2025 Y L R 1401
[Balochistan]
Before Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ
KASHMIR alias Soba Khan ---Appellant
Versus
The STATE--- Respondent
Criminal Jail Appeal No. 19 of 2023, decided on 15th November, 2023.
(a) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149 ---Qatl-i-amd, rioting, rioting armed with deadly weapons,
unlawful assembly ---Appreciation of evidence ---Delay of 22 hours in lodging the FIR ---
Consequential ---Possibility of consultation and deliberation---Accused was charged for
committing murder of the brother of complainant along with his wife ---First Information
Report was lodged on 23.05.2021 at 10:30 pm with a delay of twenty- two hours despite
the fact that the distance between place of occurrence and Police chowki could be
covered in 8/9 hours by ordinary transport ---Complainant stated during cross -
examination that on 29.05.2021 at 7:00 pm, he left for chowki and reached chowki at 2:00 am on 30.05.2021---Question was then how the FIR was lodged on 29.05.2021 at
10:30 pm on his report ---Alleged report was lodged with delay and without any
explanation--- Police officials reached the place of occurrence on 29.05.2021 at 8:30 pm
before the lodgment of the FIR, which was confirmed by Investigating Officer ---
Investigating Officer also prepared the inquest report of the deceased under S.174, Cr.P.C and thereafter sent the dead bodies to civil hospital, which were then examined by Medical Officers on 29.05.2021 at 9:43 am ---Police should have lodged the FIR when
they reached the place of occurrence for the first time at 8:30 am, but the concerned SHO did not do so and waited for the complainant ---Under such circumstances, the
element of deliberation and consultation could not simply be ruled out of consideration---Appeal against conviction was allowed, in circumstances.
(b) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qanun -e-Shahadat (10 of 1984), Art. 129(g) ---Qatl -i-
amd, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Material witness not produced for evidence ---Scope ---Accused was charged
for committing murder of the brother of complainant along with his wife ---Complainant
did not figure out the name of the person who informed him about the alleged occurrence in his report and told the name of the accused persons ---However, when
complainant appeared before the Court, he stated during cross -examination that a Police
Official informed him about the occurrence, but said Police Official was not produced before the Court as a witness, which created reasonable doubt in the prosecution case---Appeal against conviction was allowed, in circumstances.
(c) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapons,
unlawful assembly ---Appreciation of evidence ---Mode and manner of the occurrence not
appealing ---Scope ---Accused was charged for committing murder of the brother of
complainant along with his wife ---Perusal of the record showed that in support of the
allegation, the prosecution produced the sole eye -witness/son of male deceased ---Said
witness deposed that the accused persons locked them in the room and committed the murder of his father and stepmother by hitting them with tyre lever rod/iron rods; that
accused persons threw the dead bodies in the other room and escaped from the spot by taking his brother and three sisters with them ---Complainant did not state a single word
about whether eye -witness called him and informed him about the alleged occurrence or
when he reached Police chowki, he was informed by eye -witness about the incident ---
Police also reached the place of occurrence before registration of the FIR, but the report
was not lodged on the complaint of eye -witness, nor was his statement under S.161,
Cr.P.C, recorded---On the other hand, statement of said witness was recorded under S.161, Cr.P.C, after registration of the FIR ---Had eye- witness been present or witnessed
the alleged occurrence, he would have informed the police or the complainant straight
away about the occurrence---If the statement of the said witness was believed to be true
for a moment, then the question arose as to how and why the appellant, acquitted
accused and absconding accused spared him and did not even try to kill him when they could have easily killed him because he was empty handed and at their mercy coupled with the fact that he could depose against the accused persons as an eye- witness being
the son of the deceased ---Mode and manner of the occurrence advanced by the
prosecution witness was not appealable to a prudent mind---Appeal against conviction was allowed, in circumstances.
(d) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapons,
unlawful assembly ---Appreciation of evidence ---Night time occurrence---Source of light
for identification of assailants not established ---Scope ---Accused was charged for
committing murder of the brother of complainant along with his wife ---According to the
prosecution, the alleged occurrence took place at 3:00 am at night ---Eye-witness failed
to mention any light source which could have been available at the place and time of occurrence, allowing the said witness to identify the assailants ---Investigation Officer
did not take into possession any article so as to prove that sufficient light was available at the place and time of occurrence for the witness to make a positive identity of the
assailant ---Prosecution failed to establish the fact of availability of light source and in
the absence of its ability to do so, the existence of such a light source could not be presumed ---Appeal against conviction was allowed, in circumstances.
