2022 Y L R 1439
[Balochistan]
Before Muhammad Kamran Khan Mulakhail and Abdullah Baloch, JJ
SAMIULLAH and 4 others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 20, Criminal Revision No. 13 and Criminal Acquittal Appeal No. 126
of 2020, decided on 26th November, 2020.
(a) Penal Code (XLV of 1860) ---
----Ss. 302, 337- A(i), 337 -F(i), 147, 149 & 34 ---Qatl-i-amd, shajjah -i-khafifah, ghayr -jaifah -
mudihah, rioting, unlawful assembly, common intention--- Appreciation of evidence ---
Benefit of doubt ---Contradictions in the statements of witnesses ---Scope ---Prosecution case
was that the accused party while armed with daggers assaulted on complainant party, due to which the father of the complainant died due to dagger injury on his liver while his other relatives were injured ---Statements of witnesses were contradictory to each other ---Each
witness had narrated the mode and manner of the occurrence in different narration--- Complainant deliberately mentioned his father's name wrongly, besides, it had also been
established through evidence that the FIR was lodged after deliberation and consultation---Circumstances established that the prosecution had failed to prove the charge against all the accused ---Appeal against conviction was allowed, in circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 161---Delay in recording the statements of witnesses ---Effect ---Credibility of a witness
is looked with serious suspicion if his statement under S.161, Cr.P.C. is recorded with delay without offering any plausible explanation.
Muhammad Khan v. Maula Bakhsh 1998 SCMR 570 rel.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 337- A(i), 337- F(i), 147, 149 & 34--- Qanun- e-Shahadat (10 of 1984), Art. 129(g) -
--Qatl -i-amd, shajjah -i-khafifah, ghayr -jaifah -mudihah, rioting, unlawful assembly, common
intention--- Appreciation of evidence ---Benefit of doubt ---Withholding best evidence ---
Scope ---Prosecution case was that the accused party while armed with daggers assaulted on
complainant party and father of the complainant died due to dagger injury on his liver while his other relatives were injured---All the witnesses were br others, nephews and cousins to
each other ---Record showed that the occurrence was witnessed by number of shopkeepers
present at the place of occurrence, but none of them was interrogated and produced as
witness in the court ---One witness was also allegedly injured in the incident, but he was not
produced in the Trial Court ---Non -production of said witness would lead to a presumption
that had he been produced, he might have told the truth which would not have been favourable to the prosecution, thus, the case of prosecution lacked independent corroboration
and the accused persons could not be assumed to be culprit solely on the statements of
witnesses who were interested and related to the deceased ---Circumstances established that
the prosecution had failed to prove the charge against all the accused ---Appeal against
conviction was allowed, in circumstances.
(d) Criminal trial ---
----Witness --- Interested and related witnesses --- Reliance--- Scope --- Mere relationship of
witnesses inter -se or to the deceased was not sufficient to discredit their testimony out -
rightly if witnesses were found to be the witnesses of truth.
(e) Penal Code (XLV of 1860)---
----Ss. 302, 337- A(i), 337- F(i), 147, 149 & 34--- Qanun- e-Shahadat (10 of 1984), Art. 129(g) -
-- Qatl-i-amd, shajjah -i-khafifah, ghayr -jaifah -mudihah, rioting, unlawful assembly, common
intention--- Appreciation of evidence ---Benefit of doubt --- Medical evidence--- Scope ---
Prosecution case was that the accused party while armed with daggers assaulted on
complainant party, due to which the father of the complainant died due to dagger injury to his liver while his other relatives were injured ---Record showed that despite separating the
heart of deceased, it was not sent to Forensic Science Laboratory in order to establish the
cause of death of deceased, which created doubt in the case of prosecution and despite exhumation of dead body the actual cause of death of deceased was not ascertained, while the other pieces of body sent to Forensic Science Laboratory established the fact that no poison/ damages was found on the said pieces of body--- Circumstances established that the
prosecution had failed to prove the charge against all the accused ---Appeal against
conviction was allowed, in circumstances.
(f) Criminal trial ---
----Medical evidence--- Scope ---Medical evidence was only a source of corroboration in
respect of nature and seat of injury, the kind of weapon used, the duration between the injury and death ---Medical evidence could confirm the ocular account to a limited extent but could
not establish the identity of the accused or connect him with the commission of offence.
