2020 Y L R 2514
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
MIR HASSAN---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No. 84 and Criminal Revision No. 8 of 2019, decided on 28th April, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---No justification available for presence of witnesses at the place of occurrence---Un -
natural conduct of eye -witnesses---Effect ---Accused was charged that he along with co-
accused committed murder of cousin of the complainant by firing--- Ocular account of the
incident had been furnished by three witnesses including complainant ---Medical Officer
stated that the injured was brought by the general public ---Said witness further confirmed
during cross -examination that the deceased was accompanied by twenty persons when he
was brought to the hospital ---Neither the name of complainant and other eye -witnesses was
mentioned in the medical certificate nor Medical Officer stated a single word in his statement
that the injured was brought by the complainant or eye -witnesses themselves ---High Court
observed that if it was presumed that the complainant and eye -witnesses were accompanying
the deceased when he was brought to hospital then why the Police Officials did not
record/register the complainant's report at the hospital promptly but despite that the complainant went to the police station at 1:00 in that two hours after the alleged occurrence --
-Said aspect of the m atter created serious doubt in the prosecution story as to why the report
was not lodged promptly--- If the eye- witnesses were present at the spot at the time of
occurrence, they would have taken the deceased either to hospital or to the police station, which admittedly was not done ---Presence of said witnesses on the spot was unnatural
because had they been present on the spot they would have received some injuries by the shots fired by the accused and absconding accused---Said fact showed that witnesses tr ied to
suppress their interestedness ---All the eye -witnesses stated that they were present at a
distance of four to five feet to each other at the time of occurrence--- Eye-witnesses stated
that the accused persons fired repeated shots (burst firing) ---If i ndiscriminate firing was
made by two persons upon six persons from a short distance and the witnesses were standing at a distance of four to five feet each other but none of them received injuries and only one person i.e. the deceased received only one fir earm injury ---If the statement of the eye-
witnesses was believed to be true then the question arose as to why and how the accused spared said witnesses and did not even try to kill them, when he could have easily killed them because they were empty handed and at his mercy coupled with the fact that they could depose against him as witnesses being uncle and cousin of the deceased---Mode and manner
of the occurrence advanced by the prosecution witnesses was not appealable to a prudent
mind ---Accused had no mo tive to fire at the deceased, so it might be inferred that the
incident did not take place in the way and manner as it was alleged ---Said facts and
circumstances when evaluated on the judicial parlance reflected that the prosecution had failed to establish the culpability of the accused in the instant case through reliable,
trustworthy and confidence inspiring evidence ---Appeal against conviction was allowed, in
circumstances.
(b) Criminal trial ---
----Witness ---Related witness ---Statement of related witn ess---Reliance---Scope ---Evidence
of the related witnesses could not be discarded on the ground of its being related to the victim--- If it was found that the 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 thereafter as such, which could not be expected from a prudent person, then under such circumstances, the evidence furnished by related witnesses could be easily discarded.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Benefit of
doubt ---Delay of about one hour and fifty minutes in lodging the FIR ---Scope ---Accused was
charged that he along with co- accused committed murder of cousin of the complainant by
firing ---Record showed that the occurrence took place at 11:10 a.m. and on the same day at
1:00 p.m. the FIR was lodged---First Information Report disclosed that the place of occurrence was at a distance of six kilometres from the po lice station ---Delay of two hours in
lodging the FIR ---Medical evidence showed that deceased was examined by Medical Officer
at 11:10 a.m. ---Complainant stated in his statement that he himself went to the police station
and submitted application for regist ration of the FIR and the said application was written by
one person from the city---Complainant further stated during cross -examination that police
came to the spot at 2:00 p.m. ---First Information Report was lodged with delay after
deliberation and consu ltation for the reason that the prosecution waited for the medical
reports and after obtaining of same the prosecution witnesses attributed individual role to each accused ---Deceased received injuries and as per medical certificate within five minutes
he succumbed to the injuries i.e. at 11:15 a.m., then what prevented the complainant to lodge
the report, despite the fact that the distance of police station from the place of occurrence was mentioned as six kilometres ---Said delay was fatal to the prosecution case---Appeal
against conviction was allowed, in circumstances.
(d) Criminal Procedure Code (V of 1898) ---
----S. 154--- Delay in lodging the FIR ---Effect ---Delay in lodging the report could not be
simply brushed aside, as it assumed great significance, and it could be attributed to consultations, taking instructions and calculatedly preparing the report keeping in view the names of the assailants opened for involving such persons to whom ultimately the prosecution might wish to nominate.
Mahmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Imran
Hussain v. Amir Arshad and 2 others 1997 SCMR 438; Muhammad Rafique v. The State
2014 SCMR 1698 and Altaf Hussain v. The State 2019 SCMR 274 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Criminal Procedure Code (V of 1898), S. 161--- Qatl-i-amd, common
intention--- Appreciation of evidence ---Benefit of doubt ---Delay in recording the statement of
witness by police ---Scope ---Accused was charged that he and co -accused committed murder
of cou sin of the complainant by firing ---Record showed that the statement of eye- witness
was recorded under S.161, Cr.P.C. with delay of two days, which was confirmed by Investigating Officer ---No plausible explanation had been furnished for said delay, which
reduced its value ---Appeal against conviction was allowed, in circumstances.
Abdul Khaliq v. The State 1996 SCMR 1553 and Sahib Gul v. Ziarat Gul and others
1976 SCMR 236 rel.
(f) Penal Code (XLV of 1860)---
----Ss. 302(b) & 34--- Qanun- e-Shahadat (10 of 1984), Art. 129(g) ---Qatl-i-amd, common
intention--- Appreciation of evidence ---Benefit of doubt ---Withholding mareial evidence ---
Effect ---Accused was charged that he along with co- accused committed murder of co usin of
the complainant by firing ---According to the eye -witnesses, at time of occurrence, one
person who was the pickup driver, was also present at the time of occurrence, who took the injured to the hospital in his vehicle ---Said driver was neither produced before the trial court
nor his statement was recorded under S.161, Cr.P.C. by the Investigating Officer ---
Investigating Officer also did not record the statements of twenty persons from the general public who were accompanying the deceased at the time when he was brought to the hospital ---No impartial evidence could have come from the neighbourhood to corroborate the
prosecution case, which, of course, could have been available due to gunshots ---Such being
the case, the indication and production of only interested and inter -related persons and non -
production of driver of pickup and other person who took the injured to the hospital as witnesses before the court further made the prosecution case doubtful under Art. 129(g) of Qanun- e-Shahadat, 1984---Appeal against conviction was allowed, in circumstances.
Pathan v. The State 2015 SCMR 315 rel.
(g) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Criminal Procedure Code (V of 1898), S. 342--- Qatl-i-amd, common
intention--- Appreciation of evidence---Benefi t of doubt ---Examination of the accused ---
Scope ---Accused was charged that he along with co- accused committed murder of cousin of
the complainant by firing----Record showed that while the accused was examined under S.342, Cr.P.C., the Trial Court did not p ut the question to the accused about his abscondance,
therefore that piece of evidence could not be used against him ---As substantive piece of
evidence, which was in the shape of ocular account, had been disbelieved therefore, no
conviction could be based on absconsion alone ---Appeal against conviction was allowed, in
circumstances.
Manzoor Ahmed Rehmani (absent) for Appellant.
Abdul Musawir for the Complainant.
Abdul Karim Malghani, State Counsel.
Date of hearing: 16th April, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---The appellant namely Meer Hassan son of Peer
Muhammad was involved in FIR No. 19 of 2017 registered under sections 302 and 34, P.P.C.
of Police Station Saddar Harnai and was tried by learned Additional Sessions Judge/Model Criminal Trial Cou rt, Harnai ("trial court"). The trial court in terms of judgment dated 5th
April 2019 (herein "impugned judgment") convicted and sentenced the appellant in the following manner:
"21. ……..Therefore, I convict accused Meer Hassan son of Peer Muhammad by Caste Khidrani resident of Qilla Gozha, District Harnai, under section 302(b) read
with Section 34, P.P.C. and sentence him to life imprisonment i.e. 25 (Twenty Five) years R.I. as well as to pay compensation amount of Rs.200,000/ - (Rupees Two Lac)
to the leg al heirs of the deceased Sheer Zaman or in default whereof to undergo 06
(six) months S.I. for committing the murder of deceased Sheer Zaman. 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 complainant
namely Dost Muhammad filed Criminal Revision Petition No. 08 of 2019 for enhancement of sentence awarded to appellant by the trial court. As both the cases are arising out of one and same judgment, theref ore, same are being disposed of through this single judgment.
