2018 Y L R Note 284
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
MUHAMMAD SALAH ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No.(s) 28 and Criminal Revision Petition No. 49 of 2015, decided
on 24th 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 day of occurrence accu sed with co -accused persons and an unknown person
armed with firearms came at the place of occurrence by two motorcycles and started
firing upon the complainant party, due to which, brother of complainant sustained injuries
and died at the spot ---Motive be hind the occurrence was that 8/9 months ago, the accused
persons had declared his brother Siahkar and due to same grudge, the accused committed
murder of his brother ---Ocular account was furnished by two witnesses including the
complainant ---Complainant ap peared as witness and in his statement though he reiterated
the contents of his fard -e-bayan , but contradicted his earlier deposition, the defence also
succeeded in shaking his testimony ---Complainant, in his fard- e-bayan, had mentioned
that at the time of firing, they took shelter at the corner of kacha road, but in his court
statement, he did not mention the existence of kacha road or taking shelter ---Eye -witness
had mentioned that they took shelter at the corner of kacha road, however, his statement was silent as to whether it was a mettle road or kacha road ---Complainant stated that
firing was made at the distance of 5/6 paces, while eye -witness contradicted him and
stated that the firing took place at the distance of about 6/7 yards ---Statements of both the
witnesses were silent with regard to weapons used in the crime ---Statement of
complainant reflected that his brother was declared Siahkar by the accused party, while eye-witness contradicted him and stated that the accused party declared the deceased
Siahkar with the daughter of someone ---Record showed that said lady, her brothers and
father had not participated in the crime nor any of them had been implicated in the case ---
Assertions of prosecution that the accused party had declared the deceased or h is brother
as Siahkar, was highly doubtful ---Record revealed that said lady was still alive and no
harm was done to her ---Statements of both the said witnesses were found contradictory to
each other as well as the witnesses made dishonest improvement and a lso made
unsuccessful attempt to establish their presence at the site of occurrence, but they could not justifiably explain their presence ---Complainant along with eye -witness and the
deceased were on the target of the accused party, but brother of the com plainant was hit
and the complainant or the witnesses were let free---Nothing had come on record that any
attempt was made by the complainant party to rescue the deceased from the clutches of
the accused party ---Said factor did not appeal to the logic that by killing a person in
presence of his blood relation and close relatives accused would not attempt to kill the
prosecution witnesses leaving them for evidence to be hanged ---Recovery of crime
weapon in the present case was doubtful for the reason that the occurrence took place on
28.12.2012 and after arrest of accused on 19.12.2014 alleged disclosure was recorded on
26.2.2014 and the crime weapon was received at Forensic Science Laboratory on 8.8.2014 after delay of two years ---Circumstances established t hat evidence so produced
by the prosecution could not be termed to be confidence inspiring or worth credence ---
Medical account was in conflict with ocular account ---Conduct of the prosecution
witnesses were unnatural, who despite their alleged presence mad e no attempt to rescue
the deceased ---Series of doubts had been created in the case of prosecution, benefit of
which would resolve in favour of accused--- Appeal was allowed and accused was
acquitted in circumstances. [Paras. 9, 10, 11, 13 & 14 of the judgm ent]
Muhammad Farooq v. State 2006 SCMR 1707 and Dohlu v. State 2002 PCr.LJ
690 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qanun- e-Shahadat (10 of 1984), Art. 129(g) ---Qatl -i-
amd, rioting, rioting armed with deadly weapon, unlaw ful assembly ---Withholding
material evidence---Effect ---Eye -witness stated that another witness was accompanying
them at the relevant time, but the evidence of said witness was withheld by the prosecution without any plausible reason---Adverse presumption could fairly be drawn
that had the said witness been examined in the court, his evidence would have been un-favourable to the prosecution. [Para. 12 of the judgment]
Hunar Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR
1180 and Khal id alias Khalidi and 2 others v. The State 2012 SCMR 327 rel.
(c) Criminal trial---
----Recovery of crime weapon ---Corroborative evidence --- Scope ---Recovery of crime
weapon could only be a piece of supporting evidence, whereas the prosecution had to prove its case independently ---Mere recovery of crime weapon was no ground to hold the
accused guilty of the commission of crime. [Para. 13 of the judgment]
Muhammad Nadeem alias Deemi v. State 2011 SCMR 872 rel.
(d) Criminal trial---
----Benefit of doubt ---Principle ---Accused could not be deprived from getting the benefit
of doubt in an artificial manner. [Para. 14 of the judgment]
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Ahsan Rafiq Rana for Appellants.