(g) Penal Code (XLV of 1860) ---
----Ss. 302, 337- A(i), 337- F(i), 147, 149 & 34--- Qanun- e-Shahadat (10 of 1984), Art. 129(g) -
--Qatl -i-amd, shajjah -i-khafifah, ghayr -jaifah -mudihah, rioting, unlawful assembly, common
intention--- Appreciation of evidence ---Benefit of doubt ---Non recovery of weapon of
offence---Scope ---Prosecution case was that the accused party while armed with daggers
assaulted on complainant party, due to which the father of the complainant died due to
dagger injury on his liver while his other relatives were injured---Record showed that the
accused persons attacked upon the complainant party with sticks, daggers, bricks and hand clip, but the Investigating Agency had neither taken into possession the bricks from the place of occurrence nor got effected the recoveries of sticks, daggers and hand clip, which was another dent to the case of prosecution--- Circumstances established that the prosecution had
failed to prove the charge against all the accused ---Appeal against conviction was allowed, in
circumstances.
Rehmatullah Barech, Shams -ud-Din Achakzai and Ms. Humaira Munir for
Appellants.
Muhammad Younas Mengal, Additional Prosecutor General for the State.
Abdul Zahir Kakar and Noor Muhammad Kakar for the Complainant.
Date of hearing: 18th November, 2020.
JUDGMENT
ABDULLAH BALOCH, J. ---This common judgment disposes of Criminal Appeal
No.20 of 2020, Criminal Revision Petition No.13/2020 and Criminal Acquittal Appeal No.126 of 2020.
The Criminal Appeal has been by the appellants (accused) Samiullah Son of
Abdullah, Sher Ali son of Abdul Manan, Kaleemullah son of Obaidullah, Wali Khan son of
Zakriya and Attaullah Son of Rehmatullah, against the judgment dated 15th July 2020 (hereinafter referred as, "the impugned judgment") passed by learned Sessions Judge Killah Abdullah at Chaman (hereinafter as, "the trial Court"), whereby the appellant (accused) Samiullah was convicted under section 316, P.P.C. Qatal Shibah -i-Amd and sentenced to
suffer R.I. for seven (07) years as Tazir and to pay Diyal amount to the legal heirs of deceased Dad Muhammad. The appellant (accused) Attaullah was convicted under Section under section 337/A(i), Shaja -e-Khafifa Q&D Ordinance causing injuries to Hazrat Umar and
sentenced to suffer R.I. for one year and to pay daman of Rs.5000/ - to the victim. The
appellant (accused) Sher Ali was convicted under section 337/A(i) Shaja -e-Khafifa Q&D
Ordinance for causing injuries to injured Muhammad Naeem and sentenced to suffer RI for one year and to pay Daman of Rs.5000/ - to the victim. Similarly, the appellant (accused)
Wali Khan son of Zakarya was convicted under section 337/ A/(i) Shaja -e-Khafifa Q&D
Ordinance and sentenced to suffer R.I. for one year and to pay Daman of Rs.5000/ - to the
victim. The appellant (accused) Kaleemullah son of Obaidullah was convicted under section 337/F(i) Damiyah Q&D Ordinance for causing injuries to Muhammad Anwar son of Agha Muhammad and sentenced to suffer RI for six months and to pay Daman of Rs.4000/ - to
legal heirs of the injured (as injured Muhammad Anwar expired during the trial). The accused persons have also been convicted under section 147, P.P.C. for one year R.I. each, with the benefit of Section 382- B, Cr.P.C. While, accused Shafique and Yahya were
acquitted from the charge.
The Criminal Acquittal Appeal has been filed by Muhammad Naeem against the
acquittal of accused (respondents) Yahya and Shafique, while Criminal Revision Petition has
been filed by him for enhancing the sentences awarded to the convicts -accused.