3. The prosecution story as disclosed in the FIR Fx.P/5- A recorded on statement of Dost
Muhammad (complainant/PW -1) is that on 05.06.2017 at 11:00 a.m. the complainant along
with his sons Gula K han, Naqeebullah, brother Gul Shah Khan and cousin Sheer Zaman were
busy in Tomatoes' field; that the appellant along with co- accused Mosam Khan equipped
with Kalashnikov and 303 bore rifle came to the spot and raised 'Lalkara' to be ready for fighting; th at they opened firing and the appellant Meer Hassan's shot hit Sheer Zaman
inflicting bullet injuries to him, who fell down and was shifted to hospital but he could not survive and succumbed to his injuries in Civil Hospital Harnai. Hence, the crime report .
4. The appellant was arrested and after completion of the investigation, he was challaned
to the court. He was formally charge sheeted, to which he pleaded not guilty and claimed trial. Thereafter, in order to prove its case the prosecution got examined as many as seven witnesses. Then, statement of appellant was recorded under Section 342, Cr.P.C. wherein he refuted allegations levelled against him. Appellant also recorded his statement on oath as
envisaged under section 340(2), Cr.P.C. and also produced one witness DW -1 namely
Behram Khan in his defense.
The trial court after conclusion of trial has convicted and sentenced the appellant as
mentioned above through the impugned judgment dated 05.04.2019.
5. Counsel for the appellant did not appear due to corona virus pandemic and he sent his
written arguments, copy whereof was provided to learned counsel for the complainant.
We have heard learned counsel for the complainant and learned State Counsel and
have gone through the written arguments of learned c ounsel for the appellant and the record.
6. It is an established 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 inciden t in which complainant's nephew lost his life after
sustaining firearm injuries, 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 w eighing the same on judicial parlance. It has been observed by us
that the prosecution has led evidence in the shape of ocular account, medical evidence, as well as investigation besides other attending circumstances.
7. As far as merits of the case are co ncerned we have observed that prosecution in
support of its charge produced PW -1 Dost Muhammad, PW -2 Naimatullah and PW -3
Naqeebullah, who were eye -witnesses of the alleged occurrence but all the above witnesses
are closely related to the deceased Sheer Za man. PW -1 Dost Muhammad is uncle of the
deceased whereas PW -2 and PW -3 are cousins of the deceased, therefore, for safe
dispensation of justice, their evidence will have to be appreciated with care and caution. No doubt the evidence of the related witnesse s cannot be discarded on the ground of its being
related to the victim but if it is found that the 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 thereafter as such, which cannot be expected from a prudent
person, 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 furnish ed by the above witnesses in the case.
8. It reflects from the record that the occurrence took place at 11:10 am and on the same
day at 1:00 pm the FIR was lodged. The FIR disclosed that the place of occurrence is at a distance of six kilometers from the p olice station. Thus, there is delay of two hours in
lodging the FIR. According the medical certificate produced by PW -4 Dr. Wazir Khan, who
examined the deceased on 5.6.2017 at 11:10 am the complainant stated in his statement that he himself went to the police station and submitted application for registration of the FIR and the said application was written by one person from the city. He further stated during cross -
examination that police came to the spot at 2:00 pm. Although the FIR was lodged on 5.6.2017 at 1:00 pm but same appeared to be for the reason that the prosecution waited for
medical opinion of the doctor which resulted in delay to lodge the FIR. Since this delay in registration of the FIR has provided ample opportunity to the prosecution to deli berate and
consult in the matter, therefore not only the mode and manner of the occurrence has to be
thoroughly examined but ocular testimonies also require very careful probe.
It may be seen that the FIR was lodged with delay, after deliberation and cons ultation
for the reason that the prosecution waited for the medical reports and after obtaining of same the prosecution witnesses attributed individual role to each accused.
