PLJ 2024 Cr.C. (Note) 33
[Balochistan High Court, Quetta]
Present: Abdullah Baloch and Rozi Khan Barrech, JJ.
MEER MUHAMMAD--Appellant
versus
STATE--Respondent
Crl. A. No. 589 of 2021, decided on 28.11.2022.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 109 & 34--Qatl-e-amd--Conviction and sentence--Challenge to--Delay in lodging F.I.R.--Unexplained delay--Prosecution has led evidence in shape of ocular account, medical evidence, as well as investigation besides other attending circumstances--FIR was lodged with a delay of seven hours and forty minutes without any explanation, which creates doubt in credibility of two witnesses--It does not appeal to logic that person whose cousins were being murdered neither made any resistance nor raised a hue and cry for help despite fact that TAN alleged occurrence took place in agriculture fields--It is stated earlier that alleged occurrence took place on 16.07.2012 at 10:30 am, and FIR was lodged on same day at 6:10 pm with an unexplained delay of seven hours and forty minutes despite fact that distance between Levies Station and place of occurrence is 65/70 kilometers, but no explanation whatsoever has been furnished by prosecution for such delay--It can be inferred from statements of witnesses that it was only after consultation and concert that oral statement of complainant (Ex.P/1-A), (PW-1), was prepared, and same was neither prompt nor spontaneous, worthy of no reliance--An inference against prosecution witnesses has to be drawn--Guidance is sought from principle enunciated by august Supreme Court of Pakistan--Case of prosecution extremely doubtful--The delay of even one or two days without explanation in recording statements of witnesses has been found fatal for prosecution and not worthy of reliance by august Supreme Court--Appeal allowed. [Para 6, 9, 10, 13 & 14] B, C, D, E & F
Criminal case--
----Principle--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. [Para 6] A
Benefit of doubt--
----It is an established principle of law that for extending benefit of doubt in favor of accused so, many circumstances are not required, rather, one circumstance, which creates a reasonable dent in veracity of prosecution version can be taken into consideration for purpose, not as a matter of grace rather as a matter of right.
[Para 15] G
2017 SCMR 486, 2018 SCMR 506 & 1995 SCMR 127 ref.
Mr. Abdullah Khan Kakar, Advocate for Appellant.
Mr. Ameer Hamza Mengal, APG for State.
Messrs Naseer Ahmed Bangulzai and Nisar Ahmed Alizai. Advocates for Complainant.
Date of hearing: 10.11.2022
Judgment
Rozi Khan Barrech, J.--The appellant, namely Meer Muhammad, son of Dur Muhammad, was involved in FIR No. 19 of 2012 registered under Sections 302, 109 and 34, PPC of Levies Station Kalat, District Kalat and was tried by learned Judge Model Criminal Trial Court, Kalat (“trial Court”). The trial Court, in terms of the judgment dated 03.12.2021 (herein “impugned judgment”), convicted and sentenced the appellant in the following manner:
“16. ......... Hence the accused facing trial namely Mir Muhammad son of Dur Muhammad is liable to be convict for crime charged with the offence Under Section 302/34, PPC, so in mitigating circumstances he is convicted and sentenced to suffer the life imprisonment RI with fine of Rs. 10,00,000-(Rupees ten Lac only) but aforesaid amount shall to be paid the legal heirs of deceased persons as compensation equally by means Rs. 500000/-(Rupees five lac only) to the legal heirs
of each deceased and in case of default of payment the
accused further suffer S1 of six (06) months. The benefit under Section 382-B, Cr.P.C. is extended in favour of accused Meer Muhammad son of Dur Muhammad ....”
2. Aggrieved from the impugned judgment, the appellant has assailed his conviction and sentence through Criminal Appeal No. 589 of 2021.
3. The prosecution story, as disclosed in the Fard-e-Bayan (Ex.P/1-A) recorded on the statement of Abdul Sattar (complainant/ PW-1), son of Muhammad Zaman, is that he is Residing at Tehsil Nechara District Kalat. On 16.07.2012 at 10:30 am accused Atta Muhammad and Juma Khan (absconding accused), Meer Muhammad (accused/appellant), residents of Ameri Tehsil Kalat being armed with Kalashnikovs made, firing upon Elahi Bakhsh and Dad Karim (deceased) and commined their murder on the instigation of Nazar Khan Abdul Rehman, Raheem Bakhsh Ghulam Muhammad, Muhammad Raheem (acquited accused), Saddam Deedar, Karim Bakhsh, Mannor Ahmed, Shai Muhammad Ghulam Nabi and Abdul Nabi. Hence, the crime report.
