2025 Y L R 1545
[Balochistan]
Before Zaheer- ud-Din Kakar and Shaukat Ali Rakhshani, JJ
NAZIR AHMAD---Appellant
Versus
The STATE--- Respondent
Criminal Appeal No.(s) 27 of 2023, decided on 30th October, 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---Motive not proved---Accused were
charged for committing murder of the son of complainant by firing ---Motive alleged by
complainant was stated to be an old enmity ---Record showed that the brother of
complainant stated that the animosity was not of a serious nature except few altercations
which took place between them on petty matters ---In such a situation, it was
unbelievable that the appellant or his companions would come from far flung area to the area of the complainant party and committed murder of deceased ---Secondly, it was also
improbable that three armed persons including the appellant would make indiscriminate
firing from a close proximity upon the deceased and complainant, who was sitting on a motorbike, but not a single bullet would hit the complainant, his brother or his nephew, who were coming on the other motorbike at a close distance ---Moreso, there was also no
reason to believe that the culprits would leave the complainant, his brother and nephew, alive to become witnesses in order to drive them to capital punishment of death ---Appeal
against conviction was allowed, in circumstances.
(b) 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 ---Medical evidence not in harmony with
ocular account ---Accused were charged for committing murder of the son of complainant
by firing ---Medical Officer, who examined the deceased and issued post -mortem report,
had observed firearm entrance wound 2 inch on right hip joint and exit nil ---Ocular
account demonstrated that indiscriminate firing was made upon the deceased by bursting out the entire rounds in the magazine, but the deceased only received a single fire shot wound on his hip joint ---Had it been the intent of the assailants to commit murder, the
fire shots would have been repeated and the deceased would have not received merely a bullet wound on his hip, which visualized that the occurrence had not taken place as narrated by complainant and his brother ---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 ---Recovery of weapon of offence on the
disclosure of accused ---Inconsequential ---Accused were charged for committing murder
of the son of complainant by firing ---In the present case, the recovery witness testified
that on 31.07.2022 the appellant made disclosure and on his pointation got recovered statedly a country made 222 Kalashnikov with nine rounds of 7.62 bore hidden un der the
ground in the house of the appellant, covered with soil ---Complainant and his brother
had categorically stated that at the relevant time when the murder was committed the appellant and co -accused were living in far flung area, whereas the recovery of crime
weapon was made from a house situated at place of occurrence, statedly the old house of the appellant ---Complainant while nominating the appellant and co- accused persons in
the FIR mentioned their address of far flung area ---Medical evidence albei t confirmed
the fact that the deceased received firearm wound mentioned in the postmortem report,
but it could not be considered as a corroborative piece of evidence rather it merely
confirmed the cause, duration, locale and kind of weapon used, but in no way identified the culprit ---Mere recovery of a crime weapon itself would not be considered as a
corroborative piece of evidence unless positive ballistic report thereof was available---In the instant case, although positive Forensic Science Laboratory Report had been issued,
but the same had no evidentiary value for the reason that five spent cartridges of 7.62
bore were secured from the crime scene on 21.07.2021, but the same were not sent for
Forensic Science Laboratory immediately, rather after recovery of the crime weapon allegedly on 31.07.2022 both were sent together belatedly, which was received in the office of Forensic Science Laboratory on 10.10.2022---Appeal against conviction was allowed, in circumstances.
Muhammad Mansha v. State 2018 SCMR 772; Mushtaq v. The State PLD 2008 SC 1
and Ali Sher v. The State 2008 SCMR 707 rel.
(d) 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 ---Adverse presumption ---Effect ---
Accused were charged for committing murder of the son of complainant by firing ---
Record showed that one of the important eye -witnesses was nephew of complainant, who
was not produced before the Court ---Though, said witness appeared on 28.12.2022, but
his statement was not recorded and thereafter he was never produced before the Court,
amounting to withholding material evidence, which offended Art.129(g) of the Qanun- e-
Shahadat, 1984--- Presumption was that had such witness been produced before the Court,
he would not have supported the prosecution version---It also raised the presumption that
evidence which could be and was not produced would, if produced, be un- favourable to
the person who withholds it ---Circumstances established that the prosecution had failed
to prove the indictment---Appeal against conviction was allowed, in circumstances.