Jamil Akhtar Gajani, P.G. for the State.
Nemo for the Complainant.
Date of hearing: 29th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Jail
Appeal No.(S)28 of 2015 filed by the appellant Muhammad Salah Son of Hasil Khan
through Superintendent Central Jail Mach, against the judgment dated 16th September 2015 (hereinafter referred as "the impugned j udgment") passed by learned Additional
Sessions. Usta Muhammad (hereinafter referred as, "the trial Court") whereby the
appellant was convicted under Section 302(b), P.P.C. and sentenced to suffer life
imprisonment, with compensation of Rs.100.000/ - (Rupee s One Hundred Thousand) as
contemplated under Section 544- A, Cr.P.C. to be paid to the legal heirs of deceased
Sachal or in default thereof to further suffer six months S.I.. with the benefit of Section
382- B, Cr.P.C. The Criminal Revision Petition No.(S)4 9 of 2015 has been filed by the
complainant/petitioner Punhal Khan for enhancement of the sentence awarded to the convict appellant.
2. Facts of the case are that on 28th December 2012, the complainant Punhal Khan
son of Bachal, lodged FIR No.13/2012 at Po lice Station Bagh Head district Jaffarabad,
under Sections 302, 147, 148, 149, P.P.C., stating therein that on the day of occurrence he
along with his brother Sachal and cousin Karim Bakhsh and one Ghulam Muhammad,
after purchasing house hold articles were proceeding from Dabo Goth towards their house
situated at Goth Muhammad Alam Magsi, when at about 8.30 a.m. they reached Kacha Road near Khirthar Canal, the accused persons namely Muhammad Salah, Abdullah,
Muhammad Sharif, Juma Khan, Pehlwan along with an unknown person armed with
firearms came there by two motorcycles and started indiscriminate firing upon them, due
to which his brother Sachal sustained injuries and died at the spot. The motive behind the occurrence was that 8/9 months ago, the accused pe rsons had declared his brother
Shahnawaz Siahkar and due to same grudge, the accused committed murder of his
brother.
3. Pursuant to above FIR, the investigation was entrusted to PW -6 Bashir Ahmed,
SI/IO, who during investigation reached at the place of oc currence; took the dead body to
hospital: prepared inquest report inspected the site and prepared site sketch; took into
possession 13 empties from the place of occurrence; took into possession blood stained
earth and clothes of deceased; recorded the statements of witnesses under Section 161,
Cr.P.C. On completion of investigation submitted the challan in the trial Court in absentia
under Section 512, Cr.P.C. PW -7 Abdul Hameed, SI, is the second I.O., who arrested the
appellant on 19th February 2014; r ecorded his disclosure and on his pointation recovered
the crime weapon. On completion of investigation, submitted the challan in the trial Court.
4. At the trial, the accused Abdullah son of Hasil Khan, Muhammad Sharif son of
Mubarak, Juma Khan son of Muhammad Bakhsh Faqeer and Pehlwan son of Nehal were
declared as proclaimed offenders by initiating proceedings under Sections 87 and 88,
Cr.P.C. The prosecution produced seven witnesses, whereafter the convict/appellant was examined under Section 342, Cr.P.C . The appellant did not record his statement on oath
under Section 340(2), Cr.P.C. However, produced two witnesses in his defence. On
conclusion of trial and after hearing the arguments, the trial Court convicted and
sentenced the appellant as mentioned ab ove. Whereafter he filed Criminal Jail Appeal
No.(S)28/2015, while the complainant/petitioner filed Criminal Revision No.49 of 2015 for enhancement of sentence awarded to the appellant. However, after filing the petition, none appeared on behalf of petitioner and the arguments of learned counsel for the
appellant and learned D.P.G. were heard.
5. Learned counsel for pauper appellant contended that the judgment so passed by
the trial Court suffers from material illegalities and irregularities, misreading and non-
reading of evidence: that the prosecution has failed to prove its case through confidence
inspiring evidence without shadow of doubt; that the presence of the eye -witnesses at the
place of occurrence is highly doubtful; that the important witness of t he prosecution
namely Abdul Wahab had not been produced; that the involvement of the appellant in the instant case is the result of presumptions due to previous grudge, whereas two defence witnesses directly witnessed the crime that the deceased Sachal was not murdered by the
appellant, but the defence evidence was not considered by the trial Court; that no such alleged recovery of crime weapon was effected on the pointation of the appellant; that the statements of the prosecution witnesses are contradictor y to each other; that the ocular
version is not supported by the medical evidence; that the conduct of eye -witnesses are
unnatural; that the eye -witnesses are interrelated with the deceased and being interested
witnesses their testimony could not be admiss ible, as such, the judgment impugned is
liable to be set- aside.
