PLJ 2022 Cr.C. (Note) 31
Administration of Justice--
----It is an established principle of law that each criminal case has its own peculiar facts and circumstances and same seldom coincide with each other on salient features--Admittedly, it is an unfortunate incident in which brother of complainant lost his life, but to put facts and circumstances in equilibrium with touchstone of safe administration of justice, we have scrutinized whole evidence available on record while weighing same on judicial parlance--It has been observed by us that prosecution has led evidence in shape of ocular account, medical evidence, as well as investigation besides other attending circumstances. [Para 5] A
Evidence--
----Related witness--Testimony of--No doubt evidence of related witnesses cannot be discarded on ground of its being related to victim but if it is found that testimony of related witness got no corroboration from attending circumstances of case or conduct shown by them at time of occurrence or just thereafter as such, which cannot be expected from a prudent person, then under such circumstances evidence furnished by related witnesses cannot be easily discarded--At touchstone of above we now taken into consideration testimonies furnished by above witnesses in case.
[Para 6] B
Delay in case--
----Inadvertent delay--Inadvertent delay in setting machinery of law in motion speaks volumes against veracity of prosecution version.
[Para 8] C
Principle of Justice--
----Benefit of doubt--Golden principle--There is no two opinions about fact that cardinal principle of justice always laid emphasis on quality of evidence which must be of first degree and sufficient enough to dispel apprehension of Court with regard to implication of innocent persons alongwith guilty one by prosecution, otherwise, golden principle of justice would come into play that even a single doubt if found reasonable would be sufficient to acquit accused, giving him/them benefit of doubt because bundle of doubts are not required to extend legal benefit to accused. [Para 14] D
1995 SCMR 1730.
Pakistan Penal Code, 1860 (XLV of 1860)--
----S. 302(c)--Conviction and sentence--Challenge to--Golden principle of benefit of doubt--Appraisement of evidence--Appraisement of evidence of eye witnesses has to be based upon a foil consideration and evaluation of all circumstances appearing in case where there is fatal absence of physical circumstances to connect accused person with crime and there is a motive and in such a situation, ocular evidence must, in order to carry conviction on a capital charge, come from unimpeachable source and if such source is not available, then it must be supported by some strong circumstance which would enable Court to overcome inherent doubt which such evidence must necessarily create--Conviction passed by trial Court against appellant in circumstances is against all canons of law recognized for safe dispensation of criminal justice--As per dictates of law benefit of every doubt is to be extended in favour of accused--Appeal allowed. [Para 15 & 16] E & F
PLD 1973 SC 321 and PLD 1979 SC 10.
Mr. Tahir Ali Baloch, Advocate for Appellant.
Mr. Abdul Mateen, Deputy Prosecutor General (“DPG”) for State.
Date on Hearing: 17.10.2019.
PLJ 2022 Cr.C. (Note) 31
[Balochistan High Court, Quetta]
Present: Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ.
RAFAAT SHAH--Appellant
versus
STATE--Respondent
Crl. A. No. 233 of 2019, decided on 22.11.2019.
Judgment
Rozi Khan Barrech, J.--The appellant having been involved in case FIR No. 06 of 2017 dated 10.04.2017 registered under Section 302, PPC at Levies Thana Kapeep District Sheerani was tried by the learned Sessions Judge/Model Criminal Trial Court (MCTC) Zhob (hereinafter “the trial Court”) and on completion thereof by means of judgment dated 01.06.2019 (hereinafter “the impugned Judgment”) convicted and sentenced the appellant in the following terms:
“Convicted under Section 302(C) of the Pakistan Penal Code, 1860 and sentenced him to suffer Rigorous Imprisonment for the period often (10) years as Ta’zir. The accused Rafaat Shah is further directed to pay Rs. 50,000/- (Rupees Fifty Thousand Only) as compensation to the legal heirs of the deceased Muhammad Nawaz as provided under Section 544-A, Cr.P.C. In default thereof to suffer further SI (Simple Imprisonment) for six (06) months. The benefit of Section 382-B, Cr.P.C., is extended in favour of accused”.
2. Feeling aggrieved from the impugned judgment the appellant has assailed his conviction and sentence through Criminal Appeal bearing No. 233 of 2019.
