2020 Y L R 1048
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar, and Abdul Hameed Baloch, JJ
SHAHZADA KHAN--- Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.(s) 151 of 2018 and Criminal Revision Petition No.(s) 14 of 2019,
decided on 23rd October, 2019.
(a) Penal Code (XLV of 1860) ---
----S. 302(b) ---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Dishonest
improvements ---Inimical witness ---Absence of eye- witness from the site plan ---
Contradiction in medical and o cular evidence ---Absence of independent corroboration---
Non-examination of independent witnesses ---Failure of prosecution to collect Call Data
Record ---Investigation prior to registration of FIR ---Effect ---Complainant alleged that her
son was murdered by t he accused ---Held; complainant had not directly witnessed the crime,
she was informed by son of the witness in respect of making fire upon her son by the
accused ---Eye -witness stated that the occurrence had taken place in the main bazar when
shops were ope n but except him, the prosecution did not record statement of any independent
witness or nearby shopkeepers ---Eye-witness admitted that the deceased was his close
relative--- Complainant stated that the deceased was murdered due to previous enmity
between t he parties ---Statement of eye- witness, being inimical towards the accused, could
not be accepted without independent corroboration and the ocular testimony was in conflict with medical evidence--- Investigating officer had reached at the spot prior to regis tration of
FIR, conducted investigation, recorded statement of the only eye -witness, prepared memo of
blood- stained earth, memo of recovery of empty shell ---Investigating officer had commenced
the investigation prior to lodging FIR ---First Information Report was corner stone of the case
and any doubt arisen with regard to registration of FIR created suspicion in the case of prosecution---Investigating Officer had prepared site plan in the presence of the eye -witness
but did not mention as to where the said witness was standing ---Site plan was not substantive
piece of evidence, yet it showed the presence of witness and it could not be lightly ignored---Complainant, in her court statement, made dishonest improvements that the accused had called the deceased, w hereafter, her son went towards him ---Police, on arrest of the accused,
had recovered mobile and sim but had not collected the Call Data Record of the phone belonging to accused to ascertain whether the accused had called the deceased or not ---Mere
recover y of mobile had not substantiated the case of prosecution--- Prosecution had failed to
prove its case against the accused beyond shadow of doubt ---Appeal was accepted and the
impugned judgment was set aside, in circumstances.
Muhammad Irshad v The State 1999 SCMR 1030; Iftikhar Hussain v. The State 2004
SCMR 1185; Abdul Sattar v. The State 2008 PCr.LJ 869 and Khan v. The State 1978 PCr.LJ
24 ref.
Mehr Ali v. The State 1968 SCMR 161 rel.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Recovery of weapon---Delay in sending recovered articles ---
Sending of empties along with weapon--- Effect ---Investigating officer had dispatched the
blood stained clothes, crime shell and pistol to Forensic Science Laboratory for analysis after
a delay of more than two months without reasonable justification ---Crime weapon and empty
shell were sent together, therefore, the positive report had lost its evidentiary value ---Appeal
against conviction was accepted, in circumstances.
Asad Rehmat v. The State 2019 SCMR 1156 ref.
(c) Penal Code (XLV of 1860)---
----S. 302(b) --- Qatl-i-amd--- Motive ---Scope ---Complainant had alleged the motive but no
evidence was available on the record to substantiate the same--- Conviction could be awarded
even in the case where no motive was alleged, but once the motive was alle ged the same was
to be proved and on failure, its benefit would go to the accused---Appeal against conviction was accepted, in circumstances.
Mst. Mir Shahbano v Ahmed Khan 2011 YLR 1965 rel.
(d) Criminal trial ---
----Benefit of doubt ---Scope ---Benefit o f even a slightest doubt has to be extended in favour
of the accused.
Hussain Shah v. The State 2017 MLD 973 ref.
(e) Criminal trial ---
----Evidence ---Dishonest improvement ---Scope ---Where a witness makes improvement in
disposition, his statement cannot be taken into consideration.
Ayub Masih v. The State PLD 2002 SC 1048 ref.
Abdul Razzaq Shar for Appellant.
Jameel Akhtar, Additional Prosecutor General for the State.
Date of hearing: 25th September, 2019.
JUDGMENT
ABDUL HAMEED BALOCH, J. ---Through this common judgment we intend to
dispose of Criminal Appeal No. (s) 151 of 2018 filed by the appellant against his conviction,
and Criminal Revision Petition No. (s) 14 of 2019 filed by the petitioner for enhancement of the sentence awarded to the appellant vide judgment dated 11th September, 2018 (impugned Judgment) passed by learned Additional Sessions Judge, Naseerabad at Dera Murad Jamali (trial court).