Tahir Khan v. State 2011 SCMR 646 and Zarsheda v. Nobat Khan PLD 2022 SC 21
rel.
Hafeezullah and Najamuddin Mengal for Appellant.
Jamil Akhtar Gajani, Additional Prosecutor General (APG) for the State.
Date of hearing: 24th August, 2023.
JUDGMENT
SHAUKAT ALI RAKHSHANI, J. ---Veracity and legality of the judgment dated
18.02.2023 ("impugned judgment") handed down by learned Sessions Judge, Usta Muhammad ("trial court") emanating from FIR No.12 of 2021 registered with Police Station Saddar Usta Muhammad has been questioned, whereby the appellant has been convicted and sentenced in the following terms;
"The facts and circumstances at the most constitute an offence punishable by provisions of section 302(b) read with sections, 147, 148, 149 as Tazir. Therefore, I convict accused Nazir Ahmed son of Muhammad Ilayat alias Nchal Khan by caste Magsi, resident of Zehri Khuzdar under Section 302 (b) read with Section 149 P.P.C and sentence to Life Imprisonment 1.c 25 (Twenty Five years) rigorous imprisonment as well as to pay compensation amount Rs.200,000/ - (Rupees Two
Lac) to the legal heirs of deceased Lal Jan or in default whereof, to undergo Six (06) Months simple imprisonment for committing the murder of deceased Lal Jan. Accused is convicted under Section 147 P.P.C and sentence one (01) year rigorous imprisonment. Accused is further convicted under Section 148 P.P.C and sentence Two (02) years Rigorous imprisonment. The awarded conviction and sentence run concurrently. Benefit of Section 382- B Cr.P.C is extended in favour
of convict."
2. Laconically, complainant Dariya Khan (PW -2) got registered the FIR ibid (Ex.P/7 -A)
dated 21.07.2021 through an application (Ex.P/2- A), contending therein that on the said day
complainant's brother Jaffar Khan, nephew Habibullah and Lal Jan (complainant's son) came
to his house situated at Goth Muhammad Nawaz on the eve of 'Eid', whereafter, complainant along with his son Lal Jan on one motorbike and his brother Jaffar Khan and his nephew
Habibullah on the other were proceeding towards village Daba Goth Muhammad Nawaz and
about 01:00 pm, when they reached Jaffarabad bridge Bada Market, appellant Nazir Ahmed
with Munir Ahmed and Nadir and two other unknown persons having firearms arrived there on their motorbikes and fired at them discriminately in order to kill them all, whereby his son Lal Jan received firearm wound and fell down, whereas they luckily remained safe, but his son succumbed on the spot, whilst accused persons fled away, when they saw people coming towards the place of occurrence. Motive was stated to be an old enmity between them.
3. After registration of the FIR, investigation was entrusted to Madni Khan SI (PW -
7), who arrived at the crime scene, inspected the site, prepared site plan (Ex.P/7- B),
secured bloodstained earth from the crime scene through recovery memo. (Ex.P/5 -B), five
spent bullets through recovery memo. (Ex.P/5- C) and sent the deceased to hospital on
23.07.2021, took into possession bloodstained clothes and sent the same to FSL for
chemical analysis, whereof FSL report (Ex.P/7 -F) was received. On 19.07.2022 the
appellant was arrested. On 31.07.2022 the appellant allegedly made disclosure, whereof
memo. (Ex.P/4 -A) was prepared and on the basis thereof he got recovered statedly 222
kalashnikov with a magazine and nine live rounds, whereof parcel No.4 was prepared and
same was taken into possession through recovery memo. (Ex.P/4- B). The five spent
cartridges along with rifle was sent, which was received in the office of FSL on 10.10.2022 for ballistic opinion, whereof positive report (Ex.P/7 -J) was issued. On
conclusion of investigation, he was sent to the court of Additional Sessions Judge, Usta
Muhammad for trial, but thereafter on the direction of this Court the case was transferred to the trial court.
