2018 Y L R 507
[Balochistan (Sibi Bench)]
Before Muhammad Ejaz Swati and Abdullah Baloch, JJ
SADDAR- UD-DIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No.(s) 31 of 2015, decided on 17th October, 2017.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-Amd ---Appreciation of evidence ---Benefit of doubt ---Interested
witnesses ---Unhurt eye -witnesses, presence of ---Proof ---Role of audience played by four
witnesses letting the culprits to murder deceased and to escape unhurt was enough to create
doubt in the case of prosecution---Complainant was eye -witness of occurrence and was
brother of deceased while remaining eye -witnesses were father and two paternal uncles of
deceased but their presence had become doubtful as none of them accompanied the deceased (then injured), to the hospital ---Evidence of interested and related witnesses lacked
independent corroboration in material aspects ---No recovery of crime weapon was effected
from the possession of accused---High Court extending benefit of doubt to accused acquitted
him while setting aside conviction and sentence awarded to him by Trial Court.
Muhammad Asif v. The State 2017 SCMR 486; Muhammad Farooq v. State 2006
SCMR 1707 and Dohlu v. State 2002 PCr.LJ 690 rel. (b) Qanun- e-Shahadat (10 of 1984) ---
----Arts. 38 & 39--- Disclosure made by accused --- Recovery --- Scope--- When recovery of
whatsoever nature had not been effected pursuant to disclosure memo. the same was
inadmissible under Arts. 38 & 39 of Qanun- e-Shahadat, 1984.
(c) Criminal trial ---
----Benefit of doubt ---Principle ---Accused could be deprived of benefit of doubt, merely
because there was only one circumstance, which had created doubt in prosecution story.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Nadir Ali Chlagari fo r Appellant.
Jameel Akhtar Gajani, D.P.G. for Respondent.
Date of hearing: 5th September, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgement disposes of Crl. Appeal
No.(S)31/2015 filed by the appellant Saddar -ud-Din son of Abdul Rehman, against the
judgement dated 5th March 2015 (hereinafter referred as, "the impugned judgement") passed
by learned Sessions Judge, Sibi Division Sibi (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under sections 302(b)/34, P.P.C. and sent enced to suffer
imprisonment for life and to pay Rs.2,00,000/ - (Two lac) as compensation as envisaged under
section 544- A, Cr.P.C., which in case of recovery was directed to be paid to the legal heirs of
deceased or in default thereof to further suffers si x (6) months S.I., with the benefit of section
382-B, Cr.P.C.
2. Facts of the case are that on 28th November 2013 the complainant Inayatullah son of
Azizullah, lodged FIR No.60/2013 at Levies Thana Bhag district Kachi, stating therein that he is resident o f Got Chalgari Tehsil Bhag. On the day of occurrence at about 4.45 p.m. he
along with his family members were present in his house, when accused Saddar -ud-Din,
Sikandar sons of Abdul Rehman, Qaisar Khan son of Azmat Khan, Azmat alias Babul son of
Qaisar al ong with two unknown accused armed with Kalashnikov and pistols forcibly entered
into their house and made indiscriminate firing upon them, due to which his son Rehmatullah
sustained bullet injuries. Hence, FIR was lodged under Sections 324, 147, 148 and 149,
P.P.C., but subsequently the injured Rehmatullah succumbed to the injuries and was died on
31st December 2013, thus Section 302, P.P.C. was also inserted.
3. After registration of FIR, PW -7 Muhammad Saleem, Naib Tehsildar, who during
investigation rushed to the place of occurrence, inspected the site and prepared site inspection memo; took into possession eight empty shells of Kalashnikov, five empty shells of pistol, blood stained clothes and blood stained earth; recorded the statements of witnesses under
Section 161, Cr.P.C.; obtained medical Certificate Ex.P/4- A. PW -8 Ghulam Haider, Naib
Tehsildar Bhag is the second I.O., who arrested the appellant and subjected him to investigation; recorded his disclosure memo. On completion of investigation challan was
submitted in the trial Court.
4. At the trial, the nominated accused Sikandar Khan, Qaisar Khan and Azmat Khan
alias Babul were not arrested, thus proceedings under Sections 87 and 88, Cr.P.C. were carried out and they were declared as proclaimed offenders.
5. Charge was framed and read over to appellant, who claimed trial. The prosecution
produced nine witnesses in support of charge, whereafter the appellant was examined under Section 342, Cr.P.C. However, neither he recorded his statement on oath nor produced any
witness in his defence. On conclusion of trial and after hearing the arguments, the trial Court convicted and sentenced the appellant as mentioned above in para No.1, whereafter instant appeal has been filed.
