2020 Y L R 560
[Balochistan]
Before Naeem Akhtar Afghan and Rozi Khan Barrech, JJ
ABDUL WADOOD and another ---Appellants
Versus
The STATE--- Respondent
Criminal Appeals Nos. 163, 164 and Murder Reference No. 7 of 2019, decided on 18th
March, 2020.
(a) Criminal Procedure Code (V of 1898) ---
----S. 161--- Statement of witness ---Unexplained delay--- Effect ---Delay of even one or two
days without explanation, in recording statements of witnesses is fatal for prosecution case and such statements were not worthy of reliance.
Muhammad Asif v. The State 2017 SCMR 486; Muhammad Sadiq v. The State PLD
1960 SC 223; Tariq Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Iqbal v. The State 1984 SCMR 930; Haroon alias Harooni v. The State and another 1995 SCMR 1627 and Muham mad Khan v. Maula Bakhshah 1998 SCMR 570 rel.
(b) Criminal trial ---
----Evidence ---Corroborative evidence ---Scope ---Where direct evidence fails, the
corroborative piece of evidence is of no avail.
Ghulam Akbar and another v. The State 2008 SCMR 1064 re l.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 147, 148 & 149---Anti -Terrorism Act (XXVII of 1997), S. 7---Qatl -i-Amd,
rioting armed with deadly weapons ---Appreciation of evidence ---Benefit of doubt ---
Defective investigation ---Injured prosecution wit ness, evidence of ---Scope ---Accused
persons were alleged to have made indiscriminate firing, set ablaze 6 -7 vehicles and shops
resultantly one person was murdered and others were injured--- Prosecution failed to establish
that the vehicles and shops belonge d to complainant party and Investigation officer also did
not inquire about from any independent witness despite the fact that alleged occurrence had taken place at a thickly populated area---Neither statements of owners of vehicles nor of shops which were set on fire were recorded by investigation officer ---Crime empties were
not sent to Forensic Science Laboratory and it could not be determined as to how many accused persons made firing ---Investigation was not conducted diligently and investigation
office r failed to associate any independent person from the locality other than the relatives
and tribesmen of the complainant to dig out the truth ---Witnesses of ocular account though
had a stamp of injuries on their persons yet they failed to prove their truthfulness during
trial---Complainant took sufficient time in lodging crime report after going through the reports of postmortem examination as well as medico- legal reports of injured witnesses and
also after consultation and deliberation---Dead body and injured witnesses were examined
prior to registration of FIR ---Prosecution had managed eye -witnesses as well as prosecution
story ---Prosecution failed to prove charge against accused persons beyond shadow of doubt
and benefit of doubt favoured accused persons ---High Court set aside conviction and
sentence awarded by Trial Court and both the accused persons were acquitted of the charge --
-Appeal was allowed in circum -stances.
Muhammad Khan and another v. The State 1999 SCMR 1220; Bashir Ahmed v. The
State 2019 SCMR 1417; Munir Ahmed v. The State 2019 SCMR 2006; Allahyar v. The State
1990 SCMR 1134; 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 ref.
Shahidullah v. Eid Marjan and 2 others 2014 PCr.LJ 1684 and Amin Ali and another
v. The State 2011 SCMR 323 rel.
(d) Criminal Procedure Code (V of 1898) ---
----S. 161 ---Police Rules 1934, R.25.2 (3) ---Recording of statements of witnesses ---Mode ---
Investigation officer is not supposed to record statements of prosecution witnesses while
acting as 'stenographer' rather he is obliged, as required under S.161, Cr.P.C., to 'examine' the person whose evidence / statement he is going to record.
(e) Criminal trial ---
----Abscondence --- Relevance--- Scope ---Abscondence of accused is a relevant fact and can
be used as corroborative piece of evidence but such fact cannot be read in isolation, as the same had to be r ead along with substantive piece of evidence.
Asad Ullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal
Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. The State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 3004; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070 and Amir Gul v. State 1981 SCMR 182 rel.
(f) Criminal trial ---
----Court, duty of ---Scope ---Mere heinous or gruesome nature of crime should not detract
Court of law in any manner from the due course to judge and make appraisal of evidence in a laid down manner and to extend benefit of reasonable doubt to accused person being indefeasible and inalienable right of an accused.
(g) Criminal trial ---
----Benefit of doubt ---Principle ---Even a single circumstance creating reasonable doubt is
sufficient for acquittal of accused.
