2019 Y L R 337
[Balochistan]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
SYED MUHAMMAD--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.1 of 2017, decided on 16th July, 2018.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Prosecution had
not produced direct evidence but only medical and circumstantial evidence--- Ocular
circumstantial evidence was contradictory and doubtful not supported by the medical
evidence--- Medical evid ence had established unnatural death of deceased, but still doubts
remained that either such death was result of homicide and suicide ---Presumption of suicide
could not be ruled out of consideration when there were no marks of violence on the dead body of the deceased, rather she had received a single fire -arm shot on her forehead ---All the
witnesses were related inter se--- Complainant had contradicted his earlier statement
contained in fard- e-bayan---One of the prosecution witnesses had contradicted the st atements
of other prosecution witnesses ---Said contradiction with regard to presence/non- presence of
accused at the relevant time in his house, his arrest on the said date or on the following date, had rendered the recovery of crime weapon from the possess ion of accused as doubtful ---
None of prosecution witnesses had directly witnessed the crime, rather allegedly accused made phone call to prosecution witness and informed her about the murder of her daughter ---
Prosecution had failed to produce on record, ei ther the mobile number which remained in the
use of accused or his mother -in-law---In absence of any material evidence, it could not be
presumed that any phone call was either made by accused or such call was received by prosecution witness ---Witnesses had also contradicted each other with regard to arrest of
accused ---All the witnesses had admitted that alleged occurrence did not happen in their
presence, rather the incident had already taken place before their arrival ---Recovery of crime
weapon from the possession of accused had not been proved--- Conduct of accused also
appeared to be unnatural and not acceptable to a prudent mind---Investigating Officer had failed to record the extra- judicial confession or the confessional statement of accused to
bring on record the motive behind the occurrence ---Investigating Officer had also failed to
collect any single evidence against accused ---Said infirmities and discrepancies in the case of
prosecution, escaped the view of Trial Court ---Prosecution had failed to prove the charge
against accused beyond any shadow of doubt ---Appeal was allowed.
Nasrullah @ Nasro v. The State 2017 SCMR 724 and Abdul Majeed v. The State
2011 SCMR 941 rel.
(b) Interpretation of statutes ---
----Criminal law ---If two distinctive inter -pretations or explanations of law and facts were
available, the one which favoured accused, must be followed.
(c) Criminal trial ---
----Benefit of doubt ---Accused could not be deprived of benefit of doubt, merely because
there was only one circumstance, whic h created doubt in the prosecution story.
Tariq Pervaiz v. The State 1995 SCMR 1345 rel.
Muhammad Akbar Shah for Appellant.
Habibullah Gul, Additional P.G. for the State.
Date of hearing: 9th July, 2018.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal
No.01/2017 filed by the appellant Syed Muhammad son of Haji Abdul Sattar, against the
judgment dated 30th December 2016 (hereinafter referred as, "the impugned judgment") passed by learned Additional Sessions Judge -III, Quetta (hereinafter referred as, "the trial
Court"), whereby the appellant was convicted under Section 302(b), P.P.C. and sentenced to
suffer imprisonment for life with compen- sation of Rs.100,000/ - (Rupees one lac) 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 six (6) months S.I., with the benefit of Section 382- B Cr.P.C.
2. Facts of the case are that on 12th June 2015 the complainan t Rehmatullah son of
Khuda -e-Nazar lodged FIR No.58/2015 at Police Station Kharotabad Quetta, under Section
302, P.P.C., stating therein that about two years ago his brother -in-law Saleh Muhammad
(late) had decided to solemnize the marriage of his daughter namely Aysha Bibi with
appellant Syed Muhammad, whereafter he passed away and about 8/9 months of his sad demise, he along with his sister Khadija Bibi solemnized the marriage of his niece Aysha Bibi with the appellant. On the day of occurrence at about 0 6:00 P.M. his sister came to his
house and informed that the appellant Syed Muhammad informed her on telephone that he ruined his house by murdering his wife Bibi Aysha, thus he along with his sister Khadija Bibi, nephew Ahmed Khan, brothers Abdul Wali and Sher Muhammad went to the house of
appellant situated at Sher Khan Colony Emaan City Samungli Road, where he found the dead body of his niece Bibi Aysha lying in the pool of blood and observed bleeding and wounds on her head. He immediately informed the p olice, whereafter the appellant made his escape
good from the place of occurrence.