9. On the face of it, there is inordinate delay of two hours in lodging the report by the
complainant. It is astonishing that when the deceased received injuries and as per medical certificate within five minutes he succumbed to his injuries i.e. at 11:15 a.m., then what prevented the complainant to lodge the report, despite the fact that the distance of police station from the place of occurrence is mentioned as six kilometers. It is worthwhile to mention here that according to PW -4 Dr. Wazir Khan the injured was brought by the general
public. He further confirmed during cross -examinati on that the deceased was accompanied
by twenty persons when he was brought to the hospital. Neither the name of complaint and other eye -witnesses is mentioned in the medical certificate Ex.P/4 -A nor PW -4 Dr. Wazir
Khan stated a single word in his statement that the injured was brought by the complainant or
eye-witnesses themselves. For the sake of arguments if it is presumed that the complainant
and eye -witnesses were accompanying the deceased Sheer Zaman when he was brought to
hospital and the doctor exami ned him at 11:10 a.m. on basis of injury report why the police
officials did not record/register the complainant's report at the hospital promptly but despite that the complainant went to the police station at 1:00 pm in that two hours after the alleged occurrence. This aspect of the matter creates serious doubt in the prosecution story as to why
the report was not lodged promptly. Needless to say that the delay in lodging the report cannot be simply brushed aside, as it assumes great significance, and it c ould be attributed to
consultations, taking instructions and calculatedly preparing the report keeping in view the names of the assailants opened for involving such persons who ultimately the prosecution might wish to nominate. In this respect, reliance is placed on case law reported in 'Mahmood
Ahmad and 3 others v. The State and another' (1995 SCMR 127), 'Imran Hussain v. Amir Arshad and 2 others' (1997 SCMR 438), 'Muhammad Rafique v. The State' (2014 SCMR 1698) and 'Altaf Hussain v. The State' (2019 SCMR 274).
10. It is important to mention here that the occurrence took place on 5.6.2017 at 11:10 am
while PW -2 Naimatullah and PW -3 Naqeebullah claimed to have seen the occurrence, who
are closely related to the deceased but the statement of PW- 2 Naimatullah was recorded
under section 161, Cr.P.C. on the same date after 4:00 pm. According to PW -5 Muhammad
Islam SI, who conducted investigation of the case, he went to the place of occurrence at 2:30
pm. PW -2 stated during cross -examination that the police took his signature at the place of
occurrence on four papers on the day of occurrence. On the other hand PW -5 stated during
cross -examination that he recorded statements of Naimatullah and Gul Shah Khan at the
police station. He further stated during cross -exam ination that he came back to the police
station at 4:00 pm, meaning thereby that the statement of PW -2 was recorded by the
investigating officer at the police station after 4:00 pm after delay of five hours from the occurrence. Statement of PW- 3 namely Naq eebullah was recorded under section 161, Cr.P.C.
with delay of two days, which was confirmed by PW -5 Muhammad Islam SI, who stated
during cross -examination that he recorded statement of Gula Khan and Naqeebullah on
7.6.2017 without any plausible explanatio n, therefore the same is hit by ratio decidendi given
by august Supreme Court of Pakistan laid down in the case of Abdul Khaliq v. The State (1996 SCMR 1553) wherein it was held as under:
"…….It is a settled position of law that late recording of 161, Cr.P.C. statement of a
prosecution witness reduces its value to nil unless there is plausible explanation for such delay."
Reliance is also placed on the dictum of law laid down in the cases of Sahib Gul v.
Ziarat Gul and others (1976 SCMR 236).
11. The pres ence of the complainant, PW -2 Naimatullah and PW -3 Naqeebullah is also
doubtful at the time of alleged incident at the place of occurrence. It is stated earlier that according to medical certificate Ex.P/4 -A PW -4 issued by PW -4 Dr. Wazir Khan, Medical
Officer DHQ Hospital Harnai the injured was brought to the hospital by general public.
Neither the name of the complainant and the eye -witnesses is mentioned in the medical
certificate nor PW- 4 stated a single word that the injured was brought by the complaina nt or
the eye- witnesses to the hospital. Had they been present at the spot at the time of occurrence
they would have taken the deceased Sheer Zaman either to hospital or to the police station, which admittedly was not done. PW -1 is uncle of the deceased wh ereas PW- 2 and PW -3 are
cousins of the deceased. Apart from that all the above witnesses being highly interested witnesses inimically deposed against the appellant. First reason for, disbelieving them is that their presence on the spot was unnatural becaus e had they been present on the spot they
would have received some injuries by the shots fired by the appellant and absconding accused. It appears that they have tried to suppress their interestedness. All the above witnesses stated in their statements that they were doing work in the tomato fields. The
appellant equipped with Kalashnikov and the absconding accused armed with a 303 bore rifle made firing upon them; that the shot fired by the appellant hit deceased Sheer Zaman, who fell down after receiving i njury. According to the above witnesses they were present at a
distance of four to five feet to each other at the time of occurrence. According to PW -3
Naqeebullah the accused persons fired repeated shots (burst firing). According to recovery memo of bulle t empties from the place of occurrence Ex.P/2 -C eleven empties of SMG and
two bullet empties of 303 bore rifle were recovered from the place of occurrence. However this court believes that if indiscriminate firing is made by two persons upon six persons fr om
a short distance and the complainant, PW -2 Naimatullah, PW -3 Naqeebullah and other
witnesses (Gula Khan and Gul Shah Khan not produced before the trial court) were standing at a distance of four to five feet from each other but none of them received inj uries and only
one person i.e. the deceased received only one firearm injury. If the statement of the above witnesses is believed to be true then the question arises as to why and how the appellant spared Gula Khan, Gul Shah Khan (not produced as witnesses ), PW -1, PW -2 and PW -3 and
did not even try to kill them, when he could have easily killed them because they were empty handed and at his mercy coupled with the fact that could depose against him as witnesses being uncle and cousin of the deceased. The mode and manner of the occurrence advanced by the prosecution witnesses is not appealable to a prudent mind.