2. Precise facts of the case are that on 1st June, 2017, the complainant Mst. Nawab
Khatoon gave wri tten report to SHO Police Station Saddar, Dera Murad Jamali to the effect
that on the said date her son Mor Khan was present in the house, some one called him that he is waiting for him at Ghaffar Kot, reached there immediately. Her son inquired about that
person who told that he is his friend. She stated to her son not to go, but he insisted and went away. At about 9:10 a.m., she received telephonic message that her son Mor Khan has been murdered by one Shahzada Khan by making firing with pistol. The motive alleged was Siakari.
3. After registration of the case investigation was carried out and after completion of the
same challan was submitted before the trial court.
4. The trial court after codal formalities framed charge on 3rd August, 2017, to which
the appellant denied and claimed trial. The prosecution in order to substantiate the charge
produced six witnesses. After close of prosecution side the appellant was examined under section 342 Cr.P.C., in which he once again denied the allegation levelled aga inst him and
pleaded innocence. Neither the appellant opted to record his statement on oath as mandated by section 340(2), Cr.P.C., nor produced any witness in his defence.
5. On completion of trial arguments were heard by the trial court and thereafter, p assed
the impugned judgment dated 11th September, 2018 whereby the appellant was awarded conviction under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life as Tazir. The appellant was also liable to pay compensation of Rs. 200,0 00/- to the legal
heirs of deceased Mor Khan as envisaged under section 544 -A, Cr.P.C., and in default
thereof to further undergo six months simple imprisonment, while extending benefit of Section 382- B, Cr.P.C. Hence being aggrieved of the impugned judgme nt the appellant filed
appeal for his acquittal. whereas the petitioner Mst. Nawab Khatoon preferred revision petition for enhancement of the sentence awarded to the appellant.
6. We have heard both the learned counsel for the parties as well as Additional
Prosecutor on behalf of the State, and also gone through the material available on record. The prosecution has examined six witness in order to substantiate its case. It is eviden t from the
record that unnatural death of deceased Mor Khan and receiving bullet injury are not disputed. The appellant pleaded his false implication in the case. PW - I Dr. Muhammad
Ibrahim Medical Officer District Headquarter Hospital Dera Murad Jamali ex amined the
deceased and confirmed that the deceased had received bullet injury. PW- 1 issued death
certificate Ex. P/1 -A confirming unnatural death of the deceased.
7. Adverting to the statements of prosecution witnesses. Suffice to observe that the
prosecu tion in order to substantiate the charge has produced evidence of six witnesses. The
complainant appeared as PW- 2, who reiterated the contents of Fard- e-Biyan and FIR. She
made improvements in her statement. Though PW -2 was not directly witnessed the crime .
She was informed by the son of PW -3 in respect of making firing upon her son by the
appellant. PW -3 is the only ocular witness. He stated that the occurrence had taken place in
the main bazaar where shops were open. Except recording statement of PW -3 eye -witness the
prosecution did not record statement of any independent witness or nearby shopkeepers. PW -
3 admitted that the deceased was his close relative. The complainant (PW- I) stated that the
deceased was murdered due to previous enmity between the part ies. The statement of eye -
witnesses being inimical towards the accused, their statements should not have been accepted
without independent corroboration and that the ocular testimony was in conflict with medical evidence. Reliance is placed on Muhammad Irs had v The State, reported in 1999 SCMR
1030.
8. PW-2 is not witness of occurrence. She was informed by the son of PW -3 at 9:30
a.m., on which PW -2 reached the spot. The application for registration of FIR was written.
PW-2 in her court statement made dishonest improvement thai appellant had phone the
deceased, whereafter, her son went towards him. Although PW- 2 is not ocular witness, the
improvement further shakes her testimony. If a witness made improvement in deposition,
his/her state -ment cannot be taken into consideration. Reliance is placed on case law Ayub
Masih v. The State PLD 2002 SC 1048.