Sahibzada v. The State and 2 others 2015 PCr.LJ 554 rel.
Syed Ayaz Zahoor and Abdul Wali Khan Nasar for Appellants.
Muhammad Ali Rakhshani for t he Complainant.
Abdul Latif Kakar, A.P.G. for the State.
Date of hearing: 11th March, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ---Both the appellants Abdul Wadood and Muhammad
Rafiq have challenged their conviction and sentence before this court through sepa rate
appeals i.e. Criminal Appeal No.163 of 2019 and Criminal Appeal No. 164 of 2019 calling in
question the vires of the judgment dated 11.05.2019 ("impugned judgment") passed by the learned Special Judge Anti Terrorism Court, Pishin at Pishin ("trial cou rt") in Old Case
No.33/2015 (New Case No.0/2018), FIR No.33/2009 dated 21.09.2009, in respect of offences under sections 6 (1) (a) read with section 6 (2) (b), section 6(3) and section 7 (1) (a) of the Anti -Terrorism Act 1997, read with sections 302, 324, 336, 147, 148 and 149, P.P.C.,
registered at Police Station Maizai Adda District Killa Abdullah whereby they were convicted and sentenced as under:
"114. Hence, the undertrial Abdul Wadood son of Abdul Zahir caste Kakar Shagzai Masezai, resident of Killi Chur Masezai, Tehsil and District Killa Abdullah of the
Quetta Division , causing the death of Wali Jan son of Sarteeb, is convicted of the commission of the offence under section 6(1)(a) read with section 6(2) (a) i.e. causing death (sections 302, 147, 148, 149/7 ATA, 1997) and is sentenced, under section 7(1)(a) of the Anti Terrorism Act, 1997, to death and the payment of fine of Rs. 100,000/ -(one lac rupees only) or simple imprisonment of six months in default of the
payment of fine. He is directed to be hanged by the neck till he is dead in accordance
with the provisions of section 368, Cr.P.C. subject to the confirmation of the death penalty by the Hon'ble High Court of Balochistan, Quetta in accordance with the provisions of section 374, Cr.P.C.
115. The undertrial Muhammad Rafique son of Abdul Ghani, caste Shagzai Masezai, resident of Killi Chur Masezai, Tehsil and District Killa Abdullah of the Quetta Division, attempting on the life of and causing critical fire arm injury to the PW Dr. Gulab Kh an son of Muhammad Khan, is convicted for the commission of the offence
under section 6(1)(a) read with section 6(2)(c) of the ATA, 1997 and is sentenced, under section 7(1)(c) of the ATA, 1997, (sections 324, 147, 148, 149/7 ATA, 1997) to life in jail as well as the payment of fine of Rs. 100,000/ - (one lac rupees only) or six
months simple imprison in default of the payment of fine."
Murder Reference No.07 of 2019 has been forwarded by the trial Court as required by
section 374, Cr.P.C. for confirmation or otherwise of death sentence of appellant Abdul
Wadood. Arising out of same FIR and involving common questions of law both the appeals
are decided through this common judgment.
2. Briefly the facts are that on the written report of complainant namely Uba idullah son
of Lal Khan the aforesaid FIR was lodged. It was alleged by him that on 20.9.2009 in the evening prior to Iftari he left his petrol pump situated at Maizai Adda along with his cousin and relatives namely Malik Amir Jan and Daroo Khan both sons of Malik Abdul Zahir, Wali
Jan son of Haji Sarteeb, Muhammad Aslam son of Haji Muhammad Lal, Ehsanullah son of Faizullah, Malik Zafran son of Malik Ali Shah, Dr. Gulab Khan son of Muhammad Khan and Haji Rehmatullah son of Muhammad Shah. At 6:30 pm when the y reached the Main Bazar
Chowk, the accused persons Haji Abdul Baqi, Abdul Bari, Muhammad Rafiq, Khan, Sadullah alias Sadal. Muhammad Saleem armed with Kalashnikovs made indiscriminate firing upon them. Haji Abdul Baqi's shot hit Haji Amir Jan, Abdul Bari and Saleem's fired shots which hit Daroo Khan bullet fired by Abdul Wadood hit Wali Jan, Ziauddin's shot hit Muhammad Aslam and Salahuddin's gunshot hit Ehsanullah. This resulted into death of Ehsanullah, Daroo Khan and Wali Jan on the spot. The injured Ma lik Amir Jan and
Muhammad's souls took flight on the way to hospital. The complainant further alleged that Zafran, Gulab Khan and Rehmatullah were severely injured due to firing made by Muhammad Ibrahim, Muhammad Rafiq, Khan and Sadullah but he himself mir aculously
remained unhurt.