Gulfam and another v. The State 2017 SCMR 1189 rel.
(e) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapons,
unlawful assembly ---Appreciation of evidence ---Improvements made by the witnesses in
their statements ---Consequential ---Accused was charged for committing murder of the
brother of complainant along with his wife ---Co-accused was tried by the Trial Court in
the first round, when the present appellant was an absconder in the challan and the case was kept dormant to his extent ---In the first round the complainant recorded his
statement on 09.08.2021 before the Trial Court and implicated the acquitted accused, the appellant, and other absconding accused with the allegation that they committed the murder of the deceased ---When the appellant was arrested, the complainant again
appeared before the Court on 02.07.2022, but he did not name the acquitted accused in his statement---When eye- witness appeared before the Court in the first round of the
case, i.e., on 30.08.2021, he stated in his statement that the acquitted accused, absconding accused and others committed the murder of his father and stepmother ---
However, when the appellant was arrested, the said witness again appeared before the Court and got recorded his statement on 22:07.2022 and exonerated the acquitted accused in his statement and only stated that the accused/appellant and absconding accused committed murder of his father and stepmother ---Therefore, the improvements
made by complainant and eye- witness were substantial and were made with regard to
crucial aspects of the prosecution evidence ---By improving their previous statement,
complainant and eye -witness impeached their own credibility---Appeal against
conviction was allowed, in circumstances.
Amir Zaman v. Mahboob and others 1985 SCMR 685 and Muhammad Arif v. The
State 2019 SCMR 631 rel.
(f) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapons,
unlawful assembly ---Appreciation of evidence ---Co -accused acquitted on the same set of
evidence ---Accused was charged for committing murder of the brother of complainant
along with his wife ---After a full dress trial, co -accused was acquitted of the charge vide
judgment dated 01.01.2022---Case was kept dormant to the extent of the absconding
accused (present appellant) ---Appellant was later on arrested and a supplementary
challan was submitted against him before the Trial Court on 10.05.2022--- Co-accused
was already acquitted by the Trial Court, which was not assailed by the complainant, as
such, his acquittal attained finality ---Prosecution produced the same set of evidence
against the appellant, which was already produced against the acquitted accused and was
disbelieved by the Trial Court ---If a set of evidence was disbelieved to the extent of
some accused, the same could not be believed to the extent of remaining accused facing the same trial without there being any independent and strong corroboration, which was lacking in the present case---Appeal against conviction was allowed, in circumstances.
(g) Penal Code (XLV of 1860) ---
----Ss. 302(b), 147, 148 & 149---Qatl -i-amd, rioting, rioting armed with deadly weapons,
unlawful assembly---Appreciation of evidence ---Recovery of tyre lever rod (weapon of
offence) at the instance of accused ---Inconsequential ---Accused was charged for
committing murder of the brother of complainant along with his wife ---Recovery of tyre
lever at the instance of the appellant did not connect the appellant with the commission of the crime ---Even if it was accepted as correct, there was no blood stain on the lever,
which was confirmed by the recovery witness, who stated during cross -examination that
no blood stain was found on the lever rod---Recovery witness was also a chance witness -
--According to the version of recovery witness, on 07.04.2022 at 10 or 11:00 am, he was sitting at a hotel in front of City Police Station and the Police Officials came and took
him to the police station where the accused and Investigation Officer were present and took him to pointed place and there the appellant pointed out where the crime weapon was lying in the bushes ---Address of recovery witness, according to his statement, was
the complainant's village ---Distance between said address and City Police Station was
about four hundred kilometers ---No explanation was given by the said witness as to why
he was present in front of the City Police Station at the relevant time ---Said aspect of the
matter also caused reasonable doubt in respect of the recovery of the alleged crime weapon ---Even otherwise, no corroborative evidence was produced by the prosecution to
establish the recovery of the alleged crime weapon ---Place of recovery was an open
place; how could it be possible that from 29.05.2021 till 07.04.2022, the alleged crime weapon was lying in the bushes, which was recovered on pointation of the appellant after such a long period---Therefore, the said recovery was also of no avail to the prosecution---Appeal against conviction was allowed, in circumstances.
Humaira Munir and Jamila Panezai for Appellant.