3. The prosecution story as disclosed in the report (Ex.P/1-A) recorded on the statement of PW-1 Muhammad Rafique(complainant) is that on 09.04.2017 at about 10:00 a.m., he had sent his brother Muhammad Nawaz Khan on a motorcycle to bring petrol from nearby petrol pump station and when he returned home, he saw the colour of his brother’s face was changed. On asking his brother told that he had gone to the shop of accused (facing trial) situated near petrol pump where quarrel took place between him and accused; during the course of quarrel the accused/appellant hit him with a stone on his head. The complainant along with Wali Khan and Sanaullah took his injured brother to Civil Hospital, Zhob, for treatment in vehicle and when they reached at Dr. Kamal Khan Chowk, his brother became unconscious who was then taken to Civil Hospital in unconscious condition. It is further alleged in the report that in Civil Hospital, Zhob, the doctors immediately referred his brother to Quetta and soon after they left for Quetta, but in the way towards Quetta his brother Muhammad Nawaz Khan succumbed to injures at Kuchlak. They brought the dead body to Civil Hospital, Zhob. On 10.04.2017 he lodged FIR.
4. After completion of the investigation, the challan was submitted before the learned trial Court. During trial, the prosecution produced nine (09) witnesses in all. However, the accused got recorded statement on oath and did not produce any witness in his defence. The learned trial Court after full dressed trial the accused/appellant was convicted and sentenced vide impugned judgment dated 01.06.2019 as mentioned hereinabove.
5. Arguments advanced from both sides have been heard. We have also minutely gone through the record available on file with the able assistance of learned counsel for the parties. It is an established principle of law that each criminal case has its own peculiar facts and circumstances and the same seldom coincide with each other on salient features. Admittedly, it is an unfortunate incident in which brother of the complainant lost his life, but to put the facts and circumstances in equilibrium with the touchstone of safe administration of justice, we have scrutinized the whole evidence available on record while weighing the same on judicial parlance. It has been observed by us that the prosecution has led evidence in the shape of ocular account, medical evidence, as well as investigation besides other attending circumstances.
6. As far as merits of the case are concerned, we have observed that the prosecution produced PW-1 Muhammad Rafique who is complainant of the case but he is not eye-witness of the incident. PW-2 Wali Khan and PW-3 Sanaullah who were eye witnesses of the occurrence. Perusal of the record shows that the prosecution has produced the above three witnesses in support of its charge but all the above three witnesses are closely related to the deceased Muhammad Nawaz Khan. PW-1 Muhammad Rafique is brother of the deceased. PW-2 is relative of the deceased and PW-3 is cousin of the deceased, therefore, for safe dispensation of justice, their evidence will have to be appreciated with care and caution. No doubt the evidence of the related witnesses cannot be discarded on the ground of its being related to the victim but if it is found that the testimony of the related witness got no corroboration from attending circumstances of the case or the conduct shown by them at the time of occurrence or just thereafter as such, which cannot be expected from a prudent person, then under such circumstances the evidence furnished by the related witnesses cannot be easily discarded. At the touchstone of the above we now taken into consideration the testimonies furnished by the above witnesses in the case.
