2018 Y L R 2053
[Balochistan]
Before Jamal Khan Mandokhail and Nazeer Ahmed Langove, JJ
ABDUL SAMAD and 3 others ---Appellants
Versus
The STATE and others ---Respondents
Criminal Appeal No.364 and Criminal Revision No. 42 of 2016, decided on 31st January, 2018.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapon,
unlawful assembly ---Appreciation of evidence ---Benefit of doubt ---Prosecution case was that on
the fateful day at about 8 .45 p.m., the accused persons, while armed with daggers, knives and
sticks, beat the brother of complainant, who received several injuries of daggers and knives and
succumbed to the injuries ---Motive behind the occurrence as stated by the complainant was a
property dispute ---Ocular account was furnished by three eye -witnesses including complainant,
but there were certain material contradictions, omissions, discrepancies and improvements in their statements ---Complainant had stated that accused persons and c o-accused were armed with
daggers, knives and dandas, whereas eye -witnesses stated that assailants were armed with
daggers and knives ---Complainant had not stated that who was armed with daggers, knives and
dandas, whereas eye -witnesses made dishonest impr ovement and stated that two accused were
armed with daggers and rest of the accused had knives in their hands ---Statement of complainant
was contradicted by eye -witness, who stated that after commission of offence, the assailants
made their escape good on two vehicles, whereas complainant stated that the accused fled away in one vehicle which was not possible as to how eight persons after the commission of offence would escape in one car ---Eye -witnesses had not supported each other on the point of time, as
complainant and eye -witness stated that incident took place at 8.45 p.m., whereas the other eye -
witness stated that occurrence took place at 8.00 p.m.---Accused persons, who were eight in number, allegedly armed with sticks, daggers and knives murdered the real brother of eye -
witnesses but when they came at the spot, the assailants did not cause a single bruise to them despite the fact that the parties were inimical towards each other as they had property dispute ---
Said contradictions, omissions and improve ments cast serious doubts on presence of eye -
witnesses including complainant at the place of incident and witnessed the incident with their eyes, which made the prosecution case doubtful ---Circumstances established that prosecution
had failed to establish guilt of the accused persons to the hilt ---Appeal was allowed and accused
persons were acquitted in circumstances by setting aside conviction and sentences recorded against them by the Trial Court.
(b) Criminal trial ---
----Benefit of doubt ---Principle ---If a slightest doubt was created in the prosecution case, accused
would be entitled to its benefit not as a matter of grace but as a matter of right.
Muhammad Akram v. The State 2009 SCMR 230; Sher Umer Khan v. Khan Pur alias
Khaney and 2 others PLD 2015 Pesh. 143 and Fariad Ali v. State 2008 SCMR 1086 rel. Kamran Murtaza and Arbab Muhammad Tahir for Appellants.
Muhammad Ismail Baloch and Saleem Lashari for the Complainant.
Ameer Hamza Mengal, D.P.G. for the State.
Date of hearing: 14th November, 2017.
JUDGMENT
NAZEER AHMED LANGOVE, J. ---Instant appeal is directed against the judgment
dated 22.11.2016 passed by learned Additional Sessions Judge -III, Quetta whereby the
appellants were found guilty under section 302/34(b), P.P.C., as such convicted and s entenced to
life imprisonment each with compensation of Rs.2,00,000/ - (Rupees Two Lacs) which on
realization was directed to be equally distributed among the legal heirs of deceased. In default of
compensation, the appellants were further directed to under go six months SI each. Benefit of
section 382- B, Cr.P.C., was extended in favour of appellants.
2. Facts relevant for disposal of instant appeal are that on 21.9.2013, complainant Haji
Athanullah submitted a written report to the SHO Police Station Industr ial Area, Quetta alleging
therein that that on the fateful day at about 8.45 p.m he was present in his house when attracted by noises whereupon he along with his brothers Rehmatullah and Saifullah came out of their home and found the accused Abdul Samad, A bdul Zahir, Abdul Hameed, Abdul Waheed,
Mirwais, Kamran, Muhammad Tahir and Muhammad Nadir who are their relatives armed with daggers, knives and sticks beating his brother Attaullah. On their arrival the accused persons boarded in their vehicle and drove away. The complainant further alleged that his brother received several injuries of daggers and knives and they took the injured to Civil Hospital where he succumbed to his injuries. As regards motive, the complainant stated that they had property dispute with the accused party, therefore, with connivance and consultation of each other the
accused have committed the murder of his brother.