Abdul Mateen, DPG for the State.
Date of hearing: 24th October, 2023.
JUDGMENT
ROZI KHAN BARRECH, J .---Appellant Kashmir alias Soba Khan, son of Ghulam
Hussain, allegedly murdered Manzoor and his wife Mst. Meer Zadi, inside the house of the deceased Manzoor, situated at Balochabad Charhai Hub within the precincts of PS City Hub on 29.05.2021 at 3:00 am. For the commission of the said offence, the appellant was booked in case FIR No. 205 of 2021, registered at the said police station. After a regular trial the appellant was convicted, vide judgment dated 14th February 2023 ('the impugned judgment') by the learned Additional Sessions Judge -I, Hub ('the trial Court') in Case No. 05/2022 and
sentenced to suffer life imprisonment as Ta'zir and to pay compensation of Rs.100,000/ - to
the legal heirs of each deceased in terms of section 544 -A Cr.P.C and in default thereof to
further suffer simple imprisonment for six months with benefit of section 382- B Cr.P.C.
Being aggrieved from the impugned judgment, the appellant has filed the instant
appeal through Superintendent Central Prison Gaddani.
2. We have heard the learned counsel for the appellant as well as the learned DPG and
have gone through the record with their valuable assistance.
3. After cautious analysis of the evidence on record and considering the pros and cons so
put forth by the learned counsel for the parties, we have gathered that the prosecution's entire
case rests upon ocular evidence, medical evidence as well as investigation besides other attending circumstance's. The unfortunate episode of the murder of two persons for no valuable purposes is a drastic and unbearable trauma, having a stigmatic effect upon their family members and society. However, the courts have to decide the fate of a crime committed by a felon on the basis of impeachable evidence and not at the cost of emotions.
4. As far as the merits of the case are concerned, we have observed that the complainant,
namely, Maqbool Ahmed (PW -1) is not an eye -witness of the alleged occurrence. On
29.05.2021 at 10:00 am, he was present in his village at Bhag Nari District Kacchi when he received information through mobile phone that his brother Manzoor and his wife, Mst. Meer Zadi was murdered at night. The complainant, his younger brother Aslam, and uncle Sahib Khan proceeded to Hub Chowki on this information. When they reached at Hub Chowki, they were told that the dead bodies of the deceased had been kept at Edhi Cold Storage Sohrab Goth. He came to know that last night, i.e., at 3:00 am, the accused Sharif, Rafiq, Rahib, and Kashmir entered the house of the complainant's brother Manzoor (deceased) situated at Balochabad Charhai Hub, armed with deadly weapons and sharing common intention with the first wife of deceased Manzoor namely Mst. Momal committed the murder of his brother and his second wife and thereafter escaped from the place of occurrence along with deceased Manzoor's three daughters, namely Haseena, Sakina, and Azeema, son Qadir Ahmed, whereas they locked Zameer Ahmed and Zahoor Ahmed, in the house. The FIR was lodged on 23.05.2021 at 10:30 pm with a delay of twenty- two hours despite the fact that the
distance between Bhag District Kacchi and Hub Chowki can be covered in 8/9 hours by ordinary transport. It is worthwhile to mention here that the complainant stated during cross -
examination that on 29.05.2021 at 7:00 pm, he left for Hub Chowki and reached Hub Chowki at 2:00 am on 30.05.2021 then how the FIR was lodged on 29.05.2021 at 10:30 pm on his report. Even otherwise, the alleged report was lodged delay without any explanation. The police officials reached the place of occurrence on 29.05.2021 at 8:30 pm before the lodgment of the FIR, which was confirmed by Abdul Hakeem IP (PW -10), who conducted
the investigation of the case. He also prepared the inquest report of the deceased under section 174 Cr.P.C and thereafter sent the dead bodies to civil hospital Hub, which were then examined by PW -12 Dr. Yseen Zehri and PW -13 Dr. Reena Kohli on 29.05.2021 at 9:43 am.
It was the duty of the police who should have lodged the FIR when they reached the place of occurrence for the first time at 8:30 am, but the concerned SHO did not do so and waited for the complainant. Under such circumstances, the element of deliberation and consultation cannot simply be ruled out of consideration.