6. On the other hand. the learned Deputy, Prosecutor General while supporting the
impugned judgment has strongly opposed the arguments so advanced by the learned counsel for pauper appellant a nd contended that the prosecution has proved its case
through confidence inspiring evidence; that the ocular evidence is supported by the medical evidence coupled with recovery of crime weapon; that the presence of eye-witnesses was proved and nowhere it w as disputed; that the trial Court after proper
appreciation of evidence had rightly convicted the appellant; that the defence has failed to
prove its version for false implication of the appellant.
7. Heard the learned counsel for parties with their able a ssistance perused the record
minutely. Perusal of record reveals that the unnatural death of deceased, Sachal is not
disputed. The defence admitted the unnatural death of deceased but pleaded false
implication of appellant. PW2 Dr. Qudrat Ullah, Senior Med ical Officer, B.H.U.
Gandakha, examined the deceased and confirmed that the deceased had received bullet
injuries on his person and further opined the cause of death due to severe firearm injuries to the vital organs i.e. heart, both lungs and its blood ve ssels, due to sudden loss of blood
and hemorrhagic shock. PW -2 issued medical certificate Ex.P/2 -A. which confirms the
unnatural death of deceased.
8. In order to substantiate its version, the prosecution has relied upon the ocular
account, medical evidence, recovery of crime weapon and empties coupled with positive
FSL report as well as other corroborative piece of evidence, while in rebuttal the defence
has pleaded the false implication of appellant rather produced two defence witnesses, who
claimed to be the eye -witnesses of the occurrence and they both exonerated the appellant
from commission of crime. We have taken into consideration both the prosecution evidence as well as defence evidence in juxtaposition and observed certain discrepancies in the pros ecution case found the defence plea more plausible.
9. The complainant of the case appeared as PW -1, who in his Court statement though
reiterated the contents of his fard -e-bayan Ex.P/1- A, but he contradicted his earlier
deposition contained in the fard- e-bayan as well as the defence has succeeded in shaking
his testimony. The statement of this witness reflect that he has wrongly mentioned the
name of one of the witness as Muhammad Soomar instead of Ghulam Muhammad son of
Muhammad Soomar. In his fard -e-baya n the PW -1 has mentioned that at the time of
firing they took shelter at the corner of Kacha Road, but in his Court statement he did not
mention the existence of Kacha Road or taking shelter by them on the corner of said Kacha Road. PW -3 Ghulam Muhammad al so mentioned that they took shelter at the
corner of Kacha Road, however, his statement is also silent that whether it was a mettle road or Kacha Road. PW -1 stated that the firing was made at the distance of 5/6 spaces,
while PW -2 contradicted him and stat ed that the firing took place at the distance of about
6/7 yards. PW -1 admitted in his cross that at the southern side of Kairthar Canal there
exist rice crops, height whereof was 2/3 feet and the same was at the distance of 50/100
paces. PW -1 stated that they remained in hospital for 10/15 minutes, while the PW -2
contradicted him and stated that two hours' time consumed in examination of dead body.
The statements of both the witnesses are silent with regard to weapons used in the crime. The statement of PW -1 reflect that his brother Shah Nawaz was declared Siahkar by the
accused party, while PW -1 contradicted him and stated that the accused party declared
Siahkar the deceased Sachal with the daughter of Shahban.
10. It has come on record that the father of said lady Mst. Inayataan is Shahban, while
the names of her brothers are Jafsar, Ghulam Mustafa and Chandia Khan and name of her husband is Ghulam Nabi, but none of them had participated in the crime nor any of them
have been implicated in the case. Thus, the assertions of prosecution that the accused
party had declared the deceased Sachal or his brother Shah Nawaz as Siahkar, is highly
doubtful, when otherwise it has come on record that the said lady is still alive and no harm was committed to her.
11. We have analyzed the statements of both PW -1 and PW -3 and found the same
contradictory to each other as well as the witnesses made dishonest improvements and
also made an unsuccessful attempt to establish their presence at the site of occurrence, but
they could not justifiably explain their presence. It is an astonishing factor that the
complainant along with eye -witnesses and the deceased were on the target of the accused
party, but brother of the complainant was hit and the complainant or the witnesses, were
let free. Even otherwise, no bullet was hit to them nor any sort of injury was caused to them. Besides, nothing has come on record that an attempt was made by the complainant party to rescue the deceased from the clutches of the accused party. It does not appeal to
the logic that by killing a person in presence of his blood relation and close relatives
accused 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.
