2020 Y L R 2336
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
ASMATULLAH ---Appellant
Versus
The STATE and another ---Respondents
Criminal Appeal No. 12 of 2019 and Murder Reference No. 10 of 2018, decided on 23rd
December, 2019.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 324 & 34 ---Qatl -i-amd, attempt to commit qatl- i-amd, common intention---
Appreciation of evidence ---Benefit of doubt ---Accused was charged for committing murder
of the brother of the complainant ---Motive behind the occurrence was altercation between
complainant's brothers and father of accused prior to the occurrence ---Prosecution produced
four witnesses including complainant but they were not eye -witnesses of the occurrence---
Said witnesses did not state a single word that they had seen the accused at the time of incident near the place of occurrence---Ocular account of the alleged incident had been furnished by the injured eye -witness ---Record transpired that the incomplete challan of the
case was submitted before Judicial Magistrate on 09.07.2015 and the accused was shown
absconder in the challan---Statement of injured was recorded under S.512, Cr.P.C.---After arrest of the acquitted co -accused, supplementary challan was submitted---During fresh t rial,
the statements of witnesses were recorded except the injured, whose statement was previously recorded who was not produced before the court as he had succumbed to the injuries after road accident ---Trial Court on receiving the death report straightforwardly
accepted and considered the earlier statement of said injured witness without bringing the same on record and passed a judgment of conviction on the basis of statement of the said injured witness, which was previously recorded under S.512, Cr.P.C.- --Prime evidence had
not been produced before the court in the shape of injured witness while the co- acquitted
accused was facing trial before the Trial Court ---Supplementary challan was submitted
against the acquitted co -accused when he was in custody, th e injured witness had met his
unnatural death after road accident ---Previous statement of the injured recorded under S.512,
Cr.P.C. was recorded in absence of the appellant ---Said injured witness was not cross -
examined by the appellant therefore, the same could not be used against him ---Statement of
said injured witness would hardly be of any help to the prosecution case ---Prosecution in the
present case had also failed to bring on record any supportive or corroborative piece of evidence to prove the guilt of accused ---No recovery of weapon of offence was effected ---No
motive was brought against the accused--- Circumstances established that the prosecution had
failed to establish its case against the accused ---Appeal against conviction was allowed, in
circums tances.
Muhammad Saddique v. The State 2018 SCMR 71; 2013 MLD 810; 2017 MLD 973
and 2017 MLD 883 rel.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 324 & 34 ---Qatl -i-amd, attempt to commit qatl- i-amd, common intention---
Appreciation of evidence ---Benefit of doubt ---Related and interested witnesses ---Scope ---
Accused was charged for committing murder of the brother of the complainant ---Record
showed that the prosecution produced four witnesses in support of its case but all the said
witnesses were closely r elated to the deceased ---Evidence of said witnesses would have to be
appreciated with care and caution ---Evidence of the related witnesses could not be discarded
on the ground of their being related to the victim but if their testimony got no corroboration
from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter could not be expected from a prudent persons their evidence could be easily discarded ---Circumstances established that the prosecution had f ailed to
establish its case against the accused ---Appeal against conviction was allowed, in
circumstances.
(c) Criminal trial ---
----Absconsion--- Scope ---Absconsion was not a substantive piece of evidence but was a
corroborative evidence ---Where direct ev idence failed, corroborative piece of evidence was
of no avail. [p. 2344] I
Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373 rel.
Karam Khan Bazai, Zafar Hayat Mullazai, Aminullah Kakar and Nadir Langove for
Appellant (in Criminal Appeal No.12 of 2019).
Jameel Babai and Muhammad Ayub Tareen for the Complainant (in Criminal Appeal
No.12 of 2019).
Abdul Mateen, Deputy Prosecutor General ("DPG") for the State (in Criminal Appeal
No.12 of 2019 and Murder Reference No.10 of 2018).
Karam Khan Bazai, Zafar Hayat Mullazai, Aminullah Kakar and Nadir Langove for
accused (in Murder Reference No. 10 of 2018).