2. Facts of the case are that on 18th April 2015, the complainant Muhammad Saleem son
of Agha Muhammad, lodged FIR No.32 of 2015 at Levies Thana Chaman, under Sections 302, 337- ADF read with Sections 147, 149, 34, P.P.C., with the averments that on the day of
occurrence he along with his other relatives Muhammad Naeem, Haji Dad Muhammad (deceased), Kamal -ud-Din, Hazrat Umar, Muhammad Anwar, Shamsullah, Muhammad
Naeem and Allauddin were sitting in their shop near Ice Factory Chaman, when at about 07.30 p.m. accused Samiullah came there, extended threats and used abusive language against them and in the meantime other accused namely Sher Ali, Muhammad Shafiq, Kaleemullah, Yahya Khan and Attaullah came and attacked upon them. The accused Sher Ali and Wali Khan were equipped with daggers, who assaulted the relatives of complainant. The accused Samiullah hit his uncle Haji Dad Muhammad on his liver due to which he fell in the Nala ( ) and became unconscious, who expired whilst shifting to hospital. It is further averred in the FIR that accused Sher Ali caused dagger injury to his uncle Muhammad Naeem on his forehead, while the other accused inflicted dagger blows to his relatives
Muhammad Anwar, Hazrat Umar and Muhammad Naseem. However, the other co -accused
persons were also accompanying the nominated accused, whose names are not known to him.
3. It is necessary to mention here that the counter version of the occurrence has also
been registered by one Abdul Rauf against all PWs of instant case, vide FIR No.33 of 2015 at
Levies Thana Chaman under sections 336, 337 -ADF read with sections 147, 149, 34, P.P.C.
reporting therein that on 18th April, 2015 at about 07.30 p.m. he was present in his house, on hearing hue and cry in front of his house, he came out of the house and saw that the nominate
accused had caught hold his paternal cousins Wali Khan and Samiullah. The accused Muhammad Saleem was having an iron rod in his hand, while accused Hazrat Umer alias Bacha and Muhammad Naeem were having Dandas in their hands. The accused Shamsullah was having an iron clip in his hand. The accused Muhammad Naseem, Mateen, Muqadam, Muhammad Anwar and four unknown accused had caught Wali Khan and Samiullah, while accused Hazrat Umar alias Bacha, Muhammad Naeem and Shamsullah assaulted them with iron rods and Dandas, due to which they received severe injuries on their different parts of body and even one tooth of Wali Khan was also dislocated, while Samiullah received injuries on his body on his right cheek as well as on his back. It is further averred that the area Secretary of Pashtoon Khuwa Milli Awami Party was also standing nearby, who was also assaulted by the accused, but he escaped unhurt, while on his hue and cry, his other paternal cousins and inhabitants of the area intervened and rescued them, otherwise the accused would have killed his paternal cousins.
4. Pursuant to above FIR lodged by the complainant Muhammad Saleem, investigation
in the matter was carried out and on completion thereof, the accused persons were challaned in the trial Court, which indicated the charge under sections 316, 337/ADF, 147, 149, 34, P.P.C. and after refuting the same by the accused persons, the prosecution produced eleven (11) witnesses, whereafter all the accused were examined under section 342, Cr.P.C. They neither recorded their statements on oath under section 340(2), Cr.P .C. nor produced any
witness in their defence. On conclusion of the trial and after hearing arguments, the learned
trial Court convicted and sentenced the appellants Samiullah, Sher Ali, Kaleemullah, Wali Khan and Attaullah mentioned above, while acquitted the accused Yahya and Shafique, vide impugned judgment dated 15th July 2020. Whereafter the convicts -appellants filed Criminal
Appeal, while the complainant party preferred Criminal Revision for enhancing the sentences
awarded to the convicts and also
filed a Criminal Acquittal Appeal against the acquittal of accused Yahya and Shafique.
5. While, the FIR No.33/2015 lodged by the accused party against the complainant party
was tried by the learned Judicial Magistrate Chaman, wherein all the nominated accused
persons were acquitted of the charge, vide judgment dated 21st June 2015.
6. Heard the learned counsel and perused the record with their able assistance. Perusal of
record reveals that the entire case of the prosecution is doubtful on certain counts and even
the prosecution story is not worth credence. The ocular testimony is entirely in conflict with the medical evidence. It has been observed that the complainant (PW -l) admitted in his cross -
examination that the contents of FIR was recorded by his relative Ramzan. Hence, a presumption cannot be ruled out of consideration that the complainant party after consultation with each other lodged the FIR and such was the reason that the entire family members of the accused party was nominated in the FIR.
