2014 Y L R 1833
[Balochistan]
Before Naeem Akhtar Afghan and Muhammad Ejaz Swati, JJ
HABIBULLAH and another ---Appellants
Versus
The STATE---Respondent
Criminal Appeal No.15 of 2013, decided on 30th April, 2014.
Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -e-amd---Appreciation of evidence--- Benefit of doubt ---Complainant was not
an eye -witness, but he had received information about the incident from some other person and
got registered the F.I.R.---Both prosecution witnesses, who were ne phew of the deceased, were
residents of a place which was situated more than 100 Kms from the place of incident ---Version
of alleged eye -witnesses with regard to their presence at the place of incident; and the factum of
incident narrated by them, were not convincing and reliable ---Inspection memo of the place of
occurrence, was prepared on the pointation of complainant, who was not an eye -witness of the
incident ---Ocular witnesses having failed to justify their presence at the place of occurrence,
without any other independent corroboration, no reliance could be placed on the testimony of
said witnesses ---Most important independent eye -witnesses, and strong circumstantial witness,
despite being available at the trial, their evidence was withheld; and one in jured witness was also
not produced---Adverse inference under Illustration (g) of Art.129 of Qanun- e-Shahadat, 1984,
could be drawn against prosecution--- Documentary evidence, produced by accused persons to
prove their plea of alibi, had not been shaken b y the prosecution---Said circumstances had
shattered the case of prosecution and created reasonable doubt in the case; benefit of which had
to be extended to accused persons ---One reason -able doubt or circumstance, was sufficient to
discard the statement o f the witnesses ---Prosecution having failed to prove the charge against
accused persons beyond reasonable doubt, impugned judgment of the Trial Court was set aside;
accused were acquitted of the charge and were released, in circumstances.
Muhammad Farooq and another v. The State 2006 SCMR 1707; Muhammad Shah v. The
State 2010 SCMR 1009; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Riaz Ahmed
v. The State 2010 SCMR 846 and Ashiq Hussain v. The State 1993 SCMR 417 ref.
Ayaz Zahoor for Appellant s.
Wali Khan Nasar for the Complainant.
Naseeruddin Mengal for the State.
Date of hearing: 22nd April, 2014.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---This Criminal Appeal has been directed against the
judgment dated 31st December, 2012 (hereinafter the "impugned judgment") passed by
Additional Sessions Judge -VI, Quetta (hereinafter the "trial Court"), whereby appellants have
been convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life each
with fine of Rs.100,000 each as compensation under section 544, Cr.P.C. to be paid to the legal
heirs of deceased and in default thereof to further suffer one year S.I. each, with the benefit of
section 382- B, Cr.P.C.
2. Facrs of the prosecution case are that on the Fard -e-Bayan Exh.P /1-A of the complainant
Muhammad Ismail an F.I.R. No.22/2010 dated 19th February, 2010 was registered at about 11-
15 a.m. under sections 302, 324, 34, P.P.C. with the Police Station, Shalkot Quetta wherein it
was alleged that he was performing his duty as member of squad of Chief Minister at Sarawan
House Quetta, on the same date at about 10- 15 a.m. Constable Muhammad Yousaf through
mobile informed him about the murder of his uncle namely Fida Hussain near Saeed Bakery,
Faizabad Quetta, when he reached at t he spot the dead body of his uncle was lying in pool of
blood having firearm injury. It is further alleged that the brother of complainant namely Lashar
Khan and cousin Muhammad Hanif and one Ali Muhammad were also present there. He was
told by Muhammad Ha nif and Lashar Khan that on two motorcycles six persons equipped with
Kalashnikovs came and started firing upon deceased, who died at the spot and due to their firing
one passerby namely Noor Ahmed son of Khair Muhammad also sustained bullet injuries. The
complainant was further informed by Muhammad Hanif and Lashar that they identified the
appellants and Bebarg (absconding accused) who made firing upon the deceased.
3. After registration of F.I.R. Wazeer Hussain P.W.6 reached at the spot, prepared sit pl an
and inspection memo. Recovered blood- stained earth and three empties of Kalashnikov. A led
bullet was also taken into possession. Inquest report Ex.P/6- B was prepared. Statements of the
witnesses were recorded.
4. After submission of challan on 25th J une, 2010 charge was framed to which the
appellants pleaded not guilty. Prosecution examined seven witnesses.
