2024 Y L R 2014
[Balochistan (Sibi Bench)]
Before Zaheer- ud-Din Kakar and Iqbal Ahmed Kasi, JJ
AAMIR ALI ---Appellant
Versus
The STATE---Respondent
Criminal Jail Appeal No.(s)10 and Murder Reference No.(s)04 of 2023, decided on 8th
April, 2024.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34---Qatl -i-amd, common intention---Appreciation of evidence ---Co -
accused acquitted on same set of evidence--- Rule of consistency---Accused were charged
for committing murder of the minor son of complainant by firing---Motive behind the dispute was a landed property---As per prosecution story, on the fateful day accused persons armed with deadly weapons made collective firing with their respective weapons on the house of the complainant, due to which one bullet hit the head of complainant's son aged about 5 years, who died at the spot ---Accused to whom effective role in the
occurrence was attributed had been acquitted of the charge through impugned judgment on
the same setup of evidence as his role was also identical with that of the pauper accused ---
Prosaic rule of law and equity was that once arraignment witnesses were doubted concerning a co -blamed then, they could not be depended upon with respect to the next co-
charged, until and unless it was upheld by any free verifying piece of proof, which was prominently absent in the present case ---Appeal filed by pauper appellant was allowed and
he was acquitted of the charge.
Nazir Ahmad v. The State 2018 SCMR 787; Haroon Shafique v. The State and others
2018 SCMR 2118 and Shahbaz The State 2016 SCMR 1763 rel.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence ---Site
plan, preparation of ---Doubts ---Accused were charged for committing murder of the minor
son of complainant by firing---Site plan was silent regading on whose pointation it was prepared, because eye- witnesses were totally silent in that regard, coupled with the fact
that both the eye -witnesses did not assign any role to the pauper accused--- Investigating
Officer prepared the site map and whole case was silent in that regard that on whose information the same was prepared ---Such site map could not be considered in murder
case--- Appeal filed by pauper accused was allowed and he was acquitted of the charge.
(c) Criminal trial---
----Direct evidence--- Conviction---Scope ---Unless direct or substantive evidence is
brought on record, conviction cannot be recorded on the basis of any type of evidence howsoever convincing it may be.
Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 12 rel.
(d) Criminal trial---
----Benefit of doubt ---Principle ---If there is a single circumstance, creating reasonable
doubt regarding the prosecution case that will be sufficient to give its benefit to the
accused.
Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Mansha v. The
State 2018 SCMR 772 rel.
Abdul Jalil Lehri for Appellant (in Criminal Jail Appeal No. (s)10 of 2023).
Jameel Akhtar Gajani, Additioinal Prosecutor General for the State (in Criminal Jail
Appeal No. (s)10 of 2023).
Jameel Akhtar Gajani, Additional Prosecutor General for the State (in Murder
Reference No. (s)04 of 2023).
Abdul Jalil Lehri for Respondent (in Murder Reference No. (s)04 of 2023).
Date of hearing: 27th March, 2024.
JUDGMENT
IQBAL AHMED KASI, J. --- Pauper appellant Amir Ali son of Kaleemullah, has
challenged the validity of judgment dated 19th June, 2023 ("the impugned judgment"),
passed by the Additional Sessions Judge, Jhal Magsi ("the trial Court"), by means of instant
Criminal Jail Appeal No.(S) 10 of 2023, sent through Superintendent, Central Prison, Mach,
whereby, he was convicted and sentenced under Section 302(b) of the P.P.C. to death and to pay compensation of Rs.100,000/ - (Rupees One Hundred Thousand only) to the legal heirs of
deceased, namely, Muhammad Ali, under Section 544- A, Cr.P.C., in default thereof to
further suffer simple imprisonment (S.I) for one (01) year.
Since Criminal Jail Appeal No.(S)10 of 2023 and Murder Reference No.(S) 04 of
2023 are arising out of the same judgment of the trial Court, hence are being disposed of through this common judgment.