9. After registration of the case the investigation of the case was entrusted to PW- 6, who
reached at the spot. The FIR was registered on the basis of Fard -e-Biyan, which was written
by a police official at the spot. The time of registration of FIR mentioned in Ex: P/6- A is
9:45 a.m. The Investigating Officer reached at the spot prior to registration of FIR, conducted
investiga -tion, recorded statements of only eye/ ocular witness, prepared site plan Ex: P/6- B.
prepared memo of blood stained earth Ex. P/5- B, memo of recovery of empty shell Ex: P/5- C
and remained at the spot till 9:45 a.m. The Investigating Officer commenced the
investigation prior to lodging FIR. The FIR is corner stone of the case. Any doubt arise with regard to registration of FIR create suspicion in the case of prosecution. Reliance is placed on Iftikhar Hussain v. The State 2004 SCMR 1185.
10. The statement of above referred witness in cluding the statement of complainant
established the fact that none of them directly witnessed the crime. In Ex: P/2 -A the
complainant did not mention that who informed her about the occurrence. The Investigating Officer prepared site plan Ex: P/6 -B, in pr esence of PW- 3, the alleged ocular witness, but he
did not mention that where the said witness was standing. Though the site plan is not substantive piece of evidence, it shows the presence of witness. It cannot be lightly ignored. Reliance can be placed o n Abdul Sattar v. The State reported in 2008 PCr.LJ 869. Similarly
in case tilted as Mehr Ali v. The State reported in 1968 SCMR 161, at page 169, it was held that:
"-----. The omission to indicate on the plan where Haku and Patti the alleged eye -
witnesse s were, when the shooting took place, thus gains significance and reflects on
the possibility that Haku and Patti were not there at all when the shooting took place.
The same judgment of august Court was relied upon in case Khan v. The State
reported in 1 978 PCr.LJ 24.
11. PW-6 dispatched the blood stained clothes Ex: P/5- A, crime shell Ex: P/5 -C, TT
pistol Ex: P/4 -A to Forensic Science Laboratory (FSL) for analysis, received on 22.8.2017
respectively with positive report of crime weapon, empty shell as E x: P/6 -E and blood
stained earth as Ex: P/6. -F. The referred to articles were received with delay of more than
two months without reasonable justification. It is to be noted here that the crime weapon and
empty shell were sent together. The positive report lost its evidentiary value as it has been
held by august Court in case Asad Rehmat v. The State 2019 SCMR 1156.
12. Another aspect of the case is that the prosecution has failed to establish motive behind
the occurrence. The complainant in her Fard- e-Biya n Ex: P/2- A had clearly alleged the
motive, but no evidence available on the record to substantiate the same. The conviction can be awarded even in the case where no motive is alleged, but once motive is alleged by the complainant it must be proved and on failure the benefit must go to the accused. Reliance is
placed to the case Mst. Mir Shahbano v. Ahmed Khan 2011 YLR 1965:
"15. Another fact to be noted is the motive shown in the FIR which is blood feud enmity. This motive has not been proved at all in t he evidence by the prosecution. No
documentary proof has been filed. Normally motive is of no avail and in certain cases which are motive -less conviction can be recorded. But once motive is alleged by
complainant in report it must be proved and in case of failure, the benefit must go
to the accused."
13. The complainant alleged that on receiving telephone call the deceased had left the
house. She further alleged in her court deposition that the appellant had telephone the
deceased. While on arrest of appel lant the mobile and sim were recovered and taken into
possession as Ex: P/5- D. The prosecution has neither collected the Call Data Record (CDR)
of the recovered phone of the appellant to ascertain whether the appellant had call the deceased nor not. Mere r ecovery of mobile has not substantiated the case of prosecution.
14. The reappraisal of the evidence reveals infirmities, contradictions and discrepancies
in the case of prosecution. The impugned judgment reflects that the same is result of misreading and mis-appreciation of the evidence available on the record. The prosecution has
miserably failed to prove the charge against the appellant beyond shadow of doubt. According to settled principle of law benefit of even a slightest doubt has to be extended in favour of the accused. Reliance is placed on Hussain Shah v. The State, reported in 2017
MLD 973.
15. In view of the above discussion, the prosecution has failed to prove its case against
the appellant beyond shadow of doubt, as such the criminal revision petition filed by the petitioner for enhancement of sentence being devoid of merit is dismissed and the appeal filed by the appellant is accepted and the impugned judgment dated 11th September, 2018 passed by Additional Sessions Judge, Naseerabad at Dera M urad Jamali, pursuant to FIR No.
75 of 2017 Police Station Saddar, Dera Murad Jamali, is set aside and appellant Shahzada Khan son of Nandho Khan is acquitted of the charge under section 302(b), P.P.C. He is in custody, shall be released forthwith if not r equired in any other case.
These are the reasons of our short order made on 25th September, 2019.
SA/144/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,
let us know.