Date of hearing: 23rd October, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant having been involved in case FIR
No.07 of 2015 dated 22.06.2015 registered under Sections 302, 324/34, P.P.C. at Levies Thana Kach District Ziarat was tried by learned Additional Sessions Judge -I, Quetta,
("hereinafter the "trial Court") and on completion thereof by means of judgment dated
24.12.2018 ("hereinaft er the "impugned judgment"), was convicted and sentenced the
appellant in the following terms: -
"The accused Asmatullah son of Arsala is convicted under section 302(b), P.P.C. and
sentenced to death imprisonment with fine of Rs.5,00,000/ - (Rupees Five Lacs Only)
to the legal heirs of deceased Munir Ahmed as compensation under section 544- A,
Cr.P.C.
The accused Asmatullah son of Arsala is further convicted under section 324, P.P.C. and sentenced to suffer RI seven (07) years with fine of Rs.20,000/ - (Rupee s Twenty
Thousand Only) and in case of default the accused shall further suffer SI for six (06) months. Benefit of section 382- B, Cr.P.C. is extended in favour of accused".
2. Aggrieved from the impugned judgment, the appellant has assailed his conviction and
sentence through Criminal Appeal No.12 of 2019, while the trial Court forwarded Murder Reference No.10 of 2018 for confirmation or otherwise of death sentence inflicted upon the convict/ appellant in terms of section 374, Cr.P.C., as both the cases are arising out one and
the same judgment of the trial Court, therefore, same are being disposed of through this single judgment.
3. The prosecution story as disclosed in the complaint (Ex.P/1 -A) recorded on the
statement of PW -1 Zahoor Ahmed son of Mir Azam (complainant) is that on 22.06.2015 at
6:00 p.m., the complainant's brother namely Munir Ahmed and his companion Syed Tawab Shah while coming back on motorcycle were stopped near the cemetery by the accused Asmatullah; that the accused due to an altercatio n between complainant's brothers and father
of accused prior to the occurrence opened fire at Munir Ahmed; resultantly Munir Ahmed
and his companion were injured; that the accused made his escape good; that in the meantime, Abdul Rasheed and Rozi Khan and other reached at the spot and injured were sent to Quetta hospital; that near Kach the injured Munir Ahmed succumbed to his injuries, whereas the injured Syed Tawab Shah was hospitalized. Hence crime report.
4. After completion of the investigation, challa n was prepared and submitted before the
trial Court. The trial Court after observing the codal formalities as provided under the Code of Criminal Procedure, 1898 ("Cr.P.C.") framed the charge against the accused/appellant to which he did not plead guilty a nd claimed trial.
5. At the trial, the prosecution produced thirteen (13) witnesses. Thereafter, the
accused/appellant was examined under section 342, Cr.P.C., however, the accused/appellant neither recorded his statement on oath as envisaged under section 340(2), Cr.P.C., nor
produced any witness in his defense.
6. On conclusion of the trial and after hearing arguments, the trial Court convicted and
sentenced the accused/appellant as mentioned above in para No.1 of the judgment, whereafter the instant appeal has been filed and reference was sent by the trial Court.
7. Arguments advanced from both the sides have been heard. We have also minutely
gone through the record available on file with the able assistance of learned counsel for the
parties. It is an es tablished principle of law that each criminal case has its own peculiar facts
and circumstances and the same seldom coincide with each other on salient features.
Admittedly it is an unfortunate incident in which brother of the complainant namely Munir Ahme d lost his life after sustaining firearm injuries and one Syed Tawab Shah also received
injuries by means of firearm, but to put the facts and circumstances in equilibrium with the
touchstone of safe administration of justice, we have scrutinized the whole evidence
available on record while weighing the same on judicial parlance. It has been observed by us
that the prosecution has led evidence in the shape of ocular medical evidence, as well as investigation besides other attending circumstances.