4. After completion of the investigation, the challan was prepared and submitted before the trial Court. The trial Court, after observing the codal formalities as provided under the Code of Criminal Procedure, 1898, framed a charge against the appellant to which he did not plead guilty and claimed trial. At the trial, the prosecution produced nine witnesses in all. Thereafter appellant was examined under Section 342, Cr.P.C., however, the appellant neither recorded his statement on oath as envisaged under Section 340(2), Cr.P.C nor produced any evidence in his defense. On conclusion, the trial Court, after hearing the arguments from both sides, convicted and sentenced the appellant, as mentioned in para-1 of this judgment. Hence, the titled appeal.
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.
6. 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 two persons, namely Elahi Bakhsh and Dad Karim, lost their lives after sustaining firearm injuries, 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.
7. As far as the merits of the case are concerned, we have observed that the prosecution produced PW1, namely Abdul Sattar, who is the complainant of the case; however, he is not an eye-witness of the alleged occurrence. The complainant/PW-1 namely, Abdul Sattar, stated in his statement that both the deceased are his cousins. He further stated during cross-examination that the eye-witnesses Abdul Rehman (PW-2) and Muhammad Alim (PW-3) are his tribesmen. PW-2 stated during cross-examination that the deceased are not his relative. He further stated during cross-examination that Muhammad Alam (PW-3) is his cousin. On the other hand, Muhammad Alim (PW-3) stated during cross-examination that the complainant/PW-1 Abdul Sattar is his second cousin He further stated during cross-examination that the witness Abdul Rehman (PW-3), is his cousin. From the statements of Abdul Sattar (complainant/PW-1), PW-2 and PW-3, it transpires that they are relatives of the deconsed, therefore, for the safe administration of justice, their evidence will have to be appreciated with care and caution. No doubt, evidence of a related witness cannot be discarded on the ground of his being related to the victim, but if it is found that the testimony of a related witness gets no corroboration from attending circumstances of the case or the conduct shown by him at the time of occurrence or just thereafter is such which cannot be expected from a prudent person, then in such circumstance the evidence furnished by a related witness can easily be discarded.
At the touchstone of the above principles, let us now take into consideration the testimonies of the above witnesses in the case.
8. It reflects from the record that the occurrence took place on 16.07.2012 at 10:30 am, allegedly in the presence of Abdul Rehman (PW-2) and Muhammad Alim (PW-3), but the report was lodged on the same day at 6:10 pm. PW-1 Abdul Sattar, complainant of the case, did not state in his statement that who informed him about the occurrence. He stated during cross-examination that the dead bodies of the deceased were brought to Civil Hospital Kalat by the Levies Officials.
It is worthwhile to mention here that when the acquitted accused, Muhammad Raheem, and others, were facing trial before the learned Sessions Judge Kalat, the Complainant/PW-1 Abdul Sattar appeared before the Court as PW-3. During cross-examination, he stated that he is not an eye-witness of the occurrence. He further stated that at the time of occurrence he was present in his house. He further stated during cross-examination that he lodged the report on the next day in the morning. Abdul Rehman (PW. 2) stated in his statement that on the day of occurrence he was grazing sheep and goats and saw the deceased Elahi Bakhsh and Dad Karim on a motorcycle, who told him that they are going to the area of Zehri. Thereafter accused Atta Muhammad, Meer Muhammad and Juma Khan also passed by and thereafter, at 10:30 am, he heard the noise of firing and ran towards the place of occurrence and found Elahi Bakhsh and Dad Karim in injured condition. The deceased, Dad Karim succumbed to the injuries, however, Elahi Bakhsh had received injuries and told him that the accused Atta Muhammad, Meer Muhammad, and Juma Khan made firing upon them. He did not state a single word in his statement that he saw the accused, Meer Muhammad, and the absconding accused at that time they were holding deadly weapons. He also did not state a single word that he himself saw the accused at the time of firing allegedly made upon the deceased; however, he stated in his statement that Elahi Bakhsh, who was in injured condition, told him that Atta Muhammad, Juma Khan and Meer Muhammad made firing upon them. The said witness also did not name Muhammad Alim (PW-3) in his statement as to whether or not PW-3 was present at the spot at that time. When Muhammad Alim appeared before the Court as PW-3, he stated in his statement that on the day of occurrence, he was present in his property situated in the Ameeri area. At about 10/11 am he heard the noise of firing and reached the place of occurrence. There he saw the accused Meer Muhammad, Atta Muhammad and Juma Khan armed with Kalashnikovs who made firing upon the deceased Elahi Bakhsh and Dad Karim, who succumbed to the injuries. The said witness also did not name PW-2 Abdul Rehman in his statement. During cross-examination, he stated that the levies officials arrived at the place of occurrence between Asr and Maghrib prayers’ time. He further stated during cross-examination that in the evening, the levies officials took the dead bodies of the deceased. Ghulam Mustafa (PW-5), who is a recovery witness of the blood-stained mud of the deceased, five empties of Kalashnikov recovered from the place of occurrence. He stated during cross-examination that they proceeded to the place of occurrence at 6:00 pm. He further stated during cross-examination that the dead bodies were taken from the place of occurrence to the civil hospital Kalat.