5. The complainant did not figure out the name of the person who informed him about
the alleged occurrence in his report and told the name of the accused persons, but when he appeared before the court, he stated during cross -examination that a police official, namely
Luqman, informed him about the occurrence, but the said Luqman was not produced before the court as a witness, which creates reasonable doubt in the prosecution case.
6. Perusal of the record shows that in support of the allegation, the prosecution produced
the sole eye- witness of the alleged occurrence, namely Zahoor Ahmed (PW- 3), and the fate
of the prosecution case primarily hinges upon the deposition of PW -3, which, if capable of
reliance, would warrant conviction of the said accused coupled with other circumstantial evidence. Zahoor Ahmed, while appearing before the court as PW -3, deposed that on the
fateful night, he along with his brother Zameer Ahmed, were presen t in one room, whereas
his mother, Mst. Momal and other sisters and brothers were in the second room, and his father, Manzoor Ahmed, and stepmother, Mst. Meer Zadi were sleeping in the courtyard when, at 3:00 am, he and his brother Zameer Ahmed woke up due to noise. The accused persons locked them in the room and committed the murder of his father and stepmother by hitting them with tyre leaver/iron rods. The accused persons threw the dead bodies in the other room and escaped from the spot by taking his brother Qadeer Ahmed and sisters Haseena, Sakina, and Azeema with them. It is worthwhile to mention here that while the complainant appeared before the court, he did not state a single word that either Zahoor Ahmed called him and informed him about the alleged occurrence or when he reached Hub Chowki, he was informed by Zahoor Ahmed about the incident. It is stated earlier that the
police also reached the place of occurrence before registration of the FIR, but the report was
not lodged on the complaint of Zahoor Ahmed, nor was his statement under section 161 Cr.P.C recorded. On the other hand, his statement was recorded under section 161 Cr.P.C after registration of the FIR. Had he been present or witnessed the alleged occurrence, he would have informed the police or the complainant straight away about the occurrence. If the
statement of the above witness is believed to be true for a moment, then the question arises
as to how and why the appellant acquitted accused, and absconding accused spared him and
did not even try to kill him when they could have easily killed him because he was empty handed and at their mercy coupled with the fact that he could depose against the accused persons as an eye- witness being the son of the deceased. The mode and manner of the
occurrence advanced by the prosecution witness is not appealable to the prudent mind.
7. According to the prosecution, the alleged occurrence took place at 3:00 am at night.
When Zahoor Ahmed appeared before the court as PW -3, he failed to mention any light
source which could have been available at the place and time of occurrence, allowing the said witness to identify the assailants. The investigation officer did not take into possession any article so as to prove that sufficient light was present at the place of occurrence at the time of occurrence for the witness to make a positive identity of the assailant. The
prosecution failed to establish the fact that such availability of light source and in the
absence of his ability to do so, we cannot presume the existence of such a light source.
Reliance is placed on the case of Gulfam and another v. The State 2017 SCMR 1189.
8. It is worthwhile to mention here that the co -accused Muhammad Ismail was tried by
the trial court in the first round, when the present appellant was an absconder in the challan,
and the case was kept in dormant to his extent. In the first round the complainant recorded
his statement on 09.08.2021 before the trial court and implicated the acquitted accused, Muhammad Ismail, the appellant, and other absconding accused with the allegation that they committed the murder of the deceased. When the appellant Kashmir was arrested, the complainant again appeared before the court as PW -1 on 02.07.2022, but he did not name the
acquitted accused, Muhammad Ismail, in his statement. When PW- 3 appeared before the
court in the first round of the case, i.e., on 30.08.2021, he stated in his statement that the acquitted accused, Muhammad Ismail, absconding accused Kashmir and others, committed the murder of his father and stepmother. However, when the appellant was arrested, the said witness again appeared before the court as PW- 3 and got recorded his statement on
22.07.2022; he exonerated the acquitted accused, Muhammad Ismail, in his statement and only stated that the accused/appellant and absconding accused, Sharif committed murder of his father and stepmother. Therefore, the improvements made by PW1 and PW -3 were
substantial and were made with regard to crucial aspects of the prosecution evidence. By improving their previous statement, Maqbool Ahmed (PW -1) and Zahoor Ahmed (PW -3)
impeached their own credit. Article 151 of the Qanun- e-Shahadat Order, 1984 provides as
under:
"151. Impeaching credit of witness. The credit of a witness may be impeached in the following ways by the adverse party, or, with the consent of the Court, by the party who calls him:
(1) by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be un worthy of credit.