3. On the above report FIR No.124/2013 was registered with Police Station Industrial Area.
The record reveals that after commission of offence the present appellants were arrested,
however, accused Abdul Hameed, Abdul Waheed, Mirwais and Khushal made their escape good
and the police as yet could not lay hand on them. After registration of case Investigation commenced, on completion of the investigation challan was submitted before the trial Court.
4. On 4.6.2014 charge was read over to the appellants to which they pleaded not guilty and
claimed trial. The prosecution in order to substantiate the accusation against the appell ants
examined 10 PWs. Thereafter the appellants were examined under section 342, Cr.P.C., wherein
they denied all the incriminating pieces of evidence and pleaded innocence. Appellant namely
Zamrak alias Tahir recorded his statement under section 340(2), C r.P.C., though the appellants
showed their willingness to produce one Serichand son of Warand Mal, resident of Shikarpur in their defense however, they failed to produce the said person. The learned trial Court after hearing the parties and evaluating the evidence found the appellants guilty, as such convicted and
sentenced them as mentioned hereinabove. Feeling aggrieved of their conviction and sentence
the appellants have preferred the instant appeal and simul -taneously the complainant filed
Revision peti tion for enhancement of sentence.
5. Learned counsel for the appellants argued that the appellants are innocent. They have
committed no offence whatsoever. The prosecution during the trial badly failed to prove the
charge against the appellants beyond reas onable shadow of doubts, but this aspect of the case
escaped notice of the trial Court. The learned counsel stressed that one of the ground prevailed upon the trial Court for awarding sentence to appellants was presence of PWs -1, 2 and 4
(allegedly eye -witnesses) but the perusal of their statements would reveal that in fact they had
not witnessed the incident and were shown to be the eye -witness only to strengthen the
prosecution case but the trial Court while convicting the appellants altogether ignored th is
important aspect. Learned counsel urged that though the prosecution alleged that the incident
took place in a thickly populated area in front of bread shop but no witness from public or the
occupants of shop were produced which cast serious doubt in prosecution case but the trial Court failed to take into consideration this aspect of the case. It was next contended that the trial Court gave undue weight to the statements of PW -1, 2 and 4 ignoring the fact that they are very much
interested witnesses and their testimony could not have been made basis for recording conviction against the appellants without corroboration from independent source which is lacking in the instant case. There are material contradictions, omissions and discrepancies in the statements of
PWs, as such their testimony cannot be made basis for recording conviction against the appellants. The judgment impugned herein is result of misreading and non- reading of evidence,
as such the same is not sustainable under the law and liable to be i nterfered with by this Court by
way of setting aside the same and acquitting the appellants of the charge. During trial the defence created serious dents and doubts in prosecution case but the trial Court failed to extend benefit of doubt in favour of the appellants.
In criminal revision petition learned counsel for respondents adopted the arguments
advanced by them in criminal appeal.
6. On the other hand the learned counsel for the complainant and Deputy Prosecutor
General strenuously opposed the appeal by submitting that the incident was witnessed by PWs.1, 2 and 4 and they have narrated the clean burst story of the incident. Appellants are nominated in the promptly lodged FIR. Learned counsel for the appellants failed to show any illegality or irregularity in the judgment impugned warranting interference by this Court. Though there are minor contradictions in the statements of eye -witnesses but the same could not constitute
grounds for appellants acquittal, rather in the interest of justice the same are liable to be overlooked. The medical evidence is in line with that of ocular account, therefore, acquittal of appellants is not warranted. All the PWs have fully corroborated each other on material points. The trial Court after taking into consideration the entire evidence and attending all aspects of the case passed a well -reasoned judgment, however, it erred in law by not awarding normal penalty
of death sentence to the appellants.
7. In criminal revision petition learned counsel for the petitioner argued that once a Court
comes to the conclusion that case under section 302, P.P.C. stands proved against the accused
then it is under legal obligation to award capital punishment to the acc used. Learned counsel
further argued that there was no mitigating circumstances warranting for taking a lenient view against the respondents, therefore, the judgment impugned herein is not tenable under the law and liable to be interfered with to the exten t of not awarding normal death penalty to the
respondents. The Trial Court ought to have had recorded justifiable reasons for not awarding normal death penalty to the respondents but it erred in law to record such reasons.