7. In order to substantiate the charge, the prosecution produced eleven witnesses. The
complainant of the case namely Muhammad Saleem appeared in the Court as PW- 1, who
mostly reiterated the contents of his fard- e-bayan Ex.P/1- A, but during acid test of cross -
examination he could not stand on his legs and made certain contradictions and dishonest
improvements. It has been observed that the actual name of his father is Haji Dad
Muhammad (deceased) and it was also admitted by him in his cross -examination that due to
error his father's name was written as Agha Muhammad instead of Dad Muhammad in his
CNIC. Be that as it may, if due to inadvertence the father's name of PW -1 was wrongly
mentioned in his CNIC, even then the complainant should have written his actual father's name in remaining documents, but he did not do so rather he in his fard- e-bayan did not
mention the correct father's name and even continued the same in the trial Court after taking oath that his father's name is Agha Muhammad and it has specifically been mentioned in his
examination -in-chief that the accused Samiullah attacked upon his uncle Haji Dad
Muhammad son of Haji Fateh Muhammad, while actually the deceased Haji Dad Muhammad
was his father and not uncle. Thus, after taking oath, uttering of wrong name of his father by the complainant, his evidence has lost credibility.
8. Furthermore, PW -1 in his cross -examination admitted that firstly he took the deceased
to the Clinic of Dr. Essa, but however, he concealed such fact in his fard- e-bayan and even in
his examination- in-chief. PW -1 further admitted that prior to the incident he took the
deceased Dad Muhammad to the clinic of Dr. Muhammad Essa. PW- 1 denied the suggestion
that he did not file an application to Tehsildar through his relative Nazar Jan for not
conducting the postmortem of deceased, but his such statement has be en refuted by the own
prosecution evidence. The receipt dated 18.04.2015, thumb impressed by one Nazar Jan son of Haji Nasrullah and attested by the witnesses PWs Hazrat Umar and Obaidullah, established that the dead body of deceased was handed over to Nazar Jan for burial without
postmortem. PW -1 also denied the suggestion that no injury marks were found on the person
of deceased. Voluntarily, stated that injuries were observed on the Liver and abdomen,
however, the medical evidence refuted the contention of PW -1. which provides that no
external injury was seen on the dead body, except an abrasion on left side of chest below left nipple. In his examination in chief as well as in the fard- e-bayan, PW -1 mentioned that
accused Samiullah attacked upon his uncle Haji Dad Muhammad. Both the statements
suggests that the accused Samiullah was empty handed, but in his cross -examination PW -1
made dishonest improvement and stated that accused Samiullah was equipped with brick and
cricket bat, through which he attacked upon deceased. Even otherwise, PW -1 admitted in his
cross -examination that he did not mention in his fard -e-bayan that the accused was equipped
with bricks and cricket bat.
9. The statement of PW -1 was contradicted by PW- 2 Hazrat Umer and stated that
accused Atta Ullah was equipped with hand clip, while the accused Samiullah was equipped with stick and bricks and the remaining accused persons were also equipped with bricks and sticks. PW -2 further contradicted the statement of PW -1 and stated that the accused
Samiullah hit the deceased Haji Dad Muhammad with punch, due to which he fell on the Nala, whereafter the accused on continuously hit the deceased on his back. As mentioned
earlier, such contention of the PWs was not supported by the medical evidence, which
negates the contention that no external injury was found on the person of deceased. PW -3
another injured and eye -witness of the occurrence contradicted the statements of PW- 1 and
PW-2 on certain counts. PW -3 in his examination in chief stated that accused Attaullah
attacked upon injured Hazrat Umer on his mouth, due to which he became injured. However, he admitted in his cross -examination that whilst recording his statement under section 161,
Cr.P.C. he did not mention about such fact. PW -3 also contradicted the statement of PW- 1
and PW -2 and stated that only one time the deceased was hit with brick, while PW -1 and
PW-2 claims that the accused Samiullah was continuously hitting the deceased. PW- 4
Muhammad Naeem also contradicted the statements of other witnesses. PW- 5 Shamsullah
admitted in his cross -examination that admitted that there were no signs of polluted water on
the clothes of deceased Dad Muhammad, while the whole case of prosecution revolves around the fact that after hitting the deceased, he fell on the Nala. If it was so, certainly the clothes of deceased was stained with polluted water of Nala, but however, PW -6 Abdul
Khaliq is the recovery witness of clothes of deceased Haji Dad Muhammad, which were taken into possession after eleven months of the said incident and the same were washed. The main purpose of taking into possession the blood stained clothes of deceased was to ascertain the blood stained clothes, but after handing over the same after expiry of about 11 -
months and that too after washing has eliminated its evidentiary value. PW -7 Allauddin has
brought on record that he recorded his statement before the Investigating Officer on 18th April 2015, but perusal of record reflects that not only statements under Section 161 of this witness, but also the statements of eye- witnesses have been recorded on 23rd April 2015
without any plausible explanation.