12. According to the statements of PW -1 and PW -3, the witness Abdul Karim son of
Abdul Wahab was also accompanying them at the relevant time, but the evidence of said witness was withheld by the prosecution without any plausible reason or justification, whereas the evidence of said witness 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, therefore, a presumption under Illustration (g) of Article 129 of Qanun- e-Shahadat Order, 1984 can fairly be drawn that
had the said witness been examined in the Court his evidence would have been unfavourable to the prosecution. Reliance in this regard is placed on the case of Hunar
Shah alias Anar Shah and another v. Khan Zad Gul and another 2014 YLR 1180. The
relevant portion is reproduced herein below:
"The inference regarding non production of this important independent witness would go against the prosecution that had he been produced his statement wouldn't have been favourable to prosecution. It would also reflect that prosecution wanted
to suppress m aterial evidence."
Similar view was also taken in the case of Khalid alias Khalidi and 2 others v. The State
2012 SCMR 327, whereby it was held as under:
"The prosecution has not, for the reasons best known to it, produced Mst. Jannat
Bibi, an injured witness, from which an inference could be drawn against the
prosecution that if she is produced she would have not supported the prosecution
version. We, ther efore, find that the ocular account is not of such a character
which could be relied upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of
both the eye -witnesses at the place and time of occurrence is not established as
their statements have been disbelieved by the learned appellate court regarding
Sultan Mehmood acquitted accused"
13. So far as, the alleged disclosure of the appellant and the recovery of crime weapon
is concerned, the same is immaterial in the case in hand. As the recovery of crime weapon
can only be a piece of supporting evidence, whereas the prosecution has to prove its case
independently hence mere recovery of crime weapon is no ground to hold the appe llant
guilty with the commission of crime. In the case of Muhammad Nadeem alias Deemi v.
State 2011 SCMR 872, the Hon'ble Supreme Court has held that the recovery of crime
weapon in a criminal case is not at all material and further held that it can only b e a piece
of supporting evidence and if other evidence goes to prove the case independently, the
recovery is not essential at all. Even otherwise, recovery of crime weapon is doubtful for
the reasons that the occurrence took place on 28th December, 2012 and after arrest of
appellant on 19th December, 2014 alleged disclosure was recorded on 26th February, 2014 and the crime weapon was received to FSL, on 8th August, 2014 after delay of two years the crime weapon was kept in safe custody by the appellant.
14. The reappraisal of material available on record would establish the fact that the
evidence so produced by the prosecution cannot term to be confidence inspiring or worth
credence. The medical account is in conflict with ocular account. The conduct of the
prosecution witnesses are unnatural, who despite their alleged presence made no attempt to rescue the deceased Sachal and more particularly the deceased brother of complainant was not declared as Siahkar rather his another brother namely Shah Nawaz was dec lared
Siahkar with a lady namely Mst. Inayataan, but surprisingly both the persons, who were declared Siahkar are still alive, while on the basis of alleged allegations the deceased was murdered. The defence witnesses so produced have fully exonerated the appellant from the commission of crime, who are claiming to be the eye- witnesses of the occurrence and
saw the alleged incident directly, but it appears that the trial Court while delivering the impugned judgment has ignored the defence evidence coupled wi th the discrepancies
noted above in the prosecution evidence. Admittedly, series of doubts have been created in the case in hand, while according to settled norms of justice the accused cannot be deprived from getting the benefit of such doubts in an artif icial manner. According to
teachings of Islam, it would be better to let hundred guilty persons instead to punish one innocent person. Reliance in this regard is placed on the case of Tariq Pervaiz v. The
State 1995 SCMR 1345, wherein the Hon'ble Supreme C ourt 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."
15. For the above reasons, the appeal is accepted. The impugned judgment dated
judgment dated 16th September, 2015 passed by learned Additional Sessions, Usta
Muhammad is set- aside and the appellant Muhammad Salah son of Hasil Khan is
acquitted of the charge under Sections 302(b), 147, 148, 149, P.P.C., in FIR No.13 of
2012 Police Station Bag h Head District Jaffarabad. He being in custody, is ordered to be
released forthwith, if not required in any other case.
Consequent to the above, the Criminal Revision Petition being devoid of merits is
hereby dismissed.
JK/9/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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