2. Brief facts leading to file the instant appeal are that on 14.11.2022, at about 07:30
a.m., the complainant, namely, Nasrullah son of Ali Nawaz by caste Nandani Magsi, lodged FIR No.27 of 2022, offences under Sections 302 and 34, P.P.C. at Levies Station, Jhal Magsi with the allegations that he resides at village Bakhar and is a farmer by profession. The accused persons Ali Razo alias Garho son of Kaleemullah by caste Nandani Magsi and others, resident of village Bakhar Tehsil Jhal Magsi disputed upon landed property at village Bakhar. At about 07:30 a.m. the accused persons. attacked upon the house of the complainant and started firing. The accused persons namely, Ali Raza alias Garho, Aamir Ali sons of Kaleemullah, Fida Hussain and Tariq sons of Ghulam Haider all by caste Nandani Magsi, resident of village Bakhar identified him and fired upon the house of the complainant and one bullet received/hit the head of child namely, Muhammad Ali son of Nasrullah aged about five (5) years and who died on the spot. The motive behind the dispute is a landed property, on this report, the above mentioned FIR was lodged against the accused persons.
3. After registration of the FIR, the accused persons Ali Raza alias Garho and Aamir Ali
were arrested and investigated. After completion of the investigation, incomplete challan of the case under Section 173, Cr.P.C. was submitted before the trial Court against the accused persons. On 14th December, 2022. The case was registered and on appearance of the accused persons, copies of the statements of witnesses and other documents were provided to the accused persons. The accused were indicted under sections 302 and 34, P.P.C. The accused persons in response to the charge pleaded not guilty and claimed trial, therefore, the prosecution was directed to lead its evidence.
4. The prosecution in order to substantiate its case against the accused persons produced
the following named five (05) witnesses: -
PW-1, Nasrullah is the complainant of the instant case, who produced written
application as Ex.P/l -A.
PW-2, Zafarullah is eye -witness of the instant case.
PW-3, Adam Khan, Levies Sepey is witness of the recovery memo. and produced the
recovery memo. of blood stained clothes of the deceased person, recovery memo. of seventeen (17) empties of 7.62 bore and recovery memo. of blood stained earth of the deceased person as Ex.P/3 -A to Ex.P/3- C, respectively. He also produced the above
said material as Articles P/1 to P/22 respectively.
PW-4, Dr. Mansoor Ahmed Khoso, Medical Officer is a Medical Officer of the
instant case, who produced medico- legal certificate of the deceased person
Muhammad Ali as Ex.P/4 -A.
PW-5, Abdul Razzaq, Naib Tehsildar, Jhal Magsi, is Investigation Officer ("I.O") of
the case, who brought on record produced FIR, site map, inquest report and
incomplete challan as Ex.P/5 -A to Ex.P/5- D.
PW-5-A Abdul Razzaq, Naib Tehsildar, Jhal Magsi appeared as PW- 5-A and recorded
his re -statement and produced inspection memo of occurrence as Ex.P/5 -E and
supplementary challan as Ex.P/5- F respectively.
5. After the close of the prosecution's evidence the accused persons were examined
under section 342, Cr.P.C, who denied the allegations of the prosecution levelled against them. They submitted that they are innocent and have committed no offence. The accused persons did not opt to record their statements on oath nor did they adduce any evidence in their defence.
6. After hearing arguments from both sides, the trial Court convicted and sentenced the
appellant Amir Ali son of Kaleemullah as mentioned in para- Suprai. However, the co-
accused person Ali Raza alias Garho son of Kaleemullah was acquitted of the charge by the trial Court, hence this appeal.
7. Learned counsel for the pauper appellant inter alia contended that the prosecution
failed to establish the case against the pauper appellant through reliable evidence; that on the same set -up of evidence, co- accused Ali Raza was acquitted of the charge; that no specific
role has been assigned to the pauper appellant for the commission of the offence; that
nothing has been recovered from his possession during the course of investigation.
8. On the contrary, learned Additional Prosecutor General opposed the contention of
learned counsel for the pauper appellant on the ground that the pauper appellant is nominated
in the prompt FIR; that the trial Court passed a well -reasoned judgment.
