2023 Y L R 2051
[Balochistan]
Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ
MUHAMMAD BILAL and 2 others ---Appellants
Versus
The STATE--- Respondent
Criminal Appeal No. 548 of 2021, decided on 27th April, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 337- F(i) & 34 ---Qatl -i-amd, shajjah -e-madihah, common intention---
Appreciation of evidence ---Benefit of doubt ---Delay of three hours in lodging FIR ---
Prosecution case was that the accused persons equipped with knives attacked upon
complainant party, due to which one died and another sustained injuries ---Occurrence had
taken place at 08:30 p.m. in the month of December ---Place of occurrence was situated about
half kilometers away, but the FIR in respect of the incident had been lodged after about three hours ---Thus, possibility of deliberation and consultation, before lodging of FIR, could not
be ruled out of the consideration---Appeal against conviction was allowed, in circumstances.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b), 337- F(i) & 34 ---Qatl -i-amd, shajjah -e-madihah, common intention---
Appreciation of evidence ---Benefit of doubt ---Presence of eye- witnesses at the place of
occurrence doubtful ---Prosecution case was that the accused persons equipped with knives
attacked upon complainant party, due to which one died and another sustained injuries ---Eye -
witnesses were closely related to deceased ---However, the presence of said witnesses at the
place of occurrence was doubtful ---Version of the prosecution witnesses was that they went
to place of occurrence with deceased and eye- witness on a vehicle but the number, color and
model of the vehicle had not been told, nor the said vehicle had been produced during investigations or trial of the case ---Even presence of said vehicle had not been shown in the
site plan of place of occurrence---If the said eye- witnesses were present at the time of
occurrence and shifted deceased to hospital in the vehicle, then, their clothes must have been smeared with blood, but none of them produced any such clothes, when specifically, a question was put to the said witnesses that during shifting the deceased, if their clothes were bloodstained, and the answer was in positive ---Furthermore, the eye -witnesses were not
residents of the area where the incident occurred ---Perusal of medical certificate of deceased
revealed that the dead body was brought by SI, which further confirmed that if the dead body was brought to hospital by them, why the name of none of them was mentioned in Medico -
Legal Certificates ---Appeal against conviction was allowed, in circumstances.
(c) Penal Code (XLV of 1860)---
----Ss. 302(b), 337- F(i) & 34 ---Qatl -i-amd, shajjah -e-madihah, common intention---
Appreciation of evidence ---Benefit of doubt ---Recovery of weapon of offence on the
disclosure of accused doubtful ---Prosecution case was that the accused persons equipped
with knives attacked upon complainant party, due to which one died and another sustained
injuries ---Soon after registration of FIR, the Investigating Officer inspected the place of
occurrence and prepared the site map in presence of witnesses, but surprisingly, after the arrest, as per prosecution, on the disclosure of accused, the crime weapon i.e. knife was recovered from the same room ---At the very first visit, the Investigating Officer thoroughly
searched the room, where the alleged occurrence had taken place, but on such date, no weapon was recovered, which also created doubt with regard to recovery of crime weapon ---
Even otherwise, as per prosecution, the said room was situated in a building, where certain other rooms were constructed, in which many people and families were residing at the time of occurrence, as well as at the time of alleged recovery, but no efforts were made by the Investigating Officer to make any of the inhabitant of the area as a mashir in the case ---
Conduct of the Investigating Officer showed that he violated the provisions of S. 103, Cr.P.C. ---Another important aspect of the case was that when the Investigating Officer
searched the room of accused, it was unlocked and such fact was admitted by the SI ---On
second visit when the alleged recovery was affected, then too, the said room was unlocked and such fact was admitted by the Investigating Officer ---Furthermore, the Investigating
Officer also failed to collect any material with regard to the tenancy or ownership of the said room, which also created doubt in the recovery of the alleged knife ---Appeal against
conviction was allowed, in circumstances.
Mian Sohail Ahmed and others v. The State 2019 SCMR 956 rel.
(d) Penal Code (XLV of 1860)---
----Ss. 302(b), 337- F(i) & 34 ---Qatl -i-amd, shajjah -e-madihah, common intention---
Appreciation of evidence ---Benefit of doubt ---Safe custody of weapon of offence and its safe
transmission to the laboratory not established---Prosecution case was that the accused persons equipped with knives attacked upon complainant party, due to which one died and another sustained injuries ---As regards to the alleged recovery of knife from the pointation of
accused during the investigation and its subsequent matching with the blood, suffice to observe that the Investigating Officer kept the said knife with the moharer for safe custody, whereafter its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial Court through production of any witness concerned with such custody and transmission---Record further revealed that the said knife and bloodstained clothes were sent to Forensic Science Laboratory after delay of 33 days, without any plausible explanation, which created doubt ---Appeal against conviction was allowed, in
circumstances .
Ali Sher v. The State 2008 SCMR 707 and Kamal ud Din alias Kamalan v. The State
2018 SCMR 577 rel.
(e) Penal Code (XLV of 1860)---
----Ss. 302(b), 337- F(i) & 34 ---Qatl -i-amd, shajjah -e-madihah, common intention---
Appreciation of evidence ---Benefit of doubt ---Medical evidence and ocular account ---
Contradictions ---Prosecution case was that the accused persons equipped with knives
attacked upon complainant party, due to which one died and another sustained injuries ---
Record showed that the medical evidence belied the ocular account furnished by the alleged
eye-witnesses ---Medical Officer stated that the deceased expired approximately three hours
before arrival, but contrary to it, all the witnesses deposed that they reached the hospital in 20/25 minutes, after the alleged occurrence, which negated the prosecution version and the presence of eye- witnesses at the place of occurrence--- Presence of injured eye- witness of the
case, could not be possibly doubted at the place of occurrence, however question was, whether he shared with the Court, the whole truth---Not necessary that the injured witness had spoken the whole truth and it could not be relied upon unless corroborated--- Said witness
deposed that he also received sharp injury on his left part of the body while the Medical Officer produced his medical certificate showing incised wound of about ½ centimeter on right part of his body ---Said fact created doubt in the prosecution case---Appeal against
conviction was allowed, in circumstances.
(f) Criminal trial ---
----Benefit of doubt ---Principle ---Prosecution is bound to prove its case against accused
beyond shadow of 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.
(g) Criminal trial ---
----Benefit of doubt ---Principle ---There was no need of many doubts in the prosecution case
rather any reasonable doubt arising out from the prosecution evidence would be sufficient for acquittal of the accused.
Abdul Wahid Kakar for Appellants.
Ameer Hamza Mengal, Additional Prosecutor General for the State.
Date of hearing: 30th March 2023.
JUDGMENT
IQBAL AHMED KASI, J. ---The instant Criminal Appeal has been preferred by
appellants, viz. Muhammad Bilal, Sajid Ali and Asad Ali, all sons of Bahadur Hussain, challenging the validity of the judgment dated 01.11.2021 ("the impugned judgment") passed by the learned Additional Sessions Judge -V, Quetta ("the trial Court"), whereby, the
appellants were convicted and sentenced in a manner mentioned in para No.21 of the impugned judgment, the relevant portion whereof is mentioned as under:
"Since the point No.1 has been resolved in affirmative, therefore, the accused persons
Muhammad Bilal, Sajid Ali and Asad Ali, all sons of Bahadur Hussain, are liable to be convicted and sentenced as under:
Under Section 302(b), P.P.C. and sentenced to suffer Rigorous Imprisonment for Life as Tazir (EACH) and the accused facing trial are also liable to pay compensation of Rs.300,000/ - (Rupees Three Lac Only) (EACH) to the legal heirs of deceased
Shahmir under section 544- A, Cr.P.C. In default of payment of compensation amount
the accused shall further undergone for Simple Imprisonment of Six (06) Months (EACH). The accused persons are also convicted under section 337 -F(i) Q&D, P.P.C.
and sentenced to suffer one (01) year R.I each as Tazir and they are also liable to pay Daman amounting of Rs. 5000/ - each separately to injured Shehzad Aslam. The
accused persons shall not be released on completion of their awarded sentences until the payment of Daman amount to injured. All the punishments are directed to run concurrently and the benefit of section 382- B Cr.P. C. is also extended in favour of
accused persons."
2. The brief facts arising out of the instant appeal are that complainant, namely, Khan
Gul, lodged FIR No.155 of 2020, with Police Station, Industrial Area, Quetta, under Sections 302, 337 and 34, P.P.C. with the averments that on 19.12.2020 at 08:30 p.m. at the room of accused persons Muhammad Bilal, Sajid Ali and Asad Ali, situated at Yousuf Homes, the accused persons Muhammad Bibal Sajid Ali and Asad Ali, equipped with knives attacked upon Shahzad and Shah Mir, due to which Shah Mir died and Shahzad sustained injuries, as such, the FIR was lodged and investigation was commenced.
3. After completion of investigation, challan of the case was submitted before the trial
Court, where, a formal charge was framed and read over to the accused/appellants, to which they pleaded not guilty and claimed trial.
4. The prosecution in support of its case produced as many as the following witnesses.
PW-1 Khan Gul, is the complainant of the case and produced his written report
Ex.P/1- A.
PW-2 Shahzad, is the victim/ eye -witness of the case.
PW-3 Dawar Khan, is the eye -witness of the case.
PW-4 Abdul Karim, SI, produced memo/ of pointaiton of occurrance and memo. of
bloodstained cotton Ex.P/4- A and Ex.P/4- B, respectively.
PW-5 Muhammad Bilal, is the eye -witness of the case.
PW-6 Amid Iqbal, is also the eye -witness of the case.
PW-7 Dr.AysihaFaiz, MLO at SPH Quetta, produced the MLCs of deceased and
injured person as Ex.P/7 -A to Ex.P/7 -C.
PW-8 Qais Khan, ASI, produced disclosure memo. and pointation memo. of recovery
of crime weapon as Ex.P/8 -A and Ex.P/8- B, parcel No.4 knive as Art.P/4 to Art.P/6.
PW-9 Robail Nawaz, ASI, produced memo. of bloodstained clothes of deceased as
Ex.P/9- A , parcel Nos.2 and 3, cltothes as Art.P/7 to Art.P/12.
PW-10 Khalid Mehmood, IP/ Investigatign Officer, produced FIR, site map, inquest
report of deceased person, FSL report, challan No.1 of 2021 and challan No. 1- A of
2021 as Ex.P/10- A to Ex.P/10- F respectively.
5. On closure of prosecution evidence, the accused persons were examined within the
purview of Section 342, Cr.P.C. where once again they flatly refused and denied the
allegations levelled against them, but neither the accused persons opted to be recorded on oath under Section 340(2), Cr.P.C. nor they produced any witness in their defence.
6. After hearing the parties, the trial Court, vide impugned judgment convicted the
appellants in a manner discussed in para supra.
7. Learned counsel for the appellants contended that the impugned judgment is bad in
the eyes of law; that the case of prosecution is based on inimical and interested witnesses without corroborating by any independent witness; that the presence of PWs are doubtful at the place of occurrence; that the FIR has been lodged after delay of three hours; that there are major contradictions amongst the testimony of PWs which creates serious doubt in the prosecution story.
8. Learned APG while controverting the arguments advanced by the learned counsel for
the convict/appellants contended that the convict / appellants are nominated in the FIR with specific role; that the crime weapon i.e. knife is also recovered on the pointation of the convict/appellants from their residential room; that the medical evidence also corroborated the oral evidence; that the judgment passed by the trial Court is well reasoned, warrants no
interference by this Court.
9. We have heard learned counsel for the parties at length and perused the record with
their able assistance. The occurrence in this case had to be taken place at 08:30 p.m. in the month of December. The place of occurrence was situated about half kilometers away, but the FIR in respect of the incident had been lodged after about three hours, thus, possibility of deliberation and consultation, before lodging of FIR could not be ruled out of the consideration. The eye -witnesses produced by the prosecution i.e. Shehzad Aslam (PW- 2),
Dawar Khan (PW -3) Muhammad Bilal (PW -5) and Hamid Iqbal (PW -6) were closely inter se
related to deceased. We are conscious of the fact that the presence of PW -2, PW -3, PW -5 and
PW-6 at the place of occurrence is doubtful. It was the version of the prosecution witnesses
that they went to place of occurrence with deceased and PW- 2 on Suzuki High roof, but the
number, color and model of the vehicle has not been told, nor the said vehicle has been produced during investigations or trial of the case, even presence of said vehicle had not
been shown in the site plan of place of occurrence. If the said eye -witnesses were present at
the time of occurrence and shifted deceased Shah Mir to hospital in Suzuki High roof, then, their clothes must had been smeared /stained with blood, but none of them produced any such clothes, specifically, a question was put on the above sited witnesses that during shifting the deceased, their clothes were bloodstained, the answer was in positive. Furthermore, th e above sited eye- witnesses are not residents of the area where the incident
was occurred. Perusal of medical certificate of deceased Ex.P/7 -A reveals that the dead body
was brought by Ameer Muhammad, SI, which further confirmed that if the dead body was
brought to hospital by them, why the name of none of them was mentioned in Ex.P/7- A.
10. It is an admitted feature of the case that soon after registration of FIR, the
Investigating Officer PW -10, inspected the place of occurrence and prepared the site map in
presence of witnesses, but surprisingly, after the arrest as per prosecution, on the dis -closure
of convict/appellant Muhammad Bilal, the crime weapon i.e. knife was recovered from the same room. At the very first visit, the Investigating Officer, thoroughly searched the room, where the alleged occurrence had taken place, but on such date, no weapon was recovered, which also creates doubt with regard to recovery of crime weapon. Even otherwise, as per prosecution, the said room is situated in a building, where certain other rooms are constructed, in which many people and families were residing at the time of occurrence, as well as at the time of alleged recovery, but no efforts were made by the Investigating Officer to make any of the inhabitant of the area as a mushir in the instant case. The conduct of the Investigating Officer, shows that he violated the provisions of Section 103, Cr.P.C. Another important aspect of the case is that when the Investigating Officer, searched the room of appellant, which was unlocked and this fact was admitted by the PW- 4 in reply to question
No.6. On second visit when the alleged recovery was affected, then too, the said room was unlocked and this fact was admitted by the Investigating Officer PW -10, in reply to question
No.52. Furthermore, the Investigating Officer also failed to collect any material with regard to the tenancy or ownership of the said room, which also created doubt in the recovery of the alleged knife. While dealing with such proposition, the Hon'ble Supreme Court of Pakistan in case titled "Mian Sohail Ahmed and others v. The State" 2019 SCMR 956, held as under:
"---Ss.302(b), 324, 392, 411 & 34---Qatl -i-amd, attempt to commit qatl -i-amd,
robbery, dishonestly receiving stolen property, common intention--- Reappraisal of
evidence--- Benefit of doubt ---Recovery of weapon doubtful ---Investigation Officer
depose that the recovery of pistol was effected from a house whose ownership he failed to ascertain ---According to the investigating officer it was a double storied
house and recovery was effected from the ground floor where other family members also resided --- Memorandum of recovery showed that the pistol was recovered from
an open room lying under rough clothes, therefore, it would be unsafe to rely on such recovery for a conviction on a capital charge ---Convictions and sentences of accused
persons were set aside and they were acquitted of the charge by extending the benefit of doubt to them ---Appeals were allowed accordingly."
11. As regard to alleged recovery of knife from the appellant's pointation during the
investigation and its subsequent matching with the blood, suffice here to observe that the Investigating Officer PW -10, kept the said knife with the morhar for safe custody,
whereupon, its safe transmission to the FSL had never been proved by the prosecution before the trial Court through production of any witness concerned with such custody and transmission. The record further reveals that the said knife and bloodstained clothes were sent to FSL after delay of 33 days, without any plausible explanation, which create doubt. Reliance is placed to the case titled Ali Sher v. The State 2008 SCMR 707, wherein, it was held as under:
"11. The crime -empties having been allegedly found at the place of occurrence and
having been retained for so long the police station and having been sent to the F.S.L.
along with the crime weapons and that also 12 days after the alleged weapons of offence had been allegedly recovered destroys and evidentiary value of the said piece of evidence. These recoveries, therefore, cannot offer any corroboration to the ocular testimony."
12. Similarly, in case titled "Kamal ud Din alias Kamalan v. The State" 2018 SCMR 577,
it was also held by the Hon'ble Supreme Court that:
"Safe custody of the recovery weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the Trial Court through production of any witness concerned with such custody and transmission."
13. Apart from above, the medical evidence had given a big lie to the ocular account
furnished by the alleged eye -witnesses in as much as per MLC Ex.P/7 -A. The PW -7 replying
to question No.1 stated that, "The deceased Shah Mir expired approximately three hours before arrival", but contrary, all the PWs deposed that they reached in 20/25 minutes to hospital, after the alleged occurrence, which negate the prosecution version and the presence of eye -witnesses at the place of occurrence. PW- 2 Shahzad Aslam, is the alleged injured/eye -
witness of the case, cannot be possibly doubted at the place of occurrence, however, whether he shared with the Court, the whole truth. It is not necessary that the injured witness had spoken the whole truth and it cannot be relied upon unless corroborated. The said PW deposed that he also received sharp injury on his left part of the body while the PW -7
produced his medical certificate as Ex.P/7 -B showing insized wound of about 1/2 centimeter
on right part of his body. This, also creates doubt in the prosecution case.
14. Another aspect of the case is that the place of occurrence is situated in a building
where numerous other people and families were residing at the time of alleged occurrence, but the Investigating Officer of the case did not bother to call them to confirm the veracity of the alleged occurrence. Even, all the PWs admitted the fact that a watchman was present in the main gate of the building, but he was also not associated as witness, which might have strengthen the prosecution version towards the commission of the offence by the appellants, which doubted the case of prosecution. It is settled principle of administration of criminal justice that the prosecution is bound to prove its case against accused beyond shadow of doubt, if any reasonable doubt arise 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 well settled principle that there is no need of so many doubt in the prosecution case rather any reasonable doubt arising out from the prosecution evidence is sufficient for acquittal of the accused.
For the forging reasons, while extending benefit of doubt in favour of the appellants,
we are inclined to allow the instant appeal, set aside the impugned judgment dated 01.11.2021, passed by the Additional Sessions Judge -V, Quetta and acquit the appellants
Muhammad Bilal, Sajid Ali and Asad Ali, all sons of Bahadur Hussain of the charge in case FIR No.155 of 2020 of Police Station Industrial Area, Quetta. They are in custody, shall be released forthwith if not required in any other case.
JK/84/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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