4. A formal charge was framed and read over to the appellant, to which he did not
plead guilty and claimed trial, whereas co -accused Munir Ahmed and Nadir were
declared proclaimed offenders. The prosecution to bring home the charge produced seven witnesses. On close of prosecution side, the appellant was examined under Section 342 of the Code, which allegations were confuted by him, however, neither he entered as witness in his defence nor produced anyone else to defend him, henceforth, on conclusion of the trial, appellant was convicted and sentenced in the above terms mentioned in para supra.
5. Learned counsel for the appellant inter alia contended that the prosecution has failed
to prove the case, but the trial court by misreading the evidence has held the appellant guilty of the charge and that the impugned judgment is illegal and contrary to law. Added further that the appellant was apprehended after lapse of one year from the date of registration of the FIR, while no specific role has been attributed to him. He maintained that the appellant has been roped in the present case on account of rivalry between the parties. He also argued that the crime weapon has been foisted against him, whereas the FSL report is also of no consequence, whereupon no reliance can be placed. He asserted that there are material contradictions and irregularities in the present case, on the basis whereof the appellant cannot be held guilty of the indictment, thus deserves to be acquitted of the charge.
Conversely, learned APG vigorously opposed the instant criminal appeal filed by
the appellant against his conviction and contended that the medical evidence has corroborated the testimonies of the ocular account of PWs -2 and 3. He further submitted
that the prosecution has proved the case without any doubt; thus, the judgment impugned herein being based on proper appraisal of the evidence needs not to be meddled with, therefore, sought dismissal of the appeal.
6. Heard learned counsel for the parties and record vetted with utmost muse and care.
The case of the prosecution hinges upon the ocular testimony of complainant Dariya Khan (PW -2) and Jaffar Khan (PW -3), who have furnished ocular account and testimony
of Dr. Ahmed Khan (PW -1) coupled with the recovery of crime weapon i.e. kalashnikov
with positive ballistic report. Complainant (PW -1), who is father of deceased testified
that on 21.07.2021 his son Lal Jan, brother Jaffar Khan (PW -3) and nephew Habibullah
(not produced) came to his house for Eid greetings; thereafter, while complainant along
with his son Lal Jan on one motorbike and his brother Jaffar Khan and his nephew Habibullah on the other were proceeding towards village Daba Goth Muhammad Nawaz and about 01:00 pm, when they reached Jaffarabad bridge Bada Market, appellant Nazir Ahmed with Munir Ahmed and Nadir and two other unknown persons, having firearms
arrived there on their motorbikes and fired at them discriminately in order to kill them,
resultantly his son Lal Jan received one fire shot wound, who succumbed on the spot,
whereas they remained safe. Motive was stated to be an old animosity. During cross -
examination, he replied that at the time of occurrence the accused persons were his neighbors in Anjera Zehri. He failed to state the distance between the place of occurrence and his house, however, stated that the distance is of five minutes and admitted that there are several shops at the crime scene and that it is a populated area. He affirmed that due to eve of Eid, lots of people were present there, who after the occurrence came at the crime scene. According to him, at the time of occurrence he was riding the motorbike whereas his deceased son at the back and that they were fired at from the left side and
after ten minutes he left the crime scene on his motorbike towards Police Station, where
he reached 10 to 15 minutes and made a verbal statement. Jaffar Khan (PW -3) testified in
line with the deposition of Dariya Khan (PW -2). During cross -examination, he stated that
the accused persons were living in Anjera Zehri at the relevant time with whom they had
no serious grudge except some altercation on petty matters. He also affirmed that the
assailants fired at them from left side and that Dariya Khan (PW -2) and his son Lal Jan
were ahead of them and that the distance between their motorbike and of deceased was
about 5 to 10 feet. He also replied that the entire burst shots were made at them at a close proximity. During cross -examination, he stated that he did not know that who fired first.
He denied that he was not present at the crime scene.