8. We have considered the argumen ts advanced by the learned counsel for the parties and
perused the record of the case minutely with their assistance. So far as the contention of learned
counsel for the appellants that the appellants are innocent is concerned, in this regard it may be noted that in the instant case FIR was lodged promptly and the appellants have been nominated
therein. To prove the accusation the prosecution produced three eye -witnesses i.e. PW -1, 2 and
4. PW -1 deposed that on 21.9.2013, at about 8:45 p.m. he was present i n his house when
attracted by noises whereupon he along with his brothers Rehmatullah and Saifullah came out of their home and found the accused Abdul Samad, Abdul Zahir, Abdul Hameed, Abdul Waheed, Mirwais, Kamran, Muhammad Tahir and Muhammad Nadir who ar e their relatives armed with
daggers, knives and sticks beating his brother Attaullah. On their arrival the accused persons boarded in their vehicle and drove away. His brother received several injuries of daggers and knives and he with the help of other r elatives took the injured to Civil Hospital in a very critical
condition where he succumbed to his injuries. As regards motive, the complainant stated that they had property dispute with the accused party, therefore, with connivance and consultation of
each other the accused have committed the murder of his innocent brother.
PW.2 deposed that on 21.9.2013, at about 8:45 p.m he was present in the house of his
elder brother Amanullah, Saifullah, when they were attracted by noises whereupon he along with his two brothers Amanullah and Saifullah came out of their home. They saw a boy who was
running and the said boy told them that their brother Attaullah has fight. They found the accused Abdul Samad, Abdul Zahir who had daggers in their hands and the rest of ac cused had knives in
their hands. The accused were inflicting dagger and knives blow on his brother. Accused Abdul Samad and Abdul Zahir were directing their sons to beat as much that he should not remain saved. He tried to go ahead but the assailants threa tened them and fled away towards Sirki Road
in their their vehicles. His brother received several injuries of daggers and knives and they took the injured to Civil Hospital where he succumbed to his injuries.
PW.4 deposed that on 21.9.2013, at about 08 p.m he was present in the house of his
brothers Amanullah and Rehmatullah, when they were attracted by noises which were coming
from outside of their house near Bacho Chowk whereupon he along with his two brothers Amanullah and Rehmatullah came out of their home. They saw a boy who was running and the said boy told them that their brother Attaullah has fight. On hearing this they proceeded towards Bacho Chowk and saw that their maternal uncle Abdul Samad, Abdul Zahir along with their sons Abdul Hameed absconding accused Mirwais, Kamran, Zamrak, Khushal Alias Nadir are standing near the bread shop. Accused Abdul Samad and Abdul Zahir had daggers in their hands
and the rest of accused had knives in their hands. The accused were inflicting dagger and knives
blow on his brother. Accused Abdul Samad and Abdul Zahir were directing their sons to beat
and he should not remain saved. They tried to go ahead and rescue their brother but the assailants threatened them and fled away towards Sirki Road in two vehicles. It is relevant to note here that
an important witness was boy who informed PWs Haji Amanullah, Rehmatullah and Asmatullah
about the fight but not included as witness same happened with one Bashir, brother in law of
PWs 1, 2, and 4 present in their house but not came out, which is against the Human Conduct nor
associated as witness, by withholding such evidence without good cause, under illustration (g) of
Article 29 of Q.S.O., 1984 suggests that had the said evidence been brought on record same would have been un favourable to the prosecution.
Perusal of above reproduced evidence furnished by PW -1, 2 and 4 reveals that there are
certain material, contradictions, omissions, discrepancies and improvements in the statements.
PW-1 stated that the appellants and co -accused were armed with daggers, knives and 'dandas'
whereas PW -2 and 4 stated that the assailants were armed with daggers and knives. Furthermore,
PW-1 has not stated that who was armed with dagger, knives and dandas whereas PW -2 and 4 by
making dishonest improvement deposed that accused Abdul Samad and Abdul Zahir were armed with daggers and the rest of accused had knives in their hands. Furthermore, PW -1 deposed on
21.9.2013, at about 8.45 p.m. he was present in his house when attracted by noises whereupon he along with his brothers Rehmatullah and Saifullah came out of their home and found the accused Abdul Samad, Abdul Zahir, Abdul Hameed, Abdul Waheed, Mirwais, Kamran, Muhammad Tahir and Muhammad Nadir armed with daggers, knives and sticks beating his brother Attaullah. On their arrival the accused persons boarded in their vehicle and drove away whereas, PWs -2
and 4 deposed that when they came out of their house they saw a boy running who told them that their brother Attaullah has quarrel with some persons. PWs -2 and 4 further contradicted the
statement of PW -1 by saying that accused Abdul Samad and Abdul Zahir during scuffle were
directing their sons to beat and he should not remain saved but PW -1 did not utter a single word
regarding directions of appel lants Abdul Samad and Abdul Zahir to their sons. The statement of
PW-1 was further contradicted by PW -4 who stated that after commission of offence the
assailants made their escape good in two vehicles, whereas PW -1 stated that the appellant fled
away in a vehicle meaning thereby that according to PW -1 the assailants boarded in a single 2- D
Car. It is also questionable that how eight persons after commission of offence escaped in a single 2 -D Car. According to PWs -2 and 4 when they came out of house and saw that the
appellants and co -accused are inflicting daggers and knives blow, they tried to go ahead and
rescue their brother but the assailants threatened them and fled away towards Sirki Road, whereas according to PW -1 no sooner they came out of their hous e the assailants on seeing them
fled away. PWs -1, 2 and 4 have also not supported each other on the point of time because
according to PWs -1 and 2 the incident took place at 08:45 p.m whereas according to PW -4 it was
08:00 p.m. All the above contradictions , omissions and improvements cast serious doubts on
presence of PWs -1, 2 and 4 at the place of incident and witnessing the incident with their eyes,
rather it makes the prosecution case doubtful. Here it may not be irrelevant to mention here that the defen ce is not required to create series of doubts in prosecution case but if a slightest doubt
arisen in the prosecution case even then the accused is/are entitled to the benefit of same not as a matter of grace but as a right. In this regard we are fortified by the judgment titled as "Muhammad Akram v. The State" reported in 2009 SMCR 230. Relevant observation there from are reproduced herein below; -
"The nutshell of the whole discussion is that the prosecution case is not free from doubt.