7. It reflects from the record that the occurrence took place on 09.04.2017 at about 10:00 a.m., allegedly in the presence of PW-2 and PW-3 but the report was lodged on 10.04.2017 at 12:30 p.m., by PW-1 Muhammad Rafique who is not eye-witness of the alleged occurrence with delay of 26 hours. PW-1 stated in his report (Ex.P/1-A) as well as his statement before the Court that on 09.04.2017 at 10:00 a.m., he had sent his brother on a motorcycle to bring petrol from nearby petrol pump station and when he returned home, he saw the colour of his brother’s face was changed. On asking his brother told that he had gone to the shop of accused/appellant situated near petrol pump where quarrel took place between him and accused/appellant and during the course of quarrel the accused/appellant hit him with a stone on his head. He further stated that he took his brother to Civil Hospital, Zhob and doctors immediately referred him to Quetta and soon after they left to Quetta but in the way towards Quetta his brother succumbed to the injuries at Kuchlak. They brought the dead body to Civil Hospital, Zhob, and on the next date i.e. 10.04.2017, he lodged report against the accused. During cross-examination he (complainant) stated that the Levies Thana Kapeep is situated in front of the shop where the alleged incident took place. He further stated during cross-examination that distance of Zhob city is about 20/22 kilometers from our village, he further stated during cross-examination that at first time he brought his brother to Civil Hospital Zhob at 12:30 p.m. (day). PW-2 Wali Khan stated in his cross-examination that when the deceased (Muhammad Nawaz Khan) proceeded towards his house on motorcycle he and PW-3 Sanaullah were sitting in a hotel. He further stated during cross-examination that his statement was recorded by Tehsildar on 10.04.2017 at 10:00 a.m. PW-3 Sanaullah stated in his cross-examination that the deceased (Muhammad Nawaz Khan) proceeded towards his house and after sometime the deceased and his brother came in a vehicle in place of occurrence and from there they went to hospital. He further stated during cross-examination that after occurrence the deceased went to his house. PW-4 Dr. Zahid Parvez stated in his statement that on 10.04.2017 he was posted at District Headquarter Hospital Zhob, at 10:00 a.m., the dead body of deceased Muhammad Nawaz Khan was brought by Muhammad Rafique and Sanaullah. PW-7 Dr. Noor Muhammad stated in his statement that on 09.04.2017 he was posted as Chief Medico Officer Civil Hospital Zhob, on the same date the injured Muhammad Nawaz was brought by his brother Muhammad Rafique at 12:30 p.m., and he examined the injured.
8. We have also observed that during course of investigation, statements under Section 161, Cr.P.C., of PW-2 and PW-3 were also recorded on next date of incident. It has been observed by us that the deceased Muhammad Nawaz Khan medically examined in injured condition on 09.04.2017 at 12:30 p.m., i.e. on the day of occurrence by PW-7 Dr. Noor Muhammad who was Chief Medico Officer, Civil Hospital, Zhob. It also come on record that Levies Thana is situated near to place of occurrence i.e. opposite side of the shop in which the alleged incident took place. Neither PW-2 and PW-3 who is relative of the deceased informed the levies authorities for lodging of report and nor the P W-7 Dr. Noor Muhammad informed the levies or police about the injuries of deceased Muhammad Nawaz Khan on the day of occurrence when he examined the deceased Muhammad Nawaz Khan on the day of occurrence. Even according to the PW-1 when the injured at the way was died near Kuchlak, the dead body was again brought to Civil Hospital, Zhob on the same day but at that time neither the doctor of Zhob hospital nor relative of the deceased informed the levies, therefore, this inadvertent delay in setting the machinery of law in motion speaks volumes against the veracity of prosecution version. Reliance in this behalf is placed on the case of Muhammad Ahmed and three others v. The State and others 1995 SCMR 127.
9. The presence of PW-2 and PW-3 also doubtful at the place of occurrence for the reasons that PW-2 is relative of deceased and PW-3 is cousin of the deceased, neither they took the deceased to hospital nor informed the Levies Thana despite that the levies thana is situated on the opposite side of the place of occurrence i.e. shop. PW-2 and PW-3 stated in their statement that the quarrel took place between the deceased and accused and they tried to separate each other, meanwhile the accused hit stone on the head of deceased. They further stated that the deceased went to home on motorcycle and after sometime, the deceased and Muhammad Rafique came at a place of incident on vehicle and thereafter they went to hospital. Had they been present at the spot at the time of alleged occurrence they must have taken the deceased Muhammad Nawaz Khan either to hospital or to Levies Thana which admittedly was not done. Assuming for the sake of arguments that they were unable to take the deceased either to the hospital or levies station, than they could at least have deputed someone else for that purpose which has also not been done rather they waiting for the complainant on the spot and leave the deceased who went on motorcycle alone, such conduct of near relative i.e. PW-2 and PW-3 is not expected from them. The mood and manner of the occurrence itself by the prosecution is not appealable to the prudent mined, therefore, it was highly unsafe to rely on the statement of both theses witnesses to maintain conviction and sentence of the accused on a capital charge.
10. Now to turn to discuss the medical evidence produced by PW-7 Dr. Noor Muhammad, according to him on 09.04.2017 he was posted as Chief Medical Officer Zhob, on the same date the injured Muhammad Nawaz Khan was brought by his brother Muhammad Rafique at 12:30 p.m., he examined the injured and found the following injuries.