After completion of the investigation, the challan was submitted before the trial court.
Charge was framed and read over to the appellants, which they denied and claimed trial. The prosecution in order to substantiate the charge produced as many as ten witnesses. On
conclusion of the prosecution side the statement of the appellants were recorded under section 342, Cr.P.C. wherein they once again professed their innocence. The appellants also recorded
their statements on oath as e nvisaged under section 340(2), Cr.P.C. and produced two
witnesses in their defense. On conclusion, the trial court convicted the appellants and sentenced them in the aforesaid terms.
3. We have heard Messrs Syed Ayaz Zahoor and Abdul Wali Khan Nasar learned
counsel for the appellants, Mr. Muhammad Ali Rakhshani Advocate for the complainant and learned APG for the State and with their able assistance have also perused the available record.
It is an established principle of law that each criminal case has it s own peculiar facts
and circumstances and the same seldom coincide with each other on salient features. Admittedly it is an unfortunate incident wherein five persons lost their lives after sustaining firearm injuries and three persons were injured. On put ting the facts and circumstances in
equilibrium at 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 ha s mainly led ocular and medical evidence besides there
being other attending circumstances.
4. It may be seen that since PW- 5 is cousin of the deceased (Wali Jan). PW- 1 Abdul
Khaliq and PW -3 Rehmatullah are relatives of the complainant. PW- 2 Ainullah, PW -4 Dr.
Gulab Khan and PW -6 Malik Zafran are tribesmen of the complainant, therefore their
testimonies will have to be appreciated with utmost care and caution for safe dispensation of
justice.
No doubt, evidence of a related witness cannot be discarded on t he ground of his
being related to the victim but if it is found that the testimony of a related witness gets no corroboration from attending circumstances of the case or the conduct shown by him at the time of occurrence or just thereafter is such which cannot be expected from a prudent person, then in such circumstance the evidence furnished by a related witness can easily be discarded.
Let us now take into consideration the testimonies of above witnesses in the case at
the touchstone of the above princip les.
In his report Ex.P/5- A the complainant as well as the above witnesses attributed
specific role of firing and also attributed specific injuries of the deceased and injured to the appellants and absconding accused in the manner as follows:
i) The shot fired by absconding accused Abdul Baqi hit Haji Amir Jan (deceased)
ii) The bullets fired by absconding accused Abdul Bari and Muhammad Saleem shot dead Daroo Khan on the spot.
iii) The accused Abdul Wadood (appellant) shot dead Wali Jan on the spot.
iv) Absconding accused Zainullah's bullet hit Muhammad Aslam.
v) Co-accused Salahuddin caused death of the deceased Ehsanullah on the spot.
vi) Due to firing made by accused Muhammad Ibrahim Malik Zafran got injured.
vii) Appellant Muhammad Rafiq made firing up on Dr. Gulab Khan and caused injuries to
him and
viii) Accused Sadullah and Muhammad Khan's shots injured Rehmatullah.
5. According to the site plan Ex.P/9- B and statement of above witnesses the ocurrence
took place at Chowk Main Bazar Maizai Adda where al legedly the accused persons were
present before the alleged incident. When complainant and his companions reached the spot, suddenly the accused persons opened fired at made firing upon them from a distance of about 10/15 yards. As stated earlier the compl ainant's report Ex.P/5- A and all the injured witnesses
attributed role of firing to each accused, which resulted into causing firearm injuries to the deceased and injured, however this court believes that if indiscriminate firing is being made by ten persons with automatic rifles, no one can distinguish their role with exactitude as to whose shot hit whom. According to the report Ex.P/5- A and statement of the above eye -
witnesses the absconding accused Muhammad Khan, Sadullah alias Sadul made firing upon
injured Rehmatullah who sustained injuries. On the other hand according to medical
certificate Ex.P/10 -H, injured Rehmatullah, received only one injury on his thigh, which
clearly indicates that the prosecution version qua the role assigned to accused persons of
causing injuries to the deceased and injured witnesses is totally vanished. 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, i t 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 whos e 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 evi dence 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 occurren ce 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 judge d when the entire
evidence and circumstances are scrutinized and examined in its correct perspective".