6. Learned counsel for appellant stated that the impugned judgement is result of mis -
reading and mis -appreciation of material available on record; that the case of prosecution is
lacking independent corroboration as only interested witnesses have been produced; that all the prosecution wi tnesses made contradictory statements to each other and did not support the
case of prosecution; that the prosecution witnesses have failed to justify their presence and witnessing the crime at the time of occurrence; that the prosecution has failed to produce any iota of evidence connecting the appellant with the commission of alleged crime; that the alleged dying declaration of the deceased was not produced/exhibited in the Court, thus not admissible; that the prosecution has miserably failed to substantiate the charge against the
appellant; that the defence so produced and established by the appellant has not been
appreciated.
7. Learned Deputy Prosecutor General appearing for the State has strongly opposed the
Criminal Appeal filed by the convict and sta ted that sufficient incriminating evidence
available on record connecting the appellant with the commission and the appellant has failed to rebut his false implication by the prosecution witnesses; that the impugned judgement of the Court below is based upon proper appraisal of material available on record.
8. Heard the learned counsel and perused the available record. In order to establish to
charge the prosecution has produced the evidence of nine witnesses, out of whom PW -1
Inayatullah, PW -2 Zafarullah, PW-3 Amanullah and PW -6 Nasrullah are claiming to be the
eye-witnesses of the alleged occurrence, while PW -4 Dr. Amar Kumar Medical Officer Civil
Hospital Bagh has examined the deceased when he was brought before him in injured
condition. Before dilating upon the ocular testimony, it would be appropriate to first discuss
the medical evidence to establish the unnatural death of deceased.
9. According to PW -4, Dr. Amar Kumar, Medical Officer, Civil Hospital Bhag , on the
day of occurrence the deceased was brought before him in injured condition, he after giving
him first aid referred him to Civil Hospital Jacobabad. PW -4 issued MLC Ex.P/4- A, which
confirms that the deceased had received a bullet injury, while the PW -1 stated that the
deceased received two injuries, however, the prosecution has failed to produce any further medical evidence on record that after referral of deceased for further medical treatment, in which hospital he remained under treatment. As per PW -1 his son was died at Karachi on
31st December 2013 and failed to produce the death certificate of the deceased to establish
that his son was under treatment in that hospital and that the death of deceased was the result of injuries sustained to him by the accused/appellant. Though the dying declaration of deceased was allegedly recorded by the Investigating Officer on 28th November 2013, during the course of treatment the PW -1 also produced Ex.P/1- B an application to the Naib
Tehsildar/I.O., wherein sta ted that the death certificate of deceased issued from Jinnah
Hospital Karachi is annexed though the copy of application is available on record as Ex.P/1-B, but no MLC is available and even the same was not produced before Court and even not exhibited through any witness and perusal of same reflects that there is no signature or thumb impression available on statement as the Investigating Officer has failed to produce the same and prepare the inquest report or carrying out the proceedings under section 174, Cr.P.C.
10. Be that as it may, we are conscious of the fact that the medical evidence is only a
supportive piece of evidence and the same cannot be the substitute of direct evidence and admittedly the medical evidence is underweight in presence of direct evidence. Hence, the unnatural death of the deceased is interlinked with the direct evidence. If the direct evidence to be discussed in the following paras found to be reliable, the same would be enough to maintain the conviction awarded by the trial Court, irrespective of the fact that insufficient medical evidence has been produced by the prosecution.
11. As discussed above, the prosecution produced the direct evidence in the shape of
statements of PW -1 Inayatullah, who is the father and the complainant of the case, PW -2
Zafarullah is second eye -witness of the occurrence and also is the brother of deceased, PW -3
Amanullah is the third eye -witness of the occurrence and is the paternal uncle of deceased,
while PW -6 Nasrullah is also claiming to be the forth eye -witnesses of the alleged occurrence
and also the paternal uncle of the deceased. Admittedly, the FIR has been lodged on the
complaint/fard -e-bayan (Ex.P/1- A) of the complainant, wherein the complainant/PW -1 has
stated that on the day of occurrence at a bout 4.45 p.m. he along with his family members was
present in his house, when the accused/appellant Saddar -ud-Din along with Sikandar, Qaisar
Khan, Azmat alias Babul and other unknown accused forcibly entered into his house and
made indiscriminate firing with Kalashnikov and pistol, due to which his son Rehmatullah sustained injuries, whereafter the accused flee away from the place of occurrence. PW -1
while appearing in the Court reiterated the contents of his fard -e-bayan. Bare perusal of both
the stateme nts reflect that the same are silent regarding presence of any other witness at the
time and at the place of occurrence. PW -2 Zafarullah, is the brother of deceased and the son
of complainant/PW -1, who narrated the story with regard to arrival of accused/a ppellant
along with other accused persons to their house armed with pistol and Kalashnikov and making indiscriminate firing upon them, while his brother Rehmatullah sustained injuries and fell down. The paternal uncles of deceased Rehmatullah appeared as P W-3 and PW -6, both
the witnesses claimed their presence at the place of occurrence and narrated the story that the accused/appellant along with co -accused entered into their house, made indiscriminate firing
upon them and causing injuries to the deceased. The statements of both the PW -3 and PW -6
are silent in respect of presence of any other witness at the time of occurrence.