5. When examined under section 342, Cr.P.C. both the appellants denied the allegation of
prosecution. They have recorded their statements under
section 340(2), Cr.P.C. and produced four witnesses in their defence. The trial Court after
evaluating evidence on record vide impugned judgment convicted the appellants and sentenced
as mentioned hereinabove.
6. The learned counsel for the appellants contended that the prosecution story is false; that
two alleged eye witnesses (P.W.2 and P.W.3) were not present at the time of occurrence as said
witnesses were residents of the area situated more than 100 km from the place of incident and
they have also f ailed to justify their presence at the place of occurrence; that P.W.2 and P.W.3
alleged their presence along with the deceased when indiscriminate firing started but none of
them hurt which clearly shows that the witnesses had belied; that it was an unsee n occurrence;
that the eye -witnesses of the incident namely Ali Muhammad, injured Noor Ahmed and other
circumstantial witness namely Muhammad Yousaf were abandoned by the prosecution which
further draw a negative inference in the case of prosecution; that appellants during investigation
had taken plea of alibi and during trial through authentic documentary evidence substantiated the
same which has not been considered by the trial Court without any cause and justification: that
the impugned judgment reflects misreading and non- reading of evidence on record which
resulted in grave miscarriage of justice; that prosecution has failed to prove its case beyond
reasonable doubt, therefore, the impugned judgment deserves dismissal.
7. As against this, the learned counsel for complainant controverted the contentions of
counsel for the appellants and submitted that prosecution through trustworthy and reliable ocular
account furnished by P.W.2 and P.W.3 proved the case against appellants; that the ocular
account has also been corroborated by the medical evidence; that the trial Court after
appreciation of evidence on record has passed reasonable judgment which does not reflect any
misreading and non- reading of evidence and same is liable to be sustained.
8. The learn ed State counsel while adopting the arguments of learned counsel for
complainant, stated that the presence of eye- witnesses at the spot has not been seriously
challenged by the defence and despite lengthy cross -examination witnesses remained firm; that
impugned judgment is based on proper appreciation of evidence, which do not suffer from any
perversity, hence liable to be sustained.
9. We have heard the learned counsel for the parties and have gone through the record of the
case, we find that complainant Muhammad Ismail P.W.1, the nephew of deceased Fida Hussain
was not an eye witness and he received information about the incident from one Muhammad
Yousaf and after receiving such information he came to the place of occurrence and through his
Fard-e-bayan registered the F.I.R. The case of prosecution hinges upon the statement of
Muhammad Hanif P.W.2 and Lashar Khan P.W.3 both these witnesses are nephew of deceased
Fida Hussain and were residents of Pitri, Gandawa a place situated about more than 100 kms
from the place of incident. According to them on 18th February, 2010 they along with deceased
Fida Hussain went to the Baithak of Ali Muhammad situated at Killi Bangulzai, Faizabad, Sariab
Road, Quetta, where one Muhammad Yousaf was also present, they spent n ight over there. In the
morning of 19th February, 2010 they along with deceased Fida Hussain and Ali Muhammad
were proceeding towards Sariab Road via Faizabad, when they reached near Saeed Bakery,
Faizabad six persons including appellants and absconding ac cused on two motorcycles equipped
with Kalashnikovs emerged and started indiscriminate firing upon the deceased, who died at the
spot. The version of alleged eye -witnesses with regard to their presence at the place of incident
and the factum of incident na rrated by them in the circumstances of the case are not convincing
and reliable. According to them they were along with deceased when all the six accused persons
including appellants started firing upon the deceased. If they were along with deceased Fida
Hussain at the place of incident they would have received fire arm injuries, but they have not put
forth any explanation as to how they remained unhurt and saved themselves from the
indiscriminate targeted firing, this aspect led suspicious and make, their presence doubtful.
Reference in this respect is made to the case of Muhammad Farooq and another v. The State
2006 SCMR 1707. Relevant is reproduced herein below: --
"We will first like to examine the question whether presence of P.W.9 at the spot, could
in the circumstances, be believed. It may be noted that the deceased had twenty -five injuries out
of which eighteen were entry wounds. Besides the deceased Muhammad Abbas, P.W.9 was also
challaned in the case of murder of Saeed, the brother of appellants. Had P.W.9 been present on
the spot, he was not likely to be spared because the number of injuries on the person of deceased
show that at least eighteen rounds were fired. It only shows the degree of venom the killer had
for the deceased. The number of injuries on the person of the deceased also leads us to believe
that more than one person participated in the occurrence. Therefore, it is unnatural and
improbable that if P.W.9 was present at the spot, he would not be targeted."