8. As far as merits of the case are concerned, we have observed that the prosecution
produced PW -1 Zahoor Ahmed (complainant), PW -2 Abdul Rasheed, PW -3 Rozi Khan and
PW-4 Ghazi Khan who are not eye -witnesses of the occurrence. The complainant/PW -1 was
not present at the place of occurrence allegedly in his report he was informed by one Abdu
Rasheed through telephone about occurrence upon which he reached to the Levies Thana Kach and lodged a report. PW -2, Abdul Rasheed deposed that on 22.06.2015 at 6:00 p.m., he
was coming near Wam graveyard on motorcycle and he heard sound of firing, when he
reached on the first turn of graveyard he saw accused facing trial (Asmatullah), Nasir and
Zafar (absconding accused) who were boarded on motorcycle. He asked them about firing,
on which they told to him that go ahead and will come to know about it. The said PW further stated in his statement that when he crossed the second turn, he saw Munir Ahmed was lying in pool of blood while Tawab Shah was standing in injured condition and b leeding profusely.
PW-2 is not eye -witness of the occurrence. He did not witness the accused/appellant actually
while making firing upon deceased and injured. The said witness did not state a single word in his statement that he informed the complainant ab out occurrence through telephone. PW -3
Rozi Khan deposed before the trial Court that on 22.06.2015 he was present in the orchard situated near Wam Ziarat and his brother Ghazi Khan came on motorcycle and informed him that Tawab Shah and Munir Ahmed were ma de injured near Zalzala graveyard. PW -4 Ghazi
Khan deposed before the trial Court that on the day of occurrence he was irrigating his orchard situated near graveyard at Wam Ziarat, in the meanwhile he heard sound of firing and he went out the place of firi ng where he saw that the deceased Munir Ahmed was lying
in pool of blood, while Tawab Shah was standing in injured condition. Both of the above witnesses are not eye- witnesses of the occurrence, they did not state a single word that they
saw the accused/ap pellant at the time of incident near the place of occurrence.
9. Perusal of the record shows that the prosecution produced the above four witnesses in
support of its case but all of the above witnesses are closely related to the deceased Munir Ahmed. PW -1 Zahoor Ahmed is brother of the deceased. PW -2, PW -3 and PW -4 are cousins
of the deceased, therefore, for the safe dispensation of justice, their evidence will have to be appreciated with care and caution. No doubt the evidence of the related witnesses cannot be discarded on the ground of its being related to the victim but if it is found that testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafte r as such, which cannot be
expected from a prudent persons, then under such circumstances the evidence furnished by related witnesses cannot be easily discarded. At the touchstone of the above we now take into consideration the testimonies furnished by the above witnesses in the case.
10. The presence of the PW -2, PW -3 and PW -4 are doubtful at the place of occurrence.
PW-2 Abdul Rasheed stated in his statement that he reached the place of occurrence and saw
that Munir Ahmed was lying in pool of blood while Tawab Shah was standing in injured
condition and in the meantime PW -3 Rozi Khan and other people came to the place of
occurrence. The said witness did not name the PW -4 Ghazi Khan in his statement and about
his (PW -4) presence at the place of occurrence. P W-3 deposed before the learned trial Court
that on the day of occurrence he was present in his orchard situated at Wam Ziarat and his brother Ghazi Khan came on motorcycle and informed him that firing has been made upon Tawab Shah and Munir Ahmed near Zalz ala graveyard, therefore, he reached at the place of
occurrence. The said witness neither named the PW- 2 Abdul Rasheed in his statement nor
shown his (PW -2) presence at the place of occurrence. PW- 4 Ghazai Khan deposed before
the learned trial Court that on the day of occurrence he was irrigating his orchard situated near graveyard at Killi Wam Ziarat, in the meanwhile he heard sound of firing and went out at the place of firing where he found that Munir Ahmed and Tawab Shah were in injured condition and thereafter he informed his brother PW- 3 Rozi Khan about the incident and they
shifted the injured to hospital in a wagon. The said witness also did not name of PW -2 in his
statement, however, he narrated different story from that of PW- 3 because he stated th at he
informed PW -3 about the occurrence but on the other hand PW -3 stated that he informed
PW-4 about the occurrence. In the above circumstances, the presence of the said witnesses
are doubtful at the place of occurrence.
