2024 Y L R 1973
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Iqbal Ahmed Kasi, JJ
GHULAM HUSSAIN---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. (s)65 of 2022, decided on 30th March, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- F(i) & 148 ---Qatl -i-amd, attempt to commit qatl- i-amd, ghayr -
jaifah -mudihah, rioting armed with deadly weapon---Appreciation of evidence ---Presence
of complainant with the deceased doubtful ---Accused were charged for committing murder
of the brother of the complainant and causing firearm injuries to another person---
Investigating Officer prepared the site plan on pointation of complainant with different points assigned to all ---All were placed at a distance of ten to fifteen feet from one
another and despite blood feud the assailants were so generous that the witnesses were left alive with the purpose to facilitate their journey to the gallows ---Complainant stated that
the firing was made by the assailants when he along with all witnesses were present at the
spot, but it was not understandable that why having been armed with the sophisticated weapons just a few feet away, the assailants could not accomplish the task i.e. to eliminate all the persons belonging to deceased's family---Complainant and the eye -witnesses
remained consistent in saying that all of them had blood feud, but they could not tell that why out of them, only deceased was hit by the assailants ---Story narrated by complainant
and his other companions was not acceptable to a prudent mind---Appeal against conviction was accordingly allowed.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- F(i) & 148 ---Qatl -i-amd, attempt to commit qatl- i-amd, ghayr -
jaifah -mudihah, rioting armed with deadly weapon---Appreciation of evidence ---Injured
witness, evidence of ---Not reliable ---Accused were charged for committing murder of the
brother of the complainant and causing firearm injuries to another person---As per prosecution case another person was also injured in the alleged incident ---Said witness
while appearing in the witness box categorically stated that on the day of incident he along with deceased was present in the shop and firing started, due to which he also received bullet injury, but did not identify the accused before the Court ---Injured witness further
added that he had seen the accused first time in Court ---Said witness also did not utter a
single word regarding the complainant and his companion, which also negated the presence of complainant and witnesses ---Appeal against conviction was accordingly
allowed.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- F(i) & 148 ---Qatl -i-amd, attempt to commit qatl- i-amd, ghayr -
jaifah -mudihah, rioting armed with deadly weapon---Appreciation of evidence ---Motive
not established---Accused were charged for committing murder of the brother of the complainant and causing firearm injuries to another person---Admittedly the alleged place of occurrence was thickly populated area, but neither an independent person from the said bazar, nor any shopkeeper was associated to be a witness, especially shopkeepe r of the
shop where the alleged incident took place ---Accused took plea that there was dispute of
deceased with the "G" tribe and the same was admitted by complainant and witnesses ---
Said witnesses also admitted that some of the absconding accused belonged to "G" tribe and the accused belonged to "S" tribe, who had no concern with the "G" tribe ---Defence
plea was more acceptable then the prosecution case---Nothing was on record to disclose the motive behind the occurrence ---Prosecution was not bound to set up motive in every
case, but in the instant case, a motive behind the incident was against the "G" tribe, but
not against the accused, who belonged to "S" tribe ---Appeal against conviction was
accordingly allowed.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- F(i) & 148 ---Qatl -i-amd, attempt to commit qatl- i-amd, ghayr -
jaifah -mudihah, rioting armed with deadly weapon---Appreciation of evidence ---
Contradictions in the statements of witnesses ---Accused were charged for committing
murder of the brother of the complainant and causing firearm injuries to another person---
Record showed that there were material contradictions amongst the statements of witnesses ---Complainant stated that the assailants made firing for about 10/20 minutes,
while the witness stated that the assailants made firing for 5 minutes ---Furthermore, the
eye-witness sated that at the time of the alleged incident, he was accompanying the
deceased at the same shop purchasing household articles, whereas, rest of the witnesses negated such portion of statement of the eye -witness ---Investigating Officer stated that on
the pointation of the complainant the site map was prepared, whereas, the complainant showed his ignorance in that respect ---Investigating Officer stated that his reader
conducted all the process, whereas, the witnesses stated that the Investigating Officer had recorded the statements of the witnesses ---Witnesses also made dis -improvements in their
statements, just to involve the accused ---Portion of dis -improvement in the statements
could not be considered for conviction of any person---Complainant said that he went to Tehsil Office and wrote an application for lodging of FIR from a petition writer, which did not appeal to a prudent mind that he did not rescue his brother to shift him to hospital, but rushed to lodge FIR ---Thus, it appeared that FIR was lodged after consultation, and after
the incident he left the deceased and approached the police official for lodgment of FIR ---
Furthermore the medical certificate showed that the dead body was brought by Levies and not by the complainant and his alleged companion---Appeal against conviction was accordingly allowed.