12. Another interesting feature of the case is that the appellant had no motive to fire at the
deceased. According to the statement of the above so called eye- witnesses they escaped
unhurt and did not received even a scratch in the alleged incident despite bei ng empty
handed and totally at the mercy of the appellant, but they were left alive and the appellant selected to kill the deceased with whom the appellant and absconding accused had no direct
motive. So it may be inferred that the incident did not take pl ace in the way and manner, as it
was alleged.
13. The prosecution story as put -up before the trial court is hardly believable. Even
otherwise when a single drop of dirt is mixed and dissolved in the tank of bulk clean water, it
makes the whole dirty. In the same manner, when some falsehood is mixed with truth, the same makes the truth carrying possibility of falsehood as a whole. The Hon'ble Supreme Court of Pakistan had disbelieved the statement of an alleged eye -witness whose conduct
remained unusual in a case law titled "Muhammad Khan and another v. The State reported as
1999 SCMR 1220", wherein it was held that: "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where
the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduct, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the
other evidence on record. It is obvious that truth and falsity of the prosecution case can only
be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective".
14. According to the eye -witnesses at the time of occurrence one Muhammad Islam who
was the pickup driver was also present at the time of occurrence, who took the injured to the hospit al in his vehicle. He was neither produced before the trial court nor his statement was
recorded under Section 161, Cr.P.C. by the I.O. Moreso, the I.O. also did not record the statements of the twenty persons from the general public who were accompanying the
deceased at the time when he was brought to the hospital. No impartial evidence could have come from the neighborhood to corroborate the prosecution case, which of course could have been available due to gunshots fired. Such being the case, the indicat ion and production of
only interested and inter -related persons and non -production of Muhammad Islam and other
person who took the injured to the hospital as witnesses before the court further makes the prosecution case doubtful under Article 129(g) of Qanun -e-Shahadat Order 1984. Reliance is
placed in the case of Pathan v. The State (2015 SCMR 315).
15. Adverting next to the abscon- dence of the appellant, no doubt it is a relevant fact and
can be used as corroborative piece of evidence, but it cannot be read in isolation, as it has to be read along with substantive piece of evidence. The Hon'ble Supreme Court of Pakistan in the case of Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 observed that abscondence is only a suspicious circumstance. Even otherwise while the accused was
examined under Section 342, Cr.P.C. the trial court did not put the question to the appellant about his abscondance, therefore this piece of evidence cannot be used against the accused. In the present case the substantive piece of evidence, which is in the shape of ocular account has been disbelieved by us therefore no conviction can be based on absconsion alone.
16. All the above narrated facts and circumstances when evaluated on the judicial
parlance reflect that the prosecution has failed to establish the culpability of the appellant in
the instant case through reliable, trustworthy and confidence inspiring evidence.
From the facts and circumstances narrated above, we are persuaded to hold that
conviction passed by the learned tria l court against the appellant in the circumstances is
against all canons of law recognized for the safe dispensation of criminal justice.
17. Resultantly Criminal Appeal No.84 of 2019 filed by the appellant is allowed while
setting aside the conviction and sentence recorded by the trial court in terms of judgment
dated 5th April 2019, the appellant is acquitted of the charge under sections 302(b), 34,
P.P.C. in FIR No. 19/2017 dated 5.06.2017 Police Station Saddar Harnai. The appellant is ordered to be rele ased forthwith if not required in any other case.
As a natural corollary, the Criminal Revision Petition No. 08 of 2019 seeking
enhancement of sentence is dismissed.
JK/62/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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