3. Pursuant to above FIR, the investigation of the case was entrusted to PW -10 Gul
Azam S.I/Investigation Officer (I.O.), who during investigation went to Civil Hospital, where
S.I/SHO handed over him inquest report under section 174 Cr.P.C. already carried out by him; got conducted the postmortem of deceased; prepared site map; took into possession the blood of deceased through cotton along with her hair; arrested the appell ant on 13th June
2015 and recovered from him the crime weapon i.e. T.T. pistol along with three live
cartridges; sent the crime weapon to FSL and receipt the report in affirmative that the same
was in working condition; conducted investigation from the appellant and thereafter
submitted challan in the Court.
4. At the trial, the prosecution produced ten witnesses, 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.
5. Learned counsel for appellant contended that the case of prosecution is ambiguous on
all counts; that the medical evidence is in conflict with the ocular testimony; that the appellant has been involved in the case on the basis of mere assumptions and presumptions as the dead body of the deceased was recovered f rom his house, which fact alone is not
sufficient to hold responsible the appellant with the commission of crime; that the conduct of blood relations (PWs) is unnatural, who despite knowledge of murder of deceased and seeing the appellant allowed him to es cape unhurt; that no Call details reports have been obtained
from the concerned Cellular Companies; that all the prosecution witnesses have not only contradicted each other on material counts, but also have failed to justify the presence of the one and the other witnesses at the relevant time; that the Investigating Officer has failed to
record the disclosure or confessional statement of the appellant; that the impugned judgment is result of misreading and mis -appreciation of material available on record.
6. On the other hand, the learned Additional P.G. while supporting the impugned
judgment contended that the prosecution has proved the case against the appellant beyond the shadow of reasonable doubt; that the case of prosecution is supported by medical evi dence
along with ocular testimony and the recovery of crime weapon from his possession as well as the positive report of FSL with regard to its functional; that the recovery of dead body of deceased from the house of the appellant itself is enough to estab lish his guilt, who otherwise
had not participated in her rites; that the impugned judgment has been delivered alter proper appraisal of material available on record and the same is not open for any interference by this Court.
7. Heard the learned counsel and perused the available record. Perusal of record reflects
that in order to establish the charge the prosecution has produced only medical and circumstantial evidence and no any direct evidence has been produced against the appellant, but the perusal of record reflects that not only the ocular circumstantial evidence produced by the prosecution is contradictory and doubtful, but also the same has not been supported by the medical evidence. Before dilating upon the circumstances it is necessary to first ev aluate
the medical evidence to establish the unnatural death of deceased. PW- 7 Dr. Muhammad
Noor Baloch, Police Surgeon conducted the post -mortem of the deceased and accordingly
issued post -mortem report Ex.P/7- A, perusal of which reflects that firearm inj ury was
observed on the forehead of deceased Bibi Aysha. He has further opined that the edge of the
wound is blackish and also opined the cause of death as homicidal. But, this witness himself in his cross -examination contradicted his opinion contained in the postmortem report Ex.P/7-
A and admitted that burn/blackish marks on the body are mostly surfaced when there is
touched firing and due to touch firing gun powder enters into the wounds. PW -7 has
categorically admitted in his cross -examination that gener ally the blackish marks surfaces
when the matter pertains to suicide. He also admitted that besides the fire arm injury, no
other injury was observed on the person of deceased.
Though the medical evidence has established the unnatural death of deceased, but still
doubts remain that either such unnatural death was the result of homicide or suicide. Since divergent view has been taken by the Medical Officer in his post -mortem report as well as in
his Court statement, thus under the settled norms of justice a s held by the Superior Courts of
this Country that possibly, if two distinguish interpretations or explanations of law and facts are available, the one which favours the accused must be followed. We have also diverted our attention to the statements of PW -3 and taken the same into consideration in
juxtaposition with the the medical evidence. PW- 3 in reply of question No.47 of cross -
examination stated that nearby the dead body of deceased a pistol was also found. Thus, under the circumstances the presumption of suicide cannot be ruled out of consideration,
when otherwise there were no marks of violence on the dead body of the deceased rather she received a single fire arm shot on her forehead.