6. The absconding accused Abdul Baqi son of Naik Muhammad is father of absconding
accused Abdul Bari and Muhammad Khan. The appellant Abdul Wadood and absconding accused Muhammad Ibrahim and Muhammad Salim are brothers. Absconding accused
Ziauddin and Salahuddin are also brothers. All the accused are related to each other and are of the same clan. It is observed that the instant case is the best example of spreading the net
wide and implicating maximum male members of the opponent family in order to deter them from pursuing their case. Reliance is place in the case titled as Bashir Ahmed v. The State (2019 SCMR 1417) and Munir Ahmed v. The State (2019 SCM R 2006).
7. It is also proved from the record that before lodging the FIR, the injured and the
deceased were examined by PW- 8 Dr. Noor Baloch. According to the said witness the dead
body of deceased Malik Amir Jan was examined on 20.09.2009 at 8:35 p.m. Dr . Gulab Khan
was examined at 9:55 p.m. and dead body of the deceased Muhammad Aslam was examined on 21.09.2009 at 12:55 a.m. Dead body of the deceased Daroo Khan was examined at 1:00 a.m. Dead body of deceased Ehsanullah was examined at 1:05 a.m., injured Rehmatullah at
12:10 a.m., dead body of Wali Khan was examined at 1:10 a.m. On the other hand the alleged occurrence took place on 20.09.2009 at 6:30 p.m., whereas matter was reported through Ex.P/5- A on 21.09.2009 at 1:10 a.m. The place of occurrence is a t a distance of 1.5
Kilometers from police station and the hospital where the injured and the deceased were brought for examination is at a distance of one and a half hours from the place of occurrence. Thus, there is delay of more than seven hours in lodg ing the FIR.
8. Although the FIR was lodged on 21.69.2009 at 1:10 a.m., however the same appeared
to be for the reasons that the prosecution has waited for medical opinion of doctors which
resulted in delay in registration of FIR. Since this delay in regis tration of the FIR has
provided ample opportunity to complainant to deliberate 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 consultation
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.
On the fa ce of it, there is inordinate delay of more than seven hours in lodging the
report by the complainant. It is astonishing that when the deceased succumbed to their injuries on the spot, then what prevented the complainant to lodge the report, despite the fa ct
that the distance of police station from the place of occurrence is mentioned as one and a half kilometers. It creates serious doubt in the prosecution story that 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 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 who ul timately the prosecution might wish to
nominate. Even otherwise, the alleged timing of lodging the FIR i.e. at 1:10 a.m. on 21.09.2009 is also doubtful because on one hand according to PW -5 his Fard -e-Bayan was
recorded by PW -9 SI Muhammad Iqbal I.O. but on the other hand PW -9 stated during cross -
examination that on the next day i.e. 21.09.2009 at 6:00 a.m. in the morning he reached Civil Hospital Quetta and started investigation of the case, meaning thereby that at the time of lodging the FIR he was not pr esent at the hospital and if so then how did he record
complainant's Fard -e-Bayan at 1:10 a.m. on 21.09.2009 and started conducting investigation.
In this respect, reliance is placed on case law reported in 'Allahyar v. The State' (1990 SCMR 1134), '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).
9. Another intriguing aspect of the matter is that the statements of the injured as well as
eye-witnesses were recorded under section 161, Cr.P.C. on the next day of the occurrence. In
this context the Investigation Officer PW -9 Muhammad Iqbal has admitted in cross -
examination that he re corded statement of the witnesses under section 161, Cr.P.C. on
21.09.2009 at 5:00 pm in the drawing room of the complainant, but the I.O. failed to furnish any plausible explanation in this regard. This fact renders the case of the prosecution extremely d oubtful. The above witnesses remained mum for one day and recorded their
statements under section 161, Cr.P.C. with considerable delay. The delay of even one or two days without explanation in recording the statements of witnesses has been found fatal for the prosecution and not worthy of reliance by the august Supreme Court in the case of Muhammad Asif v. The State reported as 2017 SCMR 486 as under:
"There is a long line of authorities/precedents of this court and the High Courts that even one or two days unexplained delay in recording the statement of eye -witnesses
would be fatal and testimony of such witnesses cannot be safely relied upon."
