They did not opt to record their statements on oath as envisaged under section 340(2) of the Cr.P.C., however, produced D.W.1 Soorat Khan and DW -2 Hadi Bakhsh in their defence. The tr ial Court, after close of the parties
evidence, vide impugned judgment, convicted and sentenced the appellants, as mentioned
hereinabove, hence, this appeal.
6. We have heard learned counsel for the appellants as well as learned Additional Prosecutor -
General and have also gone through the record of the case with their valuable assistance. It
has been submitted by learned counsel for the appellants that prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus, this appeal warrants acceptance
with a resultant acquittal of the appellants. On the contrary, learned Additional Prosecutor General has maintained that prosecution had succeeded in proving the guilt of the appellants to the hilt and, therefore, present appeal deserves dismissal.
7. As far as unnatural death of deceased Abdul Nisar is concerned, the same has not been seriously disputed by the defence. Even otherwise, P.W.3 Dr. Lal Muhammad and P.W.7 Dr. Muhammad Door, who examined the deceased, have proved unnatural death of deceased Abdul Nisar by means of injuries caused with blunt weapon. However, the question arises, as to whether the appellants were the persons, who committed the murder of deceased Abdul Nisar? It is the case of prosecution that on the fateful day, at about 10- 30 a.m., P.W.2 Wazir Khan, along
with deceased, was proceeding towards bazaar on a bicycle and when they reached near High School, Gharib Abad, they were, allegedly, intercepted by accused Qadir Bakhsh, Moula Bakhsh, Shah Muham mad (appellants) and their absconding companions viz Saifullah and Khan
Muhammad, who started beating deceased Abdul Nisar by means of sticks, as a result whereof, Abdul Nisar suffered grievous injuries and fell down, while culprits made their escape good. In
order to substantiate the accusation, the prosecution mainly relies on the statement of P.W.2
Wazir Khan, who is the sole eye- witness of the incident and, admittedly, related to the deceased
as well as inimical to the appellants. After going through hi s evidence, we have no hesitation in
observing that the said eye -witness has failed to inspire our confidence. No doubt; conviction can
be based on the evidence of a solitary witness, if a witness is found to be a truthful and his
evidence is confidence in spiring and corroborated by other independent pieces of evidence,
while in the instant case, the said witness has not only made dishonest improvements in
order to strengthen case of the prosecution, but was also resident of far off place and he was the
chance witness, who had not shown any specific reason for his being present at the spot at the time of occurrence. The evidence transpires that he has not been able to establish that how he was present and what steps were drawn by him after commission of the said offence. Neither he had gone to police station for lodging of the F.I.R. and informing the law enforcing agencies, nor he had shown any reaction in order to save the life of his loved one. Admittedly, in the normal course of events, he would not wait for the brother of deceased and should,
immediately, shifted the injured to hospital, who was lying injured at the relevant time in helpless condition. The conduct exhibited by the said witness is of fensive to normal
human behaviour. We are, therefore, not ready to believe that he was present at the time of alleged incident.
8. The incident was taken place at 10 -30 a.m., while the F.I.R. has been lodged at 1 -00 p.m. after
unexplained delay of about two and half hours in spite of the fact that police station was situated at a walking distance. The lodging of delayed F.I.R. proves that prior to lodging of F.I.R., deliberation was made so as to cook a false and concocted story.
9. The evidence, furnished by the said sole eye -witness has also been belied by the host of
circumstances, as he implicated as many as five accused, but the medical evidence, furnished by P.W.3 Dr. Lal Muhammad, shows only one injury on the person of decea sed Abdul Nisar, which
might be the act of a single person. We are of the opinion that in the absence of strong corroboration or confirmatory circumstances, conclusively proving the participation in the crime, no one can be convicted on the basis of a shaky and uncorroborated evidence, furnished by a sole chance and related witness.
10. We are also in agreement with learned counsel for the appellants that in case of non-production of a witness, whose names figured in the F.I.R., adverse inference under Ar ticle
129(g) of the Qanun -e-Shahadat Order, 1984 can be drawn. If any authority is needed on the
point, we may refer the judgments -reported in 1972 SCMR 28 and 1996 SCMR 167. The record
reveals that F.I.R. purported the name of one Soorat Khan son of Abdul Hameed, but his
evidence was withheld by the prosecution deliberately, as he was not ready to support the concocted story of prosecution. The record also indicates that he was produced and examined by the defence. He is, admittedly, an independent witness of the incident, having no ill -will or
grudge either to the complainant or the accused party. D.W.1 Soorat Khan has stated in a categorical manner that the appellants are not the culprits. Similarly, the recovery of alleged crime weapons i.e. two sticks i s also of no avail to the prosecution, as neither the said sticks have
been recovered on the pointation of appellants from their possession, nor the same were sent for chemical analysis to show that it were stained with human blood.
11. The crux of the w hole discussion is that the prosecution evidence is replete of doubts. It is a
settled principle of law that in case of doubt, the benefit thereof must accrue in favour of the
accused as a matter of right and not of a grace. In the case of Tariq Pervez v. The State reported in 1995 SCMR 1345, the Hon'ble Supreme Court observed as under: --
"For giving him 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 not as a matter of grace and concession but as a matter of right."
In the aforesaid circumstances, we are of the confident view that the defence versions v is-a-vis
prosecution version is more probable and near to truth. The prosecution has failed to prove its case against the appellants beyond any shadow of doubt to sustain the conviction, therefore, this appeal is allowed, impugned judgment of conviction is set aside and the appellants are acquitted
of the charges levelled against them. They are behind the bars shall be released forthwith if not required to be detained in any other case.
N.H.Q./101/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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