8. Now adverting to the ocular testimony, PW -9 Rehmatullah is the complainant of the
case as well as the brother of PW- 1 Bibi Khadija, PW -2 Abdul Wali and PW -8 Sher
Muhammad. Likewise, PW -1 is the mother and PW -3 is the brother of deceased Bibi Aysha.
Admittedly, all the witnesses are related with each other. Besides, th e PW -4, PW -5 and PW -
6 are the recovery witnesses.
9. According to the case of prosecution, the FIR was lodged on the complaint of PW -9
Rehmat Ullah, who mostly reiterated the contents of his fard -e-bayan Ex.P/9 -A, but during
cross -examination the defence h as succeeded in shaking his testimony. According to the
contents of fard -e-bayan, the complainant on receipt of information went to the house of his
sister Bibi Khadija, whereafter through a Rickshaw he along with his sister Bibi Khadija, nephew Ahmed Khan, brothers Abdul Wali and Sher Muhammad went to the house of appellant situated at Sher Khan Colony Emaan City Samungli Road Quetta. PW -9
contradicted his earlier statement contained in fard -e-bayan Ex.P/9- A and stated that when he
went to the house of dec eased Aysha, he found present there Ahmed Khan and Sher
Muhammad, whereas Abdul Wali reached over there subsequently. This witness again contradicted his own deposition while replying to the question No.20 of his cross -
examination by stating that they all five persons rushed to the place of occurrence in one Rickshaw. PW- 9 further admitted that when they reached at the house of appellant, they
found 10/12 persons outside the house and 10/12 persons inside the room. He also admitted that they also found pres ent the appellant Syed Muhammad over there. PW -9 while replying
the question Nos.43 and 44 of his cross -examination has contradicted the case of prosecution
by stating that the police came over there, made arrangements for shifting the dead body and
arrest ed the appellant within 20/25 -minutes, however, all the remaining witnesses including
PW-1, PW2, PW -3 have stated about the presence of the appellant at the site till their arrival
and his escape subsequently, while PW -8 Sher Muhammad stated that before their arrival the
appellant had already been escaped from the place of occurrence.
Similarly, PW -6 Liaquat Ali, has contradicted the statement of PW -1, PW -2, PW -3,
PW-8 and PW -9 and stated that the appellant was arrested on the following day of incident
from Khaizi Chowk and the recovery of T.T. Pistol along with 3- live cartridges was effected
from his possession. This glaring contradiction with regard to presence/non -presence of the
appellant at the relevant time in his house his arrest on the said date or on the following date,
has rendered the recovery of crime weapon from the possession of the appellant as doubtful.
Even otherwise it has come on record through the statement of PW -3 that they have also
found a pistol nearby the dead body, but the complete case of prosecution is silent in such behalf that what happened with the said pistol and accordingly presumption is being drawn that whether the prosecution is concealing the actual facts of the death of deceased, besides no empty was recovered from the pl ace of occurrence to establish the case of prosecution.