(e) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- F(i) & 148 ---Qatl -i-amd, attempt to commit qatl -i-amd, ghayr -jaifah -
mudihah, rioting armed with deadly weapon---Appreciation of evidence ---Chance witnesses -
--Presence of witnesses at the time and place of occurrence not proved ---Accused were
charged for committing murder of the brother of the complainant and causing firearm injuries
to another person--- Record showed that the other companions of the complainant were
residing far away from the place of occurrence, as such, they were chance witnesses and had not witnessed the occurrence ---Appeal against conviction was accordingly allowed.
Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 rel.
(f) Penal Code (XLV of 1860) ---
----Ss. 302(b), 324, 337- F(i) & 148 ---Qatl -i-amd, attempt to commit qatl- i-amd, ghayr -
jaifah -mudihah, rioting armed with deadly weapon---Appreciation of evidence ---Co -
accused acquitted on same set of evidence ---Accused were charged for committing murder
of the brother of the complainant and causing firearm injuries to another person---Record transpired that co -accused of the accused, who allegedly was accompanying the accused at
the time of the alleged incident, had already been acquitted of the charge by the trial Court on the same set of evidence---No appeal against the acquittal of co -accused had been filed
by the complainant or State ---Once prosecution witnesses were disbelieved with respect to
a co -accused then, they could not be relied upon with regard to the other co- accused
unless they were supported by corroboratory evidence coming from an independent source and which was unimpeachable in nature, but that was not available in the present case ---
Appeal against conviction was accordingly allowed.
Shahbaz v. The State 2016 SCMR 1763; Nazir Ahmed v. The State 2018 SCMR 787;
Haroon Shafique v. The State and others 2018 SCMR 2118; Munir Ahmed and another v. The State and others 2019 SCMR 79 and Safdar Abbas and others v. The State and others 2020 SCMR 219 rel.
(g) Criminal trial ---
----Absconsion of accused----Scope ---Mere absconsion of accused is not conclusive proof
of guilt; it is only a suspicious circumstance against an accused---Suspicions after all are
suspicions, and the same cannot take the place of proof ---Value of absconsion depends on
the facts of each case.
Liaqat Hussain and others v. Falak Sher and others, 2003 SCMR 611 rel.
Muhammad Sadique Ghuman for Appellant.
Jameel Akhtar Gajani, Additional Prosecutor General for the State.
Date of hearing: 22nd February, 2022.
JUDGMENT
IQBAL AHMED KASI, J. --- This appeal is directed against the judgment dated 28th
April, 2022, passed by the Additional Sessions Judge -I, Sibi, whereby appellant Ghulam
Hussain son of Bashkan, was convicted and sentenced under Section 302(b) of the P.P.C. to suffer imprisonment for life and to pay an amount of Rs.3,000,00/ - (rupees three lac only) as
compensation to the legal heirs of deceased, in default whereof to further undergo SI for six (06) months. The appellant was also convicted under Section 324, P.P.C. and sentenced to suffer RI for seven (07) years with fine of Rs.50,000/ - (rupees fifty thousand only), in
whereof to further undergo SI for six (06) months. The appellant was further convicted under
Section 337 -F(i) P.P.C. and sentenced to suffer RI for one (01) year with payment of Daman
of Rs.10,000/ - (rupees ten thousand only) to be paid to the injured Muhammad Aslam. The
appellant was also sentenced under Section 148, P.P.C. to suffer RI for two (02) years. All the sentences were ordered to be run concurrently with benefit of Section 382- B, Cr.P.C.
