PLJ 2024 Cr.C. (Note) 244
[Balochistan High Court, Quetta]
Present: Muhammad Hashim Khan Kakar and Rozi Khan Barrech, JJ.
versus
STATE--Respondent
Crl. J.A. No. 19 of 2023, decided on 15.11.2023.
Pakistan Penal Code, 1860 (XLV of 1860)--
----Ss. 302, 147, 148 & 149--Conviction and sentence--Challenge to--Benefit of doubt--The prosecution’s entire case was rested upon ocular evidence, medical evidence as well as investigation besides other attending circumstance’s--The unfortunate episode of murder of two persons for no valuable purposes is a drastic and unbearable trauma, having a stigmatic effect upon their family members and society--Courts have to decide fate of a crime committed by a felon on basis of impeachable evidence and not at cost of emotions--According to prosecution, alleged occurrence took place at 3:00 am at night--When appeared before Court as PW-3, he failed to mention any light source which could have been available at place and time of occurrence, allowing said witness to identify assailants--The investigation officer did not take into possession any article so as to prove that sufficient light was present at place of occurrence at time of occurrence for witness to make a positive identity of assailant--The prosecution failed to establish fact that such availability of light source and in absence of his ability to do so, we cannot presume existence of such a light source--The prosecution produced PW-10, who did not state a single word that from where alleged recovery was affected on pointation of appellant--The place of recovery is an open place; how can it be possible that from 29.05.2021 till 07.04.2022, alleged crime weapon was lying in bushes, which was recovered on pointation of appellant after such a long period--Therefore, said recovery is also of no avail to prosecution--All above-narrated facts and circumstances, when evaluated on judicial parlance, reflect that prosecution has miserably failed to establish culpability of appellant in instant case through reliable, trustworthy, and confidence-inspiring evidence--The 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 doubt is to be extended in favour of accused--Criminal Jail Appeal was allowed. [Para 3, 7, 10, 11 & 12] A, B, D, E & F
2017 SCMR 1189.
Evidence--
----It is well settled by now that if a set of evidence is disbelieved to extent of some accused, same cannot be believed to extent of remaining accused facing same trial without there being any independent and strong corroboration, which is lacking.
[Para 9] C
Messrs Humaira Munir and Jamila Panezai, Advocates for Appellant.
Mr. Abdul Mateen, DPG for State.
Date of hearing: 24.10.2023.
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 present 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, PPC. The appellant Kashmir alias Soba Khan, son of Ghulam Hussain, is ordered to be released forthwith if not required in any other case.
(A.A.K.) Appeal allowed
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