10. PW-1 Bibi Khadija is the star witness of the prosecution case, according to whom
initially she was informed about the incident by the appellant at the time when already her brother was present in her house, however, she has failed to mention the name of her brother. According to this witness she along with PW -8 Sher Muhammad, PW -9 Rehmatullah and
PW-3 Ahmed Khan went to the house of appellant. The statement of PW -1 is completely
silent with regard to presence of PW- 2 Abdul Wali or his accompanying to the house of
appellant, while to the contrary PW -2 has claimed that he also accompanied the other PWs to
the house of appellant. PW -1 further stated that on their arrival to the house of appellant,
they found present the appellant on the door of one room, who on seeing them entered into
another room and locked the door, whereafter escaped through the roof of the room. While replying to the question No.19, the PW -1 stated that the appellant was running over the roof
and he was chased by her (PW- 1). PW1 admitted that he did not saw the appellant making
firing upon her daughter. The statement of PW -2 Abdul Wali is silent in respect of presence
of the appellant at the relevant time in his house or his running over the roof or in the street
or chasing him by her sister PW -1. PW -2 stated that when they reached at the house of
appellant, they found present 5/6 ladies, while PW -9 has stated that they found 10/12 persons
outside the house and 10/12 persons inside t he room. He also stated that they did not make
any inquiry with regard to the incident from the appellant Syed Muhammad. The presence of PW-3 Ahmed Khan has not mentioned by the PW -1 at the relevant time whilst going to the
house of appellant, but this wit ness has claimed his presence over there. PW- 3 in his cross -
examination stated that on their arrival at the place of occurrence they found the appellant, but they did not make any inquiry from him and he made his escape good in the street through the main gate. PW- 3 in his cross -examination has brought on record that nearby the
dead body of his sister a pistol was also found. PW -3 has negated the presence of any
neighbour in the street. PW -8 Sher Muhammad contradicted the remaining witnesses.
According to t his witness on getting information about the incident, they reached to the
house of appellant, where they found the dead body of deceased. According to this witness when they reached at the house of appellant, he had already escaped from the place of occur rence. PW- 8 contradicted the statements of remaining witnesses who have mentioned
that the dead body was taken to hospital in an Ambulance and stated that the dead body of
deceased was taken to hospital in police vehicle. PW- 8 contradicted the statement of PW-3
and stated that they did not find anything nearby the dead body, while the PW -3 had stated
that a pistol was found nearby the dead body of deceased.
11. We have taken into consideration with utmost care, caution and by applying our
judicious mind to the facts and circumstances of the case, but we have not found ourselves
agreeing either with the prosecution story or with the statements of prosecution witnesses. The admitted feature of the case is that none of prosecution witnesses had directly witnes sed
the crime rather allegedly the appellant made phone call to the PW- 1 and informed her about
the murder of her daughter, but the fact remains that the prosecution has failed to collect the CDRs of both mobile numbers to establish that actually the appel lant made a phone call and
that such call was received by his mother -in-law. The prosecution has failed to produce on
record either the mobile number that was remained in the use of the appellant or his mother -
in-law (PW -1), thus in absence of any material evidence it cannot be presumed that any
phone call was either made by the appellant or such call was received by the P W -1.
12. It has further been observed that all the witnesses though were not the eye -witnesses
of the occurrence and their statements we re only with regard to their arrival at the relevant
time at the place of occurrence, when already the crime had taken place, but despite such facts they made contradictory statements with each other with regard to presence of the appellant at the relevant time at the place of occurrence. Even otherwise, the witnesses have
also contradicted each other with regard to arrest of the appellant. PW- 6 has claimed the
arrest of the appellant on the following day, while the complainant has claimed the arrest of the appellant within 20/25 minutes of their arrival at the place of occurrence, whereas the
PW-8 has stated that the appellant had already escaped from the scene of occurrence. All the
witnesses have admitted that the alleged occurrence was not occurred in their presence rather the alleged incident had already taken place before their arrival. We have also found the conduct of the PWs unnatural, as according to the some of the witnesses on their arrival they found present the appellant at the relevant time, but being the brother as well as the uncles of deceased none of them made any attempt either to assault or to apprehend him rather according to the statements of witnesses the appellant made his escape good from the place of occurrence without any resistance .
13. So far as the recovery of the crime weapon from the possession of the appellant is
concerned, the same has not been proved to have been effected from the possession of the appellant. Initially, some of the witnesses have stated in their statements th at after their
arrival at the place of occurrence, the appellant made his escape good from the place of occurrence, but none of the witnesses have stated that the appellant was armed with pistol at the relevant time, while as discussed above the complainan t claimed the arrest of the
appellant soon after the arrest, whereas PW- 6 claimed to have witnessed the recovery of
pistol from the possession of the appellant on the following day of occurrence. Thus, under peculiar circumstances of the case the recovery of the pistol has not been established to have been effected from the possession of the appellant.