2. The concise facts, arising out of the instant appeal, are that complainant Muhammad
Yaqoob son of Allah Jawaya (PW -1) in his written report Ex.P/1 -A, alleged that on the
fateful day of incident, he along with his brother Muhammad Yousuf, nephew Ghulam Yaseen and Dhani Bakhsh came to Bakhtiarabad for shopping and were purchasing household articles in the shop of Mehboob Ali that at about 12:30 p.m. accused persons namely Zafarullah, Nehal, Nasrullah, Ghulam Fareed, Iqbal and Ghulam Hussain came on two motorcycles, started indiscriminate firing upon his brother, in result whereof, his brother Muhammad Yousuf, sustained bullet injuries and died at the spot, whereas, one Muhammad Aslam also sustained bullet injuries, while he (the complainant) saved his skin by taking shelter of wall of the shop. It is further alleged in the FIR by the complainant that the accused persons were very much known to him and out of them accused Zafarullah, Ghulam Hussain and Ghulam Fareed were armed with Kalashnikov, whereas, the accused Nehal was armed with TT Pistol, while accused Nasrullah and Iqbal, armed with Kalashnikov were standing near their motorcycles at Bazar. Consequently, instant FIR has been lodged.
3. After registration of FIR Ex.P/6 -A, the investigation of the case was carried out by
Muhammad Iqbal, Naib Tehsildar (PW -6), who visited the place of occurrence, prepared site
memo and site plan, recorded the statements of witnesses under Section 161 of the Cr.P.C., examined the dead body and prepared inquest report. He also took the bloodstained clothes of deceased Muhammad Yousuf and injured Muhammad Aslam into possession through memos. Since the nominated accused persons were not arrested, so he prepared the incomplete challan under Section 512, Cr.P.C. and sent the same to the Court for proceedings.
4. It may not be out of place to mention here that co- accused Mehboob Ali son of Pir
Bakhsh was arrested and after facing trial, he was acquitted of the charge, vide judgment dated 31.03.2015, however, the case file was kept in dormant till the arrest of absconding accused persons including the appellant. Thereafter, on 21.02.2021, the appellant/accused facing trial was arrested and after completion of investigation, challan was sent to the trial Court to his extent.
5. On the stated allegation, a formal charge was framed and read over to the appellant, to
which he did not plead guilty and claimed trial. The prosecution, in order to prove the
accusation, produced nine witnesses. PW -1 Muhammad Yaqoob son of Allah Jawaya, is the
complainant of the case, who recognized his report Ex.P/1- A. PW -2 Dr. Lal Muhammad,
Police Surgeon, DHQ Hospital Sibi conducted postmortem examination of the deceased and issued medico legal certificate Ex.P/2 -A and also produced register as Ex.P/2- A. PW -3
Muhammad Aslam, is the injured. PW -4 Ghulam Hussain and PW -5 Dani Bakhah are the
eye-witnesses of the incident. PW- 6 Muhammad Iqbal, is the first Investigating Officer of
the case. PW- 7 Motan Khan, is the second Investigating Officer. PW -8 Eahadur Khan, is the
third Investigating Officer and PW -9 Liaqat Ali is the forth Investigating Officer of the case.
Then the prosecution closed its side.
6. Thereafter, the appellant was examined under Section 342 of the Cr.P.C., wherein
once again he denied the prosecution accusation and claimed to be innocent. However, he neither recorded his statement on oath as provided under Section 340(2) of the Cr.P.C., nor produced evidence in defence.
7. The trial Court, after close of the parties' evidence, vide impugned judgement,
convicted and sentenced the appellant, as mentioned hereinabove, hence this appeal.
8. Learned counsel for the appellant contended that the appellant is innocent and has
wrongly been involved in the commission of the alleged offence by this complainant with ulterior motives; that the co -accused Mehbood Ali has already been acquitted by the trial
Court, whereas, on the same set of evidence, the conviction of the appellant is astonishing;
that the trial Court has failed to appreciate the evidence in its true perspective, coupled with
the fact that major contradictions appeared in the statements of PWs, but the trial Court has
fully ignored the same, thus, committed glaring illegalities and irregularities.
9. Learned APG, representing the State, while supporting the impugned judgment
contended that the trial Court has passed a well reasoned and comprehensive judgment, after evaluating the evidence in its right path; that the appellant is involved in a heinous crime of
murder and further he remained absconder for a considerable period after commission of the offence, as such, he was rightly convicted and sentenced by the trial Court, hence this Court warrants no interference in the impugned conviction judgment.