Abdul Zahoor Risaldar Levies (PW-9), who conducted the investigation of the case, stated during cross-examination that they reached the place of occurrence at 8:30 or 8:35 pm. He further stated during cross-examination that the dead body of the deceased Dad Karim was lying on the northern side, and the dead body of the deceased Elahi Bakhsh was lying on the western side. He further stated during cross-examination that they brought the dead bodies to the hospital in a vehicle. Dr. Abdullah Jan (PW-6), who examined the dead bodies of the deceased, stated in his statement that the dead bodies were brought to the hospital at 11:30 pm. From the statement of the above witnesses, it is clear that the alleged occurrence took place at 10:30 am, and the dead bodies were lying at the place of occurrence till 8:30/8:45 pm. Even Abdul Rehman (PW-2) stated in his statement that Elahi Baksh was in injured condition at the time of the incident.
9. The conduct of PW-1, PW-2 and PW-3, who were cousins of the deceased, who instead of shifting the dead body of the deceased Dad Karim and injured Elahi Bakhsh (deceased) to the hospital kept waiting for levies officials till 8:30 or 8:45 pm for taking the deceased and the injured to the hospital. Had they been present at the spot at the time of the alleged occurrence, they must have taken the deceased Dar Karim and injured Elahi Bakhsh either to the hospital or to levies station, which admittedly was not done. For the sake of argument, if it is presumed for a moment that personally they were unable to take them to the hospital then, they could at least have deputed someone else for the purpose rather than waiting for the levies officials on the spot to take the deceased and the injured to the hospital. Ordinarily, from PW-1 Abdul Sattar, PW-2 Abdul Rehman and PW-3 Muhammad Alim, being cousins of the deceased, one does not expect such conduct. It has been stated earlier that Abdul Sattar (PW-1) is not an eye-witness of the alleged occurrence, but the FIR was lodged by the said witness. For the sake of arguments, if it is presumed that PW-2 Abdul Rehman and PW-3 Muhammad Alim were present at the place of occurrence, then naturally, they would have gone to lodge the report promptly, but they did not do so. It seems that they were not present at the place of occurrence. Furthermore, the FIR was lodged with a delay of seven hours and forty minutes without any explanation, which creates doubt in the credibility of the above two witnesses. Reliance in this behalf is placed on the case of Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127.
10. Apart from the above, Abdul Rehman (PW-2) and Muhammad Alam (PW-3) were highly interested and inimically deposed against the appellant. The first reason for disbelieving them is that their presence on the spot was unnatural because had they been present at the spot, they would have received some injuries from the shots fired by the appellant and the absconding accused. It appears that they have tried to suppress their interestedness. Both of the above witnesses did not justify their presence at the time and place of occurrence. It does not appeal to the logic that the person whose cousins were being murdered neither made any resistance nor raised a hue and cry for help despite the fact that the alleged occurrence took place in agriculture fields.
If the statements of the above witnesses are believed to be true for a moment, then the question arises as to why and how the appellant and absconding accused spared them and did not even try to kill them when they could have easily killed them because they were empty-handed and at their mercy, coupled with the fact that they could depose against them as eye-witnesses being cousins of the deceased. The mode and manner of the occurrence advanced by the prosecution witnesses are not appealable to the prudent mind.
11. Another interesting feature of the case is that the appellant and absconding accused had no motive to fire at the deceased despite the fact that allegedly PW-2 and PW-3 were empty-handed and were totally at the mercy of the appellant and absconding accused, but they were left alive and the appellant and absconding accused selected to kill the cousins of PW-2 and PW-3 with whom they had no direct motive and so it may be inferred that the incident did not take place in the way and manner as it was alleged.
12. The presence of Abdul Rehman (PW-2) and Muhammad Alam (PW-3) becomes further doubtful because the complainant/PW-1 did not mention the names of PW-2 and PW-3 in the report (Ex P/1-A) and did not state a single word in his report as well as in his statement before the Court that they were present at the time of alleged occurrence. Moreover, the statement of PW-2 is contradictory to the statement of PW-3. Both the above PWs did not name each other in their statement about their presence at the place of occurrence, which creates reasonable doubt in the prosecution case.