14. So far as the contention of learned counsel for State is concerned that where a wife of
a person or any vulnerable dependent dies an unnatural death in t he house of such person,
then some part of onus lies on him to establish the circumstances in which such unnatural
death had occurred. The contention so raised is devoid of force for the reason that such question was considered by a three Judges Bench of the Hon'ble Supreme Court of
Pakistan in the case of Nasrullah @ Nasro v. The State, reported in 2017 SCMR 724,
wherein it was held that:
"It has been argued by the learned counsel for the complainant that in the cases of
Arshad Mehmood v. The State ( 2005 SCMR 1524) and Saeed Ahmed v. The State
(2015 SCMR 710) this Court had held that where a wife of a person or any vulnerable dependent dies an unnatural death in the house of such person then some part of the onus lies on him to establish the circumsta nces in which such unnatural death had
occurred. The learned counsel for the complainant has maintained that the stand taken by the appellant regarding suicide having been committed by the deceased was neither established by him nor did it fit into the cir cumstances of the case, particularly when
the medical evidence contradicted the same. Be that as it may holding by this Court that some part of the onus lies on the accused person in such a case does not mean that the entire burden on proof shifts to the a ccused person in a case of this nature. It
has already been clarified by this Court in the case of Abdul Majeed v. The State (2011 SCMR 941) that the prosecution is bound to prove its case against an accused person beyond reasonable doubt at all stages of a criminal case and in a case where the prosecution asserts presence of some eye- witnesses and such claim of the
prosecution is not established by it there the accused person could not be convicted merely on the basis of a presumption that since the murder of his wife had taken place
in his house, therefore, it must be he and none else who would have committed that murder."
Similar view has also been taken by the Hon'ble Supreme Court of Pakistan in the
case of Abdul Majeed v. The State, 2011 SCMR 941. wherein it has been held as under:
"…. The strangulation to death of the appellant's wife in his house may be a circumstance to be taken into account along with the other prosecution evidence.
However; this by itself would not be sufficient to establish the appellant's guilt in the absence of any other evidence of the prosecution connecting him to the crime. The prosecution has also not been able to establish that the appellant was present in the
house at the time his wife was murdered."
15. As per prosecution story narrated by the PW -1, PW -2, PW -3 and PW -9 that after
committing the crime, the appellant informed them and till their arrival, he was present at the place of occurrence. Such assertions of the prosecution witnesses also do not appeal to the logic that after committing the alleged murder of his wife, the appellant informed his in- laws
through telephone by confes sing his guilt that he has committed the murder of his wife and
even thereafter instead of making his escape from the place of occurrence, he stayed there till the arrival of his in -laws to face or bear their worst temper and indignation. The conduct of
the appellant also appears to be unnatural and not acceptable to a prudent mind.
16. Irrespective of the fact that the appellant was arrested soon after the occurrence or on
the following day, but the fact remains that the Investigating Officer has failed to record the
extra- judicial confession or the confessional statement of the appellant to bring on record the
motive behind the occurrence. Even otherwise, the Investigating Officer of the case has
absolutely failed to collect any single iota of evidence aga inst the appellant and very poor
investigation was conducted in the matter.
17. The reappraisal of the evidence reveals of infirmities and discrepancies in the case of
prosecution, but the perusal of impugned judgment reflects that such infirmities and discrepancies were escaped from the view of the learned trial Court. The facts and
circumstances of the case have created doubts in the case of the prosecution. The prosecution has miserably failed to prove the charge against the appellant beyond any shadow of doubt. The perusal of impugned judgment reveals that the same is suffering from mis -appreciation
of material available on record. The above defects in the prosecution case was not considered by trial Court and wrongly the benefit of such doubts was not e xtended in favour of the
appellant. 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 series 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 as
under:
"The concept of benef it 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 30th
December 2016 passed by learned Additional Sessi ons Judge -III, Quetta is set aside and the
appellant Syed Muhammad son of Haji Abdul Sattar, is acquitted of the charge under Section 302(b), P.P.C. in FIR No.58/2015 of Police Station Kharotabad Quetta. The appellant being in custody, is ordered to be rel eased forthwith, if not required in any other case.
HBT/64/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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