(2) by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence.
(3) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted "
PW-1 and PW -3 introduced a dishonest, blatant, and substantial improvement to their
previous statements; hence, their credit stands impeached and cannot be relied upon on being proved to have deposed with a slant intended to mislead the court. It is held in the case of
Amir Zaman v. Mahboob and others (1985 SCMR 685) that the testimony of witnesses
containing material improvements is not believable and trustworthy. The August Supreme Court of Pakistan, in the case of Muhammad Arif v. The State (2019 SCMR 631) has enunciated the following principle:
"It is well established by now that when a witness improves his statement and moment it is observed that the said improvement was made dishonestly to strengthen
the prosecution, such portion of his statement is to be discarded out of consideration.
Having observed the improvements in the statements of both the witnesses of ocular account, we hold that it is not safe to rely on their testimony to maintain conviction and sentence of Muhammad Arif (appellant) on a capital charge."
9. The other aspect of the matter is that the acquitted accused, Muhammad Ismail, was
arrested, and a challan was submitted against him on 07.07.2021, whereby after a full dress trial, he was acquitted of the charge vide judgment dated 01.01.2022. The case was kept in dormant to the extent of the absconding accused (present appellant). The appellant was later on arrested, and a supplementary challan was submitted against him before the trial court on
10.05.2022. The co- accused Muhammad Ismail was already acquitted by the trial court vide
judgment dated 01.01.2022, which was not assailed by the complainant, as such, his acquittal
attained finality. The prosecution produced the same set of evidence against the appellant, which was already produced against the acquitted accused, Muhammad Ismail, and was disbelieved by the trial court. It is well settled by now that if a set of evidence is disbelieved
to the extent of some accused, the same cannot be believed to the extent of remaining
accused facing the same trial without there being any independent and strong corroboration,
which is lacking.
10. So far, the recovery of tyre leaver at the instance of the appellant is concerned; the same
does not connect the appellant with the commission of the crime. Even if it is accepted as correct, there was no blood stain on the leaver, which was confirmed by the recovery witness, namely Abdul Latif (PW -6), who stated during cross -examination that no blood stain was
found on the leaver rod. The recovery witness, namely Abdul Latif, is also a chance witness. According to his version, on 07.04.2022 at 10 or 11:00 am, he was sitting at a hotel in front of
City Police Station Hub, and the police officials came and took him to the police station where
the accused Kashmir and SI Sakhi Dad were present and took him to Balochabad Charhai Hub
and there the appellant pointed out where the crime weapon was lying in the bushes. The address of Abdul Latif (PW -6), according to his statement, is at Bhag Nari District Kacchi,
which was the complainant's village. The distance between Bhag Nari and Hub is about four hundred kilometers. No explanation was given by the said witness as to why he was present in front of the City Police Station Hub at the relevant time. This aspect of the matter also caused reasonable doubt in respect of the recovery of the alleged crime weapon. Even otherwise, no corroborative evidence was produced by the prosecution to establish the recovery of the alleged crime weapon. The prosecution produced PW -10, who did not state a single word that
from where the alleged recovery was affected on the pointation of the appellant. The place of recovery is an open place; how can it be possible that from 29.05.2021 till 07.04.2022, the alleged crime weapon was lying in the bushes, which was recovered on pointation of the appellant after such a long period? Therefore, the said recovery is also of no avail to the prosecution.
11. All the above -narrated facts and circumstances, when evaluated on judicial parlance,
reflect that the prosecution has miserably failed to establish the culpability of the appellant in the instant case through reliable, trustworthy, and confidence inspiring evidence.
12. From the facts and circumstances narrated above, we are persuaded to hold that the
conviction passed by the trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per the dictates of the law, the benefit of the doubt is to be extended in favour of the accused. Resultantly, Criminal Jail Appeal No. 19 of 2023 filed by the appellant is allowed, and after setting aside the conviction and sentence recorded by the trial court in terms of the judgment dated 14th February 2023 passed by learned Additional Sessions Judge -I, Hub in Case No. 05/2022, the
appellant is acquitted of the charge in FIR No. 205/2021 PS City Hub under sections 302, 147, 148 and 149 P.P.C.. The appellant Kashmir alias Soba Khan, son of Ghulam Hussain, is ordered to be released forthwith if not required in any other case.
JK/16/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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