It is an axiomatic p rinciple of law that in case of doubt, the benefit thereof must occur in
favour of the accused as matter of right and not of grace. It was observed by this court in the case of Tariq Pervaiz v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If
there is circumstance which create reasonable doubt in a prudent mind about the guilt of
the accused, then the accused would be entitled to the benefit of doubt not as a matt er of
grace and concession but as a matter of right.
Reliance can also be placed on case titled as Sher Umer Khan v. Khan Pur alias Khaney
and 2 others reported in PLD 2015 Peshawar 143 wherein it held as under; -
"It is settled law that the prosecution pr imarily is bound to establish guilt against the
accused without shadow of reasonable doubt by producing trustworthy, convincing and
coherent evidence enabling the court to draw conclusion: whether the prosecution has succeeded in establishing accusation ag ainst the accused or otherwise: and if it comes to
the conclusion that the charges so imputed against the accused has not been proved beyond reasonable doubt, then accused would become entitled for his release on getting benefit of doubt in the prosecution case. The requirement of the criminal case is that
prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to discredit to the prosecution story and entitle the accused for acquittal.
Moreover, accused is always consider as the most favorite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance can be pla ced on case titled, "Fariad Ali v. State" 2008 SCMR 1086.
There is another aspect of the case which not only makes the prosecution case doubtful
but is also seriously fatal i.e. according to PW -2 and 4 when they came out of house and saw that
the appellan ts and co -accused are inflicting daggers and knives blow, they tried to go ahead and
rescue their brother but the assailants threatened them and fled away towards Sirki Road. It does not appeal to a prudent mind that the real brother of P.Ws.2 and 4 was be ing beaten with daggers
and knives by the assailants and they only by receiving threat did not go ahead to rescue their brother. It is also amazing rather not believable that appellants and co- accused who were eight in
number and allegedly duly armed with sticks, daggers and knives murdered the real brother of
PWs -1, 2 and 4 but when PWs -1, 2 and 4 came at the spot the assailants did not cause a single
bruise to them despite of the fact that the parties were inimical towards each other as they had property dispute. All the above discussion leads us to irresistible, conclusion that presence of
PWs -1, 2 and 4 at the place of incident is not only seriously doubtful and unnatural but their
conduct is also not above the board. Noteworthy that in a murder case the prosecution is bound
to establish such a chain of evidence starting from foot and touching the neck which in the instant case is lacking. We are of the considered opinion that the defence has fully been able to create serious dents and doubts in the prose cution case, whereas the prosecution badly failed to
establish guilt of the appellant to the hilt, as such we are of the clear mind that the judgment impugned is not sustainable under the law.
In view of what has been discussed herein above, we are of the firm view that the defence
succeeded to make out a case in their favour, thus, the appeal is accepted, judgment dated
22.11.2016 passed by Additional Sessions Judge -III, Quetta is set aside to the extent of
appellants and the appellants are acquitted of t he charge in Sessions case No.108/2013, FIR
No.124/2013, Police Station, Industrial area, Quetta under Sections 302, 147, 148 and 149,
P.P.C. They be set at liberty forthwith if not required in any other offence.
As the appeal filed by the appellants agai nst their conviction is accepted, therefore,
Revision Petition No.42/2016 filed by the complainant for enhancement sentence of appellants is hereby dismissed.
JK/21/Bal. 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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