10. Another reason to doubt about presence of the eye witnesses was that Nasir Shehzad
P.W.5, who attested inspection memo, blood- stained earth and recovery memo of three empties
and a led of Kalashnikov at the spot had not disclosed their presence, nor Investigating Officer
Wazeer H assan P.W.6 prepared site plan and inspection memo on their pointation, rather
according to P.W.6 the inspection memo of the place of occurrence was prepared on the
pointation of complainant who was not an eye witness of the incident. The inquest report Ex .P/6-
B indicates that dead body of deceased was identified by Azizullah and Ghulam Ali. The Medico
Legal Certificate of deceased Fida Hussain Ex.P/4 -C, further shows that dead body of the
deceased was brought by one Muhammad Tariq (not produced) and according to Investigating
Officer P.W.6, the FC personnel had taken the dead body of the deceased to hospital. The F.I.R.
Ex.P/6 -D was registered on the Fard -e-bayan of Muhammad Ismail P.W.1 , who had come from
a place situated about 4 km away from the place of incident and further according to complainant
he was informed about the happening of incident by one Muhammad Yousaf (not produced).
Admittedly P.W.2 Muhammad Hanif and P.W.3 Lashar Khan were residents of Pitri Gandawa a
place situated about more than 100 kms from the place of incident. They did not provide any
explanation for their presence at the place of occurrence. Had they been present naturally they
would have lodged F.I.R., shifted the deceased to hospital, who was their real uncle or informed
the complainant about the incident. The circumstances create serious doubt with regard to their
presence at the place of incident. Since the ocular witnesses have failed to justify their presence
at the place of occurrence, therefore, without any other independ ent corroboration no reliance
could be placed on the testimony of P.W.2 and P.W.3. In case titled Muhammad Shah v. The
State 2010 SCMR 1009 in the similar circumstances ocular witness was disbelieved and Apex
Court observed as under: --
"As regards P. W.3 Musa Khan, the High Court formed the opinion that he did not
provide any explanation for his presence at the Taxi Stand at the relevant time, as he was the
resident of Chamman. It is pointed out that if P.W.3 brother -in-law of the deceas ed, had been
present at the scene of incident at the relevant time then he would have informed the incident to
the complainant but he did not do so. It was but natural for P. W.3 to have shifted the injured to
the hospital and get him admitted there, where his presence would have been noted by the Doctor
but this has also not been done by him. On the contrary, the deceased in injured condition was
shifted to the Hospital by the people of locality, which also creates serious doubts about the
presence of P.W. 3 at the place of incident. In these circumstances, the learned High Court was
justified in disbelieving the statement of P.W.3 and we do not find any reason to interfere with
such findings, which is based on correct appraisal of evidence available on record."
11. The other reasons for disbelieving the ocular account furnished by Muhammad Hanif
P.W.2 and Lashar Khan P.W.3 are that Mirza Abdul Khaliq P.W.7 second Investigating Officer
in cross -examination stated as under: -
12. The above cross -examination negates the spending of the night by P.W.2 and P.W.3 with
the deceased in the Baithak of Ali Muhammad. It further contradicts the desposition of P.W.2
and P.W.3 that on 19th February, 2010, they were in the company of deceased when incident had
taken plac e; the above are sufficient circumstances to exclude the statement of Muhammad Hanif
P.W.2. and Lashar Khan P.W.3 from consideration. It is settled principle of criminal
administration of justice that one reasonable doubt or circumstance is sufficient to d iscard the
statements of that witness or witnesses. Reference in this respect is made to the case of Riaz
Masih alias Mithoo v. The State 1995 SCMR 1730. Relevant is reproduced herein below: --
"For excluding statement of a witness from consideration, it is not necessary that there
should be more than one reasons or circumstances. If one reason creates reasonable doubt in a
reasonable mind regarding presence of the witness, that alone would be sufficient for discarding
statement of that witness."
