2021 Y L R 1579
[Balochistan (Sibi Bench)]
Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ
KHUSHHAL ---Appellant
Versus
The STATE ---Respondent
Criminal Appeal No.(s) 15 of 2020, decided on 8th June, 2020.
(a) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl -i-amd ---Appreciation of evidence ---Benefit of doubt ---Delay of about
eight hours in lodging the FIR ---Effect ---Prosecution case was that the accused and co -
accused persons tried to take away two bullocks of complainant, when t hey tried to catch
accused persons, they started firing, as a result brother of complainant got injured and
succumbed to the injuries ---Record showed that FIR in respect of the incident in question
had been lodged after about eight hours, and thus, a possi bility regarding deliberations before
lodging of the FIR could not be safely ruled out of consideration.
(b) Penal Code (XLV of 1860)---
----S. 302(b)---Qatl -i-amd ---Appreciation of evidence ---Benefit of doubt ---Ocular and
medical evidence ---Contradictions ---Prosecution case was that the accused along with his co-
accused persons tried to take away two bullocks of complainant, when they tried to catch
accused persons, they started firing, as a result brother of complainant got injured, and
succumbed to the injuries ---Record showed that the sole eye -witness produced by the
prosecution was the complainant, who was also brother of the deceased---Complainant had
claimed that on his screaming, his uncle and another person had also attracted to the place of
occurrence, however, the prosecution had failed to produce and examine the said witnesses in
support of accusation---Instead of providing support to the ocular account, the medical evidence produced by the prosecution had gone a long way in creating dents in the case of
prosecution---Occurrence had taken place at 1:30 a.m. while the examination of the dead
body had been conducted by Medical Officer after eleven hours of the death of the deceased
giving rise to an inference that the time had been consumed by the c omplainant party and the
local police in cooking up a false story--- Astonishingly, firing had been attributed to as many
as six persons while the deceased had sustained a single firearm injury--- Medico Legal
Certificate showed that the dead body of decease d was brought to the hospital by the police
authorities that too after eleven hours of the occurrence ---Circumstances established that the
prosecution had failed to prove its case against the accused beyond reasonable doubt ---
Appeal against conviction was allowed, in circumstances.
(c) Criminal trial ---
----Absconsion---Scope ---Absconsion was not a substantive piece of evidence, it was a
corroborative piece of evidence ---Where direct evidence failed, corroborative piece of
evidence was of no avail.
(d) Pe nal Code (XLV of 1860)---
----S. 302(b)---Qatl -i-amd---Appreciation of evidence ---Benefit of doubt ---Night -time
occurrence ---Source of light ---Scope ---Prosecution case was that the accused and co -accused
persons tried to take away two bullocks of complaina nt, when they tried to catch accused
persons, they started firing, as a result brother of complainant got injured, and succumbed to
the injuries ---Incident statedly had taken place at about 1:30 a.m. in the mid of March, 2010,
at a distance of 150/200 pace s from the house of complainant in absence of light ---Although
the prosecution had mentioned availability of electric light at the house of complainant yet admittedly no electric bulb had been secured during the investigation of the case ---
Identification of the culprits by the complainant and attribution of a specific injury to the deceased, in circumstances, was a claim too tall to be accepted ---Circumstances established
that the prosecution had failed to prove its case against the accused beyond reasonabl e doubt -
--Appeal against conviction was allowed, in circumstances.
(e) Criminal trial ---
----Benefit of doubt ---Principle ---If any reasonable doubt arose in the prosecution case, the
benefit thereof must be extended to the accused not as a matter of grace or concession but as
a matter of right.
(f) Criminal trial ---
----Benefit of doubt ---Principle ---Any reasonable doubt arising from the prosecution
evidence, pricking the judicious mind, would be sufficient for acquittal of the accused. Ehsan Rafique Ra na for Appellant.
Habibullah Gul, Additional Prosecutor General for the State.
Date of hearing: 20th May, 2020.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---The instant Criminal Appeal has
been preferred on behalf of appellant Khushhal son of Bana, against the impugned judgment
dated 16th January, 2020, passed by the Additional Sessions Judge, Dera Allah Yar in M.C. Case No.02 of 2019 (State v. Khushhal), aris ing out of case Crime No.03/2010 under section
460, P.P.C., Police Station, Malguzar, District, Jafar Abad, whereby the appellant has been convicted and sentenced to undergo life imprisonment for the offence punishable under
section 302(b), P.P.C., with fi ne of Rs. 200,000/ - (two hundred thousand) and in default of
payment of fine, the appellant was further directed to undergo additional simple
imprisonment for six months.