11. The most important aspect of this case is the ocular account of the alleged incident
which was furnished by the injured eye -witness Tawab Shah. It is worthwhile to mention
here that incomplete challan of the case was submitted before Judicial Magistrate Ziarat on
09.07.2015 and the accused was shown absconder in the challan and statement of injured
Tawab Shah was recorded under section 512, Cr.P.C., as PW -2 on 29.07.2015. After arrest of
co-acquitted accused Abdul Nasar, supplementary challan was submitted before the learned
Additional Sessions Judge, Ziarat on 21.10.2016. On 30.11.2016 the accused (appellant) Asmatullah was arrested and supplementary challan was submitted against him. During fresh
trial, the statements of PW -1 to PW -13 were recorded except the injured Tawab S hah whose
statement was (previously recorded as PW- 2) who was not produced before the Court and
statement of CW -1 Muhammad Munir, IP was recorded. According to him on 17.12.2016 the
injured witness Tawab Shah succumbed to the injuries after road accident and in this regard he also produced medical certificate and supplementary challan before the learned trial Court.
12. Tawab Shah, PW (appeared as PW- 2 in trial in absentia) was the person who was an
injured witness of the occurrence and his evidence was onl y direct evidence against the
appellant but during fresh trial he was reported to have died unnatural death in a road accident and was no more in this mortal world. The learned trial Court on receiving the death report from CW -1 straightforward accepted and considered the earlier statement of said
Tawab Shah without being brought on record and passed a judgment of conviction on the basis of statement of the said Tawab Shah which was previously recorded under section 512 Cr.P.C.
13. As the appellant was fugitive of law, therefore, normal trial could not be conducted
but in view of the provisions contained in section 512, Cr.P.C., only the evidence of prosecution witnesses was possible to preserve. It would not be out of contest to reproduce provisions of section 512, Cr.P.C.
"512. Record of evidence in absence of accused.---(1) If it is proved that an accused
person has absconded, and that there is no immediate prospect of arresting him the Court competent to try or [send for trial t o the Court of Session or High Court] such
person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions. Any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for the offence with which he is charged. If the deponent is dead or incapable of giving evidence or his attendance cannot be procured without an amount of delay, expense or inconvenience which , under the circumstances of the
case, would be unreasonable.
(2) Record of evidence when offender unknown. If it appears that an offence punishable with death or imprisonment for life has been committed by some person unknown, the High Court may direct t hat any magistrate of the first class shall hold an
inquiry and examine any witness who can give evidence concerning the offence. Any deposition so taken may be given in evidence against any person who is subsequently accused of the offence, if the deponen t is dead or incapable of giving evidence or
beyond the limits of Pakistan".
14. The bare reading of provisions contained in section 512(1), Cr.P.C., envisages that the
evidence of prosecution witnesses recorded against an accused on account of his abscons ion,
in absentia, only would be used in evidence against him on his arrest, during course of trial for the offence with which he is charged if the deponent was dead, incapable of giving evidence, or his attendance was not possible to be procured without an amount of delay,
expense or inconvenience but, the provisions cited herein above contained in section 512, Cr.P.C., has conferred no jurisdiction on a Court to convict and sentence an accused in absentia. The paramount consideration and object of section 512, Cr.P.C., is to preserve the
evidence and to exclude the possibility of loss of evidence at the trial, when the accused is arrested and prosecution witnesses were not available.
15. Deposition recorded under section 512, Cr.P.C., are relevant to the tr uth of the facts,
stated therein under Article 47 of Qanun -e-Shahadat, which is reproduced below as: -
"47. Relevancy of certain evidence for providing, in subsequent proceeding, the truth of facts therein stated. Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is
incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonabl e;
Provided that,
the proceeding was between the same parties or their representatives -in-interest;
the adverse party in the first proceeding had the right and opportunity to cross -
examine;
the question in issue were substantially the same in the firs t as in the second
proceeding".