7. The events and mode of homicidal death of the deceased Lal Jan after meticulous
recital and critical analysis of the ocular account furnished by both the eye -witnesses
seems improbable, which is difficult to buy. The first and foremost reason is that the motive alleged by complainant was stated to be of an old enmity, but his brother Jaffar Khan (PW -3) stated that the animosity was not of a serious nature except few altercations
which took place between them on petty matters. In such a situation, it is unbelievable that the appellant or his companions would come from Anjera Zehri being far flung area to the area of the complainant party and commit murder of deceased Lal Jan. Secondly, it is also improbable that three armed persons including the appellant would make indiscriminate firing at a close proximity upon the deceased and complainant, who was sitting on a motorbike, but not a single bullet would hit the complainant (PW -2), Jaffar
Khan (PW -3) or his nephew Habibullah, who were coming on the other motorbike at a
close distance. More -so, there is also no reason to believe that the culprits would leave
the complainant, his brother and nephew alive to become witnesses in order to drive them to capital punishment of death.
8. The medical evidence also is not in harmony with the ocular account. Dr. Ahmed
Khan Gopang (PW -1) examined the deceased Lal Jan on 21.07.2021 at about 8.20 pm,
who issued postmortem report (Ex.P/1- A), wherein he observed as under;
"1. Firearm entrance wound 2 inch right Hip joint.
2. Exit Nil."
9. The ocular account demonstrates that indiscriminate firing was made upon the
deceased by bursting out the entire rounds in the magazine, but the deceased only received a single fire shot wound on his hip joint. Had the intent of the assailants to commit murder, the fire shots would have been repeated and the deceased would have not received merely a bullet wound on his hip, which visualizes that the occurrence has not taken place as narrated by complainant Dariya Khan (PW- 2) and Jaffar Khan (PW -3).
10. As far as the recovery of crime weapon is concerned, the prosecution produced
Irfan Ahmed Constable (PW -4), who testified that on 31.07.2022 the appellant made
disclosure and on his pointation got recovered statedly a country made 222 kalashnikov with nine rounds of 7.62 bore having been hid under the ground in the house of the appellant, covered with soil. Dariya Khan (PW -2) and Jaffar Khan (PW -3) have
categorically stated that at the relevant time when the murder was committed the
appellant and co -accused were living in Anjera Zehri, whereas the recovery of crime
weapon was made from a house situated at Jaffarabad statedly the old house of the
appellant. The complainant while nominating the appellant and co -accused persons in the
FIR mentioned their address of Anjera Zehri at Khuzdar. The medical evidence albeit confirms the fact that the deceased Lal Jan received firearm wound mentioned in the
postmortem report (Ex.P/1- A), but it cannot be considered as a corroborative piece of
evidence rather it merely confirms the cause, duration, locale and kind of weapon used,
but in no way identifies the culprit as held by the apex Court in the case of "Muhammad Mansha v. State (2018 SCMR 772), relevant portion whereof is reproduced hereunder;
"It has been declared by this Court in various judgments that the medical evidence neither pin point the accused nor establish the identity of the accused, and at the most can depict the locale of injury, duration, weapon used etc. and medical evidence can never be considered to be a corroborative piece of evidence and at the most can be considered a supporting evidence only to the extent of specification of seat of injuries, the weapon used, duration, the cause of death etc. reference in this context can be made to the cases of Muhammad Sharif and another v. The State (1997 SCMR 127). Dildar Hussain v Muhammad Afzal alias Chala and others (PLD 2004 SC 663). Abdul Majeed v. Mulzim Hussain and others (PLD 2007 SC 637) and Hashim Qasim and another v. The State ( 2017 SCMR 986)."
