2021 Y L R 611
[Balochistan]
Before Muhammad Hashim Khan Kakar and Muhammad Ejaz Swati, JJ
WAZIR MUHAMMAD---Appellant
Versus
The STATE ---Respondent
Criminal Jail Appeal No. 30 of 2019, decided on 20th March, 2020.
(a) Criminal trial ---
----Witness ---Hearsay ---Witness who did not see the occurrence and had raised fingers
towards accused on the basis of information conveyed to them by a third person, such
witness had merely deposed about crime without reference to real culprit.
(b) Penal Code (XLV of 1860)---
----S. 302(b) ---Qatl-i-amd---Appreciation of evidence ---Benefit of doubt ---Unnatural death of
wife---Husband failed to explain---Wife of accused was murdered in house and accused
could not explain her death---Unnatural death of deceas ed inside the house of accused and
his failure to discharge such onus, was intriguing---Such failure could not be equated to
qualify as evidentiary certainty, essentially required in order to saddle accused with formidable corporal consequences after disca rding remaining pieces of evidence relied upon
by prosecution---Accused could not be convicted for alleged murder simply on the basis of
supposition---Prosecution failed to prove charge against accused persons beyond reasonable
doubt ---High Court extended benefit of doubt to the accused husband, set aside conviction
and sentence awarded by Trial Court and acquitted him of the charge ---Appeal was allowed,
in circumstances.
(c) Criminal trial ---
----Abscondance --- Scope --- Mere absconsion of accused is not s ufficient to sustain
conviction---People avoid facing the process of law or their adversaries for a variety of
reasons, not essentially inclusive of guilt.
Nasrullah alias Nasro v. State 2017 SCMR 724 and Asad Khan v. State PLD 2017 SC
681 rel.
Barriste r Zahoor Hassan for Appellant.
Muhammad Yahya Baloch, A.P.G. for the State.
Date of hearing: 12th March, 2020.
JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---Mst. Bibi Gul Dasta met homicidal
death in her home, situated at Mazai Adda, District Killa Abdullah: Wazir Muhammad son of
Abdul Wajid, appellant herein, was blamed for the said crime by one Saifullah (PW -1), no
other than his brother-in -law; domestic differences were cited as motive for the crime. The
learned Sessions Judge, Killa Abdullah at Chaman, returned guilty verdict to the appellant and he was convicted under clause (b) of section 302 Pakistan Penal Code, 1898 (P.P.C) and sentenced to imprisonment for life as Tazir and fine Rs. 300,000/ - under section 544- A, Code
of Criminal Procedure (Cr.P.C.) payable to the legal heirs of deceased Gul Dasta with benefit of section 382- B, Cr.P.C. vide judgment dated 10.08.2019.
2. Prosecution in support of the charges against the appellant got examined PW -1
Saifullah (complainant), PW -2 Kamal -ud-Din, PW -3 Zia -ud-Din (sons of the appellant), who
furnished ocular account regarding the crime in question while PW -4 Attaullah is the
marginal witness of the recovery memo Ex.P/4- A vide which a short gun was recovered from
the house of appellant PW -5 Khadim Hussain is th e First Investigating Officer of the case,
who took into possession the bloodstained clay and bloodstained Chadar of deceased Gul Dasta through recovery memos and produced the same as Exs.P/5 -B, C and D. PW-6 Dr.
Ayesha Faiz, is the Doctor, who got exhibit ed the Medico Legal Certificate Ex.P/6 -A;
whereas, PW -7 Qazi Pervaiz, Naib Tehsildar, is the Investigating Officer of the case, who
produced Challan Ex.P/7- A.
3. Barrister Zahoor Hussain, learned counsel for the pauper appellant, contended that the
impugne d judgment is erroneously premised on misconception of law inasmuch as in the
absence of positive proof, the appellant could not have been convicted on the basis of
presumption or failure of appellant to satisfactorily explained circumstances leading towards
his wife's death and likewise absence from law cannot be equated with his guilt.
4. On the contrary, learned Additional Prosecutor General while refuting the contentions
raised on behalf of learned counsel for the appellant contended that it is a case of promptly
lodged FIR, wherein the appellant has been figured out as a sole perpetrator that too by his brother in law, as such, the appeal deserves to be dismissed.
5. The occurrence in this case had taken place in broad daylight at 5:00 p.m. inside the
house of appellant situated at Mazai Adda, Killa Abdullah. An FIR in respect of the incident
in question had been lodged after six hours and, thus, possibility regarding deliberations before lodging of the FIR could not safely be ruled out of consideration. Admittedly the
complainant is not eye -witness of the occurrence and he had lodged the FIR against the
appellant without disclosing the source of knowledge merely upon his strong belief that no one else other than the appellant could be the possible murderer. The whole case of the prosecution had been structured upon the information conveyed to Kamaluddin (P.W -2) and
Zaiuddin (P.W -3), who happened to be the sons of appellant, by their uncle namely
Jalaluddin, who has neither been examined before the Court nor cited as witness in the
calendar of witnesses in the challan. Both the witnesses, as stated above, had not seen the
occurrence themselves and raised their fingers towards appellant on the basis of information, conveyed to them by their uncle Jalaluddin. They have merely deposed about the crime
without reference to the real culprit.
6. Reverting to the contention of learned Additional Prosecutor General that in this case
deceased was a vulnerable department of the appellant and thus, some part of the onus had shifted to the appellant to explain the circumstances in which his wife had died an unnatural
death in his house. Undoubtedly, the unnatural death of deceased inside the house of
appellant and his failure to discharge the said onus, is intriguing, however, it cannot be
equated to qualify as evidentiary certainty, essentially required in order to saddle him with formidable corporal consequences after discarding the remaining pieces of evidence, relied upon by the prosecution. The appellant could not be convicted for the alleged murder simply
on the basis of supposition. While holding this view, we are fortified from the dictum laid
down in the cases of "Nasrullah alias Nasro v. State" (2017 SCMR 724) and "Asad Khan v.
State" (PLD 2017 SC 681), wherei n it has been held that the above mentioned shifting of
some part of the onus to the accused may not be relevant in a case where the entire case of the prosecution itself is not reliable and where the prosecution fails to produce any reliable evidence to e stablish the complicity of alleged accused with crime in question. Similarly,
mere absconsion of the appellant is also not sufficient to sustain conviction because people
avoid facing the process of law or their adversaries for a variety of reasons, not ne cessarily
inclusive of their guilt.
7. For what has been discussed above, a conclusion is irresistible and inescapable 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 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 re asons of our short order dated 12th March, 2020.
MH/56/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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