16. When the above Article is examined, it provides a situation wherein the evidence
given by a witness in judicial proceedings (in this case be fore a Magistrate) shall be relevant
for the purpose of proving the stated fact . But one of the provisos to the said Article, which
controls the relevancy and admission of the evidence, is that the party against whom the said statement is being made should be provided an opportunity for cross -examination, which in
the instant case is not available. There are a number of judgments of the superior Courts
where in a similar situation it has been held that it is the duty of the prosecution to produce its best evidence before the Court and where no right of cross -examination has been provi ded
to an accused then it would be deemed that prejudice has been caused to him. In the criminal administration of justice it is the bounden duty of the prosecution to establish its case beyond any shadow of doubt and to put its best evidence forward. In t he instant case, we are afraid
that the prime evidence has not been produced before the Court in the shape of injured Tawab Shah while the co -acquitted accused was facing trial before the trial Court. It is
important to mention here that on 21.10.2016 a supplementary challan was submitted against the co -acquitted accused Abdul Nasar when he was in custody, the injured Tawab Shah has
met his unnatural death after road accident on 17.12.2016.
18. In such circumstances the previously recorded statement of the injured under section
512, Cr.P.C., was in absence of the accused (appellant) and the said witness was not cross -
examined by the accused (appellant) and same cannot be issued against the appellant. Reliance is placed on the judgment of the august superior Court titled Muhammad Saddique v. The State 2018 SCMR 71.
19. The question arises here that whether statement of injured Tawab Shah recorded
under section 512, Cr.P.C., can be transposed? In our view, the answer is negative, because of the reason that he does not qualify the conditions provided Article 47 of Qanun- e-
Shahadat, 1984, that "an adverse party in the first proceeding had the right and opportunity to cross -examination". Rather the same is in contravention of section 353 of the Criminal
Procedure C ode, wherein it is clearly embedded that evidence is to be recorded in presence
of accused.
20. The word "shall" has been used in section 353, Cr.P.C., which clearly manifests the
intention of legislature. Section 353, Cr.P.C., is reproduced as under: -
"353. Evidence to be taken in presence of accused, Except as otherwise expressly
provided, all evidence taken under Chapters XX, XXI, XXII and XXII -A shall be
taken in the presence of the accused, or, when his personal attendance is dispensed with, in prese nce of his pleader". "
21. The only exception in the ibid provision 353 of the Cr.P.C., is that if accused waives
his right by dispensing with his presence and is represented by pleader. In the present case the statement of Tawab Shah was recorded under se ction 512, Cr.P.C., neither in the
presence of the accused nor opportunity was given for cross -examination.
22. It needs be urged that despite transfer of statement of the injured Tawab Shah in
proceedings under section 512, Cr.P.C., against the accused/ap pellant, his statement in
proceedings under section 512, Cr.P.C., having not been subjected to cross -examination
would hardly be of any help to the prosecution case. Reliance is placed on the judgment 2013
MLD 810, 2017 MLD 973 and 2017 MLD 883.
23. The prosecution in this case has also failed to bring on record any supportive or
corroborative piece of evidence to prove the guilt of accused. There is no recovery of weapon of offence. No motive brought against the a ppellant.
24. It is evident from the record that the accused/appellant Asmatullah remained
absconder for a considerable sufficient long time. In this part of the country people do abscond not because they are guilty but because of fear and torture of the police. Even otherwise, absconsion is not substantive piece of evidence, it is a corroborative piece of evidence and in cases direct evidence falls, corroborative piece of evidence is of no avail, as in the instant case, where the evidence of eye- witness have been disbelieved being defective,
while abscondence can neither cure an inherent defect of the ocular account nor by itself is sufficient to sustain conviction. In this respect reference can be made to case Rasool Muhammad v. Asal Muhammad and 3 others 1995 SCMR 1373.
In view of the afore mentioned circumstances, the prosecution has miserably failed to
establish its case against the accused/appellant, therefore, the instant appeal is allowed. The impugned judgment dated 24.12.2018 passed by the learned Additional Sessions Judge -I,
Quetta, i s set aside and the appellant is acquitted of the case. He shall be released forthwith,
if not required in any other criminal case.
Murder Reference No.10 of 2018 is answered in negative.
Appeal accepted.
JK/28/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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