11. It is now well settled cannon of criminal administration of justice that mere
recovery of a crime weapon itself would not be considered as a corroborative piece of evidence unless positive ballistic report thereof is available. In the instant case, although positive FSL report (Ex.P/7 -J) has been issued, but the same has no evidentiary value for
the reason that five spent cartridges of 7.62 bore were secured from the crime scene on
21.07.2021, but the same were not sent for FSL immediately rather after recovery of the
crime weapon allegedly on 31.07.2022 both were sent together lately, which was received
in the office of FSL on 10.10.2022, which offends the dictum expounded in the cases of "Mushtaq v. The State" (PLD 2008 SC 1) and "Ali Sher v. The State" (2008 SCMR 707), thus no explicit reliance can be placed upon the recovery of crime weapon (Ex.P/4- B) and
FSL report (Ex.P/7 -J).
12. Besides above, one of the important eye -witnesses was Habibullah, nephew of
Dariya Khan (PW- 2) and Jaffar Khan (PW -3), who was not produced before the court.
Though, he appeared on 28.12.2022, but his statement was not recorded and thereafter he was never produced before the court, amounting to withholding the material evidence, which offends Article 129(g) of the Qanun -e-Shahadat Order, 1984 ("QSO of 1984"). The
apex Court in the case of 'Lal Khan v. The State' (2006 SCMR 1846) held that had such witness been produced before the court, he would have not supported the prosecution version. According to the illustrations highlighted for resonating the presumption, illustration (g) of Article 129(g) of QSO of 1984 is quite relevant, which contemplates that evidence which could be and is not produced would, if produced, be un- favourable to
the person who withholds it. The view expounded in the Lal Khan's case was reiterated and endorsed in the cases of "Tahir Khan v. State" (2011 SCMR 646) and "Zarsheda v. Nobat Khan" (PLD 2022 SC 21).
13. We are of the firm view that the prosecution has failed to prove the indictment as
not only the ocular account is improbable but it also does not inspire confidence and more particularly, it does not coincide with the medical evidence and that the recovery of the crime weapon with positive FSL report being inconclusive and having been procured while offending the dictum ibid, thus on the basis thereof we are not persuaded to maintain the conviction and sentence awarded by the trial court. Henceforth, the appellant is entitled to be acquitted of the charge while extending premium of benefit of doubt.
Our view is fortified by the judgment of the apex Court titled as "Naveed Asghar
v. State" (PLD 2021 SC 600), the relevant para whereof is reproduced herein below;
"33. It is a well -established principle of administration of justice in criminal cases
that finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in
the case and the plain inferences of guilt that may irresistibly be drawn from that
evidence. Mere conjectures and probabilities cannot take the place of proof. If a case is decided merely on high probabilities regarding the existence or non -
existence of a fact to prove the guilt of a person, the golden rule of giving "benefit of doubt to an accused person, which has been a dominant feature of the
administration of criminal justice in this country with the consistent approval of
the Constitutional Courts, will be reduced to a naught." The prosecution is under
obligation to prove its case against the accused person at the standard of proof required in criminal cases namely, beyond reasonable doubt standard, and cannot be said to have discharged this obligation by producing evidence that merely meets the preponderance of probability standard applied in civil cases. If the prosecution fails to discharge its said obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused person, the benefit of that doubt is to be given to the accused person as of right not as of concession. The rule of giving benefit of doubt to accused person is essentially a
rule of caution and prudence, and is deep rooted in our jurisprudence for safe
administration of criminal justice. In common law, it is based on the maxim, "It is
better that ten guilty persons be acquitted rather than one innocent person be convicted. While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (peace be upon him): "Avert punishments
[hudood] when there are doubts"; and" Drive off the ordained crimes from the
Muslims as far as you can. If there is any place of refuge for him [accused], let
him have his way, because the leader's mistake in pardon is better than his mistake in punishment". A three -member Bench of this Court has quoted probably latter
part of the last mentioned saying of the Holy Prophet (peace be upon him) in Ayub
Masih v. State 37 in the English translation thus: "Mistake of Qazi (Judge) is in
releasing a criminal is better than his mistake in punishing an innocent."
14. Corollary, the instant appeal is allowed; the impugned judgment dated 18.02.2023
handed down by the trial court is set -aside and consequently the appellant stands
acquitted of the charge.
The appellant be forthwith released, if not detained in any other case.
JK/23/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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