10. In this regard reliance can also be placed on "Muhammad Sadiq v. The State (PLD
1960 SC 223), Tariq Gul v. Zia rat Gul (1976 SCMR 236), Muhammad Iqbal v. The State
(1984 SCMR 930) and Haroon alias Harooni v. The State and another (1995 SCMR 1627).
11. Similarly it has been settled by the august Supreme Court of Pakistan in Muhammad
Khan v. Maula Bakhshah (1998 SCMR 570) that
"It is settled law that credibility of a witness is looked with serious suspicion if his
statement under section 161, Cr.P.C. is recorded with delay without offering any plausible explanation."
12. It is also admitted fact that PW -3 Rehmatullah , PW -4 Dr. Gulab Khan, and PW -6
Malik Zafran also received firearm injuries. PW- 3 Rehmatullah received one bullet injury on
his thigh. PW -4 Dr. Gulab Khan received one injury on his left leg and PW -6 Malik Zafran
also received one injury on his leg.
The s tatements of above injured witnesses with exactitude and in line with the
statement of complainant shakes their veracity. It is settled law that the stamps of injuries on the person of a witness may establish his presence at the relevant time at a particul ar place of
occurrence but the injuries itself are not the proof that whatever the witness is telling is the truth. In the case titled Shahidullah v. Eid Marjan and 2 others (2014 PCr.LJ 1684) it has been held that:
" Mere stamp of injuries on the person of a witness would not be a proof of the fact
that, wheatever he deposes would be the truthful account of the events. His veracity is to be tested from the circumstances of the case and his own statement whether it fits in the circumstances of the case or otherwise."
Reliance can also be placed upon case titled "Amin Ali and another v. The State"
(2011 SCMR 323) that: -
12. Certainly, the presence of the injured witnesses cannot be doubted at the place of incident, but the question is as to whether they ar e truthful witnesses or otherwise,
because merely the injuries on the persons of P.Ws. would not stamp them truthful witnesses.
13. So far as the recovery of empties from the place of occurrence is concerned, role of
firing has been attributed to all the a ccused. According to the so called eye- witnesses all the
accused persons were armed with Kalashnikovs and made firing upon them. PW -7 Faizullah
is recovery witness of the crime empties from the crime scene. According to him twenty bullet empties of 222 bor e and twenty five empties of Kalashnikovs were recovered from the
place of occurrence by the I.O. On the other hand PW -8 Dr. Noor Baloch stated during cross -
examination that the injuries on the person of dead bodies were made with bullets of Kalashnikov an d pistols, but none of the witnesses stated a single word about a 222 bore and
pistols allegedly used by the accused at the time of firing. This aspect of the matter also casts reasonable doubt in the prosecution case. Even otherwise the empties recovered from the place of occurrence were also not sent to FSL, which makes the same further doubtful, therefore same cannot be relied upon for the purpose of conviction. More so, this piece of evidence is a corroborative one and in a case where direct evidence fa ils, corroborative piece
of evidence is of no avail as in the instant case direct evidence of PWs have already been
disbelieved. In a case tilted Ghulam Akbar and another v. The State (2008 SCMR 1064) it was observed by the Hon'ble Supreme Court that law r equired that empty recovered from the
spot should be sent to the laboratory without any delay, failing which such recovery evidence is not free from doubt and could not be used against the accused.
14. It has also come on record that allegedly the accused while making firing also set at
blaze six/seven vehicles and shops. The prosecution failed to establish that the said vehicles and shops belonged to the complainant party and the IO also did not inquire about any independent witness despite the fact that t he alleged occurrence took place at a thickly
populated area. Further, the IO neither recorded statements of owners of the vehicles nor of the shops which were set on fire. For the sake of argument even if it is presumed that recovered empties were sent to FSL which could determine that how many accused made
firing unfortunately the IO did not conduct the investigation diligently in this case as the IO has failed to associate any other person from the locality other than the relatives and tribesmen of the c omplainant to dig out the truth.
15. The Investigating Officer has also unfortunately not diligently conducted the
investigation in this case. It is imperative to quote hereunder Rule 25.2 of the Police Rules, 1934 which reads as under: -
"25.2 Power of investigating officers. ---(1) The powers and privileges of a police
officer making an investigation are detailed in sections 160 to 175, Criminal Procedure Code.