“Patient came with H/O Heaol injury. On examination, patient was in shock, with No. B.P. and pulse, there was swelling on Rt temporal region of scalp. He was vomiting, emergency treatment given and referred to CMH Zhob for further treatment”.
The dead body was also examined by Neuro Surgeon Asghar Babar who was not produced before the Court. According to PW-4 Dr. Zahid Parvez the deceased received following injuries.
“(i) Head Injury.
(ii) Cardiorespiratory failure”.
11. According to medical certificate (Ex.P/7-A) there was swelling on the right temporal region of scalp of the deceased. PW-7 Dr. Noor Muhammad stated during cross-examination that it is correct that “there was no skin ruptured”. Meaning thereby that there was no any injuries which extend to the body cavity of the deceased and there was only swelling but according to medical certificate (Ex.P/14-A) the cause of dead of the deceased was mentioned i.e. head injuries and Cardiorespiratory failure. The cause of dead of the deceased also doubtful, the medical certificate has also contradicted with the ocular evidence of PW-1 Muhammad Rafiquei who stated in his report that;
ملزم رفعت شاہ نے پتھر سے مجھے سر پر کئی مرتبہ مارا۔
12. But on the other hand, according to medical certificate the deceased received only one injuries i.e. swelling on right temporal region of scalp which too create reasonable doubt in the prosecution case. PW-4 Dr. Zahid Parvez stated in his statement that the dead body was examined by one Neuro Surgeon Asghar Babar Hussain, but the doctor who had examined the deceased Muhammad Nawaz Khan was not produced before the Court.
13. For the sake of arguments, it presumed that the deceased Muhammad Nawaz Khan received injuries by means of stone on his head while the PW-2 and PW-3 did not shift him to hospital and according to the prosecution witnesses the deceased went to his home on his own motorcycle after the occurrence and the alleged stone was taken by the Investigation Officer from the place of occurrence on 10.04.2017 which was produced by PW-5 Waris Khan, Levies Sepoy and there was no sign of blood on the said stone.
14. There is no two opinions about the fact that the cardinal principle of justice always laid emphasis on the quality of evidence which must be of first degree and sufficient enough to dispel the apprehension of the Court with regard to the implication of innocent persons along with guilty one by the prosecution, otherwise, the golden principle of justice would come into play that even a single doubt if found reasonable would be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused. In this regard, reliance is placed on a view held by the Hon’ble Supreme Court in the case of Riaz Masish alias Mithoo v. State 1995 SCMR 1730.
15. In the case reported as Bagh Ali v. Stated PLD 1973 SC 321, it was observed that the appraisement of the evidence of eye witnesses has to be based upon a foil consideration and evaluation of all the circumstances appearing in the case where there is fatal absence of physical circumstances to connect the accused person with the crime and there is a motive and in such a situation, the ocular evidence must, in order to carry conviction on a capital charge, come from unimpeachable source and if such source is not available, then it must be supported by some strong circumstance which would enable the Court to overcome the inherent doubt which such evidence must necessarily create.
16. Regarding the golden principle of benefit of doubt, reference can be made to the celebrated judgment of the Apex Court title Muhammad Luqman v. The State PLD 1970 SC 10, where the Hon’ble Bench have observed that;-
“It may be said that a 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 or proof. If a case where to be decided merely on high probabilities regarding the existence of non-existence of a fact to prove the guilt of a person, the golden rule of “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 superior Courts, will be reduced to a naught”.
From the facts and circumstances narrated above, we are persuaded to hold that conviction passed by the learned trial Court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law benefit of every doubt is to be extended in favour of the accused. Resultantly, while setting aside the conviction and entence recorded by the trial Court in terms of judgment dated 01.06.2019 in Criminal Appeal No. 233 of 2019 filed by the appellant is allowed as a consequence whereof he is ordered to be acquitted of the charge in FIR No. 06 of 2017 dated 10.04.2017 registered under Sections 302/337-ADF, PPC at Levies Thana Kapeep District Sherani. He is directed to be released forthwith, if not required in any other case.
The appeal is hereby acceped.
(A.A.K.) Appeal allowed
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