13. It is stated earlier that the alleged occurrence took place on 16.07.2012 at 10:30 am, and the FIR was lodged on the same day at 6:10 pm with an unexplained delay of seven hours and forty minutes despite the fact that the distance between Levies Station and place of occurrence is 65/70 kilometers, but no explanation whatsoever has been furnished by the prosecution for such delay. Furthermore, it can be inferred from the statements of the witnesses that it was only after consultation and concert that the oral statement of the complainant (Ex.P/1-A), namely Abdul Sattar (PW-1), was prepared, and the same was neither prompt nor spontaneous, hence worthy of no reliance. In this regard, an inference against the prosecution witnesses has to be drawn. Guidance is sought from the principle enunciated by the august Supreme Court of Pakistan in the case of “G.M. Niaz v. The State” (2018 SCMR 506), the august Supreme Court of Pakistan was pleased to hold as under:
“An FIR in respect of the alleged occurrence had been lodged after about seven hours and forty minutes which by itself was a circumstance doubting the claimed availability of the above mentioned eye-witnesses with the deceased at the time of occurrence.”
Guidance is also sought from the principle enunciated by the august Supreme Court of Pakistan in the case of Zafar v. The State and others (2018 SCMR 326), where the august Supreme Court of Pakistan was pleased to hold as under:
“It has been observed by us that the occurrence in this case as per prosecution took place on 03.09.1999 at 3.00 a.m. (later half of night) and the matter was reported to the police on the same day at 8:30 am. i.e. after five hours and thirty minutes of the occurrence. The distance between the place of occurrence and the police station is 09 miles. The post-mortem on the dead body of deceased was conducted on the same day at 2.00 p.m. i.e. After 11 hours of the occurrence. No explanation whatsoever has been given by the complainant Shahadat Ali (PW-5) and Umer Daraz (PW6) in the FIR or while appearing before the learned trial Court qua the delay ill lodging the FIR or for that matter the belated post-mortem of the deceased.”
It is important to mention here that the names of the above so-called eye-witnesses, i.e. Abdul Rehman (PW-2) and Muhammad Alam (PW-3), are not figured in the FIR lodged by the complainant/PW-1, and both the above PWs, i.e. PW-2 and PW-3 claimed to have seen the alleged occurrence but their statements under Section 161, Cr.P.C. were also recorded with delay. The statement of PW-2 Abdul Rehman was recorded under Section 161, Cr.P.C. on the next day of the occurrence. PW-1/complainant Abdul Sattar stated during cross-examination that he brought the witnesses, namely Abdul Rehman (PW-2) and Muhammad Alim (PW-3), to levies thana for recording their statements on the next day of the occurrence. On the other hand, Abdul Zahoor Risaldar Levies (PW-9) stated during cross-examination that the statement under Section 161, Cr.P.C. of Abdul Rehman (PW-2) was recorded on 21.07.2012. The statement of PW-2 under Section 161, Cr.P.C. was recorded five days after the alleged occurrence, and no explanation whatsoever has come on record that why the statements of the above witnesses were recorded with delay.
14. The above facts render the case of the prosecution extremely doubtful. The delay of even one or two days without explanation in recording the statements of witnesses has been found fatal for the prosecution and not worthy of reliance by the august Supreme Court in the case of Muhammad Asif v. The State reported as 2017 SCMR 486 as under:
“There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the Statement of eye-witnesses would be fatal and testimony of such witnesses Cannot be safely relied upon.”
In this regard, reliance can also be placed on “Muhammad Sadiq v. The State (PLD 1960 SC 223), Tariq Gul v. Ziarat Gul (1976 SCMR 236), Muhammad Iqbal v. The State (1984 SCMR 930) and Haroon alias Harooni v. The State and another (1995 SCMR 1627).
Similarly, it has been settled by the august Supreme Court of Pakistan in Muhammad Khan vs. Maula Bakhshah (1998 SCMR 570) that:
“It is settled law that credibility of a witness is looked with serious suspicion if his statement under Section 161, Cr.P.C. is recorded with delay without offering any plausible explanation.”
15. 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.
It is an established principle of law that for extending the benefit of the doubt in favor of the accused so, many circumstances are not required, rather, one circumstance, which creates a reasonable dent in the veracity of the prosecution version can be taken into consideration for the purpose, not as a matter of grace rather as a matter of right.
16. From the facts and circumstances narrated above, we are persuaded to hold that conviction passed by the trial Court against the appellant Meer Muhammad, son of Dur Muhammad, 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 sentence recorded by the trial Court in terms of the judgment dated 03.12.2021 passed by learned Model Criminal Trial Court, Kalat in Murder Case No. 08 of 2021,
Crl. Appeal No. 589 of 2021 filed by the appellant is allowed, as a consequence whereof he is ordered to be acquitted of the charge in FIR No. 19 of 2012 dated 16.07.2012 registered under Sections 302, 109 and 34, PPC at Levies Station Kalat, District Kalat. He is directed to be released forthwith if not required in any other case.
(A.A.K.) Appeal allowed
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