10. The re- appraisal of statements of all above prosecution witnesses would divulges the
fact that their statements are contradictory to each other. Each witness has narrated the mode and manner of the occurrence in different narration. Even otherwise, PW -1 deliberately
mentioned his father's name wrongly, besides it has also been established through evidence
that the FIR was lodged after deliberation and consultation and more particularly all the
witnesses come forward to record their statements before the Investigating officer on 23rd April 2015 i.e. after delay of six- days and that too without any plausible or justifiable
reasons or explanation. It is a 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. While holding so, we are guided by the dictum of law enshrined
by the Hon'ble Supreme Court of Pakistan in the case of Muhammad Khan v. Maula Bakhsh
1998 SCMR 570 wherein at page 575, it has been observed: --
"It is a settled law that credibility of a witness is looked with serious suspicion if his statement under section 161, Cr.P.C. recorded with delay without offering any plausible explanation."
11. It has come on record that all the above witnesses are brothers, nephews and cousins
to each other and the deceased was the father of complainant. It has also come on record that the occurrence was witnessed by number of shopkeepers present at the place of occurrence, but none of them was interrogated and produced as witness in the Court. Even otherwise, a witness namely Kamal- ud-Din was also allegedly injured in the said incident, but he was not
produced in the trial Court, hence non- production of said witness would lead to a
presumption under Illustration (g) of Article 129 of Qanun- e-Shahadat Order, 1984 that had
he been produced, he might have told the truth which would not have been favourable to the prosecution, thus the case of prosecution is lacking independent corroboration and the accused persons cannot be assumed to be culprit solely on the statements of witnesses that are interested and are related to the deceased. It is settled law that when independent witnesses are present, but they are not produced and only related witnesses are produced, testimony of such witnesses is not reliable. It would also reflect that prosecution wanted to
suppress material evidence. It is a celebrated principle of the appreciation of evidence that mere relationship of witnesses inter se or to the deceased is not sufficient to discredit out -
rightly their testimony if otherwise such witnesses are found to be the witnesses of truth, but if the independent and impartial witnesses are available and they are not produced and withheld and only the related witnesses whose testimony is not confidence -inspiring, are
produced, the testimony of such witnesses cannot be relied upon without independent corroboration and the corroboration shall be of such a standard which tends to satisfy the court that the witnesses have spoken the truth.