2. Crux of the events as discernible from record particularly from perusal of the first
information report indicates that on the night of incident at about 1:30 a.m. (midnight), the complainant woke up and saw that four persons, armed with deadly weapons, were taking away his two bullocks from his home; upon screaming of complainant, his brother Ibrahim,
uncle Moula Bukhsh, relative Noor Hassan and other villagers also woke up and identified
the accused persons as Dilshad alias Kaloo, Babal, Khushal (appellant) and Shah Malook. As
per complainant, when they tried to catch accused persons, t hey started firing, as a result
whereof Ibrahim got injured, and the accused persons fled away from the spot. Thereafter,
Ibrahim succumbed to the injuries.
3. We have heard learned counsel for the appellant as well as learned Additional
prosecutor General and have gone through the record with their valuable assistance. It has
been argued by the learned counsel for the appellant that the prosecution had failed to prove its case against the appellant beyond reasonable doubt and, thus, this appeal warrants acceptance with a resultant acquittal of the appellant. As against that, the learned Additional Prosecutor General maintained that the prosecution had succeeded in proving the guilt of the appellant to the hilt, and, therefore, the present appeal deserves to be dismissed.
4. The testimony of witnesses, medical evidence and other relevant factors considered
by the learned trial Court are reconsidered by this Court in the light of the latest decisions of the Hon'ble Apex Court. The evidences are being re -apprec iated and re -evaluated by us. The
evidences of all witnesses have been discussed by the learned Trial Court in detail. We have appreciated the evidences very closely. The evidences are not reproduced here, but with a view to see that the judgment does not become bulky, the testimonies are not reproduced verbatim but the same have been read over again and again by us.
5. The occurrence in this case had taken place in the small hours of the fateful night i.e.
at 1:30 a.m. in the middle of March. The place of occurrence was inside the house of complainant and according to the site plan of the place of occurrence, there was many other houses near to the house in question. An FIR in respect of the incident in question had been lodged after about eight hours, and, thus, a possibility regarding deliberations before lodging
of the FIR could not safely be ruled out of consideration. The sole eye -witness produced by
the prosecution i.e. complainant Sadora (PW -l) was brother of the deceased. The complainant
had claimed that on his screaming, his uncle Moula Bakhsh and Noor Hassan had also attracted to the place of occurrence, however, the prosecution had failed to do produce and examine the said witnesses in support of accusation. Instead of providing support to the
ocular account, the medical evidence produced by the prosecution had gone a long way in
creating dents in the case of prosecution. The occurrence, as stated above, had taken place at
1:30 a.m. while the examination of the dead body had been conducted by Dr. Ra fiq Ahmed
(PW -3) after eleven hours of the death of the deceased, giving rise to an inference that the
time had been consumed by the complainant party and the local police in cooking up a false
story. It is also astonishing to observe that the firing has been alleged to as many as six
persons while the deceased had sustained a single firearm injury. The Medico Legal
Certificate Ex.P/3 -A would show that the dead body of deceased was brought to the hospital
by the police authorities that too after eleven hours of the occurrence.
6. So far as the abscondance of the appellant is concerned, it would be relevant to
mention here that the appellant was not confronted with this allegation while recording this statement under section 342, Cr.P.C. and, even otherwise, sometimes people do abscond not because they are guilty but because of fear and torture of the police. It is by now settled that
absconsion is not substantive piece of evidence, it is a corroborative piece of evidence and in
cases where direct evidence fai ls, corroborative piece of evidence is of no avail, as in the
instant case, where the evidence of the sole eye -witness has been discarded.
7. The incident in issue had statedly taken place at about 1:30 a.m. in the mid of March,
2010 at a distance of 150/200 paces from the house of complainant in absence of light.
Although the prosecution had mentioned availability of electric light at the house of
complainant yet admittedly no electric bulb had been secured during the investigation of the
case, and, thus, in this backdrop, identification of the culprits by the complainant and attribution of a specific injury to the deceased was a claim too tall to be accepted.
8. It is cardinal principle of administration of criminal justice that prosecution is bound
to prove its case against the accused beyond shadow of any doubt. If any reasonable doubt arises in the prosecution case, the benefit thereof must be extended to the accused not as a matter of grace or concession but as a matter of right. Likewise, it is also we ll settled that
there is no need of so many doubts in the prosecution case rather any reasonable doubt arising out from the prosecution evidence, pricking the judicious mind, is sufficient for
acquittal of the accused.
For what has been discussed above, w e found that the prosecution had failed to prove
its case against the appellant beyond reasonable doubt, this appeal is, therefore, allowed, the
conviction and sentence of the appellant are set aside and he is acquitted of the charge by
extending the benefit of doubt to him. He shall be released from the jail forthwith if not required to be detained in connection with any other case.
Above are the reasons of our short order dated 20.05.2020.
JK/134/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,
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