12. We have analyzed the statements of all the four alleged eye -witnesses with utmost
care, caution and weigh the same on all angles and observed that the same are not ringing true. None of the four ocular witnesses have shown the presence of each other at the place of occurrence at relevant time and it appears from the statement of each witness that none of them has witnessed the incid ent. None of the four alleged eye -witnesses have made any
resistance or made an attempt to rescue the deceased. Even otherwise, according to the case of prosecution all the four witnesses including the deceased were sitting and present in the
same house an d place, while allegedly the accused persons armed with Kalashnikov and
pistols made indiscriminate firing upon the deceased and the witnesses, but surprisingly single bullet hit the deceased, while all the four alleged eye -witnesses escaped unhurt. Hence,
the conduct of the witnesses by not making resistance or rescuing the deceased or escaping unhurt has created a reasonable doubt with regard to their presence at the place of occurrence or witnessing the crime with their open eyes. The role of audience pl ayed by the four
witnesses letting the culprits to murder the deceased and to escape unhurt is enough to create doubts in the case of prosecution. We are fortified by the dictum laid down by the Hon'ble Apex Court in the case of Muhammad Asif v. The State 2017 SCMR 486, wherein it was held as under: --
"10. We fail to understand that in the presence of the two close friends accompanying the deceased and parents, how such tragedy with a son could happen without any intervention on their part to come to rescue of the deceased when they were not far
away as shown in the site plan."
13. The presence of said four witnesses at the place of occurrence is also doubtful for the
reasons that the complainant/PW -1 along with his brothers and son including the deceased
were on the target of the appellant and his co- accused having Kalashnikov and pistol in their
hand, but son of the complainant was hit and the complainant and the witnesses were let free. It does not appeal to the logic that by killing a person in presence of his real, brother and uncle, the appellant would not attempt to cause any injury/kill the prosecution witnesses leaving them for evidence to be hanged. Reliance in this regard is placed on the case of Muhammad Farooq v. State 2006 SCMR 1707. Reference in this regard is also made to the
case of Dohlu v. State 2002 PCr.LJ 690.
14. The complainant/PW -1 is the father, PW -2 is the brother and PW -3 and PW -6 are the
paternal uncle of deceased. Their presence becomes doubtful as none of them accompanied
injured R ehmatullah (later on dead) to the hospital for treatment as according to PW -4 Dr.
Amar Kumar injured was brought by Naib Tehsildar Bhat at about 5.30 p.m. The evidence of interested and related witnesses is lacking independent corroboration in material aspects. Furthermore, no recovery of crime weapon was effected from the possession of the appellant.
15. The disclosure memo of the appellant recording whilst in police custody is also not
helpful to the case of prosecution, as according to the PW -8/I.O. the appellant in his
disclosure alleged illicit relations of the deceased with his sister, but during trial no proof in such behalf has been produced. Even otherwise, no recovery of whatsoever in nature has been effected pursuant to such disclosure memo, henc e the same is inadmissible under Articles 38
and 39 of the Qanun- e-Shahadat Order, 1984.
16. The case laws so referred by the learned counsel for the complainant are
distinguishable because of the reason that initial burden was not discharged by the prosec ution to prove its case beyond any shadow of doubt.
17. In view of the ocular testimony of the related/interested prosecution witnesses,
contradictions and dishonest improvements in their testimony, lacking independent corroboration in material aspect, the false implication of the appellant by the PWs cannot be
ruled out of consideration as the appellant while recording his statement on oath has taken specific plea of his false implication by PWs due to previous dispute. The perusal of impugned judgement re veals that the same is suffering from mis -appreciation of material
available on record. The above defects in the prosecution case were not considered by trial
Court and wrongly the benefit of such doubts was withheld. Needless to emphasize that accused was entitled to be extended benefits of doubt as a matter of right. Even an accused
cannot be deprived of benefit of doubt, merely because there is only one circumstance, which creates doubts in the prosecution story, whereas in the case in hand there are ser ies of doubts.
Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Hon'ble Supreme Court has held that, "The concept of benefit of doubt to an accused is deep -rooted in our country. For giving him benefit of doubt it is not necessary that
there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons the appeal is accepted, the impugned judgment dated 5th
March, 2015 passed by learned Sessions Judge, Sibi Division Sibi is set aside and while extending the benefit of doubts, the appe llant Saddar -ud-Din son of Abdul Rehman, is
acquitted of the charge under section 302(b), P.P.C. The appellant being in custody, is ordered to be released forthwith, if not required in another case.
MH/159/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,
let us know.