13. It is important to note that in the present case Ali Muhammad, Muhammad Yousaf and
Noor Ahmed injured were important witnesses of the prosecution. It is the case of prosecution
that deceased Fida Hussain on 18th February, 2010 spent night in the Baithak of A li Muhammad,
Muhammad Yousaf also came there and on the next morning i.e. 19th February, 2010 Ali
Muhammad was accompanying the deceased and according to F.I.R. Ali Muhammad was an eye
witness of the incident and in this respect P.W.6 Investigating Officer also admitted that only
eye-witness of the incident was Ali Muhammad. These two important witnesses of the
prosecution though had appeared before the trial Court for recording their statements on 19th
July, 2010 but prosecution had sought permission to dr op the said witnesses and the trial Court
vide order dated 19th July, 2010 permitted the prosecution to drop these witnesses. The most
important independent eye witnesses Ali Muhammad and strong circumstantial witness
Muhammad Yousaf though were available at the trial and their evidence was best piece of
evidence for the prosecution to prove its case, but their evidence was withheld, and the injured
witness Noor Ahmed was also not produced. therefore, adverse inference under Illustration (g) of
Article 129 of Qanun- e-Shahadat Order, 1984 could be drawn against the prosecution. Had these
witnesses examined they would have not supported the case of prosecution. In the case titled
Riaz Ahmed v. The State 2010 SCMR 846 with regard to withholding of an eye -witnes s and best
evidence by the prosecution, the Hon'ble Supreme Court held as under: --
"One of the eye -witnesses Manzoor Hussain was available in the Court on 29- 7-2002 but
the prosecution did not examine him, declaring him as unnecessary witness without re alizing the
fact that he was the most important, only serving witness, being an eye -witness of the
occurrence. Therefore, his evidence was the best piece of the evidence, which the prosecution
could have relied upon for proving the case but for the reasons best known, his evidence was
withheld and he was not examined. So a presumption under Illustration (g) of Article 129 of
Qanun- e-Shahadat Order, 1984 can fairly be drawn that had the eye -witness Manzoor Hussain
been examined in the Court his evidence woul d have been unfavourable to the prosecution."
14. The appellants during investigation have taken plea that they are JV Teachers in
Government Middle School Pitri, Gandawa and on 19th February, 2010 (day of incident) from 9 -
00 a.m. to 12- 30 p.m. they were on their duty. To substantiate their plea, the appellants through
DW-1 produced attendance register indicating their attendance in the school on the day of
incident. Besides P.W.7 also admitted that during investigation appellants have disclosed this
fact to him, but he did not collect any record from the concerned school. However he admitted
that during investigation he collected record of the mobile of the appellants, which reflected that
at the time of incident appellants location was at Gandawa. The relevant portion is reproduced
herein below: -
15. The appellants through defence witnesses have produced documentary evidence to prove
their plea of alibi which has not been shaken by the prosecution. The appellants by producing
above evidence in defence and from inference of the prosecution have substantiated to the extent
of creating doubt in the credibility of the prosecution case. The aforesaid circumstances have
also shaken the case of prosecution and created reasonable doubt in the case of prosecution
benefit of which has to be extended to the appellants. Reference in this respect is made to the
case of Ashiq Hussain v. The State 1993 SCMR 417. Relevant is reproduced herein below: --
"It is needless to repeat that it is bounden duty of the prosecution to prove the case
against accused beyond doubt and this duty does not change or vary in the case in which any
defence plea is taken. Burden of prosecution to prove its case beyond doubt remains the same. Of
course, defence plea is to be considered in jux taposition with prosecution case and in the final
analysis if defence plea is proved or accepted then prosecution case would stand shattered and
discredited. It would be enough if plea is substantiated to the extent of creating doubt in the
credibility of the prosecution case. If defence plea is not substantiated, no benefit accrues to the
prosecution on that account and its duty to prove the case beyond doubt would not be diminished
even if defence plea is not proved or is found to be palpably false."
16. From the above no explicit reliance can be placed on ocular account furnished by P.W.2
and. P.W.3, therefore, their testimony is excluded from consideration with the result no evidence
is left on the record to convict the appellants for the commission of offence. The prosecution has
failed to prove the charge against the appellants beyond reasonable doubt. Thus the impugned
judgment is not sustainable.
In view of the above, the appeal is allowed, the impugned judgment passed by Additional
Sessions Judg e-VI, Quetta is set aside. The appellants Habibullah son of Dur Muhammad and
Gul Hassan son of Allah Rakha are acquitted of the charge under section 302(b), P.P.C. in F.I.R.
No.22 of 2010 Police Station Shalkot Quetta, the appellants are ordered to be rele ased forthwith
if not required in any other case.
HBT/40/Bal. 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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