12. Now adverting to medical evidence, suffice to observe here that initially the deceased
Haji Dad Muhammad was brought to DHQ Chaman, where PW -8 externally examined the
deceased and opined that no external injuries were observed on the person of deceased. Subsequently, through an application containing the thumb impression of Nazar Jan son of Haji Nasrullah it was prayed to the Investigating Officer that the dead body of deceased lying in hospital be handed over for burial without postmortem. The receipt dated 18.04.2015, thumb impression by Nazar Jan and attested by the witnesses Hazrat Umar and Obaidullah, reveal that the dead body of deceased was handed over to Nazar Jan for burial without postmortem. Record further reveals that subsequently one Rahimuddin son of deceased Haji Dad Muhammad, submitted an application to the trial Court for exhumation of dead body for conducting postmortem which was accepted vide order dated 23rd April 2015. After exhumation of the dead body, postmortem was conducted in Bol an Medical College Quetta
on 29th April 2015. In the postmortem report, no external injury was seen on the body of the
deceased except an abrasion on the left side of the chest below the nipple and accordingly the postmortem report Ex.P/9 -B was issued. The postmortem report does not disclose of any
injury of the liver of the deceased as alleged by the prosecution witnesses. The postmortem report further transpires that no injury on scalp, skull, vertebra and muscles of the deceased
was found. The opinion of the Medico Legal Officer of the Bolan Medical College Hospital
suggests that the deceased was died due to vaso- regal shock, caused by blunt trauma on
trager zone i.e. temporal area, epigastric and secrotal region is not supported by the contents
of the FIR as well as the statements of PWs. The postmortem report further transpires that complete heart, lung piece, liver piece and stomach piece were separated for dispatched to the Chemical Examiner Lahore, but the FSL report of Punjab Forensic Science Agency reveal that only specimen of stomach, lung and liver remained sent for analysis, while the heart was not dispatched to the laboratory for chemical examination. The trend of cross -
examination of PWs transpires the plea of defense that the deceased was a heart patient and he was died due to heart attack, but despite separating the heart of deceased, it was not sent to FSL in order to establish the cause of death of deceased, which creates doubt in the case of prosecution and despite exhumation of dead body the actual cause of death of deceased was not ascertained, while the other pieces of body sent to FSL establish the fact that no poison/damages was found on the said pieces of body.
13. So far as the medical certificates of other injured witnesses are concerned, suffice to
observe here that the medical evidence is not substitute of direct evidence rather is only a source of corroboration in respect of nature and seat of injury, the kind of weapon used, the duration between the injury and death and may confirm the ocular account to a limited extent but cannot establish the identity of the accused or connect him with the commission of
offence. Since, the contradictory statements of PWs have already been discussed in detail, which otherwise are not enough to establish the case against the accused persons beyond any shadow of doubt, thus sole medical evidence of witnesses are not helpful to the case of prosecution as open fighting was alleged by the prosecution.
14. It has also come on record that the accused persons attacked upon the complainant
party with sticks, daggers, bricks and hand clip, but the Investigating Agency had neither taken into possession the bricks from the place of occurrence nor got effected the recoveries of sticks, daggers and hand clip, which is another dent to the case of prospection.
15. The reappraisal of entire prosecution evidence would establish the fact that the
prosecution has badly failed to prove the charge against all the accused persons. The PWs made contradictory statements each other and even made certain dishonest improvements from their depositions. The statement of material witness was withheld. Furthermore, the statements of the witnesses were recorded after delay of 6 -days without any justifiable
explanation. Furthermore, the medical evidence is not in consonance with t he oral testimony
and even the unnatural death of deceased was not established. All these defects have badly damaged the case of prosecution and created sufficient doubts in the case, hence the benefit of such doubts were rightly extended in favour of acquitted accused, but withheld to the extent of appellants -convicts, while the case of appellants was at par with the acquitted
accused persons, thus in view of above, the case of prosecution has not been established,
hence no question arises for enhancement of their sentences.
16. It is a settled law that after earning the acquittal from the trial Court, double
presumption of innocence is acquired by an accused. The appellate Courts while hearing the
criminal case against acquittal always remain slow in reversing the judgment of acquittal, unless it is found to be arbitrary, fanciful and capricious on the face of it or is the result of bare misreading or non -reading of any material evidence. The learned trial Court has rightly
acquitted the accused/ respondents by extending the benefit of doubts, after proper appraisal of evidence for which no exception can be drawn.
For the above reasons, the Criminal Appeal No. 20 of 2020 is accepted and the
appellants (accused) Samiullah Son of Abdullah, Sher Ali son of Abdul Manan, Kaleemullah son of Obaidullah, Wali Khan son of Zakriya and Attaullah son of Rehmatullah are acquitted of the charge. Appellant (accused) Samiullah being in custody; shall be released forthwith, if not required in any other case, while the appellant (accused) Sher Ali, Kaleemullah, Wali Khan and Attaullah are on bail; their bail bonds are discharged after lapse of appeal period.
Consequently, the Criminal Revision Petition No.13/2020 and Criminal Acquittal
Appeal No.126/2020 being devoid of merits are dismissed.
JK/9/Bal Order accordingly.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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