9. We have heard the learned counsel for the pauper appellant, learned APG and
minutely have gone through the record of the case. It has straightaway been observed by us
that according to the prosecution story, on the fateful day i.e., 14.11.2022, accused persons Ali Raza alias Garho and Aamir Ali, Fida Hussain and Tariq all by caste Nandani Magsi armed with deadly weapons made collective firing with their respective weapons on the house of the complainant, due to which one (1) bullet hit the head of complainant's son Muhammad Ali, aged about 5 years, who died at the spot. It is pertinent to mention here that the accused Ali Raza alias Garho to whom effective role in the occurrence was attributed had been acquitted of the charge through impugned judgment on the same setup of evidence as his role is also identical with that of the pauper appellant. It is a prosaic rule of law and equity that once arraignment witnesses are doubted concerning a co -blamed then, at that
point, they can't be depended upon with respect to the next co- charged until and except if it is
upheld by any free verifying piece of proof, which is prominently absent in the moment case. Reliance is placed upon the case laws titled as "Nazir Ahmad v. The State" 2018 SCMR 787, "Haroon Shafique v. The State and others" 2018 SCMR 2118 and "Shahbaz v. The State" 2016 SCMR 1763, wherein the Hon'ble Supreme Court of Pakistan held that: -
"The law is settled by now that if some eye -witnesses are disbelieved against some
accused persons attributed effective roles then the same eye- witnesses cannot be
relied upon to the extent of the other accused persons in the absence of any independent corroboration and a reference in this respect may be made to the cases of Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), Sarfraz alias Sappi and 2 others v. The State (2000 SCMR 1758), Iftikhar Hussain and others v. The State (2004 SCMR 1185) and Akhtar Ali and others v. State (2008 SCMR 6)."
10. We have additionally noted that the pauper appellant/convict was convicted and
sentenced by the trial Court on the strength of the site map (Ex.P/5- B) and held that: -
"He clearly shows the reality in site map about locality of occurrence present at that time, site map in Point No.3, that drench, where the accused Aamir son of
Kaleemullah by Caste Nandani fired, due to his bullet Muhammad Ali Nandani died
on the spot), which is corroborated by the MLC of deceased issued by PW -4."
We scrutinized the site map and statement of PW -5 (I.O) of the case, and strangely
noted that the Ex.P/5- B is silent that the same was prepared on whose pointation, because
PW-1 and PW -2 are totally silent in this regard, coupled with the fact that both eye -witnesses
are not assigned any role to the pauper appellant/convict but the I.O prepared the site map (Ex.P/5 -B) and whole case is silent in this regard that on whose information the same was
prepared. As stated above, the site map (Ex.P/5 -B) is totally silent that the same was made on
whose pointation, as such, the same cannot be considered in murder case.
11. After taking the ocular and medical evidence out of consideration, we are left with the
evidence of recoveries only, which being purely corroboratory in nature. In our view, the prosecution is not capable to bring home the charge against the pauper appellant/convict in the absence of any direct evidence because it is well settled that unless direct or substantive evidence is brought on record, conviction cannot be recorded on the basis of any type of evidence howsoever convincing it may be. Reliance is placed upon the case of "Muhammad Jamil v. Muhammad Akram and others" 2009 SCMR 12, wherein it was held as under:
"--S.302(b) ---Appreciation of evidence ---Principle ---ln a case of direct evidence other
pieces of evidence are used for corroboration or in support of direct evidence ----When
direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence. "
12. For the facts and reasons mentioned above, we are satisfied that the occurrence in the
instant case has not taken place in the mode and manner as suggested by the prosecution. The
prosecution has miserably failed to produce confirmatory evidence in this regard. In this case, there is a room for doubt, benefit whereof must go to the pauper appellant/convict. It is well established principle of law that to extend the benefit of the doubt, it is not necessary that there should be so many circumstances, if there is a single circumstance, creating
reasonable doubt regarding the prosecution case that is sufficient to give benefit to the
accused, whereas, the instant case as discussed in the preceding paras, is replete with
circumstances which have created serious doubts about the prosecution case. Reliance is placed on the case of "Muhammad Akram v. The State" 2009 SCMR 230 and "Muhammad Mansha v. The State" 2018 SCMR 772.
For what has been discussed above, we are of the considered view that the
prosecution has failed to prove its case against the pauper appellant beyond any shadow of doubt, therefore, we accept instant appeal filed by the pauper appellant Amir Ali son of Kaleemullah, set aside his conviction and sentence and acquit him of all the charges by extending him the benefit of doubt. The pauper appellant Amir Ali son of Kaleemullah is in jail, he be released from jail forthwith, if not required in any other case. Murder Reference is answered in the NEGATIVE and the sentence of death of Amir Ali son of Kaleemullah: pauper appellant is NOT CONFIRMED.
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