---------
(2) --------
(3) It is the duty of an investigating officer to find out the truth of the matter under investigation. His object shall be to discover the actual facts of the case and to arrest the real offender or offenders. He shall not commit himself prematurely to any view of the facts for or against any person.
The Investigati ng Officer undoubtedly is obliged to act fairly and honestly while
collecting the evidence, always keeping in mind the avowed object of the criminal justice system, that "no guilty persons should go scot free" but at the same time, "no innocent person shou ld also be punished". It may be seen that keeping in view the mechanism/procedure and
the empowerment of the Investigating Officer, under the law, he has a rare privilege and opportunity for having a visual touch with the scene of crime while investigating the case.
He while recording the statements of PWs was not supposed to record their statements while acting as a "Stenographer" rather is obliged, as required under section 161, Cr.P.C. to "examine" the person whose evidence/statement he is going to recor d. But unfortunately, in
the instant case, the Investigating Officer had only proceeded to join "the persons" in the investigation, who admittedly were relatives and tribesmen of the complainant.
16. Adverting next to the abscondence 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 Asad Ullah v. Muhammad Al i (PLD 1971 SC 541), held that corroborative and
ocular evidence are to be read together and not in isolation. As regards abscondance, the Hon'ble Apex Court in the case of Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373 observed that abscondence is only a suspicious circumstance. In the case of Muhammad
Sadiq v. Najeeb Ali (1995 SCMR 1632), the august Supreme Court held that abscondence
itself has no value in the absence of any other evidence. It was also held in the case of
Muhammad Khan v. The State (1999 SCMR 1220). that abscondence of the accused can never remedy the defects in the prosecution case. In the case of Gul Khan v. State (1999 SCMR 3004) it was observed that abscondence per se is not sufficient to prove guilt of the accused, but can be taken as a corroborative piece of evidence. In the cases of Muhammad
Arshad v. Qasim Ali (1992 SCMR 814), Pir Badshah v. State (1985 SCMR 2070) and Amir Gul v. State (1981 SCMR 182), it was held by the Hon'ble Apex Court that conviction on abscondence alone cann ot be sustained. In the present case, substantive piece of evidence in
the shape of ocular account has been disbelieved by us, therefore, no conviction can be based on abscondence alone.
17. On having deeply examined the entire evidence available on record, we have come to
a conclusion that the prosecution .has miserably failed to bring home the guilt of the appellants to the hilt. The witnesses of ocular account, though had a stamp of injuries on their persons yet they remained fail to prove their truthfulness during trial. The complainant took sufficient time in lodging the crime report after going through the reports of postmortem examination as well as medico -legal reports of the injured witnesses and also after
consultation and deliberation. The dead bo dies and injured witnesses were examined prior to
registration of the FIR and the whole prosecution building was constructed afterwards in
order to manage the eye -witnesses as well as the prosecution story. It was a case of spreading
the net wide on maximu m male members of their opponents' families by assigning the role of
one fire shot to each accused. Last but not least, mere heinous or gruesome nature of crime shall not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to
an accused person being indefeasible and inalienable right of an accused. Getting influence from the nature of the crime and other extraneous consideration might lead the Judges to a
patently wrong conclusion and in that event justice would be casualty.
18. The factum of benefit of doubt is very much lucid in its entirety that if there exist a
reasonable ground to believe that the accused/appellant has not participated in the
commission of alleged crime in the mode and manner as advanced by the prosecution then there is no need of numbers of circumstances to prove the innocence of accused even a single circumstance creating reasonable doubt is sufficient for the acquitt al of the accused. In this
regard guidance is derived from the judgment cited as 2015 PCr.LJ 554 (Peshawar) Sahibzada v. The State and 2 others.
From the aforesaid discussion, we have reached at an irresistible conclusion that the
prosecution has miserabl y failed to prove the charge against the appellants beyond shadow of
reasonable doubt and the benefit of doubt, even slightest, always favours the accused.
The nutshell of above discussion is that both the aforementioned criminal appeals
filed by appellan ts Abdul Wadood and Muhammad Rafiq are allowed, their conviction and
sentence passed by the trial court is set aside and they are acquitted of the charge by giving
benefit of doubt to them.
Murder Reference No. 07 of 2019 is answered in Negative.
Above discussion shall constitute the reasons for our short order dated 11.03.2020
announced earlier in open court.
MH/57/Bal. Appeal allowed.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.