10. We have carefully considered the respective contentions put forth by the parties'
counsel in the light of evidence available on record and also gone through the impugned judgment. It was the 20th July 2014, complainant Muhammad Yaqoob (PW -1) lodged FIR,
alleging therein that on the fateful day of the incident, he along with his brother Muhammad Yousuf, Nephew Ghulam Yaseen (PW -4) and Dani Bakhsh (PW -5) came to Bakhtiarabad for
shopping and were purchasing household articles in the shop of Mehboob Ali, then at about 12:30 p.m. accused persons, namely, Zafarullah, Nehal, Nasrullah, Ghulam Fareed, Iqbal and Ghulam Hussain (appellant) came on two motorcycles and started indiscriminate firing upon his brother, while standing in -front of shop of Mehboob Ali, in result whereof, his brother,
namely, Muhammad Yousuf, received bullet injuries, and died at the spot, whereas, one Muhammad Aslam (PW -3) also sustained injuries. The complainant further alleged that he
saved his skin by taking shelter of shop's wall. He further alleged that the accused persons were very much indentified by him, and out of them, accused Zafarullah, Ghulam Hussain, Ghulam Fareed were armed with Kalashinikov, whereas, accused Nehal was armed with TT pistol, while accused Nasrullah and Iqbal were armed with Kalashnikov and were standing in bazar, on their motorcycles. He further alleged that accused Mehboob Ali son of Pir Bakhsh has given shelter and food to the accused persons in his house and also helped them in the murder of his brother. He further alleged that all the accused persons after committing offence, fled away from the scene of occurrence on motorcycles, however, his nephews who were also purchasing grocery from other shops also reached there and identified the accused persons.
11. The complainant is yet to travel the hardest journey to establish his presence with the
deceased at the time of alleged incident, but the complainant portrayed is yet to be accepted as he walked with abnormalities in his statement. The Investigating Officer prepared the site plan on pointationo of complainant with different points assigned to all. All are placed at a distance of ten to fifteen feet from one another, despite blood feud the assailants went so generous that the witnesses were left alive wi th the happiest purpose to facilitate their
journey to the gallows. The complainant stated that the firing was made by the assailants at
such time, he along with all PWs were present at the spot, but our understanding fails that why having been armed with the sophisticated weapons just a few feet away, the assailants could not accomplish the task i.e. to eliminate all the persons belonging to deceased's family. The complainant stated that the appellant with the co -accused arrived on motorcycle, stepped
down and started firing with respective weapons, where, the fire shot of the appellant went
effective leading to the death of deceased, but they were blessed with life, when, divinity
intervened complainant and other alleged witnesses. The complainant and the eye -witnesses
remained consistent in saying that all of them had blood feud, but they could not tell that why out of them, only deceased was hit by the assailants, it was only and only the deceased who placed the appetite of assailants. The story narrated by complainant and his other companions is not acceptable to a prudent mind.
12. While other aspect of the case is that, as per prosecution case one Muhammad Aslam
son of Gul Muhammad, caste Mengal, was also injured in the alleged incident. The said PW while appearing in a witness box categorically stated that on the day of incident he along with deceased Muhammad Yousuf, were present in the shop and firing was started, due to which he also received bullet injury, but did not identify the convict / appellant before the
Court. He further added that he saw the appellant first time in Court. The said PW also not
utter a single word regarding the complainant and his companion PW -4 and PW -5, which
also negates the presence of complainant and above referred PWs.
13. Admittedly the alleged place of occurrence is thickly populated area, but neither an
independent person from the said bazar, nor any shopkeeper was associated to be a witness, especially shopkeeper of that shop where the alleged incident took place. The appellant took
plea that there is dispute of deceased with the Gorchani tribe and the same was admitted by complainant PW- 1, PW -4 and PW -5. The above witnesses also admitted that some of the
absconding accused belong to Gorchani tribe and the convict / appellant belong to Sial tribe, who has no concern with the Gorchani tribe. The defence plea is more acceptable then the prosecution case. There is nothing on the record to disclose the motive behind the occurrence. We know that the prosecution is not bound to set up motive in every case, but in the instant case, a motive behind the incident is against the Gorchani tribe, but not to the convict / appellant, who belong to Sial tribe.
14. Moreover, there are material contradictions amongst the statements of PWs. PW- 1
stated that the assailants made firing about 10/20 minutes, while the PW -4 stated that the
assailants made firing for 5 minutes. Furthermore, the PW -5 sated that at the time of the
alleged incident, he was accompanying the deceased at the same shop and purchasing household articles, whereas, rest of the PWs negate such portion of statement of the PW -5.
The PW- 6 stated that on the pointation of the complainant the site map was prepared,
whereas, the complainant showed his ignorance in this respect. The Investigating Officer, stated that his reader conducted all the process, whereas, the PWs stated that the Investigating Officer had recorded the statements of the witnesses. The PWs also make dis -
improvements in their statements, just to involve the convict/appellant. The portion of disimprovement in the statements cannot be considered for conviction of any person. The complainant says that he went to Tehsil Office and wrote an application for lodging of FIR from one petition writer, which do not apply to a prudent mind that he not rescued his brother to shift him to hospital, but rushed to lodge FIR. It also appears that FIR was lodged after consultation and after the incident, he left the deceased and approached the Police official for lodgment of FIR. Furthermore the medical certificate shows that the dead body was brought by Levies lehri, and not by the complainant and his alleged companion. It appears from the record that the other companion of the complainant are residing far away from the place of occurrence, as such, they are the chance witnesses and had not witnessed the occurrence. In a case titled "Muhammad Ashraf alias Acchu v. The State", 2019 SCMR 652, the Hon'ble Supreme Court of Pakistan has held that:
"It is well settled that benefit of slightest doubt must go to an accused and in case where the Court reaches a conclusion that eye- witnesses were chance witnesses; they
had not witnessed the occurrence and the prosecution story is concocted by the PWs, then the case of case of the accused merits plain acquittal."
15. After scanning the record it transpires that co- accused of the appellant namely
Mehboob Ali son of Pir Bakhsh, who allegedly was accompanying the appellant at the time
of the alleged incident, has already been acquitted of the charge by the trial Court on the same set of evidence. It is apprised by the learned Additional Advocate General, that no appeal against the acquittal of supra -mentioned co -accused has been filed by the complainant
or State. It is a trite principle of law and justice that once prosecution witnesses are
disbelieved with respect to a co -accused then, they cannot be relied upon with regard to the
other co -accused unless they are supported by corroboratory evidence coming from
independent source and shall be unimpeachable in nature but that is not available in the
present case. Reliance is placed upon the cases titled as "Shahbaz v. The State" 2016 SCMR 1763, "Nazir Ahmed v. The State", 2018 SCMR 787, "Haroon Shafique v. The State and others", 2018 SCMR 2118, "Munir Ahmed and another v. The State and others" 2019 SCMR 79 and "Safdar Abbas and others v. The State and others," 2020 SCMR 219.
16. Learned State counsel vehemently argued that the appellant remained absconder for
sufficient time, which proves the guilt of the appellant towards commission of the offences. It has already been settled that mere absconscion of accused is not conclusive guilt of an accused person; it is only a suspicions circumstance against an accused that he was found guilty of the offence. However, suspicions after all are suspicions, the same cannot take the
place of proof, the value of absconcion, therefore, depends on the facts of each case, in case
titled "Liaqat Hussain and others v. Falak Sher and others", 2003 SCMR 611(a), it was held
by the Hon'ble Supreme Court, as under:
"(a) Eye -witnesses including the complainant had failed to furnish a plausible and
acceptable explanation for being present on the scene of occurrence and were chance
witnesses- Prosecution case did not inspire confidence and fell for short of sounding
probable to a man of reasonable prudence ---Abscondence of accused in such
circumstances could not offer any useful corroboration to the case of prosecution."
17. After thoroughly evaluating the evidence available on file this Court reaches to an
inescapable conclusion that the prosecution has miserably failed to prove its case against the appellant/ accused beyond reasonable doubt.
In view of above, the instant appeal is allowed, the impugned judgment dated 28th
April, 2022, passed by the Additional Sessions Judge -I, Sibi, is set aside and the appellant
Ghulam Hussain son of Bashkan, is acquitted of the charge, in case FIR No.14 of 2014 of Levies Thana Bakhtiarabad. The appellant is in custody, he shall be set at